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CHAPTER FIVE International and Transnational Law, Sovereignty, and Hegemonic Power DONALD W. JACKSON Law above the level of the nation-state is on the rise, though sometimes constrained by the political, economic, and military power of certain nations. Indeed, universal criminal jurisdiction may even be invoked by courts of nation-states—or by emergent international tribunals with criminal jurisdiction —to prosecute crimes committed in other nations that are recognized under international law.1 Most crimes so recognized flow from the key precedents of prosecutions in Germany and Japan following World War II, but some crimes, including piracy on the high seas, which is classified as a crime against humanity, and the international slave trade are older than World War II.2 In chapter 4, after reviewing contemporary events concerning the evolution and growth of universal criminal jurisdiction,3 I suggested that most American scholars who study justice systems have not paid sufficient attention to the transformations that universal jurisdiction (which is one aspect of globalization) is bringing to the manner through which justice is sought or determined. Moreover, I noted that issues involving the perceived legitimacy of criminal prosecutions under universal jurisdiction mostly remain unexplored. Those suggestions were written in 2002, after the terrorist attacks of 9/11 and about a year before the beginning of the U.S. intervention in Iraq and also before the May 1, 2003, proclamation by President George W. Bush that “[m]ajor combat operations in Iraq have ended.” The central point of this chapter is that events since the terrorist attacks of September 11, 2001, have seriously threatened the prospects for universal criminal jurisdiction and for 83 84 GLOBALIZING JUSTICE the growth of the more effective global rule of law.That threat chiefly comes from the power and policies of the United States. This chapter will examine the serious difficulties that U.S. hegemonic4 power and its related strategic security policies have raised against the prospects for any foreseeable achievement of a reasonably objective5 global rule of law. I certainly do not mean to suggest that such difficulties represent a Manichean global conflict between good and evil, although some neoconservative analysts do see conflicts between the United States and its enemies in such terms.6 Instead, I propose to study what is a grave conflict between, on one hand, current U.S. power and policy and, on the other hand, the evolution of universal standards of justice that otherwise have developed from transformative events of the past sixty years, some of which were intentional, but many which were driven by material and technological development. GLOBALIZATION AND UNIVERSAL JUSTICE STANDARDS: THEORETICAL PERSPECTIVES Martin Shapiro has described a “prototype of courts,” which represents an ideal process for conflict resolution. The essential ideal is based on a “triad” in which two people, who encounter a conflict they cannot resolve, resort to a third person for help. Shapiro argues: So universal across time and space is this simple social invention of triads that we can discover almost no society that fails to employ it. And from its overwhelming appeal to common sense stems the basic legitimacy of courts everywhere. In short, the triad for purposes of conflict resolution is the basic social logic of courts, a logic so compelling that courts have become a universal political phenomenon.7 It is important to stress that the social logic of conflict resolution by a third party rests on the fairness of the third party to both sides of the unresolved conflict. One way of putting this is that the role of the third party—the essential role of a judge8 —requires that the agent for conflict resolution be as fair, impartial, and objective as is humanly possible. Of course, that is the second-best solution. Each party to the conflict would really prefer for the third party to be biased in his or her favor, but the conflicting preferences of the two parties lead naturally to the second-best solution for both of them, which is fairness and impartiality toward both sides. Obviously, in criminal cases, the defendant usually does not elect to submit to the jurisdiction of the judge, and the power of state police to arrest and hold defendants for trial is essential; nonetheless, both the prosecution and the defendant have the same second-best preference for a fair and impartial hearing. [3.133.79.70] Project MUSE (2024-04-24 12...

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