John Menick on Sat, 20 Apr 2002 13:47:30 +0200 (CEST)

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J.D. Harvard 1943, a former Nuremberg war crimes prosecutor

Brown Journal of World Affairs, September, 2001

Henry Kissinger's essay on "The Pitfalls of Universal Jurisdiction" (Foreign
Affairs July/August 2001) perceives danger in allowing international legal
norms to interfere with political actions by national governments. The
former U.S. Secretary of State in the administration of President Richard
Nixon warns that current efforts to deter genocide and other crimes against
humanity by creating an international criminal court (ICC) run the risk of
becoming a "tyranny of judges" or a "dictatorship of the virtuous."   He
refers to "inquisitions and even witch-hunts."  Kissinger's focus on the
past exaggerates the dangers of the present and ignores the needs of the
future.  If we are to have a more peaceful and humane world, international
law must play a greater and not a lesser role.

Dr. Kissinger challenges the basic concept of universal jurisdiction. He
argues, incorrectly, that the notion is of recent vintage. He gives scant
weight to ancient doctrines designed to curb piracy or to a plethora of
international conventions following the First World War.  He fails to
recognize that international law is found not only in treaties but also in
general principles of justice and in customs which gradually obtain
universal recognition. International law is not static but advances to meet
the needs of a changing world.

Over half a century ago, Robert M. Jackson, on leave from the U.S. Supreme
Court to become Chief U.S. Prosecutor before the International Military
Tribunal at Nuremberg, declared: "To pass these defendants a poisoned
chalice is to put it to our own lips as well.  We must summon such
detachment and intellectual integrity to our task that this trial will
commend itself to posterity as fulfilling humanity's aspirations to do
justice."  The learned judges reviewed the law on which the trials were
based and concluded that it was "not an arbitrary exercise of power on the
part of victorious nations" but "the expression of international law
existing at the time of its creation..." The Nuremberg principles were
affirmed by the United Nations in 1946 and became binding legal precedents
for war crimes trials in Tokyo and elsewhere.  Justice Jackson and Telford
Taylor, his successor for a dozen subsequent trials at Nuremberg, repeatedly
made plain that the law being mobilized to maintain peace in the future
would apply to all nations equally.

The United States inspired the world when it proclaimed at Nuremberg and
elsewhere that aggression, genocide and other crimes against humanity were
universally prohibited by international law.  It was recognized that states
can act only through individuals and thus those leaders responsible for the
crimes could be held to account in a court of law. Crimes like aggression,
genocide and similar large-scale atrocities are almost invariably committed
by or with the connivance of a national government and it thus becomes
imperative to have available an international tribunal that could bring them
to justice.

For over half a century, United Nations committees struggled in vain to
reach consensus on a code of international crimes that would be punished in
an international court.  Cold war politics stymied all U.N. efforts to
create an international criminal jurisdiction. Powerful nations remained
unwilling to yield their sovereign rights to kill as they alone saw fit.
After years of meticulous argumentation at the U.N., a breakthrough finally
came in Rome in 1998 where 120 nations voted in favor of an ICC to curb the
incessant murders and persecution of millions of innocent people. The U.S.
was one of 7 nations that voted No.   Mr. Kisssinger now argues that because
of "the intimidating passion of its advocates", the judicial procedures
designed to punish and deter new crimes against humanity are being "spread
with extraordinary speed and has not been subjected to systematic debate".
It is not the passion of its advocates that is moving nations toward the
rule of law - it is the passion of those who have been victims of politics
as usual.

The tribunals set up by the Security Council of the United Nations in the
1990's, with strong U.S. support, to punish massive war crimes committed in
former Yugoslavia and Rwanda, are belittled by Dr. Kissinger's argument that
"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". None of these arguments are convincing.
Kissinger scorns the judgment of Great Britain's esteemed Law Lords who
confirmed the legal validity of the detention in England of Chile's former
Head of State, Augusto Pinochet, who was accused of crimes committed against
Spanish nationals in Chile. He ignores, for example, the widely hailed
prosecution of Adolf Eichman by Israel, for Holocaust crimes committed in
Europe at a time when the state of Israel didn't even exist. He fails to
recognize that these advances in international jurisprudence also reflect
the changing needs of contemporary world society.

