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| Kissinger Watch #1 - 08 | |
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| The Pitfalls of Universal Jurisdiction | |
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| Extracts, entire article available under http://www.icai-online.org/kissingerwatch/the_pitfalls_of_uj.pdf by Henry Kissinger Foreign Affairs, July / August 2001 | |
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| RISKING JUDICIAL TYRANNY In less than a decade, an unprecedented movement has emerged to submit international politics to judicial procedures. It has spread with extraordinary speed and has not been subjected to systematic debate, partly because of the intimidating passion of its advocates. To be sure, human rights violations, war crimes, genocide, and torture have so disgraced the modern age and in such a variety of places that the effort to interpose legal norms to prevent or punish such outrages does credit to its advocates. The danger lies in pushing the effort to extremes that risk substituting the tyranny of judges for that of governments; historically, the dictatorship of the virtuous has often led to inquisitions and even witch-hunts. […] A DANGEROUS PRECEDENT It is decidedly unfashionable to express any degree of skepticism about the way the Pinochet case was handled. For almost all the parties of the European left, Augusto Pinochet is the incarnation of a right-wing assault on democracy because he led a coup d'etat 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 brutally maintained its autocratic rule far longer than was warranted by the invocation of an emergency.) Disapproval of the Allende regime does not exonerate those who perpetrated systematic human rights abuses after it was overthrown. But neither should the applicability of universal jurisdiction as a policy be determined by one's view of the political history of Chile. […] 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 more humane conduct of international relations. […] 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 precedent 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 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 containing the following three provisions. First, 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. 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 international 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 institutionalized. Furthermore, the one-sidedness of the current pursuit 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 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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