Ranting to /dev/null

It’s called “universal jurisdiction,” and it’s a real – though controversial – concept in international law. Check out the trial of Pinochet in 1998 for a relatively recent example of its use.

I am aware of the concept and the related precedent, but we're talking major international incident. Also, the US doesn't generally sign on to most provisions that would subject its citizens to foreign jurisdiction. Heck the US hasn't even ratified all of the Geneva Conventions.

Germany is probably capable of suing random foreigners as a matter of fact, but there are major issues as a matter of law. It'd be one thing if charges were brought at the Hague or the UN, but the federal courts of a sovereign state that was not party and has no vested interest in the alleged acts should not be able to exert such jurisdiction as a matter of law.

A quick response:
(1) universal jurisdiction has nothing to do with whether something was a “major international incident,” only with whether the crime is of universal concern (whether it violates a jus cogens norm: torture, genocide, crimes against humanity, etc., and thus, if what the US did to enemy combatants under Rumsfeld’s direction falls into one of those categories as a matter of fact, it counts as a matter of law);
(2) universal jurisdiction has nothing to do with whether the US signed on to a treaty - the whole concept of universal jurisdiction is that it is an independent variable, related to given crimes, that transcends particular jurisdictional agreements tied to particular courts like the ICC or ICJ;
(3) charges cannot be brought at the “UN,” as it is not a court or a judicial body. This goes back to point 2. Charges could only be brought at the ICJ or the ICC if the US agreed to jurisdiction, which it has not – thus, Germany’s use of universal jurisdiction;
(4) the party does indeed have a “vested interest in the alleged facts” – they are allegedly crimes against humanity, which, per the whole idea of universal jurisdiction, all countries have an “interest” in;
(5) whether countries “should” be able to exert this kind of jurisdiction is very controversial, but it does not answer the question, as a matter of current international law, of whether they “could”; the Pinochet trial, among others, indicates that this concept has bite.

I have no expertise in criminal law, & it is mostly an exercise in publicity at this point, whose legitimacy is highly suspect from a structural/procedural point of view, let alone a metaphysical one - the memory of Stalin's reps presiding over the Nuremburg trial tells you all you need to know about the balance between morality and force in determining who actually stands trial.

But you may be underestimating the symbolic value of even so dubious a conviction as is contemplated by these German lawyers: there's a lot of rhetorical force to being able to describe someone as "a war criminal in Germany, Spain, France, etc." - may put a crimp in your dinner party schedule, & it's certainly fodder for protestors gathered outside your conferences. If nothing else, it'll make Rummy a little uncomfortable. If that's the most that can't be achieved, it's still better than nothing. But the most significant consequence of {an admittedly unlikely} conviction would be that Rumsfeld could no longer visit Germany, even en route to somewhere else, for fear of being imprisoned. That, I think, is a substantial imposition, esp. given how much men of his prominence tend to travel.

That should have read "no expertise in international law," though last year's crim prof might find the accidental version of that sentence equally accurate.

1) What I meant was that attempting to prosecute a former government official of a nominally-allied nation without that nation's consent would immediately create a major international incident, regardless of the cause of action.
2-3) Again, I understand the concept of universal jurisdiction. I was not attempting to say that universal jurisdiction would not apply, but object to the idea of universal jurisdiction as such. This goes to your 4th point. I understand the idea, but I don't like it.
5) Whether or not they "can" is a matter of fact, not of law. Whether they can get away with it is a different question.

The facts here are different than in the Pinochet case. Spain indicted Pinochet for, among other things, torturing Spanish citizens. That creates a vested interest on the part of the Spanish government. As such, even though the House of Lords' decision to extradite him to Spain was nominally based on articles of international law adopted by Britain, Spain still had a national interest.

Germany has zero national interest in Rumsfeld, and thus is attempting to exercise jurisdiction on a purely universal basis. Which, I contend, is bullshit. It would be one thing if they attempted to charge him for prisoner abuse of detainees in Germany. That could stick, and wouldn't have nearly as much of a problem with that.

But they aren't. They are, I repeat, indicting a foreign national for actions taken against other foreign nationals in foreign territories. This is perhaps as radical an expansion of a forum's jurisdiction as it is possible to conceive.

Perhaps one reason I'm opposed is that I don't really believe in human rights, so trying someone for violating them is, from my perspective, completely incoherent.

Julian's point is an important one. Ryan, I'm not saying universal jurisdiction is a good idea - a policy and not legal point you continue to argue - but it's gaining ground as a legitimate legal concept. And whether or not you like or believe in something (something procedural, like a kind of jurisdiction, or substantive, like human rights) doesn't necessarily change its legitimacy under the law. In my estimation, a good lawyer who wants to change or challenge law or legal concepts must first learn and/or acknowledge them. That's all I've been trying to get you to do with UJ.