In 1776, the Declaration of Independence declared that "governments derive
their just powers from the consent of the governed." The United Nations
Charter speaks in the name of "We the Peoples..." The Universal Declaration
of Human Rights, adopted in 1948 refers to 'the equal and unalienable rights
of all members of the human family..." and declares that it is essential
"that human rights should be protected by the rule of law." These and many
other international human rights instruments reflect the growing realization
that true sovereignty lies in the people and not the state.  Today, no
nation and no person can be above the law.  No one should oppose the
creation of new institutions being created to help realize the dreams of
suffering humanity.

Professor Kissinger is quite right to insist on due process protection and
fair trials for every accused but his assumption that the ICC will flout
these rights is completely unfounded. Quite the contrary, the best way to be
sure that law will not be abused as a weapon to settle political disputes is
to create a competent international court composed of highly qualified
judges from many nations bound by rules that guarantee a fair trial under
internationally approved standards and scrutiny. As of July 1, 2001, 36
states, including some of our staunchest allies, have completed the
ratification process thereby confirming their unconditional acceptance of
the Court.  U.S. insistence upon complete immunity for all U.S. nationals is
viewed by many of our friends as a repudiation of vaunted U.S. ideals and an
unacceptable affront to the rule of law that must apply equally to everyone.

The ICC seeks to usher in a new regime of increased respect for
international law. The court will have no jurisdiction over crimes committed
before the court comes into existence. There is no retroactivity. Only
crimes of concern to the international community as a whole, such as
genocide, crimes against humanity and major war crimes, can be tried.  The
supreme international crime - aggressive war - can only be considered
later - if there is a near-unanimous amendment   Furthermore, it must not be
forgotten that national courts are given priority and the ICC will have
jurisdiction only where the national courts are unable or unwilling to
provide the accused with a fair trial. The Security Council can block
prosecutions indefinitely if needed for reconciliation or peace.
Administrative and budgetary controls are clearly defined. Without its own
police force, the court must depend upon the Security Council to enforce its
decisions. Enforcement can be vetoed by any of the five privileged Permanent
Members, including the U.S.  Kissinger's reference to the "unlimited
discretion" of the prosecutor is unfounded. Many safeguards are written into
the statute. A court that acts arbitrarily or seeks to abuse its limited
powers will soon cease to exist.

Kissinger argues that the International Criminal Tribunal for Yugoslavia
(ICTY), created at U.S. behest in 1993, had the effrontery to receive a
"complaint" alleging that punishable crimes against humanity had been
committed during the NATO air campaign in Kosovo in 1999.  He should have
stressed that in this instance the ICTY Prosecutor properly dismissed the
complaint and refused to issue an indictment. The statute that governs the
ICTY was approved by the United States and the United Nations for the
purpose of bringing to justice those leaders responsible for crimes against
humanity committed since 1991 in that particular region.  It made no
exceptions for U.S. nationals or others. The burden is always on the
prosecutor to prove beyond doubt that the law has been violated. It must be
shown that the accused knew or should have known that the deeds were
criminal and that the defendant had the obligation and ability to prevent
the crimes from happening.    Despite initial difficulties and occasional
shortcomings the ICTY has earned respect for its very fair treatment of the
accused and its development of international criminal law. It is a new-born
babe that must be helped and encouraged and not disparaged.

