Globalizing Justice

by Phillipe Sands

Amnesty International, Spring 2006


When the fifth and final judge of Britain's highest court delivered his verdict against former Chilean President Augusto Pinochet on Nov. 25, 1998, the entire chamber of the House of Lords gasped. Observers recognized immediately that the judges' rejection of Pinochet's claim to immunity was a watershed moment in international justice. The recording of their collective, dramatic reaction is preserved in the BBC radio archive.

Some 60 years after the beginning of the Nuremberg and Tokyo military trials-the first international war-crimes tribunals-the "Pinochet Precedent" established the principle that no individual is above the rule of law, not even a former president who had acted in his capacity of head of state. It was a defining moment in international justice an exclamation point following the evolution of international relations that has taken place over the past 50 years.

That evening, news broadcasts around the world led with the story, trumpeting the transformation of the international legal order. Author Isabel Allende, daughter of President Salvador Allende, whose government was overthrown by Pinochet, called the decision "marvelous, a truly great satisfaction." The UK Guardian columnist Hugo Young described the verdict as "bold and principled, taking a stand on behalf of the globalization of fundamental human rights."

The global response to the case reflected how dramatically notions of sovereignty have changed over the past 50 years, which have been marked by unprecedented global interdependence. An avalanche of international laws adopted since World War II means that states are now regulated by an increasingly wide net of international obligations covering everything from free trade and investment rules to labor standards and the protection of fundamental human rights. And the rules, once adopted, take on a logic and a life of their own.

In this globalized, interdependent world, it is impossible to conceive of a return to the old days, when each state was free to act as it wished, unfettered by international obligations. Of course our current system of international justice is imperfect, in continual need of evaluation and faced with the complicated challenges of a changing world order that includes non-functioning states and borderless, sometimes malign non-state actors. However, the global rules provide necessary minimum standards for judging the legitimacy of international actions and mechanisms to hold states accountable.

The standards for human rights build upon the critical foundation of the Nuremberg and Tokyo tribunals, which established a new category of international crimes that no longer permitted nation-states--or their officials-to turn a blind eye to genocide, crimes against humanity, war crimes and aggression. Since World War II the developing system of international justice has put in place a raft of international treaties, jurisprudence and practice that require states to investigate and prosecute those accused of the most heinous international crimes, or extradite them to other countries where they will be prosecuted.

In the mid-1990s the United States led the world in creating criminal tribunals for the former Federal Republic of Yugoslavia and for Rwanda. In 1998-lust weeks before Pinochet was arrested-129 governments signed off on the new International Criminal Court (ICC), which is now operating in The Hague and investigating atrocities in Uganda, the Democratic Republic of Congo and Sudan. Around the same time, former President Slobodan Milosevic of the Federal Republic of Yugoslavia became the first serving head of state to be indicted by an international tribunal, soon followed by Liberia's president Charles Taylor.

By any account these are important developments, yet they are not without their difficulties. Watching the criminal trial of Milosevic in The Hague, any observer is bound to ask whether it is appropriate to provide an international stage for those accused of the most serious crimes. Milosevic has been adept at stringing out costly proceedings, now into their fourth year without an end in sight, and using them to provide succor to his supporters back home. There is a distinct possibility that he may be acquitted of some of the more serious charges.

National proceedings may not be any more effective, due to domestic political considerations. I follow Saddam Hussein in the dock of a Baghdad court and notice that he has not been charged for some of the most serious of his alleged crimes, including the conduct of an illegal war against Iran. His limited access to his own lawyers is widely perceived to fall short of the minimum standards of international law on the rights of the defendants-a flaw that only serves to discredit the outcome. Hussein's trial is at risk of becoming a costly shambles.

There is also the lingering concern 60 years after Nuremberg that the emerging system of international criminal justice is lopsided in the sense that it has thus far been applied in the cases of despots and torturers from smaller and less powerful nations, while those who happen to come from the larger and more powerful nations have been able to evade its reach. The Yugoslavia Tribunal did not fully investigate allegations that NATO violated international humanitarian law in the Kosovo war or prosecute NATO forces for attacking civilian targets, such as the television station in Belgrade. Countries whose national courts investigate alleged international crimes by U.S. officials find themselves subject to overwhelming political pressures, as Belgium recently discovered when U.S. Secretary of Defense Donald Rumsfeld reportedly threatened that the country would lose its status as host of NATO if it did not change its universal jurisdiction law.

Yet it is surely right that the rules should be applied equally to all. Since World War II the system of international criminal justice has become a significant tool to prevent conflict and promote peace and justice. That developing system envisages a primary role for national courts, with international tribunals stepping in where domestic justice fails. Notwithstanding the difficulties outlined, great progress has been made. Criminal courts now play a crucially important role in the delivery of a more just global order. The challenge is not whether courts should have a role, but rather how improvements can he made. There can be no question of turning back the clock.

Indeed, the Pinochet case has shown that the possibility of criminal sanctions is not an idle one. The principles of international law that removed General Pinochet's claim to immunity could also be summoned against the highest office holders in the United States for allowing the practice of torture and renditions in the "war on terror," after they have left office and as they travel around the world, as well as their lawyers and advisers. In 1947 a U.S. military tribunal in Germany in the case of Josef Altstotter convicted a group of lawyers for complicity in international crimes for their role in enacting and enforcing Nazi laws and decrees that permitted crimes against humanity. They were charged with participating in a governmentally organized system of cruelty, not with murder or the abuse of a particular person. As the tribunal put it: "The dagger of the assassin was concealed beneath the robe of the jurist." For those associated with the implementation of policies on detention and interrogation-in the United States and among its allies-the cases from Nuremberg to Baghdad via London should serve as a salutary reminder of the potential consequences of violating international laws. These laws apply to all. No amount of willful misreading or legalistic acrobatics can serve as a defense or justification to former Presidents Milosevic or Hussein, or to anyone else.


More on Philippe Sands' Lawless World: America and the Making and Breaking of Global Rules at:

Justice watch

Home Page