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‘Universal jurisdiction’

The idea that any country has universal jurisdiction over citizens of other countries, and can try them for actions taking place in yet a third country, would be risible if it were not deeply offensive.

One would think the Germans, of all people, would exhibit a tad more humility in these matters, but if the assertion of universal jurisdiction is not symptomotic of a colossal arrogance, I do not know what is. You would have thought we kicked this nonsense out of the Germans during the ’40s, but I guess not.

It also makes the concept of ‘representative government’ rather irrelevant – after all, the Americans who are apparently now subject to German law never voted in any German election.

It does place our new Democratic overlords in rather an awkward spot; they loathe Rumsfeld, but I suspect that even they are reluctant to bundle him off to Germany for judgement by lefty Euros and miscellaneous anti-American yahoos. After all, if a Republican official is subject to German judgement, why, so might be a Democratic official, should the Rodham-Clinton administration find it necessary to stand up to the jihadis in ways that the neo-dhimmis of Eurabia find offensive.

43 comments to ‘Universal jurisdiction’

  • Hank Scorpio

    If I were in Rumsfeld’s shoes I’d be on Expedia planning my next vacation to Bitburg immediately.

    I can’t even imagine the international shitstorm that would result in any nation, let alone Germany with it’s fine tradition of reasonable government, arresting a former secretary of defense for his actions while in office. CNN would certainly be more interesting at any rate.

  • The Last Toryboy

    Given its the US always doing this to its citizens, I think this is a bit rich really. Aside from the note that Germany does in fact do the same thing nowadays apparently.

  • Vanya

    You mean the U.S. doesn’t have jurisdicion over enemy combatants captured in third countries? Glad to hear it! At least Rumsfeld is getting a trial.

  • Jso

    How many troops does Germany have in Iraq, fighting against US forces?

    Perhaps socialists just consider terrorists to be their proxies in a war against democracy.

  • The Last Toryboy

    I was thinking more about things like how smoking a Cuban is illegal to Americans , wherever they may be.

    The US has a history of precisely this sort of activity, often complained about on this very blog.

  • Mary Any Rand

    But the U.S., invading a sovereign nation, for reasons that, even at the time, were specious at best, that’s just spiffing by you.

    Yep, nothing unilateral about that one. All perfectly legal and aboveboard.

    “Yeeehaw!, I’m a gonna kick Saddam’a ass!” is NOT a viable foreign policy, “Cowboy” Bob.

  • CFM

    You’re kidding, right? American Lefties have been chomping at the bit for years to hand over jurisdiction for just about everything to the UN and “International Courts” and such.

    And The Last Toryboy is correct. The US has engaged in this stuff for years. Anybody seen Manuel Noriega lately?

    CFM

  • Hank Scorpio

    You are all missing a vital part of this argument. The difference between our interventions/grabbing whoever we want and Europe’s attempt to do the same come down to one thing: we have the juice to do it.

    Life isn’t fair, and neither is statecraft. Wishing it were doesn’t make it so.

  • The Last Toryboy

    Well, less faux outrage about “colossal arrogance” then.

  • There is a huge problem with courts claiming jurisdiction over acts committed outside the territory covered by the legal regime of which the court is a part. Aside from the obvious uncertainty which his creates about which acts will be subject to judgment by the courts, there is the threat to “double jeopardy”. Suppose I kill my neighbor, flee to some corrupt State in which I have previously established friendly relations with some judge. Now, I pay that judge to accept jurisdiction over my crime, find me “not guilty”, and I then return home. Either the US legal system must abandon the proscription against double jeopardy or it must let me walk the streets.

    The earliest occurance of a claim by a US court of jurisdiction over an act committed outside the US that I can recall was a civil suit brought by a torture victim against a Paraguyan official, during the Carter administration. Then there was the assumption of jurisdiction by US courts of a civil suit against Imelda Marcos, for acts commited by the Marcos government of the Phillipines, during the Reagan administration.

  • Michael Kent

    OMYGOD!! This is unbelievable! For Germany to try to try American government officials is….is….I don’t even have words for it. If they tried to sieze Rumsfeld or any other American official, I think many Americans would consider it an act of war.