The innocent need not fear the rule of law. Kissinger's misperceptions about
current international law lead him to the erroneous conclusion that if the
U.S. dos not ratify the ICC treaty Americans will be outside its reach and
hence protected from malicious accusations. He fails to notice that without
the protective shield of binding international law and institutions to
enforce it, the military captive is completely at the mercy of his captors.
In every democratic society it is unavoidable that some unjustified
complaints may be lodged for political or other nefarious purposes.  It is
also inevitable that some judgments may go awry and some judges may be
incompetent or worse. That is no reason to abolish courts or to refuse to
accept new courts where needed. Outstanding American international legal
experts, including ten former Presidents of the American Society of
International Law and the American Bar Association have, after careful
study, concluded that it would be in the best interests of the United States
and its military personnel for the United States to accept the proposed ICC
as quickly as possible. The same conclusion was reached in 2000 by
outstanding professors of the Harvard law School after a careful study by
leading military and legal experts assembled by the venerated American
Academy of Arts and Sciences.

A politically conservative constituency in the United States argues for the
protection of American sovereignty as though we were still in the Middle
Ages. Senator Jesse Helms of North Carolina has been a leading opponent of
the ICC.  Even though the U.S. Constitution vests the President with the
power to negotiate and sign treaties, the distinguished Senator did not wait
for the President to submit the ICC treaty to the Senate for its needed
advice and consent but intruded into Presidential prerogatives by
proclaiming that it would be "dead on arrival."  The wily Senator also
introduced legislation deceptively named "The Servicemembers Protection Act"
designed to abort the ICC by imposing economic and military sanctions
against states that support the court.  He managed to have its submission
endorsed by Henry Kissinger and several other distinguished former public
servants, whose signature seemed more an act of political fealty than
considered legal judgment since it relied on many arguments that were
demonstrably false.   Opponents of the ICC refuse to recognize that in
today's interdependent world all major problems are global and require
global solutions. Binding international rules have become necessary and are
accepted universally to protect the common interest. The prevention of
massive crimes against humanity deserves equal protection of universal law.

Mr. Kissinger makes an argument that, when needed, the Security Council can
create additional ad hoc tribunals. Until the ICC is fully functional ad hoc
courts may prove to be unavoidable to curb some of the more outrageous cases
of impunity.  But a bevy of independent courts is hardly an adequate
deterrent to universal crimes. Justice regarding the most serious crimes in
the world cannot depend upon the political whim of those who control the
United Nations. The crimes must be spelled out in advance and not condemned
only retroactively. Temporary courts created a la carte are very costly and
lack the uniformity required by an international legal system.  It is
understandable that a former Secretary of State should not be eager to place
national politicians under the supervision of an international judicial
system.  He accuses the ICTY of allowing " prosecutorial discretion without
accountability" - ignoring all the controls that exist to prevent abuse. He
makes the unfounded allegation that the "definitions of the relevant crimes
are vague and highly susceptible to politicized application."  His statement
that "defendants will not enjoy due process as understood in the United
States" is refuted by a host of prominent international lawyers, including a
former Legal Adviser to both the Defense and State Departments. (See 95
American Journal of International Law (Jan. 2001) 124.)

In concluding, Kissinger, the constant diplomat, makes three "Modest
Proposals". He suggests that the Security Council appoint a committee to
monitor human rights violations and report when judicial action appears
necessary.  If the local government has not been democratically elected or
seems incapable of sitting in fair judgment, the Council may set up
additional ad hoc tribunals. But the Council must specify the scope of
prosecutions and provide for due process. He fears "one-sidedness" of the
pursuit of universal jurisdiction which "may undermine the political will to
sustain the humane norms of international behavior so necessary to temper
the violent times in which we live." He ignores the reality that other
states will demand the same rights that the U.S. wishes to reserve for
itself.  What it boils down to in the end is that Henry Kissinger says he
agrees with the goals of the international criminal court, and even gives
some credit to its advocates, but he fails to recognize that the safeguards
he seeks from an ICC are already in place.  He remains uncomfortable with
what he perceives to be the speed and vigor with which the idea of universal
crimes punishable in an international court is now moving forward.  His call
for a public debate is fully justified. Let an informed public study the
facts and then let the politicians know whether they prefer politics as
usual to law.

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