05/09/01 08:55 FAX 212 861 1849

FA EDITORIAL

003

FINAL

Kissinger.pp* 5/8/01 5:57 PM Page 1

From: CW

Final Proofs

To: AU, TN, File

Wednesday, May 9 2001

Reads due: Thursday, May 10

# 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 led to acquisitions 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 cre-

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?*

[1]

FA EDITORIAL

004

Kissinger.pp* 5/8/01 5:57 PM Page 2

Henry A. Kissinger

ated 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 catastrophies, among them the Nuremberg trials of 1945-46, the Universal Declaration of Human Rights of 1948, the genocide convention of 1948, and the anti-torture 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 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 possible that national judges would use them as a basis for extradition requests regarding alleged crimes committed outside their

[2] FOREIGN AFFAIRS · Volume 80 No. 4

05/09/01 08:56 FAX 212 861 1849

FA EDITORIAL

005

Kissinger.pp* 5/8/01 5:57 PM Page 3

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 genocidevention, it was never thought that they would subject past and future leaders of one nation to prosecution by the national magistrates of an- other 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 institu- tional 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 par-
ties 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 of Chile's

FOREIGN AFFAIRS · July/August 2001

[3]

FA EDITORIAL

006

Kissinger.pp* 5/8/01 5:57 PM Page 4

Henry A. Kissinger

democratic parties, viewed Salvador Allende as a radical Marxist ide-
ologue bent on imposing a Castro-style dictatorship with the aid of
Cuban-trained militias and Cuban weapons. This was why the lead-
ers of Chile's democratic parties publicly welcomed—yes, wel-
comed—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 pol-
icy be determined by one's view of the political history of Chile. The
appropriate solution was arrived at in August 2000 when the Chilean
Supreme Court withdrew Pinochet's senatorial immunity, making it
possible to deal with the charges against him in the courts of the
country most competent to judge this history and to relate its deci-
sions to the stability and vitality of its democratic institutions.

On November 25, 1998, the judiciary committee of the British House of Lords (the United Kingdom's supreme court) concluded that "international law has made it plain that certain types of conduct ... are not acceptable conduct on the part of anyone." But that principle did not oblige the Law Lords to endow a Spanish magistrate— and presumably other magistrates elsewhere in the world—with the authority to enforce it in a country where the accused had committed no crime, and then to cause the restraint of the accused for 16 months in yet another country in which he was equally a stranger. It could have held that Chile, or an international tribunal specifically established for crimes committed in Chile on the model of the courts set up for heinous crimes in the former Yugoslavia and Rwanda, was the appropriate forum.

The unprecedented and sweeping interpretation of international
law in *Ex parte Pinochet* would arm any magistrate anywhere in the
world with the power to demand extradition. This would substitute
the magistrate's own judgment for the reconciliation procedures of
even incontestably democratic societies where alleged violations of
human rights may have occurred. It would also subject the accused to
the criminal procedures of the magistrate's country, with a legal sys-
tem that may be unfamiliar to the defendant and that would force the

[4] FOREIGN AFFAIRS · Volume 80 No. 4

05/09/01 08:57 FAX 212 861 1849

FA EDITORIAL

007

Kissinger.pp* 5/8/01 5:57 PM Page 5

defendant to bring evidence and witnesses from long distances. Such a system goes far beyond the explicit and limited mandates established by the U.N. Security Council for the tribunals covering war crimes in the former Yugoslavia and Rwanda as well as the one being negotiated for Cambodia.

Perhaps the most important issue is the relationship of universal jurisdiction to national reconciliation procedures set up by new democratic governments to deal with their countries' questionable pasts. One would have thought that a Spanish magistrate would have been sensitive to the incongruity of a request by Spain, itself haunted by transgressions committed during the Spanish Civil War

and the regime of General Francisco Franco, to try in Spanish courts alleged crimes against humanity committed elsewhere.

The decision of post-Franco Spain to avoid wholesale criminal trials for the human rights violations of the recent past was designed explicitly to foster a process of national reconciliation that undoubtedly contributed much to the present vigor of Spanish democracy. Why should Chile's attempt at national reconciliation not have been given the same opportunity? Should any outside group dissatisfied with the reconciliation procedures of, say, South Africa be free to challenge them in their own national courts or those of third countries?

It is an important principle that those who commit war crimes or systematically violate human rights should be held accountable. But the consolidation of law, domestic peace, and representative government in a nation struggling to come to terms with a brutal past has a claim as well. The instinct to punish must be related, as in every constitutional democratic political structure, to a system of checks and balances that includes other elements critical to the survival and expansion of democracy.

Another grave issue is the use in such cases of extradition procedures designed for ordinary criminals. If the Pinochet case becomes a precedent, magistrates anywhere will be in a position to put forward an extradition request without warning to the accused and regardless of the policies the accused's country might already have in place for

The world must respect Chile's own attempt to come to terms with its brutal past.

[5]

FA EDITORIAL

008

Kissinger.pp* 5/8/01 5:57 PM Page 6

Henry A. Kissinger

dealing with the charges. The country from which extradition is re-
quested then faces a seemingly technical legal decision that, in fact,
amounts to the exercise of political discretion—whether to entertain
the claim or not.

Once extradition procedures are in train, they develop a momen-
tum of their own. The accused is not allowed to challenge the sub-
stantive merit of the case and instead is confined to procedural issues:
that there was, say, some technical flaw in the extradition request, that
the judicial system of the requesting country is incapable of provid-
ing a fair hearing, or that the crime for which the extradition is sought
is not treated as a crime in the country from which extradition has
been requested—thereby conceding much of the merit of the charge.
Meanwhile, while these claims are being considered by the judicial
system of the country from which extradition is sought, the accused
remains in some form of detention, possibly for years. Such proce-
dures provide an opportunity for political harassment long before the
accused is in a position to present any defense. It would be ironic if a
doctrine designed to transcend the political process turns into a
means to pursue political enemies rather than universal justice.

The Pinochet precedent, if literally applied, would permit the two
sides in the Arab-Israeli conflict, or those in any other passionate in-
ternational controversy, to project their battles into the various na-
tional courts by pursuing adversaries with extradition requests. When
discretion on what crimes are subject to universal jurisdiction and
whom to prosecute is left to national prosecutors, the scope for arbi-
trariness is wide indeed. So far universal jurisdiction has involved the
prosecution of one fashionably reviled man of the right while scores
of East European communist leaders—not to speak of Caribbean,
Middle Eastern, or African leaders who inflicted their own full mea-
sures of torture and suffering—have not had to face similar prosecu-
tions.

Some will argue that a double standard does not excuse violations
of international law and that it is better to bring one malefactor to
justice than to grant immunity to all. This is not a principle permit-
ted in the domestic jurisdictions of many democracies—in Canada,
for example, a charge can be thrown out of court merely by showing
that a prosecution has been selective enough to amount to an abuse

[6] FOREIGN AFFAIRS · Volume 80 No. 4

05/09/01 08:58 FAX 212 861 1849

FA EDITORIAL

009

Kissinger.pp. 5/8/01 5:57 PM Page 7

*The Pitfalls of Universal Jurisdiction*

of process. In any case, a universal standard of justice should not be
based on the proposition that a just end warrants unjust means, or
that political fashion trumps fair judicial procedures.

