I’m not sure universal jurisdiction for war crimes is a great idea, writ large. For one thing, it’s not clear that criminal prosecution is the solution to war crimes. It is, after all, small consolation to the victims for whom it’s too late and the actual deterrent effect on potential war criminals of knowing they will be prosecuted is much debated. In fact, some argue that impending prosecution is likely to prolong conflict and inhibit negotiated peace. For an excellent illustration of universal jurisdiction run amok, simply look at Belgium’s recently repealed law on the subject (http://www.hrw.org/press/2003/08/belgium080103.htm).

The way the US has traditionally handled war criminals on our soil–at which point we have personal jurisdiction over the individuals, if not jurisdiction over their crimes committed abroad–is through immigration and extradition proceedings. The DOJ’s Office of Special Investigations operated from the early 80’s through 2000 or so to identify and either deport or extradite dozens of WWII war criminals living comfortably in the US. Whether those individuals were ultimately prosecuted for their crimes, or simply died in comfort on state pensions, depended on the politics of their home country. My research on this several years ago revealed that former communist states, like Lithuania, Latvia and Croatia, had a pretty lousy record of dealing out justice to octogenarian abusers, many of whom were treated like national heroes for having “resisted communism.” (http://hir.harvard.edu/articles/874/)

The point is simply that universal criminal jurisdiction for prosecuting war crimes is a tool, which means it could be a very good thing, or a very bad thing, depending on how it’s used. While I am certain I do not want such jurisdiction in the hands of this country’s harshest critics, including those in international organizations, I don’t think the solution is to take over the business of prosecuting international crimes ourselves. Like any time you deal with the tricky business of prosecutorial discretion, the real issue here is whether we trust the authorities to zealously pursue the right cases, even if they have all the legal backing they need.

The way the US has traditionally handled war criminals on our soil–at which point we have personal jurisdiction over the individuals, if not jurisdiction over their crimes committed abroad–is through immigration and extradition proceedings. The DOJ’s Office of Special Investigations operated from the early 80’s through 2000 or so to identify and either deport or extradite dozens of WWII war criminals living comfortably in the US. Whether those individuals were ultimately prosecuted for their crimes, or simply died in comfort on state pensions, depended on the politics of their home country. My research on this several years ago revealed that former communist states, like Lithuania, Latvia and Croatia, had a pretty lousy record of dealing out justice to octogenarian abusers, many of whom were treated like national heroes for having “resisted communism.” (http://hir.harvard.edu/articles/874/)

The point is simply that universal criminal jurisdiction for prosecuting war crimes is a tool, which means it could be a very good thing, or a very bad thing, depending on how it’s used. While I am certain I do not want such jurisdiction in the hands of this country’s harshest critics, including those in international organizations, I don’t think the solution is to take over the business of prosecuting international crimes ourselves. Like any time you deal with the tricky business of prosecutorial discretion, the real issue here is whether we trust the authorities to zealously pursue the right cases, even if they have all the legal backing they need.