Ensnared By Victor's Justice
by George Jonas
National Post
December 19, 2009
The Israeli Foreign Ministry called it an "absurd situation." It may have been absurd, but hardly unforeseeable. The arrest warrant issued by a British court this week against Israeli opposition leader Tzipi Livni was the logical outcome of a process that began long ago.
On May 29, 2001, French officials appeared at the Ritz Hotel in Paris with a summons for former U.S. secretary of state Henry Kissinger, issued by an examining magistrate at the request of William Bourdon, a lawyer representing the families of French nationals who allegedly disappeared in General Augusto Pinochet's Chile. Kissinger, having no obligation to talk to crusading French magistrates, flew on to Italy as scheduled, leaving it to the American embassy in France to explain to Judge Roger Le Loire that if he has a question about U.S. policy, he should address it to the State Department.
The left was nevertheless jubilant.
"When the names of former Chilean dictator Augusto Pinochet and former U.S. secretary of state Henry Kissinger popped up intertwined in the news last week, it was a magical moment for human-rights activists worldwide," enthused Marc Cooper, a former translator for Chilean president, Salvador Allende, who was killed in Pinochet's coup before he could turn Chile into Cuba.
As I noted in a September column, Spain happened to be hosting a visit for Fidel Castro the week it originally requested General Pinochet's extradition from England in 1998. While the arrest warrant was being served on Chile's ex-tyrant in London, King Juan Carlos was dining with Cuba's tyrant in Madrid. "Surely there is something amiss when morality is said to require one dictator's arrest, while another who rules far more brutally is treated as a distinguished guest," remarked Elliott Abrams, former U.S. assistant secretary of state, in the National Post.
Livni wasn't the first Israeli politician a pro-Palestinian group tried to have arrested in Europe. In 2001 a Belgian court declared it had jurisdiction to try then-Israeli prime minister Ariel Sharon. In 2004 then-Israeli defence minister Shaul Mofaz was granted immunity from international arrest by one British court, while another deferred a request to arrest another former prime minister, Ehud Barak. Livni herself cancelled her trip (ostensibly for another reason) and the court annulled the warrant because she wasn't on British soil.
Sooner or later, a judicial authority somewhere will arrest an American or Israeli politician for a policy someone alleges to be a crime. There's nothing to stop them. The liberal democracies agreed to turn politics into a police matter, then put the left in charge of the court calendar.
Was Nuremberg a mistake? Hanging the Nazis wasn't; trying them may have been.
Horrified by Nazi genocide and other atrocities, well-meaning liberals decided to scrap principles of national sovereignty; create a category of crimes without borders -- war crimes, crimes against humanity -- and set up supra-national systems to prosecute them. The left quickly realized that hijacking these systems could dress its politics in judicial robes. They could criminalize military action against left-tinged tyrants and terrorists, making it unlawful to oppose causes and policies the left endorsed.
Some saw clearly where this was leading. "The Nuremberg trials were attacked at the time as 'victor's justice.' And this is precisely what they were -- and were intended to be," wrote Margaret Thatcher in her political testament. "[But] those now advocating ever greater intrusions of international justice into the affairs of sovereign nations repeatedly claim that in some sense they are building upon and fulfilling the aims of Nuremberg. And this is quite wrong."
Lady Thatcher noted that Nuremberg was justice based on sovereignty, the sovereignty of the victorious occupying powers. It was not justice based on some supra-national body superseding sovereignty, like the International Criminal Court. "For the victors of the Cold War," Lady Thatcher wrote, "to submit to an unelected, unaccountable, and almost certainly hostile body such as that envisaged would be the ultimate irony."
Kissinger himself anticipated the use to which Pinochet-type precedents would be put. "If generally applied," he wrote in the Los Angeles Times in December 2000, "[such doctrines] would ... grant limitless license to ambitious national prosecutors or for the settling of political scores."
Summoning Kissinger from his Paris hotel was still an erotic dream for ex-flower children fantasizing about setting up a Holy Inquisition of the left, when the FBI started issuing quiet travel warnings to former American officials. Going to Europe, the G-men said, watch out for terrorists. If they miss you in the street, they'll see you in court.