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Criminal Justice on a Global Scale
In the last few weeks, almost unnoticed in the North American press, the case against General Augusto Pinochet of Chile entangled Henry Kissinger. A judge in Paris sent officials to the Ritz hotel, where the former secretary of state was staying, to serve him with a request to appear in the judge's chambers to answer questions about American involvement in Chile almost 30 years ago. Mr. Kissinger declined to attend, citing obligations elsewhere. He flew on to Italy. Days earlier, a judge in Argentina, investigating a series of political killings around Latin America that have been linked to General Pinochet, had announced that he would be seeking Mr. Kissinger's testimony.
The notion that courts outside the United States might want to compel Mr. Kissinger to testify is sure to cause alarm in official quarters here. On one level, Mr. Kissinger has been swept up in a growing international demand for justice by victims of the Pinochet regime. But more broadly, these actions are part of a growing international effort to create a system of justice that can establish accountability for gross violations of human rights. The heart of the debate is how to lay a proper legal foundation for a process that will make such violations less common in this century than they were in the last.
Substantial global consensus already exists that crimes against humanity and war crimes can no longer be swept under the rug. There is also broad recognition of a role for international courts, like the current tribunals examining crimes in the former Yugoslavia and Rwanda, as well as for national courts.
National courts, in the countries where the crimes took place, are the preferred jurisdictions. But sometimes courts are unwilling or unable to put the worst violators on trial. In Yugoslavia, for example, officials continue to wrestle with the case against Slobodan Milosevic. In Cambodia, a divided government is still unwilling to hold leaders of the Khmer Rouge accountable for the atrocities of 1975 to 1979.
The paralysis of national authorities in these and many other countries has fueled efforts to develop the concept of universal jurisdiction, a legal principle on which a Spanish court, for example, has relied in pursuing prosecution of General Pinochet. This notion of universal jurisdiction brought Adolf Eichmann to trial in the 1960's in Jerusalem for his part in the Holocaust.
Last week, a jury of 12 Belgians convicted four Rwandans for their part in the 1994 Rwanda genocide. The legal basis for the prosecution was Belgian legislation adopted in 1993 to comply with international obligations, including those under the Geneva Conventions, to prosecute war crimes and crimes against humanity. The legislation applied to all Belgian residents, not just to citizens. The fact that this was a jury trial indicated that, at least in Belgium, the concept of international justice is becoming normalized and no longer the special province of tribunals and military courts. (A Swiss court also convicted a Rwandan, in 1999, but before a military panel.)
At the center of efforts to build a system of international accountability is the International Criminal Court. The court's statute was adopted in Rome in 1998, and the treaty has now been ratified by 33 countries. When a total of 60 governments ratify the treaty, probably within two years' time, the court will begin operations.
Unfortunately, the American debate about the court has been distorted by news commentaries and comments by politicians that are wildly off the mark. We have been told, for example, that the new court will prosecute Americans anywhere, any time, even if we don't sign the treaty; that the United States will have to seek court permission before undertaking military operations, even under United Nations mandate; that unaccountable international judges will run a kangaroo court for every anti-American agenda that comes along. None of this is true.
Governments gave the International Criminal Court only a narrow jurisdiction. Americans would be protected by the policy of complementarity, which gives primary jurisdiction to national courts in places like the United States where there is both a capacity and willingness to address these issues. This and other safeguards are strong enough to have persuaded all our North Atlantic Treaty Organization allies except Turkey to feel comfortable signing on.
What the United States needs to do is engage in the international-court process to clarify its concerns and to prepare for the day when we cooperate with the court to bring a future Pol Pot or Idi Amin to justice.
American officials should help shape the culture of justice that is clearly emerging and of which the International Criminal Court is a crucial part. Central to these efforts should be a focus on moving toward a place where egregious crimes are dealt with rationally and with fairness and legal process. This will be infinitely better than the trial by media and political theater that often stand in for real justice today.
Unbelievable horrors continue to be perpetrated around the world. Governments need to be prodded to develop more effective international systems to ensure that future Holocausts and killing fields do not happen. Perhaps they will also find ways for addressing the injustices of the past. But the question of whether Henry Kissinger is in court or in the Paris Ritz is, in the long run, no more than a footnote in this much bigger, much more important story.
Bruce Broomhall directs the International Justice Program at the Lawyers
Committee for Human Rights.tary incident (with Turkey).
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