Universal Jurisdiction
The case for Universal Jurisdiction is not a new argument. The philosophical beginnings of jurisdiction are
moral obligation. If a person commits a crime in one location is such moral for this party to have impunity based on location,
time, or person to person? Should an individual who commits a crime against a standing code be
permitted to flee or remain immune from prosecution? In brief the issue lies with domestic and international law. To be de
jure the complaint must be issued by a competent legal authority to such. This predicates that there must be a consistent
level of primary and secondary law to guarantee uniformity of right and process.
To date there is a theoretical basis and standing treaty obligations to facilitate a real treatment of
this issue although with considerable dissent. International treaties developed to facilitate Universal Jurisdiction are:
The cited instruments are positive law documents
intended to level treatment to a minimum norm that will be help all the rarifying parties. Its intention is for universal
or complete adherence.
The Princeton Principles on Universal Jurisdiction
(2001) address some theoretical concepts on this subject of which some points follow:
Principle 1 -- Fundamentals of Universal Jurisdiction
1. For purposes of these Principles, universal jurisdiction is criminal
jurisdiction based solely on the nature of the crime, without regard to where the crime was committed, the nationality of
the alleged or convicted perpetrator, the nationality of the victim, or any other connection to the state exercising such jurisdiction.
Principle 2 -- Serious Crimes Under International Law
1. For purposes of these Principles, serious crimes under international
law include: (1) piracy; (2) slavery; (3) war crimes; (4) crimes against peace; (5) crimes against humanity; (6) genocide;
and (7) torture.
Principle 9 -- Non Bis In Idem/ Double Jeopardy
1. In the exercise of universal jurisdiction, a state or its judicial
organs shall ensure that a person who is subject to criminal proceedings shall not be exposed to multiple prosecutions or
punishment for the same criminal conduct where the prior criminal proceedings or other accountability proceedings have been
conducted in good faith and in accordance with international norms and standards. Sham prosecutions or derisory punishment
resulting from a conviction or other accountability proceedings shall not be recognized as falling within the scope of this Principle.
Henry Kissinger has written a refutation of the current equilibrium of the case for Universal Jurisdiction. Kissinger
states the first approach applies domestic court procedures to violations at the international level. The second mechanism
is through the International Criminal Court (ICC) (Kissinger 2001). Kissinger argues that the trajectory of United Nations
Conventions does not support Universal Jurisdiction. His focal point is the case ex parte: Pinochet.
His argument elaborates a common ground concept with universalists that heinous acts should be prosecuted. This consolidation
of law and instinct to punish must however be connected to a democratic political structure, a system of checks and balances,
and other elements conducive to the survival of democracy.
Kissinger further argues that a “dangerous precedent” is set by the interpretation
of political history that is not favorable to one’s own in this case the European Left. His position is best left to
his own words (Kissinger 2001):
The unprecedented and sweeping
interpretation of international law in Ex parte: Pinochet would arm any magistrate anywhere in the world with the power to
demand extradition, substituting the magistrate's own judgment for the reconciliation procedures of even incontestably democratic
societies where alleged violations of human rights may have occurred. It would also subject the accused to the criminal procedures
of the magistrate's country, with a legal system that may be unfamiliar to the defendant and that would force the defendant
to bring evidence and witnesses from long distances.
Kissinger refutes the International Criminal Court as “an indiscriminate court”. Prosecutional discretion
without any accountability is a serious flaw. The owed guarantees available in the United States will not equate to domestic
considerations of due process (Kissinger 2001).
As the U.S. experience with the special prosecutors investigating
the executive branch 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 U.S. accession to the treaty
has already triggered legislation in Congress to resist it.
Kissinger
concludes his refusal on the Pitfalls of Universal Jurisdiction by stating three modest proposals. He cites that international
tribunals established to deal with the enormity of crimes where the local judicial system is not competent as in Yugoslavia and Rwanda
that punishment occurs without removing political judgment and experience. In
a future state it would be possible to renegotiate the ICC statute (Kissinger 2001).
1.
The U.N. Security Council should create a Human Rights Commission or a special subcommittee to report whenever
systematic human rights violations seem to warrant judicial action.
2.
The Security Council would set up an ad hoc international tribunal on the model of those of the former Yugoslavia
or Rwanda 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,.
3.
The Security Council would define procedures for these international tribunals. The scope of the prosecution
should be precisely defined by, and the accused should be entitled to the due process safeguards accorded in common jurisdictions.
Henry
Kissinger has presented his refutation to the current status of Universal Jurisdiction in degree based on the particular interests
of the one state he has the most direct experience, hence the United States. Since 2001 events reflecting this country and
world as Darfur and the Iraqi War have developed under the realities of concretism to bring to a court of justice the agents
of belligerent acts of abuse. Kissinger’s arguments on some issues have merit. The weakest however is the use of political
history in the Pinochet case. The United States
involvement in Chilean issues is not a good cornerstone to avoid bringing to the courts the disappearances of 3,000 persons.
To date in June of 2005 confessions of key personnel in the Pinochet regime have confirmed that persons were pushed out planes
over the Pacific Ocean. Pinochet who is in failing health has been stripped of immunity.
