The Case For Universal Jurisdiction

Kenneth Roth is Executive Director of Human Rights Watch.

Behind much of the savagery of modern history lies impunity. Tyrants commit atrocities, including genocide, when they calculate they can get away with them. Too often, dictators use violence and intimidation to shut down any prospect of domestic prosecution. Over the past decade, however, a slowly emerging system of international justice has begun to break this pattern of impunity in national courts.

The United Nations Security Council established international war crimes tribunals for the former Yugoslavia in 1993 and Rwanda in 1994 and is now negotiating the creation of mixed national-international tribunals for Cambodia and Sierra Leone. In 1998, the world's governments gathered in Rome to adopt a treaty for an International Criminal Court (ICC) with potentially global jurisdiction over genocide, war crimes, and crimes against humanity.

With growing frequency, national courts operating under the doctrine of universal jurisdiction are prosecuting despots in their custody for atrocities committed abroad. Impunity may still be the norm in many domestic courts, but international justice is an increasingly viable option, promising a measure of solace to victims and their families and raising the possibility that would-be tyrants will begin to think twice before embarking on a barbarous path.

In "The Pitfalls of Universal Jurisdiction" (July/August 2001), former Secretary of State Henry Kissinger catalogues a list of grievances against the juridical concept that people who commit the most severe human rights crimes can be tried wherever they are found. But his objections are misplaced, and the alternative he proposes is little better than a return to impunity.

Kissinger begins by suggesting that universal jurisdiction is a new idea, at least as applied to heads of state and senior public officials. However, the exercise by U.S. courts of jurisdiction over certain heinous crimes committed overseas is an accepted part of American jurisprudence, reflected in treaties on terrorism and aircraft hijacking dating from 1970. Universal jurisdiction was also the concept that allowed Israel to try Adolf Eichmann in Jerusalem in 1961.

Kissinger says that the drafters of the Helsinki Accords -- the basic human rights principles adopted by the Conference on Security and Cooperation in Europe in 1975 -- and the U.N.'s 1948 Universal Declaration of Human Rights never intended to authorize universal jurisdiction. But this argument is irrelevant, because these hortatory declarations are not legally binding treaties of the sort that could grant such powers.

As for the many formal treaties on human rights, Kissinger believes it "unlikely" that their signatories "thought it possible that national judges would use them as a basis for extradition requests regarding alleged crimes committed outside their jurisdictions." To the contrary, the Torture Convention of 1984, ratified by 124 governments including the United States, requires states either to prosecute any suspected torturer found on their territory, regardless of where the torture took place, or to extradite the suspect to a country that will do so. Similarly, the Geneva Conventions of 1949 on the conduct of war, ratified by 189 countries including the United States, require each participating state to "search for" persons who have committed grave breaches of the conventions and to "bring such persons, regardless of nationality, before its own courts." What is new is not the concept of extraterritorial jurisdiction but the willingness of some governments to fulfill this duty against those in high places.

ORDER AND THE COURT

Kissinger's critique of universal jurisdiction has two principal targets: the soon-to-be-formed International Criminal Court and the exercise of universal jurisdiction by national courts. (Strictly speaking, the ICC will use not universal jurisdiction but, rather, a delegation of states' traditional power to try crimes committed on their own territory.) Kissinger claims that the crimes detailed in the ICC treaty are "vague and highly susceptible to politicized application." But the treaty's definition of war crimes closely resembles that found in the Pentagon's own military manuals and is derived from the widely ratified Geneva Conventions and their Additional Protocols adopted in 1977. Similarly, the ICC treaty's definition of genocide is borrowed directly from the Genocide Convention of 1948, which the United States and 131 other governments have ratified and pledged to uphold, including by prosecuting offenders. The definition of crimes against humanity is derived from the Nuremberg Charter, which, as Kissinger acknowledges, proscribes conduct that is "self-evident[ly]" wrong.

Kissinger further asserts that the ICC prosecutor will have "discretion without accountability," going so far as to raise the specter of Independent Counsel Kenneth Starr and to decry "the tyranny of judges." In fact, the prosecutor can be removed for misconduct by a simple majority of the governments that ratify the ICC treaty, and a two-thirds vote can remove a judge. Because joining the court means giving it jurisdiction over crimes committed on the signatory's territory, the vast majority of member states will be democracies, not the abusive governments that self-protectively flock to U.N. human rights bodies, where membership bears no cost.