Trying Donald Rumsfeld and Dating Scarlett Johansson

Reporting on the efforts of the Center for Constitutional Rights to bring a case against former Secretary of Defense Donald Rumsfeld in Germany, the San Francisco Chronicle includes the following remark by UC Hastings Prof. Joel Paul:

Since the post-World War II Nuremberg tribunals, it has been clear that "governments have the right to put on trials of (other nations') officials for international crimes."

Now, it's always a stupid idea to criticize a professor, especially based upon a quote in a newspaper.  However, since I don't have any classes with Prof. Paul this or next semester (and I have a lack of common sense), I think I can get away with throwing some stones without too many negative consequences.

I am not sure that Nuremberg is the proper authority for the ability of governments to try the officials of other nations. Yes, German officials were tried for crimes against humanity, but it was not done by an individual country. Nuremberg, in theory at least, was an international tribunal.  As Prof. Paul has said in his international law classes, a far more relevant authority for universal jurisdiction over foreign officials is ex parte Pinochet (see the "Ripple Effect of the Pinochet Case"), but I am just picking nits here. Similarly, it is well settled that government officials can be tried before international tribunals, e.g. Milosevic and Taylor.  The relative success of the Milosevic and Taylor cases as opposed to the Pinochet situation highlights the fundamental problem facing any effort to bring a case against Rumsfeld: politics.

While ex parte Pinochet contributed to international jurisprudence, it doesn't appear that Pinochet will be seeing the inside of a jail cell anytime soon. Belgium's universal jurisdiction statute was scrapped after the US threatened not to participate in a NATO meeting there.  And of course, there is nothing quite as pleasurable as reminding my Dutch colleagues that Congress has given the President the authority to blow them up. Germany bringing a case against Rumsfeld would be as inadvisable as criticising a Professor's quotation in a newspaper. 

Inevitably, people will bring up Henry Kissinger and the pending lawsuits against him in Europe. While I am sure that he makes his travel plans accordingly, if his arrest ever came about there would undoubtedly be a vigorous reaction from the US.  Moreover, the fact that the Center for Constitutional Rights' complaint focuses on not just Rumsfeld but also John Yoo and James Bybee undercuts its legitimacy.  I am no fan of Yoo or Bybee's legal arguments, but to charge them with war crimes seems a bit absurd.

At the dirty intersection between international politics and international relations, IR is most often going to have the right of way.  Eager proponents of international law can put the pedal to the floor and drive their Geo Metro into the intersection, but there are going to get blindsided by the semi truck of international relations (whether international law has upgraded from sub-compact to sedan is another debate).

But what does all of this have to do with Scarlett Johansson? The lawsuit against Rumsfeld has about the same chance of being successful as me getting a date with Scarlett Johansson.  Sure its technically possible, but it ain't happening any time soon.

On a side note: Maybe Johansson could star in an update of "Lost in Translation" with Rummy titled "Lost in Iraq." Speaking of movies, who wouldn't want to see Rummy and Bill Murray in a movie together, perhaps "Groundhog Day II: The Quagmire."

Also see "Germany Asked to Prosecute Rumsfeld, Gonzales, Yoo (and the whole Bush Administration)" at Opinio Juris.

Comments

[Paul]

You are so right about politics. I recently attended a talk by Justice Goldstone (former chief prosecutor for ICTY and ICTR) and he said that international law is essentially political. I do not think Germany has any desire to proceed with the case, the backlash would be too great. What's another unpunished war criminal anyway?