December 27, 2009
In preparation for the trials of former Nazi party members at Nuremberg, the International Law Commission was instructed by the United Nations to formulate a list of principles to govern the proceedings. These principles were based upon principles of international law affirmed by the Charter which governed the proceedings. According to the fourth of these Nuremberg principles: “The fact that a person acted pursuant to order of his Government or of a superior does not relieve him from responsibility under international law, provided a moral choice was in fact possible to him.” Moreover, as was observed in the charter itself the “official position of defendants, whether as Heads of State or responsible officials in Government Departments, shall not be considered as freeing them from responsibility or mitigating punishment.”
Although at no point does the court in Nuremberg acknowledge universal jurisdiction as such, the Charter and the principles derived from it serve as an embodiment of the inchoate changes that were occurring in the ius cogens. Thus Nuremberg can indeed be seen as among the earliest modern precedent for this, which demonstrates the expansion of peremptory norms among the nations to encompass contemporary notions of ius cogens, viz. crimes against the peace, war crimes and crimes against humanity.
 U.N. General Assembly Resolution 177 (II), paragraph (a) U.N. Doc. A/CN.4/85 (1947).
 Principles of International Law Recognized in the Charter of the Nürnberg Tribunal and in the Judgment of the Tribunal at Principle IV U.N. Doc. A/CN.4/SER.A/1950/Add.1 (1950).
 Charter of the International Military Tribunal at Article, 7 82 UNTS 279; 59 Stat. 1544; 3 Bevans 1238; 39 AJILs 258 (1945).
 Id. at Article 6.
December 3, 2009
A Republic of the Whole World
Universal Jurisdiction has only recently become of concern to the legal community. In the wake of World War II it rose from an obscure doctrine confined primarily to admiralty, to the position of prominence and importance (if largely theoretical) that it has on the modern international stage. Being so new, universal jurisdiction is still poorly understood. To borrow a turn of phrase from the political realm, the prevailing narrative of universal jurisdiction has yet to take hold in the minds of the legal community.
One such narrative that is at present being spun by various commentators in academia and elsewhere is that universal jurisdiction is insufficient to permit the extraterritorial prosecution of war criminals, or indeed any other type of criminal besides high seas pirates (this is what I will henceforth call “weak universal jurisdiction”). The argument for weak universal jurisdiction is principally based on the interpretation of universal jurisdiction that tied it inextricably to the crime of high seas piracy. In the course of these pages I will demonstrate that it is this “weak” understanding of universal jurisdiction that is of recent invention. As it will be shown, the origins of universal jurisdiction run deep, and at a conceptual level the relationship between universal jurisdiction and piracy is not an intractable one, nor was it ever conceived of as such.
Universal jurisdiction has its beginnings in the early law of nations as a check on the power of national sovereignty. The authority of sovereign nations has never been “absolute” power (as has often incorrectly been alleged) even from the earliest origins of the notion of sovereignty as established by the Treaty of Westphalia. Indeed, the early commentators, including such jurisprudential luminaries Alberecco Gentili, Hugo Grotius and Emerich de Vattel gave no credence to such an incomplete understanding of the law of nations as being based solely upon the consent of sovereigns.
In Mare Liberum, Grotius mounts a spirited defense of the freedom of trade on the high seas. In no uncertain terms, Grotius acknowledges that there is a law among nations such that, at a foundational level, may not be violated by any sovereign:
“Hoc igitur ius ad cunctas gentes aequaliter pertinet: quod clarissimi Iurisconsulti eo usque producunt, ut negent ullam rempublicam aut Principem prohibere in universum posse, quo minus alii ad subditos suos accedant, et cum illis negotientur.”
Those who would subvert the rights guaranteed by the law of nations (in this case the Portuguese who were attempting to subvert the Dutch right to free trade routes on the high seas) he compares to pirates, and decries their crimes as “violative of nature itself” (naturam denique ipsam violant).