    Mike

  • The plaintiffs are Iraqis, not Germans. The plaintiffs are supported by an American NGO, not a German NGO. They want to have a criminal investigation in Germany, but it is doubtful whether they will get one.
    German prosecutors have dismissed similar cases in the past.

    This is explained in more detail here:
    http://atlanticreview.org/archives/484-guide.html

  • Eric

    I think a reasonable response to this would be a US Federal warrent for Gerhard Shroeder. After all, he took bribes from Saddam to weaken the sanctions that were in place at the time. Germany doesn’t have clean hands in this mess, so I expect the German government will put a stop to this pretty quickly.

    And while we’re at it George Galloway should be cooling his heels in Ft. Leavenworth. He came to the US and perjured himself in testimony to Congress.

  • Robert

    I’d be a lot more impressed if the US hadn’t just imposed Sarbanes-Oxhey on three UK citizens, having them extradited to the US (thank you Tony Bliar, you spineless creep)to face charges connected with Enron.
    That is three citizens of a sovereign nation imprisoned in an American jail for what may be a couple of years before trial. All this for doing something which is not a crime here, was not done in the US or a US possession, by three men who are not US citizens.
    What goes around, comes around.

  • Jso

    I was thinking more about things like how smoking a Cuban is illegal to Americans, wherever they may be.

    The only place where smoking a cuban cigar is illegal in America, would be inside a bar in New York or California.

    So what exactly were you thinking of?

  • Eric

    Robert, your comment doesn’t make sense. First of all, SOX was passed after Enron came apart, so they wouldn’t be charged under its provisions in any case. Secondly, I find it hard to believe fraud isn’t illegal in the UK. What did they charge Nick Leeson with?

  • Larry Anderson

    Ok.

    I’m about as hard core American as they come. I too was both amused, and disturbed by the thought that Rumsfeld could be indicted in Germany on what I consider specious charges.

    That being said, I ALSO condemn the actions of my government in arresting British subjects for the “crime” of running a gambling website that Americans MIGHT visit. Pretty arrogant, and not a little extra-judicial, no?

  • Robert

    Eric;
    SOX may indeedhave been passed after Enron went tits up, it is nevertheless the basis of charges against the ‘NatWest Three’ in connection with a fishing expedition by an Enron prosecutor.
    While fraud is indeed a crime in the UK, and very harshly dealt with, what the men did in terms of the financial dealings are NOT a crime here and should certainly not allow a foreign government to shanghai our citizensin order to impose draconian punishments under a law which runs counter to every principle of justice, fair play and the presumption of innocence.
    They charged Nick Leeson with misappropriation of funds – stealing to you and me – and he was tried in the country where he committed the offense, not sent half around the world to face a kangaroo court, with a political agenda.

  • chuck

    Universal jurisdiction, hmmm. The Aldeberanians might have a small problem with that. But hey, I like it. After losing two world wars it’s time to give the lawyers a shot.

  • yoy

    Deleted coherent arguments only please, not pointless venting.

  • guy herbert

    One would think the Germans, of all people, would exhibit a tad more humility in these matters,[…]

    Scarcely. Wasn’t it the US among the victors of the Second World War that insisted on the Nuremburg Trials, and thereby imposed the conception of an international criminal law with universal jurisdiction upon the German conscience? Biter bit, I’d say.

    They’re just doing what the US taught them. And it is not as if the US has stopped. We have covered its pretensions to extraterritoriality here before. (Not just the NatWest three, but the gambling executives.)

    The UK has started doing it too, BTW. The War Crimes Act 1991 (extraterritorial and retrospective) was when the rot set in, and nearly every criminal statute of Blair claims universal jurisdiction.

  • TD

    The Germans will stamp on this quickly. The response would be immediate withdrawal of US troops from German soil, not to mention bans on German exports ot the US and probably bans on American trade the other way, plus immediate charges laid against Schroeder and his people. No, this is just more empty posturing from weak governments that need media attention to make themselves feel better.

  • Eric:

    I think a reasonable response to this would be a US Federal warrent for Gerhard Shroeder. After all, he took bribes from Saddam to weaken the sanctions that were in place at the time.

