Crimes that shock the conscience of all mankind

It’s no secret that many in the US are International Criminal Court sceptics. An Op-Ed piece in the New York Times by former Reagan/Bush Snr administration lawyers, takes up the refrain in realtion to international criminal law in general. They begin by discussing the Pinochet case and the Spanish judge who attempted to extradite him from Britain to stand trial in Spain for his human rights abuses in Chile. They comment:

“The problem is that [such prosecutions] … are based
on a legal doctrine that has worrisome implications.
That doctrine is "universal jurisdiction," under which every state
is entitled to prosecute and punish the officials of every other
state for "international" offenses. It is a principle that even its
most active international practitioner, Belgium, is wisely
starting to reject: the governing party plans to amend a
law under which activists tried to prosecute George H. W.
Bush, Gen. Tommy Franks and Prime Minister Tony Blair for
human rights offenses (sic) in connection with the wars against
Iraq, even though nobody involved is Belgian …

Universal jurisdiction does have a proper place in
international law. It began as a device to fight piracy and
slave trading, offenses that took place on the high seas,
beyond the boundaries of any individual state. In more
recent years, however, universality has been asserted for
an increasing number of human rights offenses, even though
there is little practice (in the form of actual
prosecutions … accepted as legal by the defendant's
own country) to support these claims. …”

They are starting from the premise that the only actors in the international community are states, that law is the servant of foreign policy and individuals do not exist as legal subjects on the international plane.

Their examples of slavery and piracy ignore the crime of genocide: intrinsically only capable of being committed within a state, and – at international law – punishable by any legal system anywhere in the world.

The point of universal jurisdiction is not to provide law where state boundaries end (the middle of the ocean), but to punish crimes that shock the conscience of all mankind. That is the principle on which slavers and pirates were tried by courts other than in their home countries: their crimes made them “hostis humanis generis” – enemies of all mankind. The crime of genocide, and the laws of war, recognise that individual people are both protected (and punishable) by international law. The piece continues:

“If international law really did permit each state to
prosecute the leaders of all others … this would prompt a
new kind of war, one fought in courtrooms around the globe.
Courts, however, are poor instruments of international
policy, and such a result would make normal international
relations impossible. Defense Secretary Donald Rumsfeld
recently said, for instance … that if United States officials
cannot travel to Brussels without the fear of politically
motivated prosecution, then the United States would take
its business (i.e., NATO headquarters) elsewhere.”

This is a dangerous world view. The Realpolitik view that heads of state should never be accountable for their actions, and should be able to be pardoned for the most outrageous of crimes by themselves, or the cronies who succeed them is self-evidently morally wrong.

The idea that the enforcement of criminal law is an aspect of foreign policy is odious, and in any country with an independent judicial system, is a furphy. The stark American fear of “politically motivated prosecutions” is only of any validity in states where cronyism rules the courts – in a country with a functioning court system if charges are brought as a baseless political stunt, they will be thrown out where there is no evidence to support a conviction.

If in a domestic legal system criminals could go unpunished because local politicians thought it expedient in terms of the smooth running of the country, we would denounce this as corruption. The fact that intelligent people can argue a lesser standard should apply on the international plane should, frankly, revolt us.

(PS if anyone can help me get indented quotes working in this template, I'd be most appreciative.)

(PPS thanks for the tips fellas, I am most appreciative!)