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1 The Case for Universal Jurisdicti Author(s): Kenneth Roth Reviewed work(s): Source: Foreign Affairs, Vol. 80, No. 5 (Sep. - Oct., 2001), pp Published : Council Foreign Relatis Stable URL: Accessed: 29/12/ :11 Your use of JSTOR archive dicates your acceptance of Terms & Cditis of Use, available at. JSTOR is a not-for-profit service that helps scholars, researchers, students discover, use, build up a wide range of ctent a trusted digital archive. We use formati technology ols crease productivity facilitate new forms of scholarship. For more formati about JSTOR, please ctact support@jsr.org. Council Foreign Relatis is collaboratg with JSTOR digitize, preserve extend access Foreign Affairs.

2 Respse The Case for Universal Jurisdicti Kenneth Roth Behd much of savagery of modern hisry lies impunity. Tyrants commit atrocities, cludg genocide, when y calculate can y get away with m. Too often, dictars use violence timidati shut down any prospect of domestic prosecuti. Over past decade, however, a slowly emergg system of ternatial justice has begun break this pattern of impunity natial courts. The United Natis Security Council established ternatial war crimes tribunals for former Yugoslavia 1993 Rwa 1994 is now negotiatg creati of mixed natial-ternatial tribunals for Cambodia Sierra Lee. In 1998, world's governments gd Rome a adopt treaty for an Internatial Crimal Court (ice) with potentially over war global genocide, crimes, crimes agast humanity. With growg frequency, natial courts under doctre of operatg universal prosecutg despots ir cusdy for atrocities committed abroad. Impunity may still be norm many domestic courts, but ternatial justice is an creasgly viable a measure opti, promisg of solace victims ir families raisg possibility that -be tyrants will beg thk twice before a embarkg barbarous path. In "The Pitfalls of Universal Jurisdic ti" (July/August 2001), former Secretary of State a Henry catalogues list of grievances agast juridical ccept that people who commit most severe human crimes can be tried wherever y found. But his objectis misplaced, alternative he proposes is little better than a return impunity. begs suggestg that universal is a new idea, at least as applied heads of state senior public officials. However, exercise U.S. courts of over certa heous crimes committed overseas is an accepted part of American jurisprudence, reflected treaties terrorism air craft hijackg datg from Universal was also ccept that Kenneth Roth is Executive Direcr of Human Rights Watch. [150]

3 The Case for Universal Jurisdicti allowed Israel try Adolf Eichmann Jerusalem says that drafters of Helski Accords? basic human prciples adopted Cference Security Cooperati Europe 1975? U.N.'s 1948 Universal Declarati of Human Rights never tended authorize universal. But this argument is irrelevant, because se hortary declaratis not legally bdg treaties of sort that could grant such powers. As for many formal treaties human, believes it "unlikely" that ir signaries "thought it possible that natial judges use m as a basis for extraditi requests regardg alleged crimes committed out side ir s." To ctrary, Torture Cventi of 1984, ratified 124 governments cludg United States, states requires eir prosecute any rturer suspected found ir terriry, regardless of where rture ok or place, extradite suspect a country that will do so. Similarly, Geneva Cventis of 1949 cduct of war, ratified 189 countries cludg United States, require each state participatg "search for" perss who have committed grave breaches of cventis "brg such perss, regardless of natiality, before its own courts." What is new is not ccept of extraterririal but will gness of some governments fulfill this duty agast those high places. ORDER AND THE COURT 's critique of universal has two prcipal targets: so--be formed Internatial Crimal Court exercise of universal natial courts. (Strictly speakg, ice will use not universal but, rar, a delegati of states' tradi tial power try crimes committed ir own terriry.) claims that crimes detailed ice treaty "vague highly susceptible politicized applicati." But treaty's defiti of war crimes closely resembles that found own Pentag's military manuals is derived from widely ratified Geneva Cventis ir Additial Procols adopted Similarly, ice treaty's defiti of genocide is borrowed directly from Genocide Cventi of 1948, which United States 131 or govern ments have ratified pledged uphold, cludg prosecutg offenders. The defiti of crimes agast humanity is de rived from Nuremberg Charter, which, as acknowledges, proscribes cduct that is "self-evident[ly]" wrg. furr asserts that ice prosecur will have "discreti without so accountability," gog far as raise specter of Independent Counsel Kenneth Starr decry " tyranny of judges." In fact, prosecur can be removed for miscduct a simple majority of governments that ratify ice treaty, a two-thirds vote can remove a judge. Because jog court means givg it over crimes committed signary's terriry, vast majority of member states will be democracies, not abusive governments that self-protectively flock U.N. human bodies, where membership bears no cost. criticizes "extraordary attempt of ice assert over Americans even absence of FOREIGN AFFAIRS- September / Ocber 2001 [ 151 ]