AN INDISCRIMINATE COURT

THE IDEOLOGICAL supporters of universal jurisdiction also provide much of the intellectual compass for the emerging International Criminal Court. Their goal is to criminalize certain types of military and political actions and thereby bring about a change to a more humane conduct of international relations. To the extent that the ICC replaces the claim of national judges to universal jurisdiction, it greatly improves the state of international law. And, in time, it may be possible to negotiate modifications of the present statute to make the ICC more compatible with U.S. constitutional practice. But in its present form of assigning the ultimate dilemmas of international politics to unelected jurists—and to an international judiciary at that—it represents such a fundamental change in U.S. constitutional practice that a full national debate and the full participation of Congress are imperative. Such a momentous revolution should not come about by tacit acquiescence in the decision of the House of Lords or by dealing with the ICC issue with a strategy of improving specific clauses rather than as a fundamental issue of principle.

The doctrine of universal jurisdiction is based on the proposition that the individuals or cases subject to it have been clearly identified. In some instances, especially those based on Nuremberg precedents, the definition of who can be prosecuted in an international court and in what circumstances is self-evident. But many issues are much more vague and depend on an understanding of the historical and political context. It is this fuzziness that risks arbitrariness on the part of prosecutors and judges years after the event and that became apparent with respect to existing tribunals.

For example, can any leader of the United States or of another
country be hauled before international tribunals established for other
purposes? This is precisely what Amnesty International implied
when, in the summer of 1999, it supported a "complaint" by a group
of European and Canadian law professors to Louise Arbour, then the

[7]

FA EDITORIAL

010

Kissinger.pp* 5/9/01 5:57 PM Page 8

Henry A. Kissinger

prosecutor of the International Criminal Tribunal for the Former Yugoslavia (ICTY). The complaint alleged that crimes against humanity had been committed during the NATO air campaign in Kosovo. Arbour ordered an internal staff review, thereby implying that she did have jurisdiction if such violations could, in fact, be demonstrated. Her successor, Carla Del Ponte, in the end declined to indict any NATO official because of a general inability "to pinpoint individual responsibilities," thereby implying anew that the court had jurisdiction over NATO and American leaders in the Balkans and would have issued an indictment had it been able to identify the particular leaders allegedly involved.

Most Americans would be amazed to learn that the ICTY, created at U.S. behest in 1993 to deal with Balkan war criminals, asserts a right to investigate U.S. political and military leaders for allegedly criminal conduct—and for the indefinite future, since no statute of limitations applies. Though the ICTY prosecutor chose not to pursue the charge—on the ambiguous ground of an inability to collect evidence—some national prosecutor may wish later to take up the matter as a valid subject for universal jurisdiction.

The pressures to achieve the widest scope for the doctrine of universal jurisdiction were demonstrated as well by a suit before the European Court of Human Rights in June 2000 by families of Argentine sailors who died in the sinking of the Argentine cruiser *General Belgano* during the Falklands war. The concept of universal jurisdiction has moved from judging alleged political crimes against humanity to second-guessing, 18 years after the event, military operations in which neither civilians nor civilian targets were involved.

Distrusting national governments, many of the advocates of universal jurisdiction seek to place politicians under the supervision of magistrates and the judicial system. But prosecutorial discretion without accountability is precisely one of the flaws of the International Criminal Court. Definitions of the relevant crimes are vague and highly susceptible to politicized application. Defendants will not

At any future time, U.S. officials involved in the NATO air campaign in Kosovo could face international prosecution.

[8] FOREIGN AFFAIRS · Volume 80 No. 4

05/09/01 08:59 FAX 212 861 1849

FA EDITORIAL

011

Kissinger.pp 5/8/01 5:57 PM Page 9

enjoy due process as understood in the United States. Any signatory
state has the right to trigger an investigation. As the U.S. experience
with the special prosecutors investigating the executive branch
shows, such a procedure is likely to develop its own momentum with-
out time limits and can turn into an instrument of political warfare.
And the extraordinary attempt of the ICC to assert jurisdiction over
Americans even in the absence of U.S. accession to the treaty has al-
ready triggered legislation in Congress to resist it.

The independent prosecutor of the ICC has the power to issue in-
dictments, subject to review only by a panel of three judges. Accord-
ing to the Rome statute, the Security Council has the right to quash
any indictment. But since revoking an indictment is subject to the
veto of any permanent Security Council member, and since the pros-
ecutor is unlikely to issue an indictment without the backing of at
least one permanent member of the Security Council, he or she has
virtually unlimited discretion in practice. Another provision permits
the country whose citizen is accused to take over the investigation and
trial. But the ICC retains the ultimate authority on whether that func-
tion has been adequately exercised and, if it finds it has not, the ICC
can reassert jurisdiction. While these procedures are taking place,
which may take years, the accused will be under some restraint and
certainly under grave public shadow.

The advocates of universal jurisdiction argue that the state is the
basic cause of war and cannot be trusted to deliver justice. If law re-
placed politics, peace and justice would prevail. But even a cursory ex-
amination of history shows that there is no evidence to support such
a theory. The role of the statesman is to choose the best option when
seeking to advance peace and justice, realizing that there is frequently
a tension between the two and that any reconciliation is likely to be
partial. The choice, however, is not simply between universal and na-
tional jurisdictions.

MODEST PROPOSALS

THE PRECEDENTS SET by international tribunals established to deal
with situations where the enormity of the crime is evident and the
local judicial system is clearly incapable of administering justice, as in

[9]

FA EDITORIAL

012

Kissinger.pp* 5/8/01 5:57 PM Page 10

Henry A. Kissinger

the former Yugoslavia and Rwanda, have shown that it is possible to
punish without removing from the process all political judgment and
experience. In time, it may be possible to renegotiate the ICC statute
to avoid its shortcomings and dangers. Until then, the United States
should go no further toward a more formal system than one contain-
ing the following three provisions. First, the U.N. Security Council
would create a Human Rights Commission or a special subcommit-
tee to report whenever systematic human rights violations seem to
warrant judicial action. Second, when the government under which
the alleged crime occurred is not authentically representative, or
where the domestic judicial system is incapable of sitting in judgment
on the crime, the Security Council would set up an ad hoc interna-
tional tribunal on the model of those of the former Yugoslavia or
Rwanda. And third, the procedures for these international tribunals
as well as the scope of the prosecution should be precisely defined by
the Security Council, and the accused should be entitled to the due
process safeguards accorded in common jurisdictions.

In this manner, internationally agreed procedures to deal with war
crimes, genocide, or other crimes against humanity could become in-
stitutionalized. Furthermore, the one-sidedness of the current pur-
suit of universal jurisdiction would be avoided. This pursuit could
threaten the very purpose for which the concept has been developed.
In the end, an excessive reliance on universal jurisdiction may under-
mine the political will to sustain the humane norms of international
behavior so necessary to temper the violent times in which we live.?

[10] FOREIGN AFFAIRS · Volume 80 No. 4

FA EDITORIAL

FOREIGN AFFAIRS

58 EAST 68TH STREET • NEW YORK • NEW YORK 10021

Tel 212 434-9510 Fax 212 434-9849
cwhitaker@cfr.org

Celia Whitaker
Assistant Editor

Ms. Theresa L. Cimino
Executive Assistant
Kissinger Associates, Inc.
Via fax 212-759-0042

May 9, 2001

Dear Theresa

HAK

Following our discussions yesterday, enclosed please find the final proofs of Dr. Kissinger's article, with all of the changes inserted. We are very pleased with the way the essay reads now and expect it to trigger a great deal of valuable discussion.

