Erga Omnes

Agenda-setting is a form of power, and universal jurisdiction is increasingly on the political agenda.  This month alone, a range of voices invoked the idea of applying universal jurisdiction across the Middle East:

At an event on International Human Rights Day (December 10), opposing the planned closure of Camp Ashraf in Iraq, Alan Dershowitz referred to universal jurisdiction as a way of holding the United States and others accountable—for failure to protect civilians and prevent international crimes.  Alaa Shehabi commented on a recent human rights report by the Bahrain Independent Commission of Inquiry, noting that universal jurisdiction was an option for those potentially escaping justice in Bahrain.  And Human Rights Watch in a new report on Syria referred to states’ responsibility in prosecuting international crimes under universal jurisdiction.

In each case, universal jurisdiction was placed on the agenda as a secondary matter:  only when national courts in the home country are unable or unwilling to meet their international legal obligations.  The putative intent is to support, not replace or compete with, traditional modes of seeking justice, i.e., the principle of complementarity.

But what about the “hidden face of power,” what Steven Lukes spoke of long ago when he said that power encompasses both formal decision making and agenda-setting?  This third face of power exerts its influence more subtly and invisibly; it assigns normative connotations and defines collective values.

It also begs us to ask whether universal jurisdiction ever reinforces global power imbalances or substitutes individual punishment for complex patterns of historical responsibility.  Or worse yet, do its interlocutors, who inevitably hold complicated political agendas, always speak for the people they’re seeking to defend?  These issues are worth considering, even while we celebrate the possibility of exposing state-sanctioned violence and inhumane treatment.

As of today, an agreement between Iraq and the United Nations provides for resettlement of Ashraf’s residents, with the controversy now revolving over whether resettlement is really voluntary or forcible.  See also my earlier post on Ashraf.