February 19, 2009

Meet the Man Who Wants to Rule the World

With the ascension of Barack Obama in Washington, the proponents of the International Criminal Court (ICC) are entertaining fresh hopes that the United States will ratify the 1998 Rome Statutes and join 108 countries that have signed up to the Court thus far.

Designed as a key instrument of an “€œevolving”€ system of transnational criminal justice, the ICC has an open-ended mandate to investigate and prosecute loosely defined war crimes as its UN-appointed officials deem fit. It is the antithesis of fundamental American precepts and key constitutional principles of sovereignty, checks and balances, and national independence.

Roger Cohen summed up the internationalists’ demands in the New York Times last December: “€œAfter the terrible decade of the 1990s, with its genocides in Bosnia and Rwanda … it is unconscionable that America not stand with the institution that constitutes the most effective legal deterrent to such crimes.”€ Similar calls have come from an array of influential NGOs, such as Amensty International and the New York-based Human Rights Watch, and bien-pensants like Desmond Tutu, Cora Weiss, and Elie Wiesel.

The question seems to be not whether Obama will relent, but how soon and how thoroughly. “€œNow that it’s operational, we are learning more and more about how the ICC functions,”€ he said approvingly during the campaign. “€œIt is in America’s interests that these most heinous of criminals, like the perpetrators of the genocide in Darfur, are held accountable. These actions are a credit to the cause of justice and deserve full American support and cooperation.”€

The Democrats had never opposed the concept in principle. The Clinton administration had been in the forefront of efforts to create international hybrid courts, notably the Yugoslav war crimes tribunal at The Hague. The humanitarian interventionists welcomed the veil of supranational legal propriety that could be invoked ex post facto to justify unilateral acts, such as their Balkan meddling. They were wary, however, of having a court that could theoretically prosecute American officials for pursuing American policies.

In July 1998 the ICC made some concessions to get the U.S. to sign on. The Rome Statute establishing the Court allowed a state to have primary jurisdiction over a crime “unless [it] is unwilling or unable genuinely to carry out the investigation or prosecution.” But then came the catch: the ICC judges themselves were the only authority that could determine whether a state is “unwilling” or “unable” to investigate and prosecute, and how “genuine” are its investigative or prosecutorial efforts and procedures. More significantly, the Rome Statute made a final break with long-standing international legal tradition by asserting ICC jurisdiction over nationals and military personnel from states that are not party to the treaty or even those that had specifically rejected the court’s jurisdiction.

In spite of so problematic a brief, President Clinton signed the Rome Treaty in December 2000, in the final days of his presidency. The Bush Administration, to its credit, “€œunsigned”€ it in 2002 invoking issues of substance and insisted on signing bilateral immunity agreements with ICC member states. As John Bolton summed it up in late 2002, the ICC could not fit into an international “€œconstitutional”€ design that delineates how laws are made, adjudicated or enforced”€”let alone how they are subjected to popular accountability and structured to protect liberty:

In the ICC’s central structures, the Court and Prosecutor, these sorts of political checks are either greatly attenuated or entirely absent. They are effectively accountable to no one. The Prosecutor will answer to no superior executive power, elected or unelected. Requiring the United States to be bound by this treaty, with its unaccountable Prosecutor and its unchecked judicial power, is clearly inconsistent with American standards of constitutionalism.


At the same time the Bush Administration weakened this principled position by remaining willing to collaborate with the UN in the development of ad-hoc hybrid institutions that incrementally legitimized the judicial machinery of the “€œinternational community.”€

The discretionary power of the ICC prosecutor to investigate cases on his own initiation, to act without third-party restraint, and to claim universal jurisdiction, offer the scope for considerable legal creativity. Such sweeping power was denied even to Vishinsky or Freisler. A precedent does exist, however, in a Western liberal democracy of our own time.

Enter Baltasar Garzón, prosecuting magistrate of Chamber 5 of Spain’s national criminal court. He has, not only by Anglo-Saxon standards, unprecedented authority to initiate investigations, to jail or bail suspects, and to decide whether to bring charges.

The media-savvy “€œSuperjuez“€ first attracted limelight in October 1998, when he sent to London a warrant for the arrest of visiting former Chilean president Augusto Pinochet over the alleged deaths of Spanish citizens during his rule. Garzon’s claim to de facto universal jurisdiction was breathtakingly audacious. Eventually his request was turned down by British Home Secretary Jack Straw, not because Pinochet enjoyed diplomatic immunity”€”which he did”€”but on far feebler grounds of his poor health.

In subsequent years Garzon has tried to lay his hands on former U.S. secretary of state Henry Kissinger (in connection with the U.S. support of Latin American death squads in the early 1970s), on Italian prime minister Silvio Berlusconi (for tax evasion), on unspecified U.S. government officials (for alleged abuses at Guantanamo Bay and Abu Ghraib), and on 98 leaders of the 1976-1983 Argentine military junta. Only one lower-ranking officer, Adolfo Scilingo, had the bad luck to be extradited”€”from Mexico”€”on Garzon’s “€œDirty War”€ warrant. He was sentenced to a thousand years in jail, reduced on appeal to 640.