Now that we are in final proofs, we are only looking to correct outright errors or typos. No need to worry about problems in the layout, which will be fixed by our layout expert. I would be grateful if you would flag any remaining errors, and contact me to sign off on the piece so that we can close it.

I would appreciate it if you and Dr. Kissinger could look these proofs over and fax me back any changes or comments by this Friday, May 4.

In the meantime, please don't hesitate to contact me with any questions or concerns.

Thank you to you and Dr. Kissinger for your help.

Roth.pp* 7/6/01 3:28 PM Page 1

From: CW

To: AU, KS, JT, RH

Cc: JH, GR, File

Friday, July 6 2001

First Proofs

Reads due: Wednesday, July 11 (am)

Response

JUL - 6

# The Case for Universal Jurisdiction

Kenneth Roth

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. Slowly, over the past decade, an 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 [AU: ARE ANY COURTS RUNNING TRIALS IN ABSENTIA WHEN DO NOT HAVE THE ACCUSED IN 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 henceforth 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 re-

KENNETH ROTH is Executive Director of Human Rights Watch.

[1]

Roth.pp* 7/6/01 3:28 PM Page 2

Kenneth Roth

turn to impunity.

Kissinger begins by suggesting that
universal jurisdiction is a new idea, at
least as applied to heads of state and se-
nior public officials. However, the exer-
cise by U.S. courts of jurisdiction over
certain heinous crimes committed over-
seas is an accepted part of American ju-
risprudence, reflected in treaties on ter-
rorism and aircraft hijacking dating from
1970. Universal jurisdiction was also the
concept that allowed Israel to try Adolf
Eichmann in 1961.

Kissinger says that the drafters of the
Helsinki Accords—the basic human
rights principles adopted by the Confer-
ence on Security and Cooperation in Eu-
rope in 1975—and the U.N.'s 1948 Uni-
versal Declaration of Human Rights
never intended to authorize universal ju-
risdiction. But this argument is irrele-
vant, because these hortatory declara-
tions 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 Conven-
tion of 1984, ratified by 124 governments
including the United States, requires
states either to prosecute any suspected
torturer found on their territory, regard-
less of where the torture took place, or to
extradite the suspect to a country that
will do so. Similarly, the Geneva Con-
ventions 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 conven-
tions and to "bring such persons, regard-
less of nationality, before its own courts."
What is new is not the concept of ex-
traterritorial jurisdiction but the willing-
ness of some governments to fulfill this
duty against those in high places.

ORDER AND THE COURT

Kissinger's critique of universal jurisdi-
tion has two principal targets: the soon-
to-be-formed International Criminal
Court and the exercise of universal juris-
diction 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 Pen-
tagon's own military manuals and is de-
rived from the widely ratified Geneva
Conventions and their Additional Proto-
cols adopted in 1977. Similarly, the Rome
treaty's definition of genocide is bor-
rowed directly from the Genocide Con-
vention 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 con-
duct 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

[2] FOREIGN AFFAIRS · Volume 80 No. 5

Roth.pp* 7/6/01 3:28 PM Page 3

[LC]

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.

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 proceeds 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 do not provide trials by jury; 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—which 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

FOREIGN AFFAIRS · September/October 2001

[3]

Roth.pp* 7/6/01 3:28 PM Page 4

Kenneth Roth

500 civilian deaths caused by NATO's bombs were attributable 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 an 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. A constitutional issue would arise 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 selectivity in 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'état 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.

Moreover, 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' exercise of 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 hindered 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 today far more common than democratically chosen impunity.

Kissinger would have had a better case had prosecutors sought, for example, to overturn the compromise negotiated by South Africa's Nelson Mandela, widely recognized at the time as the legitimate representative of the victims of apartheid. Mandela agreed to grant abusers immunity from prosecution if they gave detailed testimony about their crimes. In an appropriate exercise of prosecutorial discretion, no prosecutor has challenged this

[4]

FOREIGN AFFAIRS · Volume 80 No. 5

Roth.pp* 7/6/01 3:43 PM Page 5

arrangement, and no government would
likely countenance such a challenge.

Kissinger legitimately worries that the nations exercising universal jurisdiction could include governments with less-en-trenched traditions of due process than the United Kingdom's. But his fear of governments robotically extraditing suspects for sham or counterproductive trials is overblown. Governments regularly deny extradition to courts that are unable to ensure high standards of due process. And foreign ministries, including the U.S. State Department, routinely deny extradition requests for reasons of public policy.

If an American faced prosecution by an untrustworthy foreign court, the United States undoubtedly would apply pressure for his or her release. If that failed, however, it might prove useful to offer the prosecuting government the face-saving alternative of transfer to the ICC, with its extensive procedural protections, including deference to good-faith investigations and prosecutions by a suspect's own government. Unfortunately, the legislation being pushed by ICC opponents in Washington would preclude that option.

Until the ICC treaty is renegotiated to avoid what Kissinger sees as its “shortcomings and dangers,” he recommends that the U.N. Security Council determine which cases warrant an international tribunal. That option was rejected during the Rome negotiations on the ICC because it would allow the council’s five permanent members, including Russia and China as well as the United States, to exempt their nationals and those of their allies by exercising their vetoes.

As a nation committed to human

rights and the rule of law, the United
States should be embracing an interna-
tional system of justice, even if it means
that Americans, like everyone else, might
sometimes be scrutinized. 😞

[5]

Security copy

5/11/01

TO: Dr. Kissinger
FROM: Theresa
RE: **Foreign Affairs** piece - taken from Ch. 7

The Assistant Editor who has been working on the piece under Mr. Hoge is **Celia Whitaker**. She will be working all day Saturday and Sunday (arriving at the office each morning at 10:00am) and will be reachable at: **212/434-9510**. Her fax number is 212/434-9849. The issue is scheduled to go to the printer Sunday evening.

If I can be of help to you, I will have a copy of the piece with me this weekend. I will be in and out on Saturday (**home** tel: **201/689-1622**) and will have my cellular phone with me on Sunday while I am on my Mother's Day visits (**cellular**: **201/832-1912**).

Have a good weekend,

05/02/01 14:49 FAX 212 861 1849

FA EDITORIAL

☑004/012

Kissinger.pp* 5/2/01 3:37 PM Page 2

Henry A. Kissinger

ninety-five states, including most European countries. It has already been ratified by 29 nations and will go into effect when sixty have accepted its provisions. 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 is 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, it 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 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 fill this void, among them the Nuremberg trials of 1945-46, the Universal Declaration of Human Rights of 1948, the genocide conventions of 1948, and the anti-torture convention of 1988. The Final Act of the Conference on Security and Cooperation in Europe, signed in Helsinki in 1975 by President 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 Yugoslavia and Rwanda, established ad hoc by the United Nations 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 United Nations conventions or the Helsinki Final Act thought it possible that national judges would use them as a basis for extradition requests regarding alleged crimes not committed in their jurisdictions. The drafters almost certainly believed that they were

find a judicial standard to deal with such catastrophe

Kissinger.pp* 5/2/01 3:37 PM Page 3

stating general principles, not laws that would be enforced by courts, other than those of the countries of the victim or the perpetrators.

