A decade ago this month, Henry Kissinger used the ‘Pinochet precedent’ to attack the idea of universal jurisdiction. In a July/August 2001 piece in Foreign Affairs, Kissinger warned of the pitfalls of prosecuting foreign leaders for human rights crimes in national courts:
The notion that heads of state and senior public officials should have the same standing as outlaws before the bar of justice is quite new….[A]ny universal system should contain procedures not only to punish the wicked but also to contain the righteous. It must not allow legal principles to be used as weapons to settle political scores….The world must respect Chile’s own attempt to come to terms with its brutal past.
The essay provoked a sharp response from Kenneth Roth of Human Rights Watch, who made a case for universal jurisdiction emphasizing the problem of impunity. Their faceoff in the pages of Foreign Affairs—former realpolitik statesman versus leading human rights spokesperson—marks a classic debate in the politics of universal jurisdiction.
But signs of dissent and polarization were present even before Kissinger’s diatribe against the Pinochet precedent: in the choreographed scene that played out across the London hospital where Pinochet was arrested in 1998; and on the streets of Chile when Pinochet returned home in 2001, as protestors and supporters confronted each other with slogans, banners, and occasional blows. Universal jurisdiction as an idea is simply too threatening not to tap into our most socially engrained fears—the same fears that spur on atrocities and manufacture enemies.
The point is that just as universal jurisdiction laws have diffused in the last decade and leaders worldwide have been put on notice, a parallel counter-movement has grown. Universal jurisdiction laws gradually have been repealed or trimmed back, even Belgium’s; those standing accused have eluded arrest; and dozens of countries signed bilateral immunity agreements with the United States, promising not to turn over American citizens to the International Criminal Court. A post September 11th world, where the language of national security became paramount, offered the perfect pretext for rolling back universal jurisdiction.
With neither the Pinochet precedent nor backlash likely to prevail, however, it’s important that the terms of the debate move forward—beyond the Kissinger-Roth exchange ten years ago. How does the ground-breaking case against a Latin American dirty-war dictator inform today’s dilemmas surrounding universal jurisdiction? How, for example, do we reconcile the precedent set by the case with accusations of judicial imperialism in Africa or charges of political gambling when pursuing leaders of powerful democracies? These are questions today’s supporters of universal jurisdiction must confront.