4 Kenneth Roth U.S. accessi treaty." But United States itself asserts such over ors' citizens when it prosecutes terrorists or drug traffickers, such as Panamanian dictar Manuel Noriega, without csent of suspect's government. Moreover, ice will assert such power ly if an American commits a specified atrocity terriry of a government that has joed ice has thus delegated its prosecurial authority court. claims that ice defendants "will not enjoy due process as undersod United States"?an appnt allusi lack of a jury trial a court that will blend civil comm law traditis. But U.S. courts martial also do not provide trials jury. More over, U.S. civilian courts routely approve cstitutiality of extraditi countries that lack jury trials, so as lg ir courts orwise observe basic due process. The ice clearly will provide such due process, sce its treaty requires adherence full complement of ternatial fair-trial stards. Of course, any court's regard for due process is as as ly good quality temperament of its judges. The ice's judges will be chosen governments that jo court, most of which, as noted, will be democracies. Even without ratifyg ice treaty, U.S. government could a help culture of shape respect for due process quietly workg with court, as it has de successfully with ter natial war crimes tribunals for Rwa former Yugoslavia. Regrettably, ice oppents Washgn pushg legislati? misnamed American Servicemembers Protecti Act?that preclude such cooperati. The experience of Yugoslav Rwan tribunals, of which speaks favorably, suggests that ternatial jurists, when forced decide fate of a particular crimal suspect, do so with scrupulous regard for fair trial stards. 's ly stated objecti se tribunals ccerns decisi of prosecur of tribunal for former Yugoslavia pursue a brief quiry how na cducted its air war agast new Yugoslavia?an quiry that led her exerate na. It should be noted, additi, that of Yugoslav tribunal was set not prosecur but U.N. Security Council, with U.S. csent. The council chose grant without time prospective limit, over serious human crimes with terriry of former Yugoslavia committed anye?not just Serbs, Croats, Bosnian Muslims. In light ofthat mate, prosecur have been derelict her duties not csider na's cduct; an extensive accordg field vestigati Human Rights Watch, roughly half of approximately 500 civilian deaths caused na's bombs could be attributed na's failure, albeit not crimal, abide terna tial humanitarian law. claims that ice violate U.S. Cstituti if it asserted over an American. But court is an unlikely prosecute American because Rome treaty deprives ice of if, after court gives notice of its tenti exame required a suspect, suspect's government cducts its own good-faith vestigati, if appropriate, prosecuti. It is stated policy of U.S. government [152] FOREIGN AFFAIRS-Volume 80 No. s