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 against Soviet pressure on their own 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 of a Spanish judge seeking to try him for crimes committed against Spaniards on Chilean soil. For advocates of universal jurisdiction, that detention—lasting sixteen and a half months—is 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? 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 the coup d'état against an elected leader. At the time, others, including the leaders of Chile's democratic parties, viewed Salvador Allende as a radical

[3]

Kissinger.pp* 5/2/01 3:37 PM Page 1

Cc: JH, GR, File

Wednesday, May 2, 2001

From: CW

To: AU, TN, JT

Reads due: Friday, May 4 2001

First proofs

Henry A. Kissinger

## RISKING JUDICIAL TYRANNY

IN LESS THAN a decade, an unprecedented concept 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 there are crimes so heinous that their perpetrators should not escape justice by invoking doctrines of sovereignty 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 as embodied in U.N.conventions, and by authorizing national prosecutors to bring offenders into their jurisdictions through extradition from third countries. The second approach is the International Criminal Court (ICC), adopted by a conference in Rome in July 1998 and signed by

HENRY A. KISSINGER, chairman of Kissinger Associates, Inc., is a former Secretary of State and National Security Advisor. This essay is adapted from his latest book, *Does America Need A Foreign Policy?*

[1]

[v]

30/

They changed
"about a dozen"
to 29. Now
they've changed
it to 30, to
reflect the
latest develop-
ment.

They would
like a few
words added
to clarify
what you mean
by "void".

Henry A. Kissinger

Kissinger, pp. 5/2/01 3:37 PM

5/2/01 3:37 PM

Page 3

stating general principles, not laws that would be enforced by courts, national / ◎ other than those of the countries of the victim or the perpetrators.

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 par-
ties of the European left, Augusto Pinochet is the incarnation of a
right-wing assault on democracy because he led the coup d'état
against an elected leader. At the time, others, including the leaders of
Chile's democratic parties, viewed Salvador Allende as a radical

They want to
change this
phrase to:

> “to thwart the
> Communists’
> attempts to
> pressure the
> Soviet people”

and
capture

[Y]

[3]

Kissinger.pp* 5/2/01 3:37 PM Page 4

Henry A. Kissinger

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 the perpetrators of 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. The appropriate solution was arrived at when the Chilean Supreme Court withdrew Pinochet's senatorial immunity. This has made it possible to deal with the charges against him in the courts of the country most competent to judge its own history and to relate its decisions to the stability and vitality of its democratic institutions.

On November 25, 1998, the British House of Lords concluded that "international law has made it plain that certain types of conduct ... are not acceptable conduct on the part of anyone." But that principle did not necessarily oblige the House of Lords to endow a Spanish magistrate—and presumably other magistrates elsewhere in the world—with the authority to enforce it in a country where the accused had committed no crime, and then to cause the restraint of the accused for 16 months in yet another country in which he was equally a stranger. It could have held that Chile, or an international tribunal specifically established for crimes committed in Chile on the model of the courts set up for crimes in Yugoslavia and Rwanda, was the appropriate forum.

The unprecedented and sweeping interpretation of international law in Ex parte Pinochet would arm any magistrate, anywhere in the world, with the power to demand extradition on the basis of a supra-national concept of justice, to substitute the magistrate's own judgment for the reconciliation procedures of even incontestably democratic societies where the alleged violations of human rights occurred, and to subject the accused to the criminal procedures of the magistrate's country, with a legal system that may be unfamiliar to the defendant and that forces him to bring evidence and witnesses from long distances. Such a system goes far beyond the explicit and lim-

Kissinger.pp* 5/2/01 3:37 PM Page 5

ited mandates established by the United Nations Security Council for the tribunals covering war crimes in Yugoslavia and Rwanda as well as the one being negotiated for Cambodia.

Perhaps the most important issue is the relationship of universal
jurisdiction to national reconciliation procedures set up by new de-
mocratic governments to deal with their countries' questionable
pasts. One would have thought that a Span-
ish magistrate would have been sensitive to
the incongruity of a request by Spain, itself
haunted by transgressions during the Span-
ish Civil War and the Franco period, to try
in Spanish courts alleged crimes against hu-
manity committed elsewhere.

The decision of post-Franco Spain to avoid wholesale criminal trials on the human rights violations of the recent past was designed explicitly to foster a process of national reconciliation which undoubtedly contributed much to promote the present vigor of Spanish democracy. Why should Chile's attempt at national reconciliation not have been given the same opportunity? Should any outside group dissatisfied with the reconciliation procedures of, say, South Africa be free to challenge them in their own national courts or those of third countries?

Another grave issue is the use in such cases of extradition procedures designed for ordinary criminals. If the Pinochet case becomes a precedent, magistrates anywhere will be in a position to put forward an extradition request without warning to the accused and regardless of the policies the accused's country might already have in place for dealing with the charges. The country from which extradition is requested then faces a seemingly technical legal decision which, in fact,

> The world must respect
> Chile's attempt to come
> to terms with its brutal
> past in its own way.

[5]

Kissinger.pp* 5/2/01 3:37 PM Page 6

Henry A. Kissinger

Once extradition procedures are in train, they develop a momentum of their own. The accused is not allowed to challenge the substantive merit of the case and must confine himself to procedural issues: that there was, say, some technical flaw in the extradition request; that the judicial system of the requesting country is incapable of providing a fair hearing; or that the crime for which the extradition is sought is not treated as a crime in the country from which extradition has been requested—thereby conceding much of the merit of the charge. Meanwhile, while these claims are being considered by the judicial system of the country where the accused finds himself, he remains in some form of detention, possibly for years. Such procedures provide an opportunity for political harassment long before the accused is in a position to present his defense. It would be ironic if a doctrine designed to transcend the political process turns into a means to pursue political enemies rather than universal justice.

The Pinochet precedent, if literally applied, would permit the two sides in the Arab-Israeli conflict, or those in any other passionate international controversy, to project their battles into the various national courts by pursuing adversaries with extradition requests. When discretion on what crimes are subject to universal jurisdiction and whom to prosecute is left to national prosecutors, the scope for arbitrariness is wide indeed. So far universal jurisdiction has involved the prosecution of one fashionably reviled man of the right while scores of East European communist leaders—not to speak of Caribbean, Mideast, or African leaders who had inflicted their own full measures of torture and suffering—have not had to face similar prosecutions.

It will be argued that a double standard does not excuse violations of international law and that it is better to bring one malefactor to justice than to grant immunity to all. This is not a principle permitted in the domestic jurisdictions of many democracies—in Canada, for example, a charge can be thrown out of court merely by showing that a prosecution has been selective enough to amount to an abuse of process. In any case, a universal standard of justice should not be based on the proposition that a just end justifies unjust means, or that political fashion trumps fair judicial procedures.

[6]

Kissinger.pp* 5/2/01 3:37 PM Page 7

AN INDISCRIMINATE COURT

THE IDEOLOGICAL supporters of universal jurisdiction also provide much of the intellectual compass for the emerging International Criminal Court. Their goal is to criminalize certain types of military and political actions and thereby bring about a change to a more humane conduct of international relations. To the extent that the ICC replaces the claim of national judges to universal jurisdiction, it greatly improves the state of international law. And, in time, it may be possible to negotiate modifications of the present statute to make the ICC more compatible with American constitutional practice. But in its present form of assigning the ultimate dilemmas of international politics to unelected jurists—and to an international judiciary at that—it represents such a fundamental change in American constitutional practice that a full national debate and the full participation of Congress are imperative. Such a momentous revolution should not come about by tacit acquiescence in the decision of the House of Lords or by dealing with the ICC issue with a strategy of improving specific clauses rather than as a fundamental issue of principle.

The doctrine of universal jurisdiction is based on the proposition that the individuals or cases subject to it have been clearly identified. In some instances, especially those based on Nuremberg precedents, the definition is self-evident. But many issues are much more vague and depend on an understanding of the historical and political context. It is this fuzziness which risks arbitrariness on the part of prosecutors and judges years after the event and which became apparent with respect to existing tribunals.

