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Foreign Affairs
The Pitfalls of Universal Jurisdiction
By Henry A. Kissinger
Henry A. Kissinger, Chairman of Kissinger Associates, Inc., is a former Secretary of State and National Security Adviser. This essay is adapted from his latest book, Does America Need a Foreign Policy? Toward a Diplomacy for the 21st Century.
Risking Judicial Tyranny
In less than a decade, an unprecedented movement has emerged to submit international politics to judicial procedures. It has spread with extraordinary speed and has not been subjected to systematic debate, partly because of the intimidating passion of its advocates. To be sure, human rights violations, war crimes, genocide, and torture have so disgraced the modern age and in such a variety of places that the effort to interpose legal norms to prevent or punish such outrages does credit to its advocates. The danger lies in pushing the effort to extremes that risk substituting the tyranny of judges for that of governments; historically, the dictatorship of the virtuous has often led to inquisitions and even witch-hunts.
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 . . .