November 2, 2011
When General Augusto Pinochet, Chile's iron-fisted ruler for more than 17 years, was arrested in London in October 1998 no government stood in the way of Spanish investigating judge Baltasar Garzon from obtaining a warrant to execute the arrest.
In fact Pinochet's arrest set a precedent and the concept of universal jurisdiction came alive. It meant that those accused of crimes against humanity could no longer hide from the law, that they ran the risk of being arrested and prosecuted for crimes against humanity in a country far from their former homeland.
Thirteen years later the impact of Pinochet's arrest has been undermined by governments blocking such cases for what appear to be political purposes.
Last week Attorney-General Robert McClelland halted the possibility of the arrest and charging of Sri Lankan President Mahinda Rajapaksa and in my view undermined similar ''citizens arrests'' of individuals against whom it could be said there is a prima facie case of crimes against humanity.
Over the course of the past two months not only Australia, but Canada and Britain have stymied the progress of such arrests. McClelland took less than 24 hours to refuse to allow charges to be filed against Rajapaksa despite the fact that the person laying the charges was Jegan Waran, a 63-year-old man who claimed to have direct evidence of war crimes being committed against the Tamil people during the country's recent civil war.
McClelland says that Rajapaksa has diplomatic immunity. We don't know whether there were other reasons but Australia does have an important relationship with Sri Lanka, on whom it depends for co-operation to stop asylum seekers leaving that country. That relationship may have had some impact on the decision.
While McClelland was busy with his red pen at the same time, in the Canadian province of British Columbia, Attorney-General Shirley Bond blocked a lawsuit, brought by the Canadian Centre for International Justice and the Centre for Constitutional Rights, which sought to prosecute former US president George Bush under Canada's criminal law for crimes of torture allegedly committed during the Iraq War.
In the UK the coalition government led by Prime Minister David Cameron earlier this year amended the law so that arrest warrants concerning foreign citizens can only be issued with the consent of the Director of Public Prosecutions. This follows the issuing of warrants by the courts seeking the arrest of senior Israeli ministers and defence force officials involved in Operation Cast Lead, the Christmas 2008 offensive against Palestinians.
What is concerning about the actions of these three governments is that they are not reacting to vexatious litigants or hopeless cases but to cases that international criminal law experts such as Rob Stary and Daniel Machover judged to have at least some prospect of success in a court of law.
As such I can only conclude that in each case it was political interests that contributed to the actions of officials to prevent justice being allowed to take its course. Canada's national government would not want the embarrassment of having the former president of its largest trading partner and ally arrested when he set foot in British Columbia. Similarly the British government's strident support for Israel effectively killed off any idea that the latter's politicians and soldiers should face crimes against humanity charges in a British court over their actions against Palestinians.
It is doubtful that any of them would have prevented legal action against any senior member of the Gaddafi regime had they landed in their jurisdiction. That is why their actions smack of hypocrisy and blatant political self interest.
The prosecution of crimes against humanity, however, should never be subjected to a political interest test. If there is a prima face or arguable case against Bush, Rajapaksa or Israeli government officials then governments have no business in interfering to prevent the operation of the criminal law by the independent judicial system.
One global elder statesman who would be cheering McClelland on for his actions last week would be Henry Kissinger, an opponent of the idea of universal jurisdiction for crimes against humanity. ''Universal jurisdiction risks creating universal tyranny - that of judges,'' Kissinger wrote in 2001. And long may that remain the case.
Greg Barns is a barrister and National President of the Australian Lawyers Alliance.
Read more: http://www.brisbanetimes.com.au/opinion/politics/politics-has-no-place-when-it-comes-to-crimes-against-humanity-20111101-1mt63.html#ixzz1dofMIKrO