For example, can any leader of the United States or of other countries be hauled before international tribunals established for other purposes? This is precisely what Amnesty International implied when, in the summer of 1999, it supported a "complaint" by a group of European and Canadian law professors to Louise Arbour, then the prosecutor of the International Criminal Tribunal for the Former Yugoslavia (ICTY). The complaint alleged that crimes against humanity had been committed during the NATO air campaign in Kosovo. Arbour ordered an internal staff review, thereby implying that she did

[7]

Kissinger.pp* 5/2/01 3:37 PM Page 8

Henry A. Kissinger

At any future time, U.S.
officials involved in the
nato air campaign in
Kosovo could face
international prosecution.

caps/

Most Americans would be amazed to learn that the ICTY, created at American best in 1993 to deal with Balkan war criminals, asserts a right to investigate America's political and military leaders for allegedly criminal conduct—and for the indefinite future, since no statute of limitations applies. Though the ICTY prosecutor chose not to pursue the charge—on the ambiguous

ground of an inability to collect evidence—some national prosecutor
may wish later to take up the matter as a valid subject for universal ju-
risdiction.

The pressures to achieve the widest scope for the doctrine of uni-
versal jurisdiction were demonstrated as well by a suit before the Eu-
ropean Court of Human Rights in June 2000 by families of Argen-
tine sailors who died in the sinking of the Argentine cruiser General
Belgano during the Falklands war. The concept of universal jurisdic-
tion has moved from judging alleged political crimes against human-
ity to second-guessing, 18 years after the event, military operations in
which neither civilians nor civilian targets were involved.

Distrusting national governments, many of the advocates of uni-
versal jurisdiction seek to place governments under the supervision of
magistrates and the judicial system. But the prosecutor's discretion
without accountability is precisely one of the flaws of the Interna-
tional Criminal Court. Definitions of the relevant crimes are vague
and highly susceptible to politicized application. Defendants will not
enjoy due process as understood in the United States. Any signatory
state has the right to trigger an investigation. As the experience of the
American special prosecutor shows, such a procedure is likely to de-
velop its own momentum without time limits and can turn into an

[8]

Kissinger.pp* 5/2/01 3:37 PM Page 9

instrument of political warfare. And the extraordinary attempt of the
ICC to assert jurisdiction over Americans even in the absence of
America's accession to the treaty has already triggered legislation in
Congress to resist it.

The independent prosecutor of the ICC has the power to issue in-
dictments, subject only to review by a panel of three judges. Accord-
ing to the Rome statute, the United Nations Security Council has the
right to quash any indictment. But since revoking an indictment is
subject to the veto of any permanent member, and since the prosecu-
tor is unlikely to issue an indictment without the backing of at least
one permanent member of the Security Council, he or she has virtu-
ally unlimited discretion in practice. Another provision permits the
country whose citizen is accused to take over the investigation and
trial. But the ICC retains the ultimate authority on whether that func-
tion has been adequately exercised and, if it finds it has not, the ICC
can reassert jurisdiction. While these procedures are taking place,
which may take years, the accused will be under some restraint and
certainly under grave public shadow.

MODEST PROPOSALS

THE PRECEDENTS SET by international tribunals established to deal
with situations where the enormity of the crime is evident and the
local judicial system is clearly incapable of administering justice, as in
Yugoslavia and Rwanda, have shown that it is possible to punish
without removing from the process all political judgment and expe-
rience. In time, it may be possible to renegotiate the ICC statute to
avoid its shortcomings and dangers. Until then, the United States

[9]

Kissinger.pp* 5/2/01 3:37 PM Page 10

Henry A. Kissinger

should go no further toward a more formal system than one contain-
ing the following provisions:

* The U.N. Security Council would create a Human Rights Com-
mission or a special subcommittee to report whenever systematic
human rights violations seem to warrant judicial action.

* When the government under which the alleged crime occurred is not authentically representative, or where the domestic judicial system is incapable of sitting in judgment on the crime, the Security Council would set up an ad hoc international tribunal on the model of those of Yugoslavia or Rwanda.

* The procedures for these international tribunals as well as the scope of the prosecution should be precisely defined by the Security Council, and the accused should be entitled to the due process safeguards accorded in common law jurisdictions.

In this manner, internationally agreed procedures to deal with war crimes, genocide, or crimes against humanity could become institutionalized. On the other hand, the one-sidedness of the current pursuit of universal jurisdiction would be avoided. For this could threaten the very purpose for which the concept has been developed. In the end, an excessive reliance on universal jurisdiction may undermine the political will to sustain the humane norms of international behavior so necessary to temper the violent times in which we live.®

FA EDITORIAL

003/012

From: CW

To: AU, TN, JT

First proofs

Cc: JH, GR, File

Wednesday, May 2, 2001

Reads due: Friday, May 4 2001

Henry A. Kissinger

RISKING JUDICIAL TYRANNY

[1]

FA EDITORIAL

☑004/012

Henry A. Kissinger

05/02/01 14:50 FAX 212 861 1849

FA EDITORIAL

005/012

stating general principles, not laws that would be enforced by courts in other than those of the countries of the victim or the perpetrators.

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 against Soviet pressure on their own 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.

A DANGEROUS PRECEDENT

[3]

FA EDITORIAL

006/012

Henry A. Kissinger

[4]

05/02/01 14:51 FAX 212 861 1849

FA EDITORIAL

007/012

Y

Perhaps the most important issue is the relationship of universal
jurisdiction to national reconciliation procedures set up by new de-
mocratic governments to deal with their countries' questionable
past. One would have thought that a Span-
ish magistrate would have been sensitive to
the incongruity of a request by Spain, itself
haunted by transgressions during the Span-
ish Civil War and the Franco period, to try
in Spanish courts alleged crimes against hu-
manity committed elsewhere.
The world must

The world must respect
Chile's attempt to come
to terms with its brutal
past in its own way.

It is an important principle that those who commit war crimes or
systematically violate human rights should be held accountable. But
the consolidation of law, domestic peace, and representative govern-
ment in a nation struggling to come to terms with a brutal past has a
claim as well. The instinct to punish must be related, as in every con-
stitutional democratic political structure, to a system of checks and
balances that includes other elements critical to the survival and ex-
pansion of democracy.

Another grave issue is the use in such cases of extradition proce-
dures designed for ordinary criminals. If the Pinochet case becomes
a precedent, magistrates anywhere will be in a position to put forward
an extradition request without warning to the accused and regardless
of the policies the accused's country might already have in place for
dealing with the charges. The country from which extradition is re-
quested then faces a seemingly technical legal decision which, in fact,

[5]

FA EDITORIAL

☑ 008/012

Henry A. Kissinger

05/02/01 14:52 FAX 212 861 1849

FA EDITORIAL

009/012

[Y]

AN INDISCRIMINATE COURT

[7]

FA EDITORIAL

010/012

Henry A. Kissinger

The pressures to achieve the widest scope for the doctrine of universal jurisdiction were demonstrated as well by a suit before the European Court of Human Rights in June 2000 by families of Argentine sailors who died in the sinking of the Argentine cruiser General Belgano during the Falklands war. The concept of universal jurisdiction has moved from judging alleged political crimes against humanity to second-guessing, 18 years after the event, military operations in which neither civilians nor civilian targets were involved.

