Judgment without borders

‘He may be a sonofabitch,” President Franklin Roosevelt is supposed to have muttered, referring to a Nicaraguan dictator, “but he is our sonofabitch.”

That is foreign policy realism in a nutshell -- straightforward, practical, pursuing the national interest regardless of ideology. Its counterpart, of course, is a foreign policy driven by idealism and conviction -- a credo often called Wilsonian, after President Woodrow Wilson, but most recently associated with the neoconservative movement. These days, the assumptions of both schools of thought are threatened by a new global actor in the form of international judicial activism.

The most recent example involved a Rwandan general, Emmanuel Karake Karenzi, and whether he should be reappointed by the United Nations to serve as deputy commander of the joint United Nations/African Union “implementation” force in Darfur.

Karenzi commanded Rwandan military forces accused of war crimes in the 1990s. In particular, Karenzi’s Tutsis were accused of reprisal killings against Hutu civilians as revenge for the hundreds of thousands of Tutsis murdered by Hutu extremists during the Rwandan genocide.

Published reports suggest that the U.S. State Department has a mixed view on Karenzi: It has no evidence that he was personally involved in atrocities, but it refuses to rule out some link to the offenses, presumably based on a “command responsibility” legal theory. This, of course, is one of the most slippery slopes in international law, imposing criminal liability on a superior officer based not on what he did or ordered but on what he did not prevent or punish appropriately on the part of his troops

For its part, Rwanda stood behind its general -- so much so that it threatened to withdraw its (crucial) troops from the Darfur mission if Karenzi were forced out. Collapse of the U.N./African Union effort would, of course, erase what little security (and it is not much) the international community has offered that region’s suffering population. Secretary of State Condoleezza Rice came down on the side of Rwanda, throwing American support behind Karenzi.

But the situation became more complicated earlier this year, when a Spanish judge indicted Karenzi for offenses in Rwanda. Although Spanish nationals also were allegedly killed by the general’s forces, the indictment mostly involved Rwandan victims and was based on a theory of “universal jurisdiction.”

Once reserved for offenses taking place at sea, beyond the territorial jurisdiction of any state, universal jurisdiction has increasingly been applied to “international” offenses taking place anywhere in the world -- even in countries with functioning judicial systems that have decided, for their own reasons, not to prosecute.

Although France also has brought indictments in some universal jurisdiction cases, the Spanish judiciary has been particularly active in this area. Most famously, Judge Baltasar Garzon indicted the late Gen. Augusto Pinochet in 1998, leading to a tense diplomatic standoff over what was to be done with the former Chilean strongman. Garzon also has demanded testimony from former Secretary of State Henry Kissinger as part of an investigation of human rights abuses in South America during the 1970s.

If Karenzi had been forced out of the Darfur command as a result of the Spanish indictment, and if Rwanda had abandoned the mission, this supposed triumph for international justice would have simply worsened what is already an appalling humanitarian crisis in Darfur. That should, of course, matter to the activists -- and the activist judges -- who have so resolutely promoted universal jurisdiction as a means of punishing those responsible for the most serious human rights abuses.

So far, Karenzi has been allowed to remain in the job. On Friday, U.N. Secretary-General Ban Ki-moon offered to retain him for six more months, despite the indictment.

But the problem of universal jurisdiction remains. If the theory is correct, then prosecutors and/or judges (depending on the domestic legal system involved) anywhere in the world can claim the right to pursue international offenses, however they choose to define them.

The problem should be obvious. International legal relationships and jurisdictional claims are already complex enough in an increasingly interdependent world. Using domestic criminal justice systems as a means of achieving foreign policy ends or, even worse, allowing individual magistrates to use their courts on a freelance basis makes global dispute resolution difficult -- if not impossible -- even when countless innocent lives are very much at stake, as in Darfur.

And, of course, what is sauce for the goose is sauce for the gander.

African leaders, evidently unimpressed with Europe’s claims of moral authority, have condemned the indictments, and Rwandan President Paul Kagame (himself a potential target of a future legal action) has suggested that his own country might proceed against Europeans -- specifically against French military officers who advised the previous, genocidal Rwandan government -- in response to the Spanish and French indictments.

What we are seeing is not the birth of a global rule of law but a type of worldwide judicial anarchy. Spain’s judges should not be driving foreign policy at the United Nations -- but they are. That is a problem, just as it would be a problem if some other country’s judiciary were doing it. There is, in the end, a difference between an independent and an imperial judiciary.

David B. Rivkin Jr. and Lee A. Casey are partners in a Washington law firm and served in the Justice Department under presidents Reagan and George H.W. Bush.