    I’m no fan of Gerhard Schröder, but he didn’t take any bribes from Saddam, nor had Germkany anything to do with the oil-for-food scandal

  • Furthermore, anybody can file a criminal compliant against everybody else here, just as you can file a claim in America against anybody in the world.

  • TD

    Ralf

    You’re missing the point – Rumsfeld also has no case to answer. Therefore if he is charged, so should be Schroeder. Or Chirac.

    Anyway, this action has been brought by Americans starting the action in Germany. Hasn’t taken long for the crazies to emerge. The Democrats need to be careful here – if they become associated with the far left kooks out there, they will be hammered in 2008. I am certain that there is enough talent in the Dems to see that the race for the Presidency in 2008 is all about a race for the centre, not the extremes. And for the party that stays agressive in the war.

  • I will not repeat Robert and Guy, only to say that I am amazed that the Germans are being accused of arrogance, considering the US stance on this.

    Germany has held up a mirror.

  • Iowahawk (2005-Mar.-3) said it best:…

    Court Backs 3-Oxen Dowries
    WASHINGTON, DC – In a far-reaching decision that will likely create complicated consequences for the American livestock and wedding-planning industries, the Supreme Court this morning ruled 5-4 that all US marriage dowries “must include three non-diseased oxen.”

    Writing for the majority, Justice Anthony Kennedy cited “the weight of the expansive penumbra surrounding the historically emerging and prevailing opinions of tribal shamans from Lesotho to Myanamar” in issuing the historic ruling in American Cattleman Association vs. Modern Bride, Helverson, et al.

    In a scathing and sometimes caustic dissent, Judge Antonin Scalia wrote that “Holy. Freakin’. Shit.”

    Read the whole thing.

  • Jacob

    “The UK has started doing it too, BTW.”

    Sure, and some time ago too.
    Hasn’t the UK arrested General Augusto Pinochet and kept him for almost a year under house arrest ?
    And, the UK also issued an arrest order against retired Israeli general Doron Almog, for cimes alegedly commited in Gaza.
    At the same time Belgium has indicted then sitting Israeli Prime Minister, Ariel Sharon.

    What’s outstanding is not the act itself, but whom you act against. Indicting people from small countries is one thing, but indicting the (ex) SECDEF of the sole superpower is indeed an act of great bravery.

  • Pa Annoyed

    Interesting to see an example of legal relativism here, after the moral absolutism expressed in other discussions.

    The Germans would argue that wrong is wrong, and it doesn’t become less wrong just because it has been done abroad, and so universal jurisdiction is an obvious corollary of universal morality.

    The problem of course is that different courts do follow different moralities – you probably wouldn’t agree with what a Sharia court considered moral, for example – so the relativity of morality implies limited legal jurisdictions too. (Assuming law is intended to be moral, of course. Sometimes it is based on survival, and winning wars.)

    Actually, if this is really true, then the correct response is to use it to the hilt. Lets prosecute Kofi Annan over his failure in Rwanda, his presiding over the anti-Semite UN, Oil for Food, etc. Let’s prosecute the French for supporting Saddam, for selling him weapons, and for illegally refusing to implement res 1441. Let’s prosecute the Chinese over their continued presence in Tibet. Castro and Kim Jong Il, and Ahmadinejad. Let’s prosecute Hamas for supporting terrorism. Ohhh! There’s no end to the people we could usefully prosecute!

    And then, when the German legal system is stuffed with stupid unenforceable cases, perhaps they’ll change it so that this sort of idiotic publicity stunt is no longer possible, and common sense is restored.

  • guy herbert

    At least in the Pinochet and Doron cases, the Westphalian approach seems to have won out (perhaps by default) over the Wilsonian one, with the pragmatic norms of sovereign and diplomatic immunity ultimately respected to the outrage of the legal clearcutters in the New Labour establishment.

    Pa Annoyed,

    when the German legal system is stuffed with stupid unenforceable cases

    But it is already. They’d scarcely notice. And one should be chary, even in jest, of reinforcing the approach.

  • Pa Annoyed

    Well, jesting aside, my understanding was that this sort of thing had been tried before and the Germans always throw it out. It’s just a cheap stunt by the left wing Center for Constitutional Rights to issue a freebie press statement that gives them the hint of an excuse to call it a news story for journalists with a more casual attitude to truth. It isn’t a real court case in a real court, just an announcement that someone is about to try. It’s more akin to a mock impeachment trial of George Bush at some student union.