Distrusting national governments, many of the advocates of universal jurisdiction seek to place governments under the supervision of magistrates and the judicial system. But the prosecutor's discretion without accountability is precisely one of the flaws of the International Criminal Court. Definitions of the relevant crimes are vague and highly susceptible to politicized application. Defendants will not enjoy due process as understood in the United States. Any signatory state has the right to trigger an investigation. As the experience of the American special prosecutor shows, such a procedure is likely to develop its own momentum without time limits and can turn into an

caps/

05/02/01 14:53 FAX 212 861 1849

FA EDITORIAL

011/012

MODEST PROPOSALS

THE PRECEDENTS SET by international tribunals established to deal with situations where the enormity of the crime is evident and the local judicial system is clearly incapable of administering justice, as in Yugoslavia and Rwanda, have shown that it is possible to punish without removing from the process all political judgment and experience. In time, it may be possible to renegotiate the ICC statute to avoid its shortcomings and dangers. Until then, the United States

[9]

FA EDITORIAL

012/012

Y

Henry A. Kissinger

In this manner, internationally agreed procedures to deal with war crimes, genocide, or crimes against humanity could become institutionalized. On the other hand, the one-sidedness of the current pursuit of universal jurisdiction would be avoided. For this could threaten the very purpose for which the concept has been developed. In the end, an excessive reliance on universal jurisdiction may undermine the political will to sustain the humane norms of international behavior so necessary to temper the violent times in which we live.②

05/02/01 14:48 FAX 212 861 1849

FA EDITORIAL

002/012

FOREIGN AFFAIRS

May 2, 2001

Dear Ms. Cimino,

As we discussed on the phone a little while ago, I have compiled your changes on the galleys of Dr. Kissinger's to produce these new page proofs. We are very pleased with the article and are excited to publish it. The piece is now in very good shape and from this point onward we should only have to make minor stylistic adjustments and correct outright typos or errors.

FA EDITORIAL

003/012

From: CW To: AU, TN, JT

First proofs

Cc: JH, GR, File

Wednesday, May 2, 2001

Reads due: Friday, May 4 2001

Henry A. Kissinger

RISKING JUDICIAL TYRANNY

[1]

FA EDITORIAL

004/012

Henry A. Kissinger

[2]

FA EDITORIAL

005/012

Kissinger.pp. 5/2/01 3:37 PM Page 3

stating general principles, not laws that would be enforced by courts other than those of the countries of the victims or the perpetrators. 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 against Soviet pressure on their own 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.

A DANGEROUS PRECEDENT

[3]

FA EDITORIAL

006/012

Henry A. Kissinger

[4]

FA EDITORIAL

007/012

[Y]

[5]

03/02/01 14:31 FAX 212 861 1849

FA EDITORIAL

008/012

[Y]

Henry A. Kissinger

FA EDITORIAL

009/012

AN INDISCRIMINATE COURT

[7]

FA EDITORIAL

010/012

Henry A. Kissinger

Most Americans would be amazed to learn that the ICTY, created at American best in 1993 to deal with Balkan war criminals, asserts a right to investigate America's political and military leaders for allegedly criminal conduct—and for the indefinite future, since no statute of limitations applies. Though the ICTY prosecutor chose not to pursue the charge—on the ambiguous ground of an inability to collect evidence—some national prosecutor may wish later to take up the matter as a valid subject for universal jurisdiction.

FA EDITORIAL

011/012

MODEST PROPOSALS

[9]

FA EDITORIAL

012/012

Henry A. Kissinger

In this manner, internationally agreed procedures to deal with war crimes, genocide, or crimes against humanity could become institutionalized. On the other hand, the one-sidedness of the current pursuit of universal jurisdiction would be avoided. For this could threaten the very purpose for which the concept has been developed. In the end, an excessive reliance on universal jurisdiction may undermine the political will to sustain the humane norms of international behavior so necessary to temper the violent times in which we live.●

Original mss. from publisher 4/24/01

word count: 3,304

JH, FILE

## Henry A. Kissinger

### Risking Judicial Tyranny

In less than a decade, an unprecedented concept 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 there are crimes so heinous that their perpetrators should not escape justice by invoking doctrines of sovereignty 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 some domestic criminal justice to violations of universal standards, embodied in U.N. conventions, by authorizing national prosecutors to bring offenders into their jurisdictions through extradition from third countries.

[Y]

procedures. The second approach is the International Criminal Court (ICC), adopted by a conference in Rome in July 1998 and signed by ninety-five states, including most European countries. It has already been ratified by 29 nations and will go into effect when sixty have accepted its provisions. On December 31, 2000, President 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 is 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"). To date, it has been applied only to pirates because their operations on the high seas were typically beyond the jurisdictions of any state and therefore not subject to any existing criminal justice system.

In the aftermath of the Holocaust and the many atrocities committed since, major efforts have been made to fill this void, among them the Nuremberg trials of 1945-1946, the Universal Declaration of Human Rights of 1948, the genocide conventions of 1948, and the anti-torture convention of 1988. The Final Act of the Conference on Security and Cooperation in Europe, signed in Helsinki in 1975 by President Ford on behalf of the United States, obligated the thirty-five 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

INSERT
P. 2-A

2-A

INSERT TO PAGE 2

04/27/01 10:51 FAX 212 861 1849

FA EDITORIAL

005

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 United Nations conventions or the
Helsinki Final Act thought it possible that national judges would
use them as a basis for extradition requests regarding alleged
crimes not committed in their jurisdictions. The drafters almost
certainly believed that they were stating general principles, not
laws that would be enforced by courts other than those of the
countries of the victims or the perpetrators. 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 against Soviet pressure on their own and
a captive peoples.

It was not viewed as a legal weapon against
individual leaders before courts of countries not their own.

INSERT
P. 3-A

(Noth) Nor, until recently, it was never 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.

3

3-A

INSERT TO PAGE 3

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.

New York

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 of a Spanish judge seeking to try him for crimes committed against Spaniards on Chilean soil. For advocates of universal jurisdiction, that detention --- lasting sixteen and a half months --- is 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? 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 the coup d'état against an elected leader. At the time, others, including the leaders 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

FA EDITORIAL

007

brutally its
their attitude only after the junta maintained autocratic rule far
longer than was warranted by the invocation of an emergency.)

On November 25, 1998, Britain's House of Lords concluded that "international law has made it plain that certain types of conduct . . . are not acceptable conduct on the part of anyone." [But that principle did not necessarily oblige the House of Lords to confer on a Spanish magistrate the right to enforce it in a third country. It could have held that Chile or an international tribunal specifically established for crimes committed in Chile on the model of the courts set up for crimes in Yugoslavia and Rwanda were the appropriate forum.

INSERT
P. 5-A

The unprecedented and sweeping interpretation of international
law in Ex parte Pinochet would arm any magistrate, anywhere in the
world, with the unilateral power to invoke a supranational concept
of justice; to substitute his own judgment for the reconciliation
procedures of even incontestably democratic societies where the
alleged violations of human rights occurred; and to subject the

5

5-A

INSERT TO PAGE 5

But that principle did not necessarily oblige the House of
Lords to endow a Spanish magistrate--and presumably other
magistrates elsewhere in the world--with the authority to
enforce it in a country where the accused had committed no
crime, and then to cause the restraint of the accused for
sixteen months in yet another country in which he was
equally a stranger.

[Y]

accused to the criminal procedures of the magistrate's country, with
whose legal system the defendant may be unfamiliar and which forces
him to bring evidence and witnesses from long distances. Such a
system goes far beyond the explicit and limited mandates established
by the United Nations Security Council for the tribunals covering
war crimes in Yugoslavia and Rwanda as well as the one being
negotiated for Cambodia.

