Universal Jurisdiction for Human Rights: From Legal Principle to Limited Reality.

In the early 1600s, Grotius and other international legal scholars began to advance the idea that certain kinds of crimes should be subject to the jurisdiction of any court in the world, no matter where they were committed or by whom--a principle that has come to be known as "universal jurisdiction." (1) About 200 years later, Clausewitz considered international legal principles so irrelevant that he discussed them only in passing as "self-imposed restrictions, almost imperceptible and hardly worth mentioning." (2) Nearly two centuries again passed, when Great Britain arrested former Chilean dictator Augusto Pinochet on a warrant from a Spanish judge for heinous crimes against Chileans and foreign citizens. The case set off a worldwide storm of debate as universal jurisdiction became a familiar term. Stoked by the ongoing political brawl over the International Criminal Court (ICC) and dramatic prosecutions for crimes in the former Yugoslavia and Rwanda, the debate on universal jurisdiction continues unabated, though it is marked by immense confusion and dramatically different interpretations echoing Grotius and Clausewitz. Proponents of universal jurisdiction--often found among international human rights lawyers and activists--commonly argue that the principle is well established in international law and that a wide range of human rights offenses are subject to universal jurisdiction. One such prominent group recently drafted the "Princeton Principles on Universal Jurisdiction," which hold that the following offenses can be tried by any court in the world without regard to where the crime occurred or who committed it: piracy, slavery, war crimes, crimes against peace, crimes against humanity, genocide, and torture. (3) In stark contrast, universal jurisdiction skeptics--who often include scholars and policymakers in the realist international relations tradition and ideologically conservative analysts--dismiss universal jurisdiction as dangerous legal activism. A variety of positions are included in the broad tent of skepticism: in his recent article in Foreign Affairs, Henry Kissinger suggests that the concept is a recent invention of activists and ill-advised foreign judges, and the Heritage Foundation suggests that it applies only to crimes committed outside the territorial jurisdiction of any state, such as piracy on the high seas.(4)