Universal Jurisdiction and the Eichmann and Pinochet Trials

Eichmann

In the Eichmann trial, the court in Israel set another important modern precedent in the advancement of universal jurisdiction.  Nazi war criminal Adolf Eichmann had been apprehended in Argentina by Israeli intelligence agents and brought to trial in Israel.  In a detailed opinion the court appealed to the idea of the natural law to find universal jurisdiction applied.[1]  It found the crime of “genocide against the Jewish people” to be unequivocally to be a crime against generally accepted international law.[2]

Moreover the court states emphatically that: “We have said that the crimes dealt with in this case are not crimes under Israeli law alone, but are in essence offences against the law of nations. Indeed, the crimes in question are not a free creation of the legislator who enacted the law for the punishment of Nazis and Nazi collaborators, but have been stated and defined in that law according to a precise pattern of international laws and conventions which define crimes under the law of nations.”[3]

The court did not rest its assertion of jurisdiction over the case solely upon ground of international law, however, and appealed additionally to Israeli law as a basis for its jurisdiction.  This redundant assertion of jurisdiction in Eichmann does not render inoperable the observation of the court, which amounts to the assertion on the part of the court that of both domestic jurisdiction and universal jurisdiction apply simultaneously, and the universal nature of the crime was nonetheless figured centrally in the ruling of the court.

Pinochet

            One of the most important developments in the recent precedential history of universal jurisdiction occurred when a Spanish court exerted universal jurisdiction over Chilean dictator Augusto Pinochet.  As one commentator noted, the court “talked about universal jurisdiction, but grounded their decision in domestic statutory law.”[4] Although technically accurate, this is a misleading assessment.  The court observed that the very legislation which extended jurisdiction over the Pinochet case to the Spanish courts was derived from fundamental principles of international law, and can be seen as doing little more than acknowledging the operation.  Indeed the court was able to assert universal jurisdiction over crimes of genocide committed by foreigners outside of Spanish territory.[5]  The court did not need to look to the law of nations to ultimately justify jurisdiction in Pinochet, turning to its own national law where principles of universal jurisdiction had already been integrated.

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[1] Eichmann 36 I.L.R. 1 (Dist. Ct. Jerusalem, 1961), at 15.  Citing to Grotius, the court in Eichmannreflected: “According to natural justice, the victim may take the law into his hand and himself punish the criminal, and it is also permissible for any person of integrity to inflict punishment upon the criminal; but all such natural rights have been limited by organized society and have been delegated to the courts of law.”

[2] Id. at 19.

[3] Id. at 16.

[4] Naomi Roht-Arriaza, The Pinochet Precedent and Universal Jurisdiction, 35 NELR 2 (2001).

[5] Ley Organica del Poder Judicial, art. 23(4) at a, b, c, and i (1985) “Igualmente será competente la jurisdicción española para conocer de los hechos cometidos por españoles o extranjeros fuera del territorio nacional susceptibles de tipificarse, según la ley penal española, como alguno de los siguientes delitos: a.Genocidio. b.Terrorismo. c. Piratería y apoderamiento ilícito de aeronaves. … i. Y cualquier otro que, según los tratados o convenios internacionales, deba ser perseguido en España.”