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Controversy Over Cross Border Cases Against War Criminals - 2001-08-03

Increasingly, national courts are going beyond their borders in pursuit of alleged war criminals. This is expected to culminate in the establishment of an international criminal court, when it is ratified by 60 nations, perhaps in two years' time.

In a landmark case, on June 8, a Belgian court sentenced two Catholic nuns to 12 and 15 years in prison for genocide, because of their role in helping Hutu militiamen to massacre Tutsi in Rwanda.

Last year former Chilean President Augusto Pinochet, who was arrested while visiting Britain, only avoided a criminal trial for human rights violations, because of his poor health at an advanced age.

These are two dramatic illustrations of a growing movement to hold people particularly political leaders, accountable for crimes they may have committed anywhere in the world.

Many political leaders will be facing the courts, says David Scheffer, former U.S. ambassador at large for war crimes issues and now a senior fellow at the U.S. Institute of Peace. "We are in a very fluid situation right now because a doctrine called universal jurisdiction is taking off in the international system," he said. "It means that national courts, if they are empowered to do so, can actually investigate and prosecute individuals for what are called international crimes. And they can do so even if the defendant is not present in the country and even if the crime did not occur in that country."

The accumulation of war crimes has finally caused courts to act in this novel way, says Bruce Broomhall, who directs the international justice program at the Lawyers Committee for Human Rights in New York City. Now a systematic approach is needed. "We know that the norms that are being exercised here have been around for a long time, but we have not had the institutions to go with them," he said. "Today, we are coming to that point with an international criminal court and with countries around the world changing their domestic criminal law to make crimes against humanity, genocide and war crimes illegal under their domestic law."

Mr. Broomhall says many disputes lie ahead before a consensus is reached about the rules of international law. Courts in Chile and Argentina have requested former U.S. Secretary of State Henry Kissinger to answer questions about some of his activities in office. The Danish justice minister has threatened legal action against the newly appointed Israeli ambassador to his country because he condoned the torture of Palestinian prisoners. And a Belgian court has opened a criminal case against Israeli Prime Minister Ariel Sharon involving a massacre of Palestinians during the Israeli occupation of Lebanon.

Mr. Broomhall notes the political complications in cases such as the one against Ariel Sharon. "The difficulty, of course, is you have diplomacy to consider," he said. "Belgium is now the president of the European Union, and people like Sharon might want to come to visit on other diplomatic business. So the Belgian Government is wrestling with how to deal with their diplomatic duties at the same time as they let their courts pursue justice independently."

The Belgian foreign minister has offered apologies to Mr. Sharon and said the law used against him may have to be changed.

We must strike a balance, says Ambassador Scheffer, between legal and political considerations. He says some heads of state, like Iraq's Saddam Hussein or Yugoslavia's Slobodan Milosevic, clearly need to be investigated, and if warranted, prosecuted.

"At the same time, we need to recognize the risk of various courts using this doctrine of universal jurisdiction for political purposes, as a political weapon as opposed to a legal weapon against other leaders in other countries," he said.

Mr. Scheffer thinks this confusion will eventually be cleared up, especially with the establishment of the international criminal court.

Curtis Bradley, law professor at the University of Virginia, is not so sure. "It still seems very ad hoc, very dependent on power relationships and the fortuities of where people are located, the particular relationships between the countries that are involved," he said. "Many perpetrators of human rights abuses and atrocities are not apprehended or even pursued, depending on which conflict situation we are focusing on."

Professor Bradley thinks the increasing legal pursuit of political leaders may intensify, not ease international conflict. In fact, repressive rulers may be encouraged to remain in office to avoid criminal prosecution when they leave.

"I do not have any reason to believe that the few prosecutions and the few extradition attempts that have been made recently will have any significant deterrent impact," he said. "There is certainly no evidence to show that leaders who are inclined to commit these sorts of abuses will significantly change their behavior because of the possibility that some day after they leave office, they may be apprehended in some third party country."

Mistakes will be made, say defenders of the new international jurisprudence. Injustices will occur on the way to justice. But, they add, it is about time some of the tyrants of the world have to answer to a law greater than their own.