Perhaps the most important issue is the relationship of
universal jurisdiction to national reconciliation procedures set up
by new democratic governments to deal with their countries'
questionable pasts. One would have thought that a Spanish magistrate
would have been sensitive to the incongruity of a request by Spain,
itself haunted by transgressions during the Spanish Civil War and
the Franco period, to try in Spanish courts alleged crimes against
humanity committed elsewhere.

6

in such cases

Another grave issue is the use of extradition procedures designed for ordinary criminals. If the Pinochet case becomes a precedent, magistrates anywhere will be in a position to put forward an extradition request without warning to the accused and regardless of the policies the accused's country might already have in place for dealing with the charges. The country from which extradition is requested then faces a seemingly technical legal decision which, in fact, amounts to the exercise of political discretion --- whether to entertain the claim or not.

Once extradition procedures are in train, they develop a
momentum of their own. The accused is not allowed to challenge the
substantive merit of the case and must confine himself to procedural
issues: that there was, say, some technical flaw in the extradition
request; that the judicial system of the requesting country is
incapable of providing a fair hearing; or that the crime for which
the extradition is sought is not treated as a crime in the country
from which extradition has been requested --- thereby conceding much
of the merit of the charge. Meanwhile, while these claims are being
considered, the accused remains in some form of detention, possibly
for years. Such procedures provide an opportunity for political
harassment long before the accused is in a position to present his
defense. It would be ironic if a doctrine designed to transcend the

The Pinochet precedent, if literally applied, would permit the
two sides in the Arab-Israeli conflict, or those in any other
passionate international controversy, to project their battles into
the various national courts by pursuing adversaries with extradition
requests. When discretion on what crimes are subject to universal
jurisdiction and whom to prosecute is left to national prosecutors,
the scope for arbitrariness is wide indeed. So far universal
jurisdiction has involved the prosecution of one fashionably reviled
man of the right while scores of East European Communist leaders ---
not to speak of Caribbean, Middle Eastern, or African leaders who
had inflicted their own full measures of torture and suffering ---
have not had to face similar prosecutions.

It will be argued that a double standard does not excuse
violations of international law and that it is better to bring one
malefactor to justice than to grant immunity to all. This is not a
principle permitted in the domestic jurisdictions of many
democracies-in Canada, for example, a charge can be thrown out of
court merely by showing that a prosecution has been selective enough
to amount to an abuse of process. In any case, a universal standard
of justice should not be based on the proposition that a just end
justifies unjust means, or that political fashion trumps fair
judicial procedures.

8

[v]

An Indiscriminate Court

The ideological supporters of universal jurisdiction also provide much of the intellectual compass for the emerging International Criminal Court. Their goal is to criminalize certain types of military and political actions and thereby bring about a change to a more humane conduct of international relations. To the extent that the ICC replaces the claim of national judges to universal jurisdiction, it greatly improves the state of international law. And, in time, it may be possible to negotiate modifications of the present statute to make the ICC more compatible with American constitutional practice. But in its present form of assigning the ultimate dilemmas of international politics to unelected jurists-and to an international judiciary at that-it represents such a fundamental change in American constitutional practice that a full national debate and the full participation of Congress are imperative. Such a momentous revolution should not come about by tacit acquiescence in the decision of the House of Lords or by dealing with the ICC issue with a strategy of improving specific clauses rather than as a fundamental issue of principle.

For example, can any leader of the United States or of other
countries be hauled before international tribunals established for
other purposes? This is precisely what Amnesty International implied
when, in the summer of 1999, it supported a "complaint" by a group
of European and Canadian law professors to Louise Arbour, then the
prosecutor of the International Criminal Tribunal for the Former
Yugoslavia (ICTY). The complaint alleged that crimes against
humanity had been committed during the NATO air campaign in Kosovo.
Arbour ordered an internal staff review, thereby implying that she
did have jurisdiction if such violations could, in fact, be
demonstrated. Her successor, Carla Del Ponte, in the end declined to
indict any NATO official because of a general inability "to pinpoint
individual responsibilities," thereby implying anew that the court
had jurisdiction over NATO and American leaders in the Balkans and
would have issued an indictment had it been able to identify the
particular leaders allegedly involved.

Most Americans would be amazed to learn that the ICTY, created
at American behest in 1993 to deal with Balkan war criminals,
asserts a right to investigate America's political and military
leaders for allegedly criminal conduct-and for the indefinite
future, since no statute of limitations applies. Though the ICTY
prosecutor chose not to pursue the charge-on the ambiguous ground of
an inability to collect evidence-some national prosecutor may wish
later to take up the matter as a valid subject for universal
jurisdiction.

[Y]

10

[Y]

The pressures to achieve the widest scope for the doctrine of
universal jurisdiction were demonstrated as well by a suit before
the European Court of Human Rights in June 2000 by families of
Argentine sailors who died in the sinking of the Argentine cruiser
General Belgano during the Falklands war. The concept of universal
jurisdiction has moved from judging alleged political crimes against
humanity to second-guessing, eighteen years after the event,
military operations in which neither civilians nor civilian targets
were involved.

Distrusting national governments, many of the advocates of
universal jurisdiction seek to place governments under the
supervision of magistrates and the judicial system. But the
prosecutor's discretion without accountability is precisely one of
the flaws of the International Criminal Court. Definitions of the
relevant crimes are vague and highly susceptible to politicized
application. Defendants will not enjoy due process as understood in
the United States. Any signatory state has the right to trigger an
investigation. As the experience of the American special prosecutor
shows, such a procedure is likely to develop its own momentum
without time limits and can turn into an instrument of political
warfare. And the extraordinary attempt of the ICC to assert
jurisdiction over Americans even in the absence of America's
accession to the treaty has already triggered legislation in
Congress to resist it.

The independent prosecutor of the ICC has the power to issue
indictments, subject only to review by a panel of three judges.
According to the Rome statute, the United Nations Security Council

11

has the right to quash any indictment. But since revoking an
indictment is subject to the veto of any permanent member, and since
the prosecutor is unlikely to issue an indictment without the
backing of at least one permanent member of the Security Council, he
or she has virtually unlimited discretion in practice. Another
provision permits the country whose citizen is accused to take over
the investigation and trial. But the ICC retains the ultimate
authority on whether that function has been adequately exercised
and, if it finds it has not, the ICC can reassert jurisdiction.
While these procedures are taking place, which may take years, the
accused will be under some restraint and certainly under a public
shadow.

The advocates of universal jurisdiction argue that the state is
the basic cause of war and cannot be trusted to deliver justice. If
law replaced politics, peace and justice would prevail. But even a
cursory examination of history shows that there is no evidence to
support such a theory. The role of the statesman is to choose the
best option when seeking to advance peace and justice, realizing
that there is frequently a tension between the two and that any
reconciliation is likely to be partial. The choice, however, is not
simply between universal and national jurisdictions.

## Modest Proposals

The precedents set by international tribunals established to deal
with situations where the enormity of the crime is evident and the
local judicial system is clearly incapable of administering justice,
as in Yugoslavia and Rwanda, have shown that it is possible to

[Y]

punish without removing from the process all political judgment and
experience. In time, it may be possible to renegotiate the ICC
statute to avoid its shortcomings and dangers. Until then, the
United States should go no further toward a more formal system than
one containing the following provisions:

* The U.N. Security Council would create a Human Rights Commission or a special subcommittee to report whenever systematic human rights violations seem to warrant judicial action.