Vattel further developed the theories of Gentili and Grotius, and was in many ways the direct forebear of the positivist school of international law. But as Leo Gross puts it, Vattel was able to “establish… the consensual character of international law and to reduce natural law from the function of supplying an objective basis for the validity, the binding force, of the law of nations to the function of supplying rules for filling gaps in positive international law.” Vattel thus represents a great stride in the development of a positivist account for international law, but at the same time the natural law remains prominent as the foundation for his theory of international jurisprudence as well as the yardstick against which its success is measured. The requirements of natural law go beyond those affirmatively consented to by nations and potentially usurping the sovereignty of those nations that do not give such consent. Such is Vattel’s line of reasoning where he considers the basis for universal jurisdiction over piracy:
“Mais cette raison meme fait voir, que si la Justice de chaque Etat doit en general se borner a punir les crimes commis dans son territoire, il faut excepter de la regle ces scelerats, qui, par la qualite et la frequence habituelle de leurs crimes, violent toute surete publique, et se declarent les ennemis du Genre- humain. Les empoisonneurs, les assassins, les incendiaires de profession peuvent etre extermines partout ou on les saisit; car ils attaquent et outragent toutes les Nations, en foulant aux pieds les fondemens de leur surete commune. C’est ainsi que les Pirates sons envoyes a la potence par les premiers entre les mains de qui ils tombent.”
On Vattel’s view the application of universal jurisdiction over hostes humani generis is essentially the converse of the principle which ensures that very sovereignty of nations. According to Vattel, pirates are subject to universal jurisdiction because the offense is against the surete commune and is on this basis alone an affront to all nations equally. It is this aspect of the crime of piracy that renders it under the domain of universal jursidiction, and although the home nation of the victim of piracy has been more directly wronged this does not negate the claim of universal jurisdiction on the part of any other court. The hostis humani generis affronts all nations in some way under the law of nations, and Vattel plainly extends this beyond simply pirates, but also to “poisoners, assassins and arsonists” (les empoisonneurs, les assassins, les incendiaries).
Thus the strictly positivist account of international law can be seen as being of recent vintage, as the origins of international law are steeped in appeals to natural law. It does not seem like such a leap as some critics suppose to make the argument that a sound theoretical basis exists for courts to exert universal jurisdiction over the classical pirate or the modern war criminal equally; both are surely hostes humani generis. And, as this paper will go on to show, as the doctrine of universal jurisdiction developed into the modern era, the status of hostis humani generis can be derived from many different species of crime, from the classic crime of piracy on the high seas where the trade of all nations is affected, to a crime of such heinousness as to affront all nations, such a torture, genocide or the slave trade.
The slave trade
Helpful in understanding the operational relationship between universal jurisdiction and the crime of piracy is by way of comparison with the related crime of slavery. There is a marked hesitancy on the part of the courts in asserting universal jurisdiction over slave traders, a tendency which reflects the shifting attitudes of the international community towards piracy. In United States v. La Jeune Eugenie, although the court denies that U.S. courts have authority to exert universal jurisdiction, Justice Story acknowledges in his ruling that slave trading was in violation of “universal law.” It is clear, though, that by the onset of modern era the crime had become recognized as so abhorrent as to render the status of hostis humani generis upon the criminal.
In the 1982 Law of the Sea Convention we find specific acknowledgement that the slave trade falls within the ius cogens generally accepted by the community of nations. Article 110 goes on to authorize the warships of any nation to board any ship suspected of engaging in the slave-trade. Furthermore there is a tacit acknowledgement that, vis-à-vis ius cogens, these provisions of the treaty represent a legitimate usurpation of sovereign power, applicable to nations whether they are party to the treaty or not. Under Article 99 of the 1982 Law of the Sea Convention “any slave taking refuge on board any ship, whatever its flag, shall ipso facto be free.”
