The internationalization of justice

Proceso, editorial, #812, 24 June 1998

Convened by the United Nations, the community of nations is meeting in Rome to establish an International Criminal Court which would try those accused of crimes against humanity, crimes against human rights and war crimes which national courts refuse to try. This proposal is the product of a new international consciousness of the need to put an end to the impunity of those criminals who commit crimes convinced that they will not be investigated or tried for them.

In Argentina, former President Videla, the general who led the coup d'etat to end so-called communist subversion, was jailed for the second time. Previously President Menem pardoned him and freed him from life imprisonment for torture, assassination and the disappearance of Argentine citizens. This time he faces charges for the kidnapping of children born in the prisons. The accusation is directed against several former generals and civilians. Moreover, several Argentine military officials face charges for obtaining illegal profits from the properties of those assassinated or disappeared.

In San Jose, Costa Rica, the InterAmerican Human Rights Court of the Organization of American States is hearing charges presented against the government of Guatemala for the assassination of a member of the guerrilla. In Europe, tribunals hearing the cases of ex-Nazi officers accused of the assasination of Jews as well as military officials responsible for the ethnic cleansing in the Balkans.

In El Salvador, on the other hand, the justice system is ignoring as best it can the assassination of three religious women and a lay collaborator in 1980. Notwithstanding the declarations of some of the material authors of the crime, who are about to leave prison under the benefit of new penal legislation and who have declared that they received orders from their superiors, the Salvadoran judicial system is not demonstrating any interest in reopening the case. The declarations of the material authors of the crime confirm the findings of the Truth Commission which identifies military officers who issued such orders. To allege that the crime has been annulled is a legal sleight of hand. It is true that, at the time, the crime was classified as a common crime in order to eliminate the possibility that those who were guilty might avail themselves of the amnesty law. In reality, the rape and assassination of the four women is a crime against humanity and therefore cannot, under international law, be annul

For the Salvadoran government, these crimes are outside the realm or reach of justice because of the amnesty law which fulfills its objective in this way. According to this criterion, the amnesty law would qualify as the only measure and rule of what is good and just. Supported by this law and only because they have not been found guilty of the crimes of which they are accused, many criminals and delinquents are attempting to pass as decent citizens. And what is worse, many well-intentioned Salvadorans fall into the trap of accepting that this act as an unavoidable fact of the state of law. It is not surprising, then, that astonishment and concern predominant in this separation between law and justice.

A very common strategy is to lead one to think that law can operate in an unlimited way in dealing with reality. As a result, it is said to be sufficient, in this mode of thinking, to consecrate in the Constitution or a law the right to something so that all members of the society will actually be able to enjoy that right or produce a law for modifying the situation. On not a few occasions, goods offered are not compatible with or are reconciled among themselves only with great difficulty. In the case we are considering, the law has been invoked in order to avoid the application of justice. The law is defended, but impunity is simultaneously confirmed. The existence of a state of law implies the subjection of the law to justice, but it is necessary always to indicate which is the law, where it should be sought and who establishes it. These are very ancient questions which were posed by the Athenians in Classical Greece. Without clarifying the appropriate form of these considerations, the basis of

For a long time it was thought that rights were synonymous with law, given that the law was dictated by representatives of the people. Later, when this basis was questioned, it was alleged that the law was the general and abstract norm, and, therefore, the same for everyone. Finally, it is only adduced that it is the law. And faced with the insufficiency of that argument, the Constitution is declared to encompass the content of the state. But constitutional precepts are necessarily general and inevitably imprecise, dealing more with efficient policies than with judicial matters in a rigorous manner. These precepts, therefore, ought to be made palpable and specific by the legislators and, in the last analysis, by the judge. So it is that, parting from the premise of a legal state of law , a judicial state is achieved. If the subjection of the state to the law only means subjection to a judge, any action which makes difficult the access of citizens to the tribunals, or which limits the freedom of c

Constitutional jurisdiction is the highest point of a state of law, but this does not guarantee its existence in reality. The gravest danger is a result of the progressive destruction of its ordinary jurisdiction. Frustration reigns among the citizenry because their expectations, when they confront a power which has been assured to them as the final guarantee of democracy, are not satisfied. For this reason, it becomes even more impossible to suffer the defects of justice. Even more serious, still, is the frustration arising from decisions simply supported by the law to which, according to what has been affirmed, judges themselves are subject when this does not contradict justice. So it is that the judges have established themselves as a intermediate power between the state and society, and this is made legitimate only by their service to the law. But this ancient principle flounders when the rights which are served are the rights which they themselves create.

The protection of the international courts may be sought when justice is laid aside in national tribunals which invoke the law. In this sense, the international community is acquiring a new consciousness of its responsibilities with regard to justice. The world then opens up not only to enjoying the world of football, but also to requiring judgment for crimes from those who, under the protection of impunity, have violated the right to life, which is guaranteed to all.