Erga Omnes

If the trend toward universal jurisdiction is evident in anything it is in travel itineraries. As more arrest warrants are issued on the basis of universal jurisdiction, those indicted are compelled to change their travel plans. The latest, controversial example of this involves Israelis traveling to the United Kingdom. According to Patrick Martin of the The Globe and Mail,

the threat of applying universal jurisdiction to arrest prominent Israeli political and military leaders who travel abroad for alleged war crimes is keeping many Israelis home.  (Globe and Mail, July 7, 2011)

Two prominent Israelis, including former defense minister Amir Peretz, left Britain this month soon after being warned of impending arrest for purported human rights crimes.

Word of both fleeing fueled the debate over reforming Britain’s law on universal jurisdiction. A reform bill to this effect (prohibiting judges from issuing arrest warrants based on private petitions, without the consent of the state prosecutor) was introduced last December, itself largely in response to Israeli pressure—after opposition leader Tzipi Livni was prevented from entering the UK in 2009, the result of an application filed by pro-Palestinian activists after Operation Cast Lead. (Spain too caved into Israeli pressure, watering down last year its 25-year-old universal jurisdiction legislation.)

The Israeli and British and other governments seem to concur that politically motivated prosecutions are polluting the judicial process, since applicants know full well that winning a legal case is highly improbable, and are undermining vital foreign relations.

These governments are correct that those seeking arrests on the basis of universal jurisdiction are acting politically. Without question, they are undertaking an explicitly political act—i.e., challenging existing power structures and contesting violations of international law.  And they are doing so without necessarily equating accountability and punishment. An arrest warrant, after all, exposes minimally a story of abuse–who may have done what to whom–even though warrants themselves are typically issued through a legalized process, and only once certain conditions have been met.

Governments opposing these practices generally have it backward: they are claiming a political exception for violating deeply entrenched international norms—such as the prohibition against torture or the killing of civilians—and even for bypassing legal accountability in the face of serious abuse. Yet conceptions of wrongdoing, not the likelihood of punishment, should drive justice. Having to shift travel plans because of arrest warrants may just be the price of political leadership today.