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Argument: ICC wrongly allows prosecution of legitimate leaders

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Henry Kissinger. "The Pitfalls of Universal Jurisdiction: Risking Judicial Tryanny". Foreign Affairs. Aug. 2001 - The doctrine of universal jurisdiction is based on the proposition that the individuals or cases subject to it have been clearly identified. In some instances, especially those based on Nuremberg precedents, the definition of who can be prosecuted in an international court and in what circumstances is self-evident. But many issues are much more vague and depend on an understanding of the historical and political context. It is this fuzziness that risks arbitrariness on the part of prosecutors and judges years after the event and that became apparent with respect to existing tribunals.

For example, can any leader of the United States or of another country be hauled before international tribunals established for other purposes? This is precisely what Amnesty International implied when, in the summer of 1999, it supported a "complaint" by a group of European and Canadian law professors to Louise Arbour, then the prosecutor of the International Criminal Tribunal for the Former Yugoslavia (ICTY). The complaint alleged that crimes against humanity had been committed during the NATO air campaign in Kosovo. Arbour ordered an internal staff review, thereby implying that she did have jurisdiction if such violations could, in fact, be demonstrated. Her successor, Carla Del Ponte, in the end declined to indict any NATO official because of a general inability "to pinpoint individual responsibilities," thereby implying anew that the court had jurisdiction over NATO and American leaders in the Balkans and would have issued an indictment had it been able to identify the particular leaders allegedly involved.

Most Americans would be amazed to learn that the ICTY, created at U.S. behest in 1993 to deal with Balkan war criminals, had asserted a right to investigate U.S. political and military leaders for allegedly criminal conduct -- and for the indefinite future, since no statute of limitations applies. Though the ICTY prosecutor chose not to pursue the charge -- on the ambiguous ground of an inability to collect evidence -- some national prosecutor may wish later to take up the matter as a valid subject for universal jurisdiction.

The pressures to achieve the widest scope for the doctrine of universal jurisdiction were demonstrated as well by a suit before the European Court of Human Rights in June 2000 by families of Argentine sailors who died in the sinking of the Argentine cruiser General Belgano during the Falklands War. The concept of universal jurisdiction has moved from judging alleged political crimes against humanity to second-guessing, 18 years after the event, military operations in which neither civilians nor civilian targets were involved.

Distrusting national governments, many of the advocates of universal jurisdiction seek to place politicians under the supervision of magistrates and the judicial system. But prosecutorial discretion without accountability is precisely one of the flaws of the International Criminal Court. Definitions of the relevant crimes are vague and highly susceptible to politicized application. Defendants will not enjoy due process as understood in the United States. Any signatory state has the right to trigger an investigation. 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.

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