✓ Transcribed per HAK

word count: 3,304

JH, FILE

## Henry A. Kissinger

### Risking Judicial Tyranny

The doctrine of universal jurisdiction asserts that there are crimes so heinous that their perpetrators should not escape justice by invoking doctrines of sovereignty 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 some domestic criminal justice to violations of universal standards, embodied in U.N. conventions, and by authorizing national prosecutors to bring offenders into their jurisdictions through extradition from this country.

INSERT
P. 2-A

[Y]

2-A

INSERT TO PAGE 2

[Y]

No, until recently, it was never 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.

<table><tr><td>INSERT</td></tr><tr><td>P. 3-A</td></tr></table>

## A Dangerous Precedent

On November 25, 1998, Britain's House of Lords concluded that "international law has made it plain that certain types of conduct... are not acceptable conduct on the part of anyone." [But that principle did not necessarily obligate the House of Lords to confer on a Spanish magistrate the right to enforce it in a third country. It could have held that Chile or an international tribunal specifically established for crimes committed in Chile on the model of the courts set up for crimes in Yugoslavia and Rwanda were the appropriate forum.

INSERT
P. 5-A

[Y]

its

5

5-A

INSERT TO PAGE 5

But that principle did not necessarily oblige the House of Lords to endow a Spanish magistrate—and presumably other magistrates elsewhere in the world—with the authority to enforce it in a country where the accused had committed no crime—and then to cause the restraint of the accused for sixteen months in yet another country in which he was equally a stranger.

[Y]

6

Another grave issue is the use of extradition procedures in such cases designed for ordinary criminals. If the Pinochet case becomes a precedent, magistrates anywhere will be in a position to put forward an extradition request without warning to the accused and regardless of the policies the accused's country might already have in place for dealing with the charges. The country from which extradition is requested then faces a seemingly technical legal decision which, in fact, amounts to the exercise of political discretion --- whether to entertain the claim or not.

8

An Indiscriminate Court

11

has the right to quash any indictment. But since revoking an
indictment is subject to the veto of any permanent member, and since
the prosecutor is unlikely to issue an indictment without the
backing of at least one permanent member of the Security Council, he
or she has virtually unlimited discretion in practice. Another
provision permits the country whose citizen is accused to take over
the investigation and trial. But the ICC retains the ultimate
authority on whether that function has been adequately exercised
and, if it finds it has not, the ICC can reassert jurisdiction.
While these procedures are taking place, which may take years, the
accused will be under some restraint and certainly under new public
shadow.

## Modest Proposals

12

APR-27-2001 12:38

P.03/16

word count: 3,304

JH, FILE

## Henry A. Kissinger

### Risking Judicial Tyranny

The doctrine of universal jurisdiction asserts that there are crimes so heinous that their perpetrators should not escape justice by invoking doctrines of sovereignty 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, as embodied in U.N. conventions, by authorizing national prosecutors to bring offenders into their jurisdictions through extradition

APR-27-2001 12:38

P.04/16

2

APR-27-2001 12:38

P.05/16

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 United Nations conventions or the
Helsinki Final Act thought it possible that national judges would
use them as a basis for extradition requests regarding alleged
crimes not committed in their jurisdictions. The drafters almost
certainly believed that they were stating general principles, not
laws that would be enforced by courts other than those of the
countries of the victims or the perpetrators. 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 against Soviet pressure on their own and
captive peoples. It was not viewed as a legal weapon against
individual leaders before courts of countries not their own.

Until recently, it was never argued that the various U.N.
declarations subjected past and future leaders to the possibility of
request for extradition
prosecution by national magistrates of third countries [without
either due process safeguards or institutional restraints].

covered
by insert
3-A

APR-27-2001 12:39

P.06/16

## A Dangerous Precedent

4

APR-27-2001 12:39

P.07/16

On November 25, 1998, Britain's House of Lords concluded that "international law has made it plain that certain types of conduct . . . are not acceptable conduct on the part of anyone." But that principle did not necessarily oblige the House of Lords to confer on a Spanish magistrate the right to enforce it in a third country. It could have held that Chile or an international tribunal specifically established for crimes committed in Chile on the model of the courts set up for crimes in Yugoslavia and Rwanda were the appropriate forum.

APR-27-2001 12:39

P.08/16

6

APR-27-2001 12:40

P.09/16

7

APR-27-2001 12:40

P.10/16

[Y-]

8

APR-27-2001 12:40

P.11/16

An Indiscriminate Court

APR-27-2001 12:41

P.12/16

10

APR-27-2001 12:41

APR-27-2001 12:41

P.14/16

## Modest Proposals

APR-27-2001 12:42

04/27/01 10:52 FAX 212 861 1849

FA EDITORIAL

FA EDITORIAL

009

[Y]

7

04/27/01 10:53 FAX 212 861 1849

FA EDITORIAL

010

CJ

8

FA EDITORIAL

An Indiscriminate Court

9

04/27/01 10:54 FAX 212 861 1849

FA EDITORIAL

012

[Y]

10

FA EDITORIAL

013

FA EDITORIAL

014

## Modest Proposals

12

04/27/01 10:55 FAX 212 861 1849

FA EDITORIAL

015

LYJ

13

FA EDITORIAL

016

Henry A. Kissinger, chairman of Kissinger Associates, Inc., is a former Secretary of States and National Security Advisor. This essay is adapted from his latest book, "Does America Need A Foreign Policy?" published by Simon & Schuster.

14

04/27/01 10:50 FAX 212 861 1849

FA EDITORIAL

word count: 3,304

JH, FILE

Henry A. Kissinger

Risking Judicial Tyranny

from third countries.

1

FA EDITORIAL

004

INSERT
P. 2-A

2-A

INSERT TO PAGE 2

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 United Nations conventions or the
Helsinki Final Act thought it possible that national judges would
use them as a basis for extradition requests regarding alleged
crimes not committed in their jurisdictions. The drafters almost
certainly believed that they were stating general principles, not
laws that would be enforced by courts other than those of the
countries of the victims or the perpetrators. 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 against Soviet pressure on their own and
a captive people's weapon to use against their own and
individual leaders before courts of countries not their own.

(Noth) Nor, until recently, it was 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.

INSERT
P. 3-A

[Y]

3

3-A

INSERT TO PAGE 3

binding undertakings need
Even with respect to such conventions as the Genocide
Convention which were treated as binding, it was never
thought that they would subject past and future leaders of
one nation to prosecution by the national magistrates of
that that value the violation had
another state who might seek to assert jurisdiction.
not accrued.

FA EDITORIAL

006

CYJ

## A Dangerous Precedent

4

On November 25, 1998, Britain's House of Lords concluded that "international law has made it plain that certain types of conduct... are not acceptable conduct on the part of anyone." [But that principle did not necessarily oblige the House of Lords to confer on a Spanish magistrate the right to enforce it in a third country.] It could have held that Chile or an international tribunal specifically established for crimes committed in Chile on the model of the courts set up for crimes in Yugoslavia and Rwanda were the appropriate forum.

INSERT
P. 5-A

5-A

INSERT TO PAGE 5

But that principle did not necessarily oblige the House of Lords to endow a Spanish magistrate—and presumably other magistrates elsewhere in the world—with the authority to enforce it in a country which the accused had committed no crime—and then to cause the restraint of the accused for sixteen months in yet another country in which he was equally a stranger.