It is important to remember, despite a recent onslaught of criticism from those who oppose the cause of human rights, the notion that crimes against jus cogens give rise to universal jurisdiction is quite an ancient one.  The commentaries of Renaissance- and Enlightenment-era jurists such as Alberico Gentili, Hugo Grotius, and Emer de Vattel serve as the very foundation of the law of nations as we know it today.  Anyone wishing to advance the argument that universal jurisdiction is a creation of the post-World War II era will have to contend with the copious body of writings that conclusively demonstrates that the origins of universal jurisdiction go back centuries earlier. Gentili, writing at the turn of the seventeenth century, is in many ways the progenitor of universal jurisdiction in its modern form:

Alberico Gentili (1552-1608) was born in San Ginesio, in the Marches region of central Italy.   n3 He studied law in the Bartolist faculty at Perugia, then took up legal practice and scholarly pursuits in the Marches. The arrival of the Inquisition in San Ginesio and the investigation of the strong Protestant convictions of members of the Gentili family precipitated Alberico’s abrupt departure with his father. Reaching England by 1580, he gradually established himself in Oxford, and was appointed Regius Professor of Law in 1587. After 1600, he became increasingly absorbed in legal practice in London, serving from 1605 until his death as an advocate for the Government of Spain in the English courts. He produced numerous works on Roman law, and wrote tracts on controversies of theology and British constitutionalism. His three books of most direct significance for international law, however, are De legationibus (DL) (1585), a work concerned with the law of embassies and the conduct of ambassadors that arose from his successful argument that the Spanish Ambassador Mendoza ought to be expelled rather than criminally punished for plotting against Queen Elizabeth; De jure belli (JB), a work that began as three tracts prepared in 1588-1589 during English debates on issues of war prompted by the Spanish Armada; and Hispanicae advocationis (1613), a collection of legal opinions from his practice published posthumously by his brother Scipio.[1]

Writing with a distinctlivey pre-modern frame of mind, Gentili was remarkable for fusing the disparate concepts of natural law and positive law:

[A]s one reads Gentili’s equation of natural law and the law of nations, it seems to bring the two concepts together on the other side—the empirical side—of the rational/empirical divide.  We find out what the law of nations is by diligently investigating the laws and customs that are in use among all nations of men; we ask traders, for example, for stories about foreign lands. What Gentili equates with the law of nature are the laws and customs that have seemed acceptable to all nations (or, as it turns out, most nations—for “as the rule of a state and the making of its laws are in the hands of majority of its citizens, just so is the rule of the world in the hands of the aggregation of the greater part of the world”)—which have established themselves in the world, not necessarily by any explicit agreement but by “successively,” nation by nation, seeming acceptable to most men. That is plainly an empirical matter.  And if the law of nations in this sense is being equated with the law of nature, then we have moved the whole jurisprudential enterprise over from the side of pure moral reason to the side of positive legal inquiry.[2]

Many today would disagree with Gentili’s worldview.  Particularly in postivist quarters, Gentili’s reliance on notions of natural law are disquieting.  In contrast to this is Gentili’s surprisingly modern idea that “the rule of the world [is] in the hands of the aggregation of the greater part of the world.”  Here, echoing Francisco Vitoria’s global republic, res publica totius orbis, we see that Gentili, while acknowledging the positive law of the sovereign, also accedes to overarching role played by jus cogens, the compelling law of nature.

That the views of antiquity are often predicated on superstitious or religious beliefs is often considered to undermine the applicability of these sources to modern discourse.  Though this is irrelevant when considering the history of the legal doctrines or jus cogens and universal jurisdiction, it is relevant to assessing to what extent we should still find commentators like Gentili persuasive today.

The law of nations in antiquity has been dismissed because of its allegedly religious character.  This feature is what made it an essentially primitive legal system.  To propose that ancient international law was primitive assumes that religious belief provided the principles of State behavior, as well as the sanctions for the enforcement of those norms. [...] It matters whether religion was ostensibly the sole source of antiquity’s law of nations. [...] [P]rimitive law also embraced custom as a source for norms of behavior.  Religion and custom can act as complementary forces in a society.  But they can also compete with each other, with custom acting as an antidote to the particularistic strictures of belief and ritual.[3]

The early jurists of international law undoubtedly relied on conceptions of the natural law that have fallen out of fashion among modern legal scholarship.  Yet, no matter how one feels about the philosophical arguments that underpin Gentili’s ideas, there can be no doubt that the idea of jus cogens as international Grundnorm is an ancient one.

[1] Benedict Kingsbury, Confronting Difference : The Puzzling Durability of Gentili’s Combination of Pragmatic Pluralism and Normative Judgment. 92 A.J.I.L. 713 at 713.

[2] Jeremy Waldron, Ius Gentium: A Defense of Gentili’s Equation of the Law of Nations and the Law of Nature (2008). New York University Public Law and Legal Theory Working Papers. Paper 99 at 3.

[3] Benedict Kingsbury, Confronting Difference : The Puzzling Durability of Gentili’s Combination of Pragmatic Pluralism and Normative Judgment. 92 A.J.I.L. 713 at 713.

Here is an interesting comment on the issue, directly rebutting Kontorovich and Art:

By extending the scope of its criminal law beyond its borders, the prescribing state condemns and prohibits conduct that takes place on the territory of another state and thus interferes with the non-intervention aspect of the principle of national sovereignty, which limits a state’s authority to regulate extraterritorial matters.  A state that claims that its criminal laws are applicable on foreign territory affects the rights and interests of the territorial state. n20 The exercise of prescriptive jurisdiction constitutes not a physical but a normative intervention on the other state’s territory.  As regards the lawfulness of extraterritorial prescriptive jurisdiction, two approaches can be distinguished under international law. According to the traditional approach as taken by the Permanent Court of International Justice in the famous 1927 Lotus case, states are free to extend the application of domestic criminal law over acts occurring abroad there exists a prohibitive rule to the contrary. According to the prevailing modern view, however, states are prohibited from legislating on extraterritorial criminal matters unless international law provides for an explicit permission.  The decisive difference between the two approaches is the burden of proof; according to the traditional view, the state that opposes another state’s jurisdictional assertion must prove the existence of a rule under international law prohibiting the assertion of criminal jurisdiction and according to the modern approach, by contrast, the state that asserts extraterritorial jurisdiction bears the burden of proof.

Julia Geneuss, Universal Jurisdiction Reloaded?: Fostering a Better Understanding of Universal Jurisdiction ICJ 7 5 (945), 1 November 2009.

And a bit more about the assertion of universal jurisdiction, not from the academic realm but from the practical realm of the international judiciary:

La législation belge qui institue la compétence universelle in absentia pour les violations graves du droit international humanitaire a consacré l’interprétation la plus extensive de cette compétence … L’innovation de la loi belge réside dans la possibilité de l’exercice de la compétence universelle en l’absence de tout lien de la Belgique avec l’objet de l’infraction, la personne de l’auteur présumé de l’infraction ou enfin le territoire pertinent. Mais après les tragiques événements survenus en Yougoslavie et au Rwanda, plusieurs Etats ont invoqué la compétence universelle pour engager des poursuites contre des auteurs présumés de crimes de droit humanitaire; cependant, à la différence du cas de M.Yerodia Ndombasi, les personnes impliquées avaient auparavant fait l’objet d’une procédure ou d’un acte d’arrestation, c’est-à-dire qu’un lien de connexion territoriale existait au préalable.

Roger O’Keefe, Universal Jurisdiction — Clarifying The Basic Concept,

ICJ 2.3(735). September 2004 (quoting Judge Ranjeva).


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