Juridical and Jurisdictional Disconnects
25 Pages Posted: 26 Aug 2003
Although extraterritorial trials for human rights abusers certainly achieve some justice, this Article posits - through a case-study of post-genocide Rwanda - that the effects of such trials are circumscribed by the fact they may have little meaning among perpetrators and victims in post-conflict societies. This limited meaning particularly attaches to trials conducted extraterritorially through international tribunals as well as trials conducted in foreign national courts through the exercise of what loosely is called "universal jurisdiction." This circumscribed meaning results in these trials' having limited deterrence effects, although they may go some way to satisfying the deontological need to punish aggressors. Incommensurabilities may arise when the legal culture in which the trial is conducted contrasts with the legal culture of the post-conflict society. These incommensurabilities may reflect deeper divides between "us" in the West and "others" in the rest of the world. These divides are prompted by the fact that international human rights law as implemented through international tribunals is proffered as a putatively "universal" construction, but this may belie its perceived origins in Western legal norms. Moreover, those national courts exercising universal jurisdiction over human rights abuses generally are Western courts, and the subject matter of the jurisdictional exercise often are abuses in the developing world. Assuming the existence of some sort of international legal duty to prosecute systemic human rights abusers, then whatever meaning extraterritorial trials might convey could be enhanced if such trials are carefully constructed and take into account contextual elements such as local culture, law, and history. This way, trials may be geographically extraterritorial, but not as legally, culturally, spiritually, and socially extraterritorial. By way of prescription, this Article offers some preliminary insights relevant to the ongoing prosecutions of Taliban fighters and Al-Qaeda terrorists.
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