Original mss. from publisher 4/24/01

word count: 3,304

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# The Pitfalls of Universal Jurisdiction

## 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, as embodied in U.N. conventions, by authorizing national prosecutors to bring offenders into their jurisdictions through extradition

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.

INSERT
P. 2-A

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

2-A

INSERT TO PAGE 2

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.

[Y]

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

INSERT
P. 3-A

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 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
another state who might seek to assert jurisdiction.

[Y]

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

their attitude only after the junta maintained 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, 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 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.

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.

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?

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

[Y]

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 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.

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

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[Y]

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, 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.

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[Y]

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 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.

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[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

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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.

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

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.

* 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.

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CJD

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JH, FILE

## Henry A. Kissinger

### Risking Judicial Tyranny

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[Y]

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"). For 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.

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[Y]

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

3

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C Y J

## 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.

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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.

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An Indiscriminate Court

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CJ

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## Modest Proposals

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Hoge

Kissinger manuscript comments

**Page three:** Re: whether the concept of universal jurisdiction is of recent vintage. In fact, references to a similar concept can be found in Kant and Bentham. International law has a concept, similar to natural law, known as "jus cogens"--fundamental rules that cannot be violated by any state. This is not a new concept. And universal jurisdiction has explicitly been applied to pirates and hijackers for many years. Moreover, the concept was resoundingly asserted at Nuremberg.

**Page four:** Re: the drafters of international conventions such as the Universal Declaration of Human Rights did not mean their documents to have the force of law, and that contemporary judges are therefore mistaken to interpret them as binding. Distinction needs to be made between two types of documents: hortatory or aspiration texts (such as the Universal Declaration), and binding treaties (such as the Geneva Conventions or the Genocide Convention). Eleanor Roosevelt's characterization was referring only to the first class of conventions, not the second. Unlike the Declaration, these other conventions *were* meant as binding law.

**Page five:** Re: a single judge's "personal discretion" to force the extradition of an accused citizen. While it's true that a single judge, Spain's Baltazar Barzon, *requested* the extradition of Pinochet, that request was then *reviewed* by a large number of British judges in a series of cases that went up to the highest court in the UK, where the decision was made by a panel of top legal experts. It also should be noted that extradition requests are made on the basis of well-defined laws and procedures. Offenses can't be invented at the whim of a prosecutor.

**Page six:** The same points apply to the description of the Ex parte Pinochet precedent regarding magistrate's "unilateral powers."

**Page eight:** Re: an extradition request interrupting a delicate political process aimed at dealing with past crimes. A country that receives the extradition request may always use its discretion when deciding whether or not to comply, as was the case regarding Pinochet. If, as in the former Yugoslavia, a delicate political reconciliation process is already underway, that country can refuse to extradite--as Belgrade has (thus far) refused to extradite Milosevic to the Hague.

Theresa Cimino

From: Jessee Incao [Jessee.Incao@worldnet.att.net]

Sent: Monday, April 30, 2001 11:53 AM

To: theresa.cimino@kainy.org

Subject: FW: Message for Dr. Kissinger

-----Original Message-----

From: William_Rogers@aporter.com [mailto:William_Rogers@aporter.com]

Sent: Monday, April 30, 2001 5:02 AM

To: jessee.incao@kainy.org

Cc: William_Rogers@aporter.com

Subject: Message for Dr. Kissinger

Anent the "Hoge -- Kissinger manuscript comments" on the universal
jurisdiction
article:

As to the first comment directed at page three (which I take to be page 2
in
the copy I have), I would have the sentence which now begins "to date..."
read
as follows: "Until quite recently it was applied to pirates, hijackers and
such
like outlaws whose crimes were committed on the high seas or in the air and
were
typically 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
as pirates is quite new."

As to the second comment directed at page four, I suggest that the sentence
at
the bottom of page 3 of my version might read as follows:

"Until recently, no one thought as a practical matter that the various
U.N.
declarations were grounds for the assertion of criminal jurisdiction
subjecting
past and future leaders of one nation to prosecution by the national
magistrates
in any other nation who might choose to assert that jurisdiction...."

As to the third comment directed at page five, I suggest the following for
the
sentence following the reference to the November 15, 1998 House of Lords
ruling,
on page 5 of my copy:

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

As to the fourth comment, directed at page six, I think no other change is

1

required. The article is clear enough that the Spanish magistrate had
unilateral power to institute the proceeding and to request the extradition.
It
does not assert that he had the power unilaterally to bring about the
extradition.

As to the fifth comment, directed to page eight, again I do not think a
change
is required. On page 7 of the version I have, it is pointed out that the
"country from which extradition is requested then faces... the exercise of
political discretion..."

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William Rogers
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