Most corporate CEOs would be surprised to learn that they have something in common with former Chilean president Augusto Pinochet. After all, they lead firms producing useful goods and services, while General Pinochet, as head of a military government, stands accused of murder, torture, and other crimes against humanity. It is not, however, the substance of their respective legal status that may ultimately unite CEOs and General Pinochet, but a little-known concept called universal jurisdiction. Until recently an obscure, theoretical creature in the academic domain of international law, universal jurisdiction is now prized as a new icon in the global legal theology of human rights activists.

Defining universal jurisdiction is far from easy, because it is evolving so rapidly. The sixth edition of Black’s Law Dictionary, published in 1990, for example, does not even contain an entry for it. The idea was first associated with pirates, who were said to be hostes humani generis (enemies of the human race). Following its definition of this phrase, the 1990 Black’s Law Dictionary notes "i.e. [not e.g.] pirates" to signify that they alone are covered. Because pirates were beyond the control of any state, and thus not subject to any existing criminal justice system, the idea developed that it was legitimate for any aggrieved party to deal with pirates. Such jurisdiction could be said to be universal because of the breadth of concern for the crime of piracy and because it did not comport with more traditional jurisdictional bases, such as territoriality or nationality. In a sense, therefore, the prosecuting state could be seen as vindicating the common interest of all states threatened by acts of piracy. Slave trading is also frequently considered the subject of universal jurisdiction.

These antecedents, however, arose in a far different context from that touted by modern activists and nongovernmental organizations (NGOs). A key element in the criminal characterization of piracy is that, by definition, pirates operate on the high seas, beyond state boundaries. As the Italian Alberico Gentili wrote in the late sixteenth century, the sea "is by nature open to all men and its use is common to all, like that of the air." Referring to ancient history, Gentili argued that

Romans justly took up arms against [pirates] even though those people had touched nothing belonging to the Romans, to their allies, or to anyone connected with them; for they had violated the common law of nations. . . . Piracy is contrary to the law of nations and the league of human society. Therefore war should be made against pirates by all men.

This is not jurisdiction in a legal sense, but a justification for the legitimate use of force. This is a far cry from what NGOs and academics, who repeatedly confuse the roles of force and law, have in mind today.¹

Unwarranted Extension

From a narrow foundation, theorists enlarged the concept of universal jurisdiction to include far more proscribed activities with far less historical or legal support than earlier applied to piracy (while conveniently omitting reference to the use of force and substituting instead legal process). The roster now typically includes genocide, torture, war crimes, and crimes against humanity, which are said to vest prosecutorial jurisdiction in all states. Lord Nicholls, announcing his judgment in Ex parte Pinochet, described the crimes of which Pinochet stood accused by saying, "International law has made it plain that certain types of conduct . . . are not acceptable conduct on the part of anyone." Although the Pinochet decision handed down by the House of Lords (and recently overturned because of lapses in judicial ethics by one of the majority judges) did not rest on universal jurisdiction, Lord Nicholls did in fact provide its essential foundation.

The worst problem with universal jurisdiction is not its diaphanous legal footings but is its fundamental inappropriateness in foreign policy. In effect (and in intention), the NGOs and theoreticians advocating the concept are misapplying legal forms to what are essentially political (or military) contexts. What constitutes crimes against humanity and whether they should be prosecuted or handled otherwise—and by whom—are not solely legal questions. To deal with them as such is, ironically, so bloodless as to divorce them from reality and is not merely naive but is potentially dangerous. Take Pinochet as an example.

In both moral and political terms, what Pinochet’s regime did or did not do is primarily a question for Chile to resolve. (I address only the jurisdictional issue, not the arguably more important question of whether the underlying offenses are themselves criminal in any conventional legal sens e or how they came to be so characterized.) Most assuredly, Pinochet, unlike pirates or slave traders, is not beyond the control of any state. Although many intensely dislike the solution that Chile adopted to enable a return to constitutional and democratic rule in 1990, especially the various provisions for amnesty, the terms and implementation of that deal should be left to the Chileans themselves. Their present government was democratically elected and is clearly legitimate. Chileans may choose to honor the deal, or, as seems increasingly likely, they may choose to bring their own judicial proceedings against Pinochet. One may accept or reject the wisdom or morality of either course (and I would argue that they should uphold the deal), but it should be indisputable that the decision is theirs to make.

The idea that Spain or any other country that subsequently filed extradition requests in the United Kingdom (including Luxembourg!) has an interest superior to that of Chile—and can thus effectively overturn the Chilean deal—is untenable. And yet, if Britain ultimately extradites Pinochet to Spain or elsewhere, exactly that will happen. That result surely turns democratic and constitutional principles on their head, since a Spanish magistrate operating completely outside the Chilean system will effectively have imposed his will on the Chilean people. One is sorely tempted to ask, Who elected or appointed him? If this is what universal jurisdiction means in practice (as opposed to the theoretical world of the law reviews), it is hopelessly flawed.