    It’s a fine thing to be chary of descending to the same level as one’s opponents (if you think trying to presecute Kim Jong Il is on the same level as trying the same on Rumsfeld), but part of the reason they can get away with it, and the reason it works, is that so few are really aware of the real crimes against humanity going on. Nobody does anything about them because they know nothing can be done, but that gives the general impression that nothing much is going on. When the publicity around the US’s adventures hits the screens, it then looks like a big deal, and there is a danger people could act on what they’re told and see the US as a danger that needs to be reigned in. This is of course exactly what the publicists intended in bringing out statements like this one.

    Sadly, fighting dirty works. It’s a nice dream to imagine the good guys sometimes fighting back.

  • Jacob

    “At least in the Pinochet and Doron cases, the Westphalian approach seems to have won out (perhaps by default) over the Wilsonian one”

    No.
    Remember – Pinochet WAS arrested by a court, and held almost a year. He was released on “health” grounds.
    Doron Almog was pre-warned, and returned to Israel in the same plane that brought him to London, without disembarking – i.e. he fled. In the British justice – the Wilsonian approach was adopted. The courts did issue arrest warrants.

    As to the Germans – no German court has issued such an order. So far it is only a publicity stunt os a group of mad lefties.

  • Gabriel

    (Not just the NatWest three, but the gambling executives.)

    They were exercising rights egotiated by a treaty. The U.K. gov shouldn’t have been so dim as to sign the treaty, but the U.S. was certainly not making any claims to universal jurisdiction.

    It’s more akin to a mock impeachment trial of George Bush at some student union.

    The closest historical parallel is when Sweden allowed the repugnant adulterator Bertand Russell to set up a court and try Henry Kissinger.

  • guy herbert

    They were exercising rights egotiated by a treaty. The U.K. gov shouldn’t have been so dim as to sign the treaty, but the U.S. was certainly not making any claims to universal jurisdiction.

    (I presume you mean in the US prosecutors in respect of the NatWest Three, since the gambling executives so far have been seized directly by US authorities.)

    You are muddling two distinct issues. The Extradition Act 2003 exacerbates the situation by exempting the US – and a variety of other countries from Albania to Zimbabwe – from any requirement to produce evidence of a case to answer against the person sought. And it ought to be repealed as repugnant to habeas corpus.

    But extradition only becomes such a serious point with the NatWest Three because it is sought against them for “crimes” allegedly committed by them as British citizens in the UK against a UK corporation and involving some of the offshore affiliates of the UK corporation that are not in the US either. That’s the extremity of the jurisdiction claimed, and what’s in issue here.

    The German case against Rumsfeld has the same qualities: a foreigner, charged for actions abroad in connection with or against other foreigners and where the local jurisdiction has no interest in prosecuting, and doesn’t even regard a crime as having taken place. What’s different is that the US is unlikely ever to give up one of its citizens in such circumstances. It would probably be unconstitutional, even if the general suspicion of foreigners could be overcome.

  • guy herbert

    Jacob,

    Thanks for the clarification.

    In the Almog case, I’d claim the Westphalian approach survived in that the authorities did not detain his plane, and treated with the distain they deserved calls (from the usual mad lefties) for the diplomats who warned him to be prosecuted for perverting the course of justice.

    Issuing a warrant, I’d say is less the test than what the courts decided. But in the Pinochet case you are right, nonetheless, he was detained. The warrant was found by the House of Lords to hold, but the extradition proceedings were abandoned. Westphalia won only by default in that the General then escaped the jurisdiction.

    That might not have happened had the new Extradition Act been in place, and the case may well have encouraged the “streamlining” of the procedure in the Act. It is a bit like the purported German case in that extradition was sought not to a country where the crimes took place (not much doubt in Pinochet’s case that crimes did happen, even if the liability might be subject to doubt) but to a third place.

  • Robert Clayton,

    since you still don’t seem to get it:

    Universal jurisdiction’ is inaccurate. It really is ‘jurisdiction, where nobody else has jurisdiction’.

    On other words, if a dictator or local warlord won’t be punished in his own country, because that country’s government approves of his atrocities, he’ll be punished if we can get him.

