U.N. Security Council, Esq.

Columbia Journal of Transnational Law,
Vol. 42, No. 2, January 2004, New York

In May 2003, Iraqi and Jordanian plaintiffs sought to indict U.S. Army Gen. Tommy Franks in a Belgian court for human rights abuses committed during the recent Iraq war. They chose Belgium because, in 1993, its legislature enacted a universal jurisdiction statute allowing its courts to try certain human rights cases regardless of where the alleged abuse occurred or the nationality of those involved. The case exemplified the potential excesses of universal jurisdiction: Even Belgium’s foreign minister, Louis Michel, called the case an "abuse of the law." Under U.S. pressure, Belgium quashed the case a month later and eventually modified the law to cover only cases with a clear link to Belgium.

Belgium’s retreat has not soothed critics of international criminal law’s new reach, who decry what they consider an increasing imbalance between power and law. From Spanish judge Baltasar Garzón humbling former Chilean dictator Gen. Augusto Pinochet by seeking his extradition for human rights abuses to jurists on the new International Criminal Court (ICC) determining the criminal responsibility of national politicians and military officers, new players are taking charge in the international law realm.

Persistent concerns about such legal forays have sparked a backlash against the international criminal justice industry. Surprisingly, a decision by the International Court of Justice (ICJ) — the United Nations’ principal judicial body — bolstered this backlash. In 2002, the ICJ ruled that Belgium must withdraw an arrest warrant issued for then Congolese Foreign Minister Abdoulaye Yerodia Ndombasi, who allegedly incited massacres against ethnic Tutsis in the Democratic Republic of the Congo in 1998. The ICJ decided that national courts must respect the immunity from criminal prosecution traditionally accorded high-ranking government officials — even when they are charged with heinous crimes. The court reasoned that diplomats threatened by prosecution could not fulfill their important responsibilities.

Writing in the Columbia Journal of Transnational Law, British barrister Jonathan H. Marks (a veteran of the Pinochet case) chastises the world court for "arguably retrograde" reasoning in the Congo case. In an attempt to integrate power and law, he goes on to suggest that the U.N. Security Council should decide when to lift sovereign immunity. Marks points out that the council already played this role by setting up the Yugoslav and Rwandan tribunals, both of which have prosecuted senior government officials.

But how can the political animals on the Security Council make principled determinations on sovereign immunity? Marks acknowledges that the veto-wielding permanent members would be tempted to protect their own officials and those of allies, but he hopes a "code of conduct" will guide council members toward principle and away from crass realpolitik. Even an inconsistent Security Council might prove beneficial, Marks argues. "The abrogation of immunities on a less principled basis," the author contends, "might still contribute to developing a body of practice indicating that immunity should no longer be upheld where public officials perpetrate serious international crimes." In other words, Marks hopes that the council can grow into its job as gatekeeper of sovereign immunity.

A regular role for the Security Council would certainly ease U.S. concerns about universal jurisdiction. Indeed, limited Security Council influence has been one of Washington’s key objections to the ICC. Assuming the Security Council members can work together — an open question following the serious divisions caused by the Iraq war — the council could help prosecute egregious official crimes while slowing the wheels of justice when they threaten stability.

By proposing a marriage of the Security Council’s political tasks with the legal responsibility of withdrawing sovereign immunity, Marks affirms the prevailing view among human rights scholars and activists that judicial intervention and effective humanitarian action are complementary. Recent history should shake that certainty: The Yugoslav and Rwandan tribunals were born of the council’s shame at failing to intervene decisively to halt genocide. Instead of effective troops, the United Nations sent lawyers.

Unfortunately, Marks’s apparent confidence that the Security Council won’t use its new tool as an excuse for inaction is optimistic. It does not take an active imagination to foresee a Security Council press release trumpeting the lifting of sovereign immunity — and accomplishing little else — as atrocities spread in some new locale.