Spain does have a legitimate interest in justice on behalf of Spanish citizens who may have been held hostage, tortured, or murdered during the Pinochet regime. Its recourse, however, lies with the government of Chile and certainly not with the United Kingdom. Although some saw Spain’s attempt to extradite Pinochet while he was in London for medical reasons as clever, it was in fact too cute by half; it was political theater, not law. The extradition ploy also exposes other weaknesses in the universal jurisdiction concept, because the entire matter could have been averted had Pinochet been properly accredited and accepted by the United Kingdom as having diplomatic status. Surely others have learned the lesson, and this kind of episode is unlikely to occur again.

Beyond the Competence of Courts

If the government of Spain—as opposed to a loose-cannon magistrate—were truly serious, it could have approached the government of Chile directly years ago. Whether Spain proceeds by a judicial action or through diplomatic channels is up to Spain; in turn Chile can certainly respond as it chooses. Setting the Pinochet question in its proper bilateral context illuminates even more strikingly why the matter between the two states is fundamentally political rather than legal, however it might currently be dressed up in legal terminology.

Indeed, the predominant American view is that precisely this kind of dispute is best left to the political branches, because it is quite clearly beyond the competence of the judiciary. Chief Justice Melville W. Fuller said clearly in Underhill v. Hernandez, 168 U.S. 250, 252 (1897), "Redress of grievances by reason of such acts must be obtained through the means open to be availed of by sovereign powers as between themselves." Judge Robert Bork, concurring in Tel-Oren v. Libyan Arab Republic, 726 F. 2d 774, 804 (D.C. Cir., 1984), warned against a role for courts where it "would raise substantial problems of judicial interference with nonjudicial functions, such as the conduct of foreign relations." Stressing the purely legal aspects of a dispute, which is central to the entire concept of universal jurisdiction, thus not only ignores the political component but foists responsibility onto the least-equipped branch of government. Widespread use of the doctrine would almost surely exacerbate political tensions bet ween countries bilaterally without adequately addressing the underlying causes of their original disagreement.

More to Come

However the Pinochet matter is resolved, the issue will be with us for quite some time. Indeed, because of the publicity surrounding Pinochet, we can expect copycat efforts covering a range of other crimes against humanity in the near future. Nonetheless, adding purported crimes (shocking though they may be) to the list of what triggers universal jurisdiction does not make the concept any more real. A simple flurry of law review articles (and there has been far more than a flurry) cannot make real something that is nothing more than abstract speculation. In fact, universality is conceptually circular: universal jurisdiction covers the most dastardly offenses, and if an offense is dastardly enough, there must be universal jurisdiction to prosecute it. Precisely because of this circularity, there is no limit to what creative imaginations can enlarge such jurisdiction to cover, and we can be sure that they are already hard at work.

Any concept that can expand so dramatically so quickly—from piracy to genocide—is not likely to slow down any time soon. Although one area of expansion will almost certainly be the official conduct of foreign policy, business and commercial activity will not lag far behind. The existing substantive crimes under universal jurisdiction typically involve illicit governmental action, but not all do. For the creative activist, glossing over a requirement of state action should prove no hurdle at all in proscribing what, in Lord Nicholls’s words, is "not acceptable conduct on the part of anyone." Consider just a few possibilities:

• Major environmental disasters, particularly those with international implications, such as an oil spill at sea, could easily be envisaged as crimes committed against human-ity and therefore as subject to prosecution universally. An analogy to maritime piracy here would be strained, to say the least, but would not be beyond either the ability or the inclination of NGOs and academic theorists.

• Unsatisfactory wages, hours, or other conditions of employment at multinational corporations are already targets of union and human rights activists, who would not need much encouragement to liken such practices to slavery.

• Mining or manufacturing near sites of cultural or historical interest—what UNESCO devotees like to call the common heritage of mankind—could quite readily become the subject of universal jurisdiction, especially since the states where such activities occur could be classified as too weak to vindicate their own interests.

Thus, an oil company whose tanker broke up on the high seas could be brought to trial in an environmentally conscious Nordic state. A low-wage transnational could be prosecuted by a self-righteous Social Democratic government in Europe. A "culturally insensitive" natural resources firm could be indicted almost anywhere where cultural sensitivity is an issue. In each case, senior corporate executives could be arrested, detained, and ultimately extradited for trial in countries far removed from any traditional nexus to the alleged offenses. Surely no one will object, for they are, after all, hostes humani generis, are they not?

Clearly we are not yet at this point, but the danger flags are up. Consigning universal jurisdiction to the isolated debates of legal academics is ill advised from both foreign and economic policy perspectives, and more dispassionate analysis of the concept is sorely needed. Law is too important to be left to law professors.

Note

1. The activists’ agenda is indeed quite large, and this article addresses only universal jurisdiction. I have examined other aspects of their agenda in "Courting Danger: What’s Wrong with the International Criminal Court," The National Interest, no. 54 (winter 1998-1999): 60; and "The Global Prosecutors: Hunting War Criminals in the Name of Utopia," Foreign Affairs 78, no. 1 (January-February 1999): 157.

John R. Bolton, senior vice president of AEI, was an assistant secretary of state in the Bush administration and an assistant attorney general in the Reagan administration.