Garzon’s behavior has grown increasingly erratic of late. Last October he declared the acts of repression by General Franco during and immediately after the Civil War (1936-39) to be “€œcrimes against humanity,”€ which he would start prosecuting. A month later, however, Garzon sullenly announced that he was dropping the case against Franco and his close aides, after his colleagues finally questioned his jurisdiction over acts committed 70 years ago by people who are all dead and whose alleged crimes were covered by the 1977 general amnesty.

Garzon’s showmanship would be merely irritating, in the manner of other self-promoting Euro-leftists”€”Bernard Kouchner, say”€”were it not for the fact that he uses self-appropriated powers to destroy the lives and reputations of his less well known targets.

Take the case of Gennady Petrov, a Russian millionaire resident in Spain who was arrested last June on Garzon’s odrers on the suspicion of money laundering and organized crime connections. Following a spectacular military-style invasion of his villa in Mallorca, Petrov, his wife and their 10-year old daughter were kept naked at gunpoint for hours in their bedroom while the search was going on. Garzon used a Franco-era law to keep Petrov and other suspects arrested under the same warrant incommunicado for months on end, deprived of bail or legal assistance, while the investigation was proceeding in inquisitorial secrecy. The defense continues to be denied access to the evidence that prompted Garzon to act, in direct violation of the standards set by the European Court in Strasburg. Spain, being a signatory of the European Convention on Human Rights, is obliged to observe the rulings of the Court, but Garzon appears to give precedence to his country’s legislation when it suits his purposes”€”even if it was enacted by bête noir Francisco Franco.

Last October Garzon went a step further when he ordered the Guardia Civil to raid the Spanish villa of Petrov’s alleged associate Vladislav Reznik, a deputy of United Russia party and chairman of the State Duma Financial Markets Committee. The seizure of valuable property (including artwork) was a case of deja-vu. Garzon’s subsequent attempt to get hold of Reznik, who was not in Spain at the time of the raid, was different”€”although by no means new: it reflected his customary dislike of established international legal rules. Garzon tried to issue a summons through the office of Reznik’s Spanish lawyer, in disregard of proper channels that exist under the legal assistance agreement between Spain and the Russian Federation.

This latest attempt by Garzon to exert universal jurisdiction over a foreign national, in violation of international legal norms and in disregard of the would-be defendant’s immunity in his own country of citizenship, indicates that the “€œSuperjudge”€ primarily wants to create a scene. His real target was not Reznik, but the principle of sovereignty and national independence itself.

Garzonism is spreading. His colleague at the National Court, Eloy Velasco, announced in early January that he would investigate 14 Salvadoran military officers for the 1989 killings of six Jesuit priests in El Salvador. Velasco asserted point-blank that “€œunder the principle of universal jurisdiction”€ he is competent to investigate Salvadoran citizens for their alleged participation in a crime allegedly committed in the Central American republic two decades ago.

Two weeks later another Spanish judge, Fernando Andreu, announced that he would pursue a crimes against humanity complaint against seven senior Israeli military figures over a 2002 bombing in Gaza The complaint, which includes former defence minister Benjamin Ben-Eliezer as one of its targets, was lodged in Madrid by the Gaza-based Palestinian Center for Human Rights. Judge Andreu also invoked the principle of universal jurisdiction, promting an Israeli politician to ask the courts in Israel to open proceedings against Spain for taking part in the 1999 NATO bombing of Serbia.

Garzonism à la mode is catching on in another, equally unpleasant manner: in the apparent anti-Russian bias of Spanish investigators, in their heavy-handedness that would elicit howls of “€œracism”€ or “€œdiscrimination”€ if directed against a minority group”€”Muslims, say”€”deemed worthy of protection by the Euro-elite class.

Take the case, unrelated to either Reznik or Petrov, of Aleksandr Gofstein, a prominent Russian lawyer and former legal counsel for Mikhail Khadarkovsky’s Yukos conglomerate. Gofstein was arrested in 2006 on a warrant issued by Fernando Andreu, investigator with the National Justice Chamber, on charges of money laundering for bringing $500 to his client, fellow Russian Zakhar Kalashov who is under arrest in a Spanish jail. Gofstein is currently out of prison on a quarter-million-dollar bail. Garzon’s influence has permeated the entire Spanish justice system.

Garzon’s histrionics reflect his abiding commitment to the assertion of borderless, transnational authority in disregard of the law. That same commitment is the moving force behind the ICC; it is the vision that moves its proponents, here and abroad. Theirs is the ideology of universal human values”€”that is to say, of a common culture identical for the whole world. It is the enemy of liberty as understood and practiced in the West for centuries, an enemy on par with the menace of Jihad. Its proponents are invariably also the upholders of multicultural diversity, while in fact promoting a soul-numbing social and legal monism.

The moral absolutism that is at the core of Garzon’s world view, identical to that of the ICC enthusiasts, is morally unsustainable. Genuine dilemmas about our human responsibility for one another must not be confused with their doctrine of global authoritarianism. Their disdain of the principle of sovereignty may be motivated by a genuine conviction that the war against the Westphalian order is a just one. But they are still less than forthright regarding the methods of justice they are willing to use as well as the real implications of countries subjecting themselves to «international justice.» 

Judge Baltasar Garzon’s illustrious career confirms that the more arrogant and universalist the doctrine behind the ICC, the more willing its devotees are to lie for the truth. “International justice” is a poisoned chalice that even Barack Obama should find the strength to reject.


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