Author: Srdja Trifkovic
Publication: Taki's Magazine
Date: February 19, 2009
URL: http://www.takimag.com/site/article/the_super_judge/
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 "evolving"
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: "After 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. "Now that it's operational,
we are learning more and more about how the ICC functions," he said approvingly
during the campaign. "It 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, "unsigned" 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 "constitutional" 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 "international 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 "Superjuez" 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 "Dirty 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 "crimes 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 "Superjudge" 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 "under 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
"racism" or "discrimination" 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.
