Universal Jurisdiction: 'Judicial Activism,' or international law?

In an op-ed in the L.A. Times this morning, two former Justice Department attorneys argue that the use of universal jurisdiction to indict and try suspected war criminals amounts to "international judicial activism." Universal jurisdiction grants national courts in one country the authority to prosecute war crimes and crimes against humanity, including crimes of genocide, that occured in another, and is another bulwark against impunity for egregious human rights abuses.

The authors base their criticism on a recent schism between the UN and Rwanda: The Rwandan government threatened to pull its 3,000 peacekeepers out of Darfur if the UN persisted with the removal of Major General Emmanuel Karake Karenzi, who is suspected of war crimes in the aftermath of the Rwandan genocide in 1994 and was indicted by a Spanish court earlier this year.

This is a bit heady for early in the morning, but bear with me:

The tension between international justice and international politics, which often have peace-making and -keeping efforts hanging in the balance, is a very tricky tightrope to walk. However, universal jurisdiction does not mean that individual courts can pursue anyone they like, and for any reason, as the authors seem to suggest. Universal jurisdiction is another way to implement international law--a powerful tool of accountability for the worst crimes against humanity. In ratifying the UN Convention on Genocide, signatory states assumed the responsibility to prevent and punish the crime of genocide. Given the shortcomings of the International Criminal Court (ICC), universal jurisdiction allows nations to fulfill this obligation.

The authors also criticize the use of universal jurisdiction to prosecute suspected war criminals from "countries with functioning judicial systems that have decided, for their own reasons, not to prosecute." But international justice is not reserved for cases where the country is unable to prosecute--it also applies when they are unwilling to do so. (This principle is enumerated, among other places, in the Rome Statute establishing the ICC.)

Since when is it acceptable to forgo justice because the offender complains about it and threatens retribution? Granted, that's a bit simplistic, but I think the principle still relates.

Universal jurisdiction brings national governments into compliance with international law. I'm not saying it's not complicated, but what's the point of agreeing on a set of laws if there's no mechanism for enforcement?