Who decides? Who gets to decide whether an amnesty is honored, or whether political criminals and human-rights violators may be prosecuted wherever and whenever they are found?

Until very recently, the answer was easy. For more than three centuries, world politics has been organized in a system of nation-states with nearly exclusive jurisdiction over their own citizens and over persons committing crimes within their borders. This system provided not only a workable set of rules that helped avoid war, but real protections for the citizen. The American knew that only an American court could try him, so long as he avoided criminal conduct abroad, and this meant that if he ever faced prosecution it would be with the panoply of rights and protections American law offers. He would not face prosecution in a Libyan court, for example, for acts he was accused of committing in Spain or indeed in America.

There was an exception, but it was one that proved the rule: criminals who were beyond the jurisdiction of any state were open for attack or prosecution by any state that could get its hands on them. From Roman times into the nineteenth century, pirates were subject to universal jurisdiction; and in the nineteenth century, slave traders were, also.¹ Any state's domestic criminal laws could be extended to them, for their criminal activities on the high seas would otherwise be beyond the jurisdiction of any state. This is a far cry from the Pinochet case, where Chile has a functioning criminal-justice system able at any time to seize Pinochet and try him. The Chileans have decided not to, but now a Spanish judge seeks to override their decision.

Allowing that prosecution to go forward sets an extraordinary precedent, as at least some people have noticed. During the Christmas holiday season, Colonel Qaddafi's Libya filed indictments, arrest warrants, and extradition requests against nine Americans it accused of the crime of murdering Libyans.2 The matter in question was the 1986 American bombing raid on Libya, launched in reaction to the Libyan-sponsored terrorist attack that killed two American soldiers in a nightclub in Berlin. Among the nine Americans whom Libya seeks to seize and try are former National Security Adviser John Poindexter, former CIA chief Robert Gates, former Sixth Fleet commander Frank Kelso, two U.S. Air Force pilots, and former National Security Council aide Oliver North. If a single Spanish judge has the right to try General Pinochet, does a single Libyan judge have the right to go after these Americans?

If "universal jurisdiction" is conceded, who then decides what is a crime and who is a criminal? Was it a crime to bomb Libya and inflict civilian casualties? Would some judge somewhere conclude that President Bush's invasion of Panama was a crime? Until now, to repeat, Americans have felt pretty safe behind the protections of their own Constitution and independent judiciary. But the theory of universal jurisdiction puts those protections at risk.