Atlantic Council

Who has jurisdiction over alledged war crimes?  A growing number of countries believe they do, Paul Haven reports for AP.

A Spanish judge's decision to investigate seven Israeli officials over a deadly 2002 attack against Hamas that had nothing to do with Spain has renewed a debate about the long arm of European justice.  Critics say Madrid should mind its own business, particularly since Spain is still struggling to address its own bloody past. Supporters argue that some crimes are so heinous that all of humanity is a victim and somebody has to prosecute them.

Spain is hardly alone. A number of European countries have enacted some form of "universal jurisdiction," a doctrine that allows courts to reach beyond national borders in cases of torture or war crimes.

• In 2001, a war crimes suit against Israeli Prime Minister Ariel Sharon was filed in Belgium by Palestinian survivors of the 1982 Sabra and Chatilla refugee camp massacre in Lebanon. Belgium's highest court then dismissed the war crimes proceedings against Sharon and others, ruling it had no legal basis to charge them.

• French judges have opened investigations into Congolese security officials and convicted a Tunisian Interior Ministry official of torturing a fellow citizen on Tunisian soil.

• And Spain has indicted the late Chilean dictator Augusto Pinochet and Osama bin Laden among others, including Argentine dirty war suspects.

[...]

The most recent case involves a 2002 bombing in Gaza that killed Hamas militant Salah Shehadeh and 14 other people, including nine children. Spanish Judge Fernando Andreu agreed to take the case on the grounds the incident may have been a crime against humanity — prompting a furious response from Israel. Former Israeli Prime Minister Benjamin Netanyahu said the Spanish decision "makes a mockery out of international law," and Moshe Yaalon, a former Israeli general named in the probe, termed the case "propaganda."

[...]

Philippe Sands, a professor of law at University College London and the author of "Torture Team," which looks at U.S. interrogation practices during the administration of President George W. Bush, said most countries allow prosecutions in cases involving torture or war crimes, so long as they have some connection to the case.   He noted that a U.S. court recently convicted the American son of Liberian President Charles Taylor, despite the fact his crimes were committed overseas against non-American citizens. Still, Sands said the question of universal jurisdiction gets murkier when there is no connection to the country doing the prosecuting. "I am less persuaded that you can exercise universal jurisdiction when there is no connection at all, or where there is no solid treaty basis for exercising such jurisdiction," Sands said.

Belgium rolled back its universal jurisdiction law in 2003 after foreigners started filing a spate of genocide and war crimes complaints against foreign leaders, including Colin Powell and Dick Cheney, prompting Washington to threaten to move NATO headquarters out of Brussels. The case against Sharon did not result in conviction.

Certainly, this is not just a European phenonemon.  In addition to the Taylor case noted above, the United States prosecuted and incarcerated former Panamanian president Manuel Noriega after invading his country for the purpose of arresting him.  That was two decades ago.

Given the proliferation of these cases, however, it's long past time to settle the matter of jurisdiction once and for all.  Given that no country wants its citizens, let alone its leaders and former leaders, subject to being hauled before foreign courts for alleged crimes that didn't even take place in said country, it's rather obvious that the concept of "universal jurisdiction" must die.   Far better to try these things before duly constituted international tribunals like the World Court and International Criminal Court.

And, yes, that means the United States has to get on board with the latter. 

James Joyner is managing editor of the Atlantic Council. AP Photo by Peter Dejong.