Ryan, I'm a little puzzled by the implicit distinction you *seem* to see {and I may be misreading you} between the legitimacy of, e.g., the American legal system vis-a-vis it's own citizens & the legitimacy of a putatively "international" forum vis-a-vis members of the "world community." One could argue that one consents to the American legal system by virtue of choosing to accept citizenship here, whereas one simply can't escape the globe, ergo international forums may be, and probably are, operating without one's consent and are thus qualitatively inferior as a matter of Lockean contractual law. However, most American citizens are born into the U.S. legal system, and their consent to its jurisdiction exists only to the degree that they have not chosen to move elsewhere. This seems to me rather poor grounds for deeming the legal system to be somehow a contractually mandated procedure for determining whether one should, e.g., spend 20 years in jail - by the time one is capable of deciding to change countries, s/he's already quite heavily invested in a given culture & economy, and for many, esp. in the inner city - who are also most likely to be subject to criminal if not civil sanctions - the choice is purely theoretical anyway: they can't afford the plane ticket, & no one would want them even if they could. But what other distinctions are there? The concept of a "vested interest" of a nation in the actions of one of its citizens against another in a nation of 300 million seems little less tenuous to me than the interests of the "global community," as represented by a collection of national representatives, in the actions of one man against millions. Law in either case is nothing more than the imposition of the will of the majority against the minority - informed, it's true, by considerations of economic efficiency, social policy goals, and a degree of altruistic concern for the general wellbeing that is informed by a variety of putatively moral viewpoints, but nonetheless at its foundation simply a carefully structured assertion of raw power. This seems to me no less true of national than international law systems. You may not like the moral preferences of international forums, but I don't see how that makes them less legitimate, procedurally, than strictly national forums. I'm probably almost as hostile to the actions of international courts as you are, but I find them difficult to critique on a conceptual level. Fortunately right now they're hamstrung by impotence, but if/when that changes it'd be hard to object on a philosophical basis to their assertions of jurisdiction. {BTW, I recognize that this comment moves the discussion away from the curious idea of a German court asserting international jurisdiction into the more general question of international legal forums. Sorry. I'm trying to avoid reading more about Lochner right now, & any distraction will do.}

Actually, I think you may be misreading me. My objection here is not against the legitimacy of international legal forums, though I may have unrelated issues there. Should Germany elect to bring charges against Rumsfeld in the International Criminal Court, that would be one thing, and though I don't like the ICC I wouldn't object on jurisdictional grounds. The ICC doesn't need to claim universal jurisdiction, it can make some argument of original personal jurisdiction as an international legal body. I think its authority is pretty much illusory, but it does have an original claim to things like war-crimes, by international fiat if nothing else.

There is a jurisdictional argument against international legal forums though. One of the reasons we hold nationals of a given state to be subject to jurisdiction there is that they derive benefits and protections from the laws of that state. US citizens have civil rights under US law anywhere in the world. As such, they can be subject to US law anywhere in the world. The same goes for citizens of Germany with respect to that state. Here we can read some kind of implicit consent in the enjoyment of these benefits.

But international forums are different. They are not sovereign and afford no substantial legal benefits or protections. I mean, they talk like they do, but they don't. So subjecting me to jurisdiction in an international forum which has no relation to me beyond my physical presence on the earth seems to be create an authority that is so theoretical as to be laughable. As you say, law is in essence the exercise of raw power, so attributing significant authority to a body with no real power only makes a laughingstock of the people who thought it was a good idea in the first place. Witness the Security Council with respect to North Korea and Iran.

In short, I object to the idea of universal jurisdiction as being an untenable extension of jurisdiction. But though there may be objections to the jurisdiction of international forums in general, they need not rely on concepts of universal jurisdiction as whatever authority they may have is inherently international. I'd be much more comfortable suing Rumsfeld in the ICC than in a federal court in Germany.

Yeah, I noticed shortly after posting that I had skipped over your references to the Hague etc., and confused international & universal jurisdiction. Indefensibly careless misreading.

But in re: international jurisdiction, the "afford substantial legal benefits and protections" critique is nothing more than another reflection of these courts' current powerlessness, not a problem on a conceptual level, as I think you recognize. When the conviction, sentencing, and {crucially} incarceration of gentlemen such as Kissinger and Rummy is actually achieved - which may not be for at least a generation - international forums' claims to give substantive legal benefits and protections to those falling within their jurisdiction will be simultaneously validated.

In re: universal jurisdiction, though: I agree with you that the idea of international moral norms, esp. the idea of inherent rights as usually described by the Pollyannish drafters of morally preening "declarations" & "resolutions," is without a philosophically defensible foundation. But I still think that absent an idea of law as somehow grounded in either an implicit contract or the hopelessly elusive concept of "natural law," UJ is no less legal than any other type of jurisdiction wherever it can be meaningfully exerted.

Also, I'm not familiar with the legal structure of the Pinochet case, but if, as you seem to concede, Britain's extradition was actually undertaken under "international law" statutes, the fact that the ultimate sentencing body had some kind of "vested interest" is an ethical distinction but not a procedural one in tems of evaluating the validity of the British {tho' not the Spanish} action.

On a purely practical level, I don't believe that truly international bodies will ever be able to achieve anything like the power of sovereign states. For better or worse, it's governmental entities that control a territory with the support of an army that can ultimately wield political power, and territory is a critical component in obtaining an army. National-type governments have, for all of recorded history, been the site in which ultimate human power is invested. Trying to establish some kind of superior governing body to which states themselves must answer is doomed to failure from the start.

I view the attempt to create international entities as, in essence, a vain attempt to mirror the kind of entity that the church is: an entity that stands above national politics and grounds its authority on theological and moral axioms, not political might. I'm not saying that international diplomatic forums are useless, because they aren't, but attempts to invest them, entities that are of a different kind than states, with the same kind of power that states have cannot possibly succeed. They will never have power of themselves, but only the power that their client states grant to them. Derived power is no power at all.