5 vestigate war crimals. prosecute The Case for Universal Jurisdicti its own Moreover, ice's asserti of juris dicti over an American for a crime committed abroad poses no greater csti tutial problem than route practice under status-of-forces agreements of allowg foreign prosecuti of American military persnel for crimes committed overseas, such as arrest Japan's July of a U.S. Air Force sergeant for an alleged rape Okawa. An uncstitutial delega ti of U.S. judicial power arguably take place ly if United States ratified ice treaty; n an American commit ted war genocide, crimes, or crimes agast humanity U.S. soil; n U.S. authorities did not prosecute offender. Yet that remote possibility signal a cstitutial crisis far graver than e spawned an ice NO PLACE TO HIDE prosecuti. Natial courts come under 's fire for selectively applyg universal. He characterizes extra diti request a Spanish judge seekg try former Chilean President Augus Pochet for crimes agast Spanish citizens Chilean soil as sglg out a "fashiably reviled man of right." But Pochet was sought not, as writes, "because he led a coup d'?tat agast an elected leader" who was a favorite of left. Rar, Pochet was targeted because security forces under his comm murdered forcibly some "disapped" 3,000 people rtured thouss more. Furrmore, recent years natial courts have exercised universal a agast wide range of suspects: Bosnian war crimals, Rwan g?nocidaires, Argente rturers, Chad's former dictar. It has come pot where ma limit natial courts empowered exercise universal is availability of defendant, not questis of ideology. also cites Pochet case argue that ternatial justice terferes with choice democratic governments forgive rar than prosecute past offenders. In fact, Pochet's impositi of a self-amnesty at height of his dictarship limited Chile's democratic optis. Only after 16 mths of deten ti United Kgdom dimished his power was Chilean democracy able beg prosecuti. Such imposed impunity is far more comm than democratically chosen impunity. have had a better case had prosecurs sought, for example, overturn compromise negotiated South Africa's Nels Mela, widely recognized at time as legitimate representative of victims of aparid. Mela agreed grant abusers immunity from prosecuti if y gave detailed testimy about ir crimes. In an appropriate exercise of prosecurial discreti, no prosecur has challenged this arrangement, no government countenance likely such a challenge. legitimately worries that natis exercisg universal could clude governments with less entrenched traditis of due process than United Kgdom's. But his fear of governments robotically extraditg suspects for sham or counterproductive trials is overblown. Governments regularly deny extraditi courts that unable ensure high foreign mistries, stards of due process. And cludg U.S. FOREIGN AFFAIRS- September / Ocber 2001 [ 153 ]

6 Kenneth Roth State Department, routely deny extradi ti requests for reass of public policy. If an American faced prosecuti an untrustworthy foreign court, United States undoubtedly apply pressure for his or her release. If that failed, how ever, it might prove useful offer prosecutg government face-savg alternative of transferrg suspect ice, with its extensive procedural pro tectis, cludg deference good-faith vestigatis prosecutis a own suspect's government. Unfortunately, legislati beg pushed ice oppents that opti. Until ice Washgn preclude treaty is renegotiated avoid what sees as its "short comgs dangers," he recommends that U.N. Security Council determe which cases warrant an ternatial tribunal. That was opti rejected durg Rome negotiatis ice because it allow council's five permanent members, cludg Russia Cha as well as United States, exempt ir natials those of ir allies exercisg ir vees. As a nati committed human rule of law, United States should be an embracg ternatial system of even justice, if it means that Americans, like everye else, might sometimes be scrutized.? What You W't Read Foreign Affairs The Foreign Service Journal is not your typical foreign policy magaze. Poreign _l_ JOURNAL Service K^S An dependent mthly, written for U.S. Foreign Service community, it gives you an side look at how America's foreign policy is actually carried out. Recent pics for special issues clude: Hot new ideas for draggg State Department 21 st century: which will fly which w't? America's split persality immigrati: why policy doesn't make sense. Why ctact with extra-terrestrial telligence be ultimate diplomatic challenge For subscripti formati a free copy, ctact us at 2101 E Street, N.W., Washgn, DC 20037; miltenberger@afsa.org; (202) ; or New publicatis from COUNCIL ON FOREIGN RELATIONS Strategic Energy Policy: Challenges for 21st Century, An Independent Task Force Report Edward L. Morse, Chair, Amy Myers Joffe, Project Direcr The United States Souast Asia: A Policy Agenda for New Admistrati, An Independent Task Force Report /. Robert Kerrey, Chair, Robert A. Manng, Project Direcr Council publicatis available through Brookgs Instituti Press (or ) featured at [154] FOREIGN AFFAIRS-Volume 80 No. s