    There obvioulsy is no claim to have jurisdiction over Rumsfeld, for the US has a jusdiciary that investigates and punishes crimes.

    Oh, and:

    You would have thought we kicked this nonsense out of the Germans during the ’40s, but I guess not.

    You didn’t kicjk anything out of us. During the liberation of France, the Western Allied forces had twice the losses of the Wehrmacht. I’m just sayin’.

  • Paul Marks

    I wonder if the people who complained about the Iraq war would also complain about the actions of F.D.R. before December 1941 (when Germany finally declared war on the United States).

    Not only did the United States give the enemies of Germany vast material support. American forces were sent in to Iceland (and so on) and American naval forces were instructed to destroy German naval forces (it is now admitted that American forces fired first – not the U. boats).

    I am not complaining about any of the above – just pointing out that America (and many other nations) have a long record of attacking other nations forces (because they do not approve of these nations governments) without any attack on them by these nations.

    As for “killing civilians” (or whatever trumped up charge is used against Rumsfeld).

    The war in which the United States and Britain had a policy of killing vast numbers of civilians (rather than the deaths of civilians being a side effect of war) was World War II (not Iraq).

    The deaths of vast numbers of German and Japanese civilians (via area bombing) was quite deliberate and was done to break the will of these populations to resist (I am afraid that this was the objective of the bombing – getting rid of factories and other such was considered a nice bonus, but it was NOT the main objective of area bombing, and nor was it “all the fault of Harris”, he was under political command at all times and was later used as a scapegoat).

    Conventional bombing failed in this objective in both Germany and Japan. However, atomic bombing (although it killed far fewer people) so unnerved the government of Japan that it can be considered a success.

    Again I am not saying that Western politicians (Churchill and so on) should have been put on trial after the war. But it is odd to put Rumsfeld on trial when it such things were no part of his policy. “But Iraq did not attack America” – and Germany did not attack Britain before Britain declared war (Germany invaded Poland, just as Iraq invaded Kuwait – and the first Gulf War of 1991 never really stopped, on-and-off clashes going on between 1991 and 2003).

    As for Germany. It is sad that (in the name of defending freedom from National Socialists) they, for example, make it a crime to claim that six million Jews (and millions of other people) were not murdered by the Germans and their allies in World War II.

    Some members of the Marks family were indeed murdered by the National Sociaists – but if other people wish to claim that this did not happen, it should not be a crime for them so to claim.

  • Pa Annoyed

    Ralf,

    Congratulations on the liberation of France! ;-)

    So how do you decide whether or not nobody has jurisdiction? Most countries have judiciaries that investigate and punish crimes, but they have different definitions of what constitutes a crime – as you note, a country’s government might approve. If a government does not class it as a crime but you do, can you claim that nobody has jurisdiction since the crime in question is not punished, or that it is within the other country’s jurisdiction because they do prosecute crimes, just not this one?

    And on what basis can you define the limits of the crimes for which such a measure might apply? If you leave it to international opinion, you are vulnerable to common prejudices. And yet there appear to be no universally accepted morals on which you could base an absolute law. We happen to think that genocide, torture, and war crimes trump all other considerations, but others consider them minor compared to, say, crimes against God. Divine law clearly has priority over any human law, and if someone’s religion explicitly holds up torture and genocidal practices as admirable, while disbelief is considered the ultimate crime punishable by death, on what basis do you assert your norms to be universally applicable, and theirs not? Or would they indeed have the right to apply universal jurisdiction using their religious norms, on the grounds that God is sovereign over the entire world?

    (Personally I quite like the idea of universal jurisdiction, so long as we have it and they don’t; but I’d also say it does pose some very tricky philosophical problems if you feel it needs to be justified objectively. And it is clearly very, very dangerous. I’m always interested in how supporters of the idea deal with the issues.)

  • Pa Annoyed

    Paul,

    I understand the charges relate to torture, in particular, Rumsfeld’s supposed responsibility/involvement in Abu Ghraib. They argue that the US has clearly not investigated any high level involvement and prosecuted those responsible, and so it would therefore come under the universal jurisdiction banner. The moonbats are certain the administration are criminals, and so the failure to prosecute is clear evidence of judicial corruption.

