Overhasty Enlightenment

British prosecutors last month issued an arrest warrant against the former Israeli Foreign Minister Tzipi Livni. In previous years Spanish magistrates ordered the arrest of, among others, Chilean and Israeli (former) politicians. But the Spanish Parliament in June announced to remove the principle of universal jurisdiction from its legal system. The Spanish act decides that the transnational jurisdiction will apply only in cases where Spaniards are involved.

Transnational or universal jurisdiction means that within a particularist, national legal system all crimes against humanity can be addressed. Even if the crime took place outside that country, or if the defendants are citizens of other countries.

Universal jurisdiction is one of the possibilities of justice in among other countries England, Belgium and Spain, but as stated, the latter country wants to get rid of it now. As reasons for abolishing it are mentioned mainly practical matters, and in particular the effect that you can get political problems with more or less befriended countries. For example, in its relationship with Israel, the Spanish government felt hindered by it.

But are there only objections of a pragmatic nature to argue against universal jurisdiction? That thought suggests that in the Spanish decision a laudable principle is defeated under the pressure of common political and practical reasons. For that the idea behind universal jurisdiction is praiseworthy indeed is undeniable. Universal jurisdiction is designed to protect the weak and vulnerable of this world by ensuring that war criminals can be tried. Even if they live in countries with a poorly developed legal system. It remains a fine principle.

Yet I think that a more fundamental observation can be made to that nice principle. Already at first sight there is something incongruous in the combination of a nation state and universalism. The nation state is something which is by definition arbitrary, an entity shaped by many historical caprices. It clashes with a universalism which, in line with Enlightenment enthusiasm, wants to be universally valid, regardless of location and time.

The incongruence is further highlighted when we give the history of the system of nation states a closer look. Both the nation state and the market economy stem from competition and the pursuit of strategic advantage over others. That still makes itself felt in such matters as the environment protection, where the combination of nation states on the one hand, and marketprinciples on the other, block a global response to pollution.

We do not need to be condescending about this, because this self-organization through competing national units is only too self-evident. Neither of course do we need to extol it, and to stop all attempts to enlighted universalism looking across borders. Universal justice remains a good idea and it must be wonderful to experience it.

But it becomes problematic when this universalism is so euphoric and triumphalist, that it loses out of sight the origin of nation states and the incongruence of particularistic universalism. Particularly in Western Europe this is an actual risk. The decades of stable peace in Europe - mainly because of American protection - can deprive us of the sight on the underlying, still active aspects of the system of rival nation states. We forget our own origin and end up in an illusion.

Besides it may lead us into the situation that we no longer understand what it means for a country not to be yet in that luxury position. The claim to universal justice can become arrogant and lose the understanding for countries where the rivalry manifests itself in a more hostile way than with us. Of course one must ask whether such a country is doing enough to bring peace within reach. But being in a phase of hostility with other countries is, in itself, legitimate - given the arbitrariness of our system of national boundaries. It is no different than the stage the Western European nations found themselves in, one hundred years and two world wars ago. And be sure that for instance 'disproportionality' looks very different when you’re inside than when you’re outside.

An honest assessment of regimes at war must therefore take that situation of conflict as its starting point. So, such a country is at war and then: how does it deal with that. According to the jurist Kamminga you do well on such an assessment not to be too quick in bringing your own legal system into play. It remains a rough remedy, and wherever it is possible it is preferable to deal with war criminals in their own country. Certainly if a legal system is well equipped for this, which according to Kamminga, for example is the case in Israel.