The Case For Universal Jurisdiction

Essay

The Pitfalls of Universal Jurisdiction

Henry A. Kissinger

The passions aroused by the attempt to extradite Augusto Pinochet highlight the many unresolved issues in the movement to enforce global justice. Widespread agreement that human rights violations and crimes against humanity must be prosecuted has hindered active consideration of the proper role of international courts. Universal jurisdiction risks creating universal tyranny -- that of judges.

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...