Argument: Universal Jurisdiction was never a legal principle

Issue Report: International Criminal Court


Henry Kissinger. “The Pitfalls of Universal Jurisdiction: Risking Judicial Tryanny”. Foreign Affairs. Aug. 2001 – The doctrine of universal jurisdiction asserts that some crimes are so heinous that their perpetrators should not escape justice by invoking doctrines of sovereign immunity or the sacrosanct nature of national frontiers. Two specific approaches to achieve this goal have emerged recently. The first seeks to apply the procedures of domestic criminal justice to violations of universal standards, some of which are embodied in United Nations conventions, by authorizing national prosecutors to bring offenders into their jurisdictions through extradition from third countries. The second approach is the International Criminal Court (ICC), the founding treaty for which was created by a conference in Rome in July 1998 and signed by 95 states, including most European countries. It has already been ratified by 30 nations and will go into effect when the total reaches 60. On December 31, 2000, President Bill Clinton signed the ICC treaty with only hours to spare before the cutoff date. But he indicated that he would neither submit it for Senate approval nor recommend that his successor do so while the treaty remains in its present form.

The very concept of universal jurisdiction is of recent vintage. The sixth edition of Black’s Law Dictionary, published in 1990, does not contain even an entry for the term. The closest analogous concept listed is hostes humani generis (“enemies of the human race”). Until recently, the latter term has been applied to pirates, hijackers, and similar outlaws whose crimes were typically committed outside the territory of any state. The notion that heads of state and senior public officials should have the same standing as outlaws before the bar of justice is quite new.

In the aftermath of the Holocaust and the many atrocities committed since, major efforts have been made to find a judicial standard to deal with such catastrophes: the Nuremberg trials of 1945 — 46, the Universal Declaration of Human Rights of 1948, the genocide convention of 1948, and the antitorture convention of 1988. The Final Act of the Conference on Security and Cooperation in Europe, signed in Helsinki in 1975 by President Gerald Ford on behalf of the United States, obligated the 35 signatory nations to observe certain stated human rights, subjecting violators to the pressures by which foreign policy commitments are generally sustained. In the hands of courageous groups in Eastern Europe, the Final Act became one of several weapons by which communist rule was delegitimized and eventually undermined. In the 1990s, international tribunals to punish crimes committed in the former Yugoslavia and Rwanda, established ad hoc by the U.N. Security Council, have sought to provide a system of accountability for specific regions ravaged by arbitrary violence.

But none of these steps was conceived at the time as instituting a “universal jurisdiction.” It is unlikely that any of the signatories of either the U.N. conventions or the Helsinki Final Act thought it possible that national judges would use them as a basis for extradition requests regarding alleged crimes committed outside their jurisdictions. The drafters almost certainly believed that they were stating general principles, not laws that would be enforced by national courts. For example, Eleanor Roosevelt, one of the drafters of the Universal Declaration of Human Rights, referred to it as a “common standard.” As one of the negotiators of the Final Act of the Helsinki conference, I can affirm that the administration I represented considered it primarily a diplomatic weapon to use to thwart the communists’ attempts to pressure the Soviet and captive peoples. Even with respect to binding undertakings such as the genocide convention, it was never thought that they would subject past and future leaders of one nation to prosecution by the national magistrates of another state where the violations had not occurred. Nor, until recently, was it argued that the various U.N. declarations subjected past and future leaders to the possibility of prosecution by national magistrates of third countries without either due process safeguards or institutional restraints.

Yet this is in essence the precedent that was set by the 1998 British detention of former Chilean President Augusto Pinochet as the result of an extradition request by a Spanish judge seeking to try Pinochet for crimes committed against Spaniards on Chilean soil. For advocates of universal jurisdiction, that detention — lasting more than 16 months — was a landmark establishing a just principle. But any universal system should contain procedures not only to punish the wicked but also to constrain the righteous. It must not allow legal principles to be used as weapons to settle political scores. Questions such as these must therefore be answered: What legal norms are being applied? What are the rules of evidence? What safeguards exist for the defendant? And how will prosecutions affect other fundamental foreign policy objectives and interests?