    Fundamentally, it depends on whether one believes the conspiracy theories that senior American politicians are in practice shielded from justice. Given what people round here generally seem to think of politicians…

  • PA Annoyed:

    Ralf,

    Congratulations on the liberation of France! ;-)

    Thanks, it was pretty hard work to clear all of those English-speaking buggers out of France. :)

    So how do you decide whether or not nobody has jurisdiction? Most countries have judiciaries that investigate and punish crimes, but they have different definitions of what constitutes a crime – as you note, a country’s government might approve. If a government does not class it as a crime but you do, can you claim that nobody has jurisdiction since the crime in question is not punished, or that it is within the other country’s jurisdiction because they do prosecute crimes, just not this one?

    When somebody files a claim there is an investigation. If the country in question has an independent judiciary
    that can be trusted to prosecute any crimes that are crimes *both by German and the country’s* laws.
    If so, then there is no way a German court will claim jurisdiction. The last time the same group had filed a claim against Rumsfeld, there was a brief and perfunctory investigation before the charges were dismissed. No citizen of a country with rule of law has anything to fear, just as with the International Criminal Court, by the way.

    Here‘s a concrete case of a criminal a German court would have claimed sovereignty over, if the ICC hadn’t gotten to him first:

    The International Criminal Court is set to begin its first case this week in The Hague, where a three-judge panel is to hear charges and evidence against Congolese rebel leader Thomas Lubanga Dyilo, who has been indicted as one of Africa’s most notorious recruiters of child soldiers.

    The hearing, set for Nov. 9, is a necessary procedural step before Lubanga can be brought to trial. The case is unusual because Lubanga is being prosecuted solely for the forcible enlistment of children younger than 15, a war crime that can be prosecuted under the international court’s jurisdiction.

    As to tese questions:

    We happen to think that genocide, torture, and war crimes trump all other considerations, but others consider them minor compared to, say, crimes against God. Divine law clearly has priority over any human law, and if someone’s religion explicitly holds up torture and genocidal practices as admirable, while disbelief is considered the ultimate crime punishable by death, on what basis do you assert your norms to be universally applicable, and theirs not? Or would they indeed have the right to apply universal jurisdiction using their religious norms, on the grounds that God is sovereign over the entire world?

    If somebody had put Dominican Monk Heinrich Cramer on trial and executed him just when he started to put his writings in the ‘Witchhammer’ into practice, it would have been perfectly legitimate, besides saving the lives of countless women. Let religious fanatics believe whatever they want, as long as they leave other people alone. If they don’t, it is our duty to massacre them whereever we find them.

    Western norms are superior to anybody else’s. That is axiomatic and requires no proof besides the evidence of one’s own senses. That makes them universally applicable whereever we have the power to make them stick.

    (Personally I quite like the idea of universal jurisdiction, so long as we have it and they don’t; but I’d also say it does pose some very tricky philosophical problems if you feel it needs to be justified objectively. And it is clearly very, very dangerous. I’m always interested in how supporters of the idea deal with the issues.)

    As long as a country has something at least resembling rule of law, that is laws applied equably to rulers and ruled there should be no jurisdiction over those people. If there isn’t, there should be. I need no objective justification. Only my trust in the axiom that our values and laws are better than theirs.

  • Pa Annoyed

    “I need no objective justification. Only my trust in the axiom that our values and laws are better than theirs.”

    Bravo! A nice way of putting it. :-)

    Thanks for sharing your views.

  • Thanks, and you are welcome. ;)

  • Ally Hauptmann-Gurski

    The Germans who want to get to Rumsfeld were probably all Spiegel readers. When Rumsfeld (wasn’t it him?) held that B/W photo of an Iraki mobile rocket launcher on a truck, I thought it was the same picture which I had seen in the seventies, or early eighties in the Spiegel. There, is was said to be a Soviet rocket launcher, of which there were some, but they also moved dummies around their republics.
    Schröder did money from Saddam in an indirect way. Lobbyist Friderichs (FDP) was paid by elf Aquitaine who had a contract with Saddam. Schröder cancelled a pipeline in Niedersachsen to wangle business to elf Aquitaine after a visit by Friderichs.