CORRESPONDENCE

...Italy, for example, recently rejected Turkey's extradition request for a murderous rebel leader because of Turkey's record of torture and execution...

...The problem of amnesty in democratic transitions is a serious one, and it has not been given sufficient recognition in the Rome statute for a permanent international criminal court...

...Even the Geneva Convention on "Protection of Civilian Persons in Time of War" applies by its terms only to "armed conflict between two or more" of the signatory states, whereas Pinochet's actions were entirely internal to Chile...

...Rabkin asserts that this duty applies only to a government's own violators...

...It should reconsider...

...Rabkin objects to governments' recent moves to bring the world's worst human rights criminals to justice...

...Roth reminds us of Italy's fastidious approach to extradition...

...The best way to regularize justice across national boundaries is to launch the International Criminal Court agreed to last summer by 120 governments...

...Security Council in the Hague and Arusha...

...The more telling fact is that no previous case like Pinochet's has ever occurred (as Roth and Wedgwood tacitly concede, by failing to cite any such precedent...

...These widely ratified treaties impose strict limits on how governments can treat their citizens...

...But I doubt even more that the local authorities in a hostile country would pay close heed to what these sensitive humanitarians advise...

...Unfortunately, the Clinton administration, wedded to Rabkin-like thinking, remains virtually alone among its allies in opposing this court...

...So-called universal jurisdiction— allowing states to prosecute other serious violations of the law of war and humanitarian law—underlies the Yugoslav and Rwandan tribunals set up by the U.N...

...Indeed, delegates adopted a U.S.-proposed definition of the crime of launching an attack that causes disproportionate harm to civilians which, contrary to Rabkin's assertion, would preclude prosecution for an attack like this summer's misguided bombardment of a Sudanese pharmaceutical plant...

...Will all other countries behave even this "responsibly...

...And neither bothers to claim that Chile had actually consented, in a clear, formal treaty, to the sort of jurisdiction Spain and Britain have now asserted against Pinochet...

...policy to commit genocide, war crimes, or crimes against humanity, that fear is overblown...

...No doubt, Human Rights Watch and the Yale Law School will be only too happy to advise local judges on what "humanity" requires...

...It is a traditional prerogative of sovereign states to protect the lives and interests of their own nationals...

...Thus, by the most conservative theory, Spain has a right to prosecute the murderers of Spanish citizens abroad...

...But none of the treaties they cite is at all relevant to this case...

...Nothing in the Genocide Conven-tion—or other human rights treaties— suggests otherwise...

...Now Spain and Britain— with the eager endorsement of such advocates as Roth and Wedgwood— have told the sovereign states of the world that they have a lot more scope for such ventures than anyone had previously supposed...

...The fact is that of eight British judges to consider this issue in the Pinochet case, five of them thought the traditional rule was still binding (though the three who thought otherwise made up a slim majority of the Law Lords in the last round...

...But what of China, Malaysia, Algeria, or dozens of other such countries...

...They can also discourage future despots from replicating slaughter...

...Rabkin seems oblivious to the many treaties on human rights and humanitarian law adopted over the last half century...

...But a decision by the United Kingdom and Spain to allow the Pinochet case to proceed, if responsibly taken, will consider Chile's political stability...

...But why are Spain and Britain more "responsible" in judging what is right for Chile than the elected government of Chile...

...The keystone of international human rights law is the claim that there is, ultimately, some limit on how states can treat their own citizens...

...Nor is there a hint, as Rabkin claims, that prosecutions must be conditioned on the consent of the targeted government...

...But when Bill Cohen or Ariel Sharon is seized in an unexpectedly unfriendly place, the local authorities may decide, after all, that they can decide even more "responsibly" than their would-be tutors in New York and New Haven...

...If, as they claim, there is so much long-standing support for such a prosecution, how is it that not a single one has ever been previously attempted...

...Chile's current diplomatic protests must be evaluated in that light...

...But Chile's president felt sufficiently confident in the strength of Chilean democracy that he left the country at the height of the Pinochet drama on a nine-day trade mission...

...Having dismissed the customary rule, Roth and Wedgwood are eager to move on to new authorities...

...Rabkin argues that the pursuit of justice will impede democratic transitions in Chile and elsewhere...

...Rabkin conjures up various scare scenarios of pariah states seeking the extradition of U.S...

...At bottom, the outlook of Roth and Wedgwood assumes that national courts around the world can now disregard (or freely reinterpret) the sovereign rights of other states and simply act on behalf of "humanity...

...It is a mistake to dismiss this as "fantasy...

...He begins with the tired defense that such prosecutions violate "sovereignty," which he calls the "central premise of international law...

...But extradition requests are routinely denied when a requesting state's justice system cannot be trusted...

...Would Rabkin wish to abandon these "third party" treaty regimes...

...This was a lesson from the Holocaust...

...The consent of the violator's state is not needed for these prosecutions...

...KENNETH ROTH EXECUTIVE DIRECTOR HUMAN RIGHTS WATCH NEW YORK, NY Jeremy Rabkin's musings on the tyranny of international law would have us pitch the baby out with the bath water...

...Dictators cede power not because they are born-again democrats, but because their domestic and international support has waned...

...Both letters deny that there is any enduring customary rule that prohibits the courts of one country from trying the top officials of another country, for acts of the latter in their official capacities and in their own countries...

...It is also the jurisdictional basis of the 1949 Geneva Conventions protecting prisoners of war, wounded soldiers, and civilians...

...Because it is not U.S...

...or Israeli defendant in such a case...

...So in the Roth-Wedgwood view, we have abandoned the former bright-line rule against prosecuting top officials of another country, but we do not need to have specific treaty authorizations for such prosecutions, either...

...What we have, then, is the open-ended discretion of some 150 separate national court systems around the world...

...It underlies our concern about the mistreatment of Christians abroad...

...International law has historically been concerned with adjusting relations between sovereign states...

...but when a judge proceeds against a world-class murderer, that's "judicial activism" run amok, at least according to Jeremy Rabkin ("First They Came for Pinochet," Nov...

...Prosecutions, by delegitimizing tyrants, can hasten that process...

...RUTH WEDGWOOD PROFESSOR OF LAW YALE LAW SCHOOL NEW HAVEN, CT Jeremy Rabkin responds: Both Kenneth Roth and Ruth Wedgwood articulate the new approach to international law which my article warned against...

...According to the U.N...

...There is no international treaty or customary rule generally immunizing foreign officials involved in those deaths—and in an age of state-sponsored terrorism, I doubt we would want one...

...officials...

...What happens if an American or Israeli official is seized in one of these countries—with as little forewarning as Pinochet had, when he entered Britain on a VIP basis last October...

...I am not sure that either Roth or Wedgwood would actually side with the U.S...

...Charter, all sovereign states are equal...

...Rabkin is most concerned about the possibility that Americans might face international justice...

...It is employed in the 1979 Convention Against Hostage-Taking, and the 1971 Montreal Convention Against Aircraft Sabotage...

...It is a fact of life that countries often say one thing publicly and another privately...

...They also impose a duty to bring violators to justice...

...Wedgwood assures us that the problem of "democratic transitions" will be "responsibly handled...

...Roth's citation of the Genocide Convention is as irrelevant as Wedgwood's citation of the Convention Against Aircraft Sabotage...

...But the Geneva Conventions, which define war crimes, require governments to bring offenders to justice "regardless of nationality...