This is the third episode of a series of posts on “The Rise and Fall of Eunomia”. Episodes 1 and 2 of this series can be found at here and here. The series was first posted in late 2010 and is being re-run.
The Sky is the Limit
In the aftermath of this landmark decision, Eunomian lawyers, flush with victory, vouched that more ambitious cases would be in the making. Eunomia had begun proceedings against the state of South Gacaca. South Gacaca had just emerged from a decade of turmoil during which a brutal regime of Apartheid was set up. Following a UN supervised transition, the first constituent assembly of South Gacaca adopted a complex scheme to restore ‘peace, justice and the rule of law.’ The scheme involved a Truth and Reconciliation Commission. By all accounts, it had lead to painful confessions, and had clarified the fate of thousands of disappeared persons. However, some of those who had committed crimes subsequently suggested that they had merely ‘gone along’ with the Commission to avoid what they considered to be a ‘foregone conclusion’ if they had gone to trial.
Eunomia had been contacted by a group of victims of the South Gacacan regime who felt they were being shortchanged by the whole scheme, and who had launched a coalition under the slogan, ‘We don’t want truth, we want justice!’ Armed with that popular mandate, Eunomia argued before the ICJ that in proclaiming an amnesty, the South Gacacan state sought to extinguish an interest in prosecutions that was not entirely its to extinguish. In his blog, the head of Eunomia’s Ministry for Global Transitional Justice was quoted as saying
if crimes against humanity are really crimes against humanity, then we must understand that it is the conscience of mankind that is shocked by them. We sympathize with some of the reasons that have been advanced by South Gacaca to push ahead with the Truth and Reconciliation process, but we also believe that international law mandates some prosecutions of at least those principally responsible for the atrocities committed in the last decade. We would not be faithful to our ideals if we did not press this case. Eunomia will stand by the side of the victims of South Gacaca.
An even more ambitious case for Eunomia’s legal team was in the works that would have involved Eunomia suing all of the world’s major polluters at once for their contribution to global warming, and what was hailed as an erga omnes obligation not to contribute to the destruction of all living ecosystems. Eunomian lawyers knew this was a long shot but they felt that if worse came to worse it would at least attract attention to the urgency of the problem. A London barrister and professor of international environmental law had been hired to work on the case, and was said to be confident that the ICJ would recognize an actio popularis to defend against irreversible global damage to the environment. After the disappearance of the Seychelles two years earlier, some judges were said to be eager to adopt a landmark decision revolutionizing the old Trail-Smelter precedent in an age of “Global Commons” (although the less generously inclined suggested that the judges were mostly worried about the Peace Palace being flooded by rising waters threatening the Dutch coast). A case challenging ‘global economic inequality’ was also in the making. Eunomia was said to be preparing to invoke a range of treaties on economic cooperation and soft law on the right to development in support of this ‘mega-case.’ The argument was that many states that would have stood to benefit from litigating under-development failed to do so out of fear that they would be ostracized by the donor community. Read the rest of this entry…