This cannot be seen merely as within the potential sphere of jurisdiction, rather the reverse is true: that since the criminality of piracy is a peremptory norm, it is simply not within the power of a sovereign to authorize, and more important not within to power of any sovereign to forbid another jurisdiction over such a crime. According to the Vienna Convention on the Law of Treaties, any “treaty is void if, at the time of its conclusion, it conflicts with a peremptory norm of general international law. For the purposes of the present Convention, a peremptory norm of general international law is a norm accepted and recognized by the international community of states as a whole as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character.”
The U.N. sets out a very open-ended definition of what constitutes a peremptory norm, i.e. something which has been recognized as such by the “international community.” With such broad language this provision has unsurprisingly been a source of contention among scholars, however the intention seems clearly to defer to the body of ius cogens. It follows that under the Vienna Convention, no consensual agreement of any group of sovereigns can deny universal jurisdiction, even a group of one, and this applies irrespective of whether the sovereign is party to any particular treaty. Even though a sovereign may have the authority to limit universal jurisdiction with respect to its own courts, clearly under the Vienna Convention no treaty among nations can have that effect.
 Francisco de Vitoria, “res publica totius orbis.”
 The narrative has not, to use the terminology of Jung’s theory, yet cemented in the collective unconscious of the law
 Eugene Kontorovich, The Piracy Analogy: Modern Universal Jurisdiction’s
Hollow Foundation, 45 Harv. Int’l. L. J. 183 (2004), at 184.
 Gross, Leo The Peace of Westphalia 42 Am. J. Int’l L.1 (1948).
 Id. At 15 “In Gentili, of whom it has been said that he had taken the first step towards making international law what it is, namely, almost exclusively positive, international law still appears to be based on natural reason and derived from a law of nature superior to the nations.”
 Grotius, Mare Liberum, Chapter 1 (1609).
 Id. “Sequitur ex sententia Lusitanos etiamsi domini essent earum regionum ad quas Bataviproficiscuntur, iniuriam tamen facturos si aditum Batavis et mercatum praecluderent. Quanto igitur iniquius est volentes aliquos a volentium populorum commercio secludi, illorum opera quorum in potestate nec populi isti sunt, nec illud ipsum, qua iter est, quando latrones etiam et piratas non alio magis nomine detestamur, quam quod illi hominum inter se commeatus obsident atque infestant?”
 Gross at 17. Professor Gross goes on to note that: “This distinction between the dual function of natural law in relation to the law of nations is not always observed and yet it would seem to deserve close attention.”
 Emerich de Vattel. Le Droit des Gens, Book I, Chapter 19 (1758) paragraphs 232-233.
 United States v. La Jeune Eugenie, 509 F. Supp. 212 (C.C.D. Mass. 1822).
 1982 Law of the Sea Convention at Article 110 A/ CONF.62/122 (1982).
 Id. at Article 99.
 Vienna Convention on the Law of Treaties, Article 53, May 23, 1969, 1155 U.N.T.S 331, 8 I.L.M. 679 (1969) [hereinafter Vienna Convention]
December 2, 2009
Clearly, in the international community there has been a “growing consensus against any ‘safe harbor’ for war criminals[.]” However the arguments put forth by the critics, in their defense of the outmoded positivist notion of the absolute power of national sovereignty, threaten to undermine the precedential foundation of the very doctrine which makes such a “safe harbor” impossible. It is imperative for the cause of human rights and social justice that the revisionist interpretation of the historical precedent for universal jurisdiction be defended against lest these attacks take hold and the critics should succeed in their objective (to relegate universal jurisdiction to the narrow application of high seas piracy). Toward this end, I intend to analyze the history of the interrelated concepts of universal jurisdiction and ius cogens, from their earliest origins as an exception to the absolute nature of Westphalian sovereignty which dates back to the Enlightenment era and the earliest scholars of the law of nations and has continued to develop into modern day.
