The Case For Universal Jurisdiction

Kissinger criticizes the "extraordinary attempt of the ICC to assert jurisdiction over Americans even in the absence of U.S. accession to the treaty." But the United States itself asserts such jurisdiction over others' citizens when it prosecutes terrorists or drug traffickers, such as Panamanian dictator Manuel Noriega, without the consent of the suspect's government. Moreover, the ICC will assert such power only if an American commits a specified atrocity on the territory of a government that has joined the ICC and has thus delegated its prosecutorial authority to the court.

Kissinger claims that ICC defendants "will not enjoy due process as understood in the United States" -- an apparent allusion to the lack of a jury trial in a court that will blend civil and common law traditions. But U.S. courts martial also do not provide trials by jury. Moreover, U.S. civilian courts routinely approve the constitutionality of extradition to countries that lack jury trials, so long as their courts otherwise observe basic due process. The ICC clearly will provide such due process, since its treaty requires adherence to the full complement of international fair-trial standards.

Of course, any court's regard for due process is only as good as the quality and temperament of its judges. The ICC's judges will be chosen by the governments that join the court, most of which, as noted, will be democracies. Even without ratifying the ICC treaty, the U.S. government could help shape a culture of respect for due process by quietly working with the court, as it has done successfully with the international war crimes tribunals for Rwanda and the former Yugoslavia. Regrettably, ICC opponents in Washington are pushing legislation -- the misnamed American Servicemembers Protection Act -- that would preclude such cooperation.

The experience of the Yugoslav and Rwandan tribunals, of which Kissinger speaks favorably, suggests that international jurists, when forced to decide the fate of a particular criminal suspect, do so with scrupulous regard for fair trial standards. Kissinger's only stated objection to these tribunals concerns the decision of the prosecutor of the tribunal for the former Yugoslavia to pursue a brief inquiry into how NATO conducted its air war against the new Yugoslavia -- an inquiry that led her to exonerate NATO.

It should be noted, in addition, that the jurisdiction of the Yugoslav tribunal was set not by the prosecutor but by the U.N. Security Council, with U.S. consent. The council chose to grant jurisdiction without prospective time limit, over serious human rights crimes within the territory of the former Yugoslavia committed by anyone -- not just Serbs, Croats, and Bosnian Muslims. In light of that mandate, the prosecutor would have been derelict in her duties not to consider NATO's conduct; according to an extensive field investigation by Human Rights Watch, roughly half of the approximately 500 civilian deaths caused by NATO's bombs could be attributed to NATO's failure, albeit not criminal, to abide by international humanitarian law.

Kissinger claims that the ICC would violate the U.S. Constitution if it asserted jurisdiction over an American. But the court is unlikely to prosecute an American because the Rome treaty deprives the ICC of jurisdiction if, after the court gives required notice of its intention to examine a suspect, the suspect's government conducts its own good-faith investigation and, if appropriate, prosecution. It is the stated policy of the U.S. government to investigate and prosecute its own war criminals.

Moreover, the ICC's assertion of jurisdiction over an American for a crime committed abroad poses no greater constitutional problem than the routine practice under status-of-forces agreements of allowing foreign prosecution of American military personnel for crimes committed overseas, such as Japan's arrest in July of a U.S. Air Force sergeant for an alleged rape on Okinawa. An unconstitutional delegation of U.S. judicial power would arguably take place only if the United States ratified the ICC treaty; then an American committed genocide, war crimes, or crimes against humanity on U.S. soil; and then U.S. authorities did not prosecute the offender. Yet that remote possibility would signal a constitutional crisis far graver than one spawned by an ICC prosecution.

NO PLACE TO HIDE

National courts come under Kissinger's fire for selectively applying universal jurisdiction. He characterizes the extradition request by a Spanish judge seeking to try former Chilean President Augusto Pinochet for crimes against Spanish citizens on Chilean soil as singling out a "fashionably reviled man of the right." But Pinochet was sought not, as Kissinger writes, "because he led a coup d'etat against an elected leader" who was a favorite of the left. Rather, Pinochet was targeted because security forces under his command murdered and forcibly "disappeared" some 3,000 people and tortured thousands more.

Furthermore, in recent years national courts have exercised universal jurisdiction against a wide range of suspects: Bosnian war criminals, Rwandan genocidaires, Argentine torturers, and Chad's former dictator. It has come to the point where the main limit on national courts empowered to exercise universal jurisdiction is the availability of the defendant, not questions of ideology.

Kissinger also cites the Pinochet case to argue that international justice interferes with the choice by democratic governments to forgive rather than prosecute past offenders. In fact, Pinochet's imposition of a self-amnesty at the height of his dictatorship limited Chile's democratic options. Only after 16 months of detention in the United Kingdom diminished his power was Chilean democracy able to begin prosecution. Such imposed impunity is far more common than democratically chosen impunity.