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Judgment without borders

October 06, 2008|David B. Rivkin Jr. and Lee A. Casey, David B. Rivkin Jr. and Lee A. Casey are partners in a Washington law firm and served in the Justice Department under presidents Reagan and George H.W. Bush.

'He may be a sonofabitch," President Franklin Roosevelt is supposed to have muttered, referring to a Nicaraguan dictator, "but he is our sonofabitch."

That is foreign policy realism in a nutshell -- straightforward, practical, pursuing the national interest regardless of ideology. Its counterpart, of course, is a foreign policy driven by idealism and conviction -- a credo often called Wilsonian, after President Woodrow Wilson, but most recently associated with the neoconservative movement. These days, the assumptions of both schools of thought are threatened by a new global actor in the form of international judicial activism.


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The most recent example involved a Rwandan general, Emmanuel Karake Karenzi, and whether he should be reappointed by the United Nations to serve as deputy commander of the joint United Nations/African Union "implementation" force in Darfur.

Karenzi commanded Rwandan military forces accused of war crimes in the 1990s. In particular, Karenzi's Tutsis were accused of reprisal killings against Hutu civilians as revenge for the hundreds of thousands of Tutsis murdered by Hutu extremists during the Rwandan genocide.

Published reports suggest that the U.S. State Department has a mixed view on Karenzi: It has no evidence that he was personally involved in atrocities, but it refuses to rule out some link to the offenses, presumably based on a "command responsibility" legal theory. This, of course, is one of the most slippery slopes in international law, imposing criminal liability on a superior officer based not on what he did or ordered but on what he did not prevent or punish appropriately on the part of his troops

For its part, Rwanda stood behind its general -- so much so that it threatened to withdraw its (crucial) troops from the Darfur mission if Karenzi were forced out. Collapse of the U.N./African Union effort would, of course, erase what little security (and it is not much) the international community has offered that region's suffering population. Secretary of State Condoleezza Rice came down on the side of Rwanda, throwing American support behind Karenzi.

But the situation became more complicated earlier this year, when a Spanish judge indicted Karenzi for offenses in Rwanda. Although Spanish nationals also were allegedly killed by the general's forces, the indictment mostly involved Rwandan victims and was based on a theory of "universal jurisdiction."

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