In the course of this paper I will survey the history of the doctrine of universal jurisdiction from its beginning in the earliest scholarship of international law to the present, and in so doing will demonstrate the mistaken assumptions of the critics of universal jurisdiction and will go on to argue for the tenability of the piracy analogy, and that although it is not heinousness which gives rise to the operation of universal jurisdiction this does not by any means preclude the extension of universal jurisdiction over particularly heinous war crimes. I will trace the evolution of the doctrine and argue that the application of universal jurisdiction is indeed well founded in the tradition of piracy, despite the contentions of certain critics. Furthermore, it is necessary to address alarmist concerns raised by Henry Kissinger and others with regard to the potential for abuse of universal jurisdiction, which I will show to be unfounded and based on either a myopic or disingenuous assessment of international politics. I will go on to argue on this basis in favor of an expansion of the body of ius cogens as well as the doctrine of universal jurisdiction.
Recently there has arisen a school of thought which views the broadening application of universal jurisdiction with extreme skepticism and there is a growing movement arising from critics of universal jurisdiction both in political and academic spheres, which stands in opposition to these new applications of this ancient and well-founded doctrine. The argument advanced by these critics is apparently twofold; some critics argue that the recent applications of universal jurisdiction such as those against war criminals are merely based on an invention of modern scholarship and that these new applications really bear no comparison to piracy whatsoever.
Furthermore, there are objections to universal jurisdiction for fear of a slippery slope which could lead to, as one commentator referred to it, “a radical and dangerous encroachment on nations’ sovereignty.” Thus, the critics of universal jurisdiction have on the one hand destroyed the foundation of modern universal jurisdiction in terms of its academic and judicial history, and on the other vilified the proper application of the doctrine as destabilizing to international relations, and have thereby saved the cherished traditional notions of absolute power for sovereign nations. However, in order to accomplish this end, the critics of universal jurisdiction have had to fashion a secret history which alters the development of the relationship between universal jurisdiction and the classic offense of piracy, in an attempt to limit to scope of universal jurisdiction application strictly to piracy. It will be shown that the gloss which the critics have attempted to place upon the jurisprudential history of universal jurisdiction has absolutely no correlation with the weight of authority. In addition to this, for reasons that will become clear in the course of this paper, it will be demonstrated that the fear and alarmism generated by the predictions of reactionary critics of universal jurisdiction doctrine are unrealistic.
Typical among the critics who seek to undermine the historical foundation of universal jurisdiction is the allegation that “although innumerable scholars and judges have called piracy a crime against the law of nations it seems this is actually a misstatement that has come into usage from convenience and not legal accuracy.” As Henry Kissinger, a figure who stands as perhaps the chief opponent of universal jurisdiction in the United States, blithely asserted, “the notion that heads of state and senior public officials should have the same standing as outlaws (such as pirates) before the bar of justice is quite new.”
But what is truly the recent invention here? Is it the broad-based conception of universal jurisdiction, which, as Kissinger and the critics argue, stands in opposition to the weight of authority? It seems, rather, that it is these critics themselves who are attempting to reinterpret the lineage of universal jurisdiction, using its origins in the crime of high seas piracy to rewrite the history of universal jurisdiction as narrowly applicable only to this unique crime, and thereby obfuscating the underlying reasoning behind universal jurisdiction. This narrow application of universal jurisdiction is precluded for reasons that are tied to the principles of ius cogens, violations of which offend all nations equally. Such crimes thus necessitate universal jurisdiction; this is a well-established principle of international law for which there is a copious body of precedent, as this paper will illustrate.
In its modern incarnation the doctrine of universal jurisdiction asserts “national courts can and should try persons suspected of such crimes [crimes against humanity] even if neither the suspect nor the victims are nationals of the country where the court is located and even if the crime took place outside that country.” Thus universal jurisdiction allows courts in any nation to try crimes that rise to a standard which has been recognized by the international community as having a universal character. An aspect of this doctrine that its opponents find particularly distressing is that it functions to provide any court in the world with jurisdiction to hear charges against any alleged universal criminal; this jurisdiction persists (at least in theory) despite any objections on the part of the sovereign nation. The doctrine of universal jurisdiction is a venerable part of international jurisprudence, tracing its origins to ancient times, being crystallized in many ways by jurists and legal scholars with the advent of Westphalian sovereignty.
