http://www.dailytimes.com.pk/default.asp?page=2010\11\01\story_1-11-2010_pg3_4
Monday, November 01, 2010 VIEW: Universal jurisdiction finally becoming universal -Sikander Amani What is distinctly unjust is to see war criminals from developed countries jet-setting around their golf courses, basking in their good conscience, with little chance for their victims of ever having their day in court In a judiciary coup de théâtre, an Argentine judge, Maria Servini, has formally embarked on a comprehensive investigation of Franco's crimes in Spain, most notably the allegations of genocide, including tens of thousands of cases of "torture, assassination, forced disappearances and the stealing of children". Though it went relatively unnoticed, it is immensely significant, legally, politically, and morally. Franco, it will be recalled, was the army dictator who ruled Spain from 1939, when he took power illegally after a brutal civil war, to his death in 1975. Besides the 400,000 deaths in the civil war, an estimated 150,000 persons were assassinated in extrajudicial executions, while another estimated 120,000 persons "disappeared". After his death in 1975, the legislator promptly adopted an amnesty law to ensure continued impunity of the perpetrators of crimes during the Franco years. The 1977 amnesty law is a major obstacle in the prosecution of Franco's war crimes in Spain itself - so much so that when a judge, Baltasar Garzó (most famous for having Pinochet arrested in London some 12 years ago) tried to have some of the Francoist crimes prosecuted, he himself got indicted for "distorting the law", and is now, incredibly enough, awaiting trial. Hence the brilliant idea of relatives of victims and Spanish human rights group of turning to foreign courts, in specie those of Argentina, to try to get justice, at last. The idea is quite simple, really - and quite genial. When a crime is committed, there must be some factual or legal element to decide the location where its perpetrators will be tried; it might be the location of the crime, the citizenship of either victim or culprit, the country of residency, for example. However, in the case of the absolute worst crimes, such as e.g. genocide, the international community agreed that they were crimes "against humanity": that is, that they are an offence to all of mankind, and not only to the direct victims. All of us are affected when someone tries to annihilate the principles that found a common humanity, through the physical elimination of an ethnic, religious or national group (the Jews during World War II, the Tutsis in the 1994 Rwandan genocide, the Bosnian Muslims during Yugoslav "ethnic cleansing" between 1992 and 1995). The principle of universal jurisdiction is the legal consequence of this notion of a crime committed against all of mankind: since we are all, directly or indirectly, victims of the crime, all countries on the planet are entitled to judge them. States hence have a duty to prosecute crimes against humanity, for the added reason that there should be no safe haven for those who have committed such atrocities. The principle is excellent, and difficult to argue against. It presents the added advantage of humiliating high-pitched nationalism a little, which is always a good thing in itself. It serves yet another purpose: it is often difficult to administer justice serenely after a civil war, or a ruthless dictatorship, because former tyrants usually relinquish power only after the adoption of amnesty laws, or at the very least of more reconciliatory approaches, such as truth commissions with no judicial effect. In such cases, the delocalisation of the trials allows for justice to be done in spite of internal legal obstacles. Unsurprisingly, it appears that the aspiration for justice is not extinguished nor appeased with mere "reconciliation" (which often reconciles only perpetrators with themselves, seldom with their victims) or some political decision of "forgiveness", which here too usually means the criminals forgive themselves at the expense of the victims. But while the principle of universal jurisdiction is laudable, it has, in its application, unfortunately been perceived as yet another example of "neo-imperialism": developed countries judge dictators or unsavoury characters from developing countries, thus creating the distinct unpleasant impression that the rich countries are imposing their selective version of justice upon weaker nations, while their own criminals will go scot-free: is there any realistic chance of seeing proper investigation of the war crimes committed by American troops in Iraq? There is nothing shocking in sending dictators from developing countries to jail in developed countries. What is distinctly unjust is to see war criminals from developed countries jet-setting around their golf courses, basking in their good conscience, with little chance for their victims of ever having their day in court. This is exactly why the Argentine judge's move is so satisfying - the reversal of roles is a slap both to the smug leaders from developed countries, who cannot even fathom how and why they too might have to be held accountable one day, and to the whiny indignant voices in developing countries, who, in the name of fighting against "imperialism", prefer to let perpetrators of atrocities get away in impunity. It is also a clear indication that the courts and judicial systems in developing countries have, at least in some countries, acquired a level of competence, independence and professionalism which reaches the highest standards; it is equally a sign that the whole principle of the universality of crimes, and the universality of conscience, is being appropriated by both the public opinions and the courts in developing countries. It will be very interesting to see what the Spanish judiciary decides - it is now, delightfully, bound either to try the crimes itself or allow Argentina to take over jurisdiction. Whatever happens, there is no doubt this is an important step for international justice, as for political equality among countries. The writer is a freelance columnist and can be reached at [email protected] [Non-text portions of this message have been removed] ------------------------------------ Post message: [email protected] Subscribe : [email protected] Unsubscribe : [email protected] List owner : [email protected] Homepage : http://proletar.8m.com/Yahoo! Groups Links <*> To visit your group on the web, go to: http://groups.yahoo.com/group/proletar/ <*> Your email settings: Individual Email | Traditional <*> To change settings online go to: http://groups.yahoo.com/group/proletar/join (Yahoo! 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