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Universal injustice (San Jose Mercury News and BayArea.com) May 16, 2002

Posted by daviddavenport in Newspaper Columns/Essays, Op/Eds.

We have all come to recognize names like the Gaza Strip and the West Bank as battlegrounds in the Middle East. But did you know that the war is also being fought in a Belgian courtroom, with criminal proceedings against Israeli Prime Minister Ariel Sharon scheduled to resume there this week?

If you find that curious, so did the International Criminal Court of Justice, which ruled in a similar case in February that Belgium could not issue an arrest warrant for an official of the Congo. Still the strange wheels of international justice continue to turn not only in little Belgium, but elsewhere, in ways that frustrate and complicate political situations like the volatile Middle East.

If the United States is the world’s police force, then Belgium apparently aspires to be its courtroom. In an interesting case study of a larger problem, Belgium’s law of universal jurisdiction purports to give it criminal authority over war crimes, genocide and crimes against humanity anywhere in the world, regardless of whether Belgium has any connection with the matter.

Remarkably there are about 30 of these cases against Sharon, Arafat, Fidel Castro and others, and Henry Kissinger has also received a summons in Paris from a French judge over American policy in Chile 30 years ago.

A new trend seeks to turn complex international political, diplomatic and military problems into criminal and legal matters. The leaders in this movement are largely non-profit organizations and European states that are focused on the single issue of human rights. Unable to achieve their agenda in other ways, they have championed bold expansions of international law, trying to draw global leaders into criminal courts.

This notion of criminal prosecutors without boundaries trying Arafat and Sharon in European courts might seem like a silly nuisance, but in fact it exacerbates international turmoil.

The International Court of Justice recognized the problem and, in a move that should have halted these misguided efforts, ruled that diplomatic immunity precluded bringing foreign officials before courts outside their own country.

The court’s president went further, noting that the notion of universal jurisdiction has not been extended to the wide range of crimes for which Belgium and other seek to use it. One can only hope the Belgian court will read the International Court of Justice case carefully and understand that its principles do not just apply to the Congo official, but to all of its efforts to try international leaders such as Sharon.

The next chapter in this saga may be at the new International Criminal Court. It, too, seeks to assert universal jurisdiction over crimes and, in an amazing stretch of authority, it purports to be able to try citizens on non-party states, such as the United States.

The International Criminal Court claims to respect national courts, giving them the first option of handling a matter. But if, say, Israel was found “unable or genuinely unwilling” to prosecute Sharon, the Criminal Court could step in. This is precisely what happened in Belgium: When Israel did not find Sharon criminally responsible, the court of universal jurisdiction stepped in anyway. Because Israel is not a party to the International Criminal Court, and the Palestinian territory is not a state, the Sharon case would not be prosecuted by the ICC, but similar cases from other nations could be.

Alleged war crimes by international leaders are inherently political matters and need to be overseen by the United Nations and its Security Council, not by unbounded Belgian or even ICC prosecutors. If a criminal court for a specific situation needs to be created, the Security Council should do so. Otherwise this business of universal jurisdiction will lead inevitably to universal injustice.

This op/ed appeared on Page 8B.

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