Understanding Universal Jurisdiction

December 2, 2009

Clearly, in the international community there has been a  “growing consensus against any ‘safe harbor’ for war criminals[.]”[1] 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[2] and academic spheres,[3] 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.[4]

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.”[5] 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.”[6] 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.”[7]

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.”[8] 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.[9] 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.[10]

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.[11] 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.”[12]

[1] 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.

[2] Henry Kissinger, The Pitfalls of Universal Jurisdiction, Foreign Affairs, July/August 2001.

[3] Eugene Kontorovich, The Piracy Analogy: Modern Universal Jurisdiction’s

Hollow Foundation, 45 Harv. Int’l. L. J. 183 (2004).

[4] 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. 

[5] Kontorovich, supra note 4, at 185.

[6] Yana Shy Kraytman, Universal Jurisdiction – Historical Roots and Modern Implications, BSIS Journal of International Studies Vol. 2 (2005).

[7] Kissinger, supra.

[8] 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).

[9] Kontorovich, supra, at 183

[10] 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]

[11] United States v. Layton 509 F. Supp. 212, 215-16 (N.D. Cal.1981).

[12] Darfur Report at paragraph 612.

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