The Pitfalls of
Universal Jurisdiction

Henry A. Kissinger

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

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*.

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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

FOREIGN AFFAIRS · July/August 2001

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Henry A. Kissinger

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?

## A DANGEROUS PRECEDENT

IT IS decidedly unfashionable to express any degree of skepticism about the way the Pinochet case was handled. For almost all the parties of the European left, Augusto Pinochet is the incarnation of a right-wing assault on democracy because he led a coup d'état against an elected leader. At the time, others, including the leaders

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FOREIGN AFFAIRS · Volume 80 No. 4

CORBIS - BETTMANN

Trial or error?
General Augusto Pinochet, Santiago, Chile, May 24, 2000

of Chile's democratic parties, viewed Salvador Allende as a radical Marxist ideologue bent on imposing a Castro-style dictatorship with the aid of Cuban-trained militias and Cuban weapons. This was why the leaders of Chile's democratic parties publicly welcomed—yes, welcomed—Allende's overthrow. (They changed their attitude only after the junta brutally maintained its autocratic rule far longer than was warranted by the invocation of an emergency.)

Disapproval of the Allende regime does not exonerate those who perpetrated systematic human rights abuses after it was overthrown. But neither should the applicability of universal jurisdiction as a policy be determined by one's view of the political history of Chile.

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It is not known what the Chilean military and the Castro regime were thinking of Pinochet and his allies as they were being overthrown.

In the context of the d'Etat leadership