New world order on war criminals

November 06, 1998|By William Pfaff

PARIS -- While a theory of international law has existed since the 17th century, what passes for international law is a collection of conventions and treaty agreements but not law as such, since law usually is taken to imply a sovereign international authority to proclaim and enforce it.

However, in the past few years, a body of argument and precedent has developed that would substitute for a single sovereignty the consensual action of democracies to enforce international decency. The Pinochet case is the latest example of this.

The notion of crimes against humanity and war crimes is product of common-sense, but easily finds philosophical and historical authority in classic notions of justice and rights (the Greek view that rendering to others their "due" -- their "rights" -- is the foundation of political justice), in God's commandments, as recorded in the Pentateuch ("Thou shalt not kill").

All can be taken as implying that a universal "law" exists as Antigone says in "Sophocles' Oedipus at Colonus" -- "unwritten laws which live always and forever, and no man knows from where they have arisen." The idea of universal jurisdiction follows.

Convicting criminals

It is an idea that has already found application. Germany and Denmark have tried and convicted war criminals from the Bosnian war. Israel tried and hanged Adolf Eichmann. The appeal chamber of the Hague War Crimes Tribunal ruled last year that war crimes committed during civil struggles, such as in Chile during the Pinochet dictatorship, are subject to international jurisdiction and trial.

These notions lie behind the attempt by Spanish magistrates and Spanish justice to extradite and try General Augusto Pinochet for crimes committed in Chile during the years of his dictatorship there.

The decision by senior Spanish judges Oct. 30 to support Judge Baltasar Garzon Real's attempt to obtain Pinochet's extradition from Britain for trial in Spain affirmed universal jurisdiction -- that any nation is competent to bring such people to trial. At this writing, the Law Lords in London have not decided the general's standing in British law. If they sustain the previous ruling that he is illegally held in Britain, and the general goes free, the repercussions will nonetheless influence the further evolution of this international effort to punish and thereby prevent such crimes.

This campaign is one aspect of a larger contemporary attack on sovereign impunity. This includes the assertion that a right to humanitarian intervention exists when mass suffering has been provoked, and in the past few weeks, NATO's intervention in Kosovo. Kosovo is part of Serbia, and under the traditional view, no outside power has the right to inject itself into how the Serbian government conducts its internal affairs.

Unprecedented action

U.S. envoy Richard Holbrooke himself has called the NATO action a precedent, "the first time in history that a military organization claimed the right of military intervention in a sovereign country to protect the population of that country against its leaders."

The United Nations subsequently challenged Mr. Holbrooke by arguing that the Security Council earlier provided NATO with authority for what it did, but the political reality of what happened remains what Mr. Holbrooke said it was.

Interference in sovereign nations is a weighty matter that can do much harm as well as good. The most sensible objection to Pinochet's trial in a foreign country is that the Chileans themselves have chosen not to try him.

In South Africa, the Truth and Reconciliation Commission has just presented its conclusions. Various efforts have been made in former Communist countries to confront the past peacefully. The intention has been to prevent past divisions from festering and producing new eruptions of conflict that could undermine new democracies.

This has had positive consequences in some places, but the South African result is said today to be increased bitterness. In the Chilean case, there has been no confrontation with the injustices of the past because the army forbade it. Pinochet's grant of immunity in his own country was the army's price for permitting a resumption of democracy.

It seems to me that these attempts to enlarge the international community's agreement on what constitutes unacceptable behavior, and to establish new international conventions for dealing with crimes, enforced by a consensus of democratic nations, are original and valuable.

The international "law" that now exists is a compilation over time of individual as well as collective initiatives, sometimes agreed and sometimes imposed by the most powerful nation or nations. That is the way the slave trade was ended: Britain acted unilaterally, and other nations eventually fell into line. Antigone's unwritten law slowly found expression, as it is finding a new articulation today.

William Pfaff is a syndicated columnist.

Pub Date: 11/06/98

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