The Global Prosecutors: Hunting War Criminals in the Name of Utopia

Emptying international treaties and custom of their "legal" authority does not, of course, preclude nation-states from prosecuting and convicting perpetrators of crimes against humanity -- domestically. Indeed, a national approach might be preferable; effective catharsis best occurs when a population independently comes to grips with its past and administers justice on its own. But that is not what Neier wants. He wants international rules that bind nation-states because he does not trust states to do the right thing, and he wants the brand-new International Criminal Court to ride herd on inadequate national tribunals. In short, he wants international law, not national law, to reign supreme.

MORAL RIGOR MORTIS?

Following his bid for "binding international law," Neier makes a second, fundamental mistake: he insists that those responsible for war crimes, genocide, and crimes against humanity should be tried and punished without exception and without ever considering other alternatives. For Neier and his ilk, there should be no plea bargains, no pardons, and no amnesties. The erstwhile national director of the /has become a zealous Global Chief Prosecutor.

But Neier, in his utopian zeal, misses a crucial distinction. In Western legal systems, the overwhelming bulk of criminal offenses have no political content. They are not "crimes against the state"; they reflect no clash between larger ideological, religious, ethnic, or economic interests; and they are not regionally concentrated. Today, even the most radical class-based jurisprudence does not justify criminal behavior as a legitimate protest against society's ruling structures. Accordingly, there is generally no reason for national judicial systems to be concerned with the social implications of particular crimes. Citizens and jurists need consider the severity of the sentence, the possibility of pardon or forgiveness, and a host of other variables only in the context of the specific violation.

Crimes against humanity, war crimes, and genocide, by contrast, are highly context-specific. They are acts committed either during war (between or within nations) or by repressive regimes. When these crimes are finally addressed, it is usually during enormous social and political upheaval: the negotiation of a peace treaty, restoration of legitimate political rule, or some similar milestone. In such circumstances, there are typically other priorities to be considered than just punishing those who committed crimes during the preceding turbulence.

These issues raise questions that are as much moral or political as they are legal in nature: Once guilt is established, what are the appropriate penalties? Are reparations or economic compensation justified? Should there be a time limit on prosecutions? Amnesty? Other questions are even more clearly political: How will the warring parties live with each other in the future? How will the underlying causes of the previous inhumanity be expunged (through programs such as de-Nazification, for example, or more recent Eastern European lustration efforts)? Can the truth of what actually happened ever be established (through truth commissions, for example) so that succeeding generations may avoid making the same mistakes?

Neier ignores these dilemmas; he is not satisfied by anything less than prosecution and punishment, as the title of one chapter, "The Trouble with Amnesty," makes clear. He endorses Francis Bacon's argument that the king's power to pardon should not extend to offenses that are malum in se (evil in themselves) -- whatever the circumstances. Neier sees amnesties demanded by outgoing military governments as a form of terrorism and argues, "standing up to terrorism is painful. It is the same with standing up to demands for an amnesty, only more so." Neier's strategy of "one goal, one process, one result" may be appealing on the surface. But his assessment is just too simplistic. Both civil-libertarian leftists and law-and-order conservatives should agree that his approach ignores too many of the complexities and trade-offs that are essential in national and international affairs.

However it is ultimately resolved, the recent case of General Pinochet illustrates the flaws in Neier's rigid approach. The request by Spanish judge Baltazar Garz-n to extradite the general from the United Kingdom provoked hosannas from the human rights cognoscenti. Had extradition been sought solely for the alleged murder of Spanish nationals, British courts could have directly considered Pinochet's criminal liability, as with any other accused murderer, and decided accordingly. In such cases, extradition may be appropriate -- as when the United States sought to extradite and arrest the Libyans accused of killing Americans in the bombing of Pan Am flight 103.

But in this case, the Spanish magistrate pursued Pinochet for genocide and other crimes against humanity committed against Spaniards and non-Spaniards alike, on a theory that such crimes are amenable to "universal jurisdiction." This meant that Spain was not limited to avenging its own citizens. Yet one wonders why a Spanish judge has a greater stake in prosecuting such crimes than do the Chileans themselves. Did he consider the hard compromises already made by Chilean democrats to restore civilian rule? Most importantly, will actions such as his facilitate the removal of other authoritarian regimes, or simply entrench them further? Only those who are utterly certain of their own moral judgment could have dismissed these complexities. Neier, of course, enjoys such blithe certainty; as he writes, "amnesties are invalid when they conflict with international treaties that obligate states to prosecute and punish."