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| Kissinger Watch #1 - 09 | |
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| The case for Universal Jurisdiction | |
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| Extracts, entire article available under http://www.icai-online.org/kissingerwatch/the_case_for_uj.pdf) By Kenneth Roth,Executive Director of Human Rights Watch Foreign Affairs, July / August 2001 | |
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| 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. Over the past decade, however, a slowly emerging system of international justice has begun to break this pattern of impunity in national courts. […] 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 return to impunity. […] ORDER AND THE COURT Kissinger's critique of universal jurisdiction has two principal targets: the soon-to-be-formed International Criminal Court and the exercise of universal jurisdiction 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 Pentagon's own military manuals and is derived from the widely ratified Geneva Conventions and their Additional Protocols adopted in 1977. Similarly, the ICC treaty's definition of genocide is borrowed directly from the Genocide Convention 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 conduct that is "self-evident[ly]" wrong. […] NO PLACE TO HIDE National courts come under Kissinger's fire for selectively applying universal jurisdiction. He characterizes the extradition request by a Spanish judge seeking to try former Chilean President Augusto Pinochet for crimes against Spanish citizens on Chilean soil as singling out a "fashionably reviled man of the right." But Pinochet was sought not, as Kissinger writes, "because he led a coup d'etat against an elected leader" who was a favorite of the left. Rather, Pinochet was targeted because security forces under his command murdered and forcibly "disappeared" some 3,000 people and tortured thousands more. […] 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 international system of justice, even if it means that Americans, like everyone else, might sometimes be scrutinized. | |
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