The crime of piracy goes back to the earliest beginnings of the law of nations, and historically was the only crime to which universal jurisdiction has been applied. Pirates on the high seas, as hostes humani generis, were considered a danger to all nations and were subject to the jurisdiction of any nation in which they could be found, and so the unique circumstances which the crime of piracy presented to Enlightenment-era jurists led to the formulation of a theory which allowed an entirely unaffected nation to assert jurisdiction. This has served as the foundation for the concept of universal jurisdiction, from the extension of the term hostis humani generis to encompass the slave trade in the nineteenth century to the assertion of universal jurisdiction over Nazi war criminals by the tribunal at Nuremberg as well as the trial of Adolf Eichmann in Israel. These important developments have set the stage for the most recent advances in the universal jurisdiction doctrine, towards truly encompassing all war criminals, especially in the important precedent on the Spanish trial of Augusto Pinochet.
The flag state of a vessel that has been the victim of a piracy has no need to assert universal jurisdiction over the offenders, as the flag state already has jurisdiction by virtue of the attack on its sovereign territory. However, being hostes humani generis, the pirates are subject to universal jurisdiction, and may be tried by any court. Thus universal jurisdiction operates as a mechanism to allow a court to weigh the merits of a case which would otherwise be beyond its purview.
Universal jurisdiction is a form of extraterritorial jurisdiction. In order for the courts of a sovereign nation to assert jurisdiction over a crime, the crime must bear some special connection to that nation. This is traditionally accomplished one of two ways, either through the principle of territoriality, whereby the sovereign has jurisdiction over any crime committed within its borders, or, by means of active or passive extra-territorial jurisdiction, whereby a sovereign may assert jurisdiction over a crime which has occurred outside of its borders because either the victim or offender is a national.
There are additional means of extraterritorial jurisdiction to be found, for example in the courts of the United States. These are based on the principles of “objective” territorial jurisdiction and protective jurisdiction, which extend jurisdiction to extraterritorial crimes with intended effects within national territory and to crimes with effects “dangerous to the interests and integrity of the nation,” respectively. However, even when no such connections exist, a nation may still exercise jurisdiction over extraterritorial crimes on the basis of universal jurisdiction. “This principle is justified by notion that international crimes constitute attacks on the whole international community and infringe on values shared by all members of that community.”
 Janet Benshoof, The Changing Landscape of International Law: The Global Responsibility to Prosecute Perpetrators of Grave Crimes Inflicted on the People of Burma, 27 Legal Journal of Burma 1, 35 (2007), at 36.
 Henry Kissinger, The Pitfalls of Universal Jurisdiction, Foreign Affairs, July/August 2001.
 Eugene Kontorovich, The Piracy Analogy: Modern Universal Jurisdiction’s
Hollow Foundation, 45 Harv. Int’l. L. J. 183 (2004).
 It has been argued that “until recently piracy has been the only universal offense.” See: Eugene Kontorovich, A Positive Theory of Universal Jurisdiction (March 23, 2004). bepress Legal Series. Working Paper 211. http://law.bepress.com/expresso/eps/211
 Kontorovich, supra note 4, at 185.
 Yana Shy Kraytman, Universal Jurisdiction – Historical Roots and Modern Implications, BSIS Journal of International Studies Vol. 2 (2005).
 Kissinger, supra.
 Janet Benshoof, The Changing Landscape of International Law: The Global Responsibility to Prosecute Perpetrators of Grave Crimes Inflicted on the People of Burma, 27 Legal Journal of Burma 1, 35 (2007).
 Kontorovich, supra, at 183
 Report of the International Commission of Inquiry on Darfur to the United Nations Secretary-General, Pursuant to Security Council Resolution 1564 of 18 September 2004, at paragraph 611, UN Document S/2005/60 (2005). [hereinafter Darfur Report]
 United States v. Layton 509 F. Supp. 212, 215-16 (N.D. Cal.1981).
 Darfur Report at paragraph 612.