April 16, 2010
The historical basis of universal jurisdiction
To be sure, at the Nuremberg trials, in Eichmann and particularly in Pinochet the courts set important precedents in the evolution and expansion of universal jurisdiction doctrine in the twentieth century. Critics of universal jurisdiction, however, have stubbornly refused to acknowledge the legitimacy or indeed, in some cases, even the existence of such precedent. To the extent that the critics have considered the role the application of international legal principles played in these important decisions, the critics tend to marginalize and downplay the operation of universal jurisdiction, typically alleging that jurisdiction in these cases was rooted exclusively in domestic jurisdiction.
“Since the municipal law of most nations condemned piracy, this gave rise to the acceptance of universality and the notion that it is a crime against the law of nations. This is strikingly discordant with the rest of the body of traditional international law because “it would make the pirate a direct subject of international law.” Never mind that this view stands in stark contrast to the actual wording of the courts in these cases.
As noted above, neither at Nuremberg, in Eichmann nor in Pinochet did the court rest their jurisdiction over the defendants based on universal jurisdiction alone, but rather the jurisdiction in each of these three cases rests on an assertion of grounds for jurisdiction in addition to universality. The reasoning behind this redundant assertion of jurisdiction is made very clear by the courts, particularly in Pinochet, where the jurisdiction apparently rests solely on the Ley Organica del Poder Judicial. However, the implications of this redundancy are disputed; according to the arguments put forward by commentators critical of the decision, the assertions of universal in these momentous decision may be reduced to merely speculative dicta on the part of the court as to jurisdictional alternatives, with the “real” jurisdictional mechanism being found in domestic law.
This argument fails, as observed above, because the assertion of redundant jurisdiction by means of an appeal to state-based rather than universal principles certain does not deny the existence of the universal grounds for jurisdiction. Indeed it can be said to be the duty of a sovereign to write into domestic law a definition in accord with treaties to which the sovereign is party, perhaps with even a broader scope than that contemplated by crimes ius cogens. Nonetheless the underlying crime remains ius cogens, and the criminals remain hostes humani genereis and are subject to universal jurisdiction.
Any criminal who offends the law of nations is a hostis humani generis, and it is from this that universal jurisdiction flows, not the positive agreement among nations affirms such jurisdiction. The scope of universal jurisdiction potentially encompasses any human being, a nation cannot negate the application of universal jurisdiction over its citizens nor can its failure to affirmatively consent to universal jurisdiction render it inoperable over them.
The failure of the slippery slope argument
The assertion of universal jurisdiction in terms of international law alone has not been made the courts in any of the major cases, as observed above. The courts have generally based their decisions on other grounds, as in the Pinochet case where the decision of the court was clearly “grounded” in national law. As noted above, and this seems to be a common feature of all the major developments in the doctrine through modern history.
The concerns voiced by Henry Kissinger regarding international diplomacy thus seem to be implausible. Surely any magistrate would have the authority to bring such charges against any alleged criminal in violation of the law of nations, but political pressures and common sense seem to lead in practice, as noted above, to limiting scope of universal offenses to cases where the prosecutor is more likely not to bring charges unless absolutely sure. As we have seen repeatedly throughout the course of this paper, universal jurisdiction has been approached only tentatively by the courts in all the major decisions.
Even in legitimate and well settled cases where universal jurisdiction applies, the courts almost without exception are loathe to assert universal jurisdiction as the sole grounds for jurisdiction. If anything, in practice the executive and legislative arms of sovereign power are only too anxious to curtail the broad application of universal jurisdiction by its own magistrates. It seems therefore that any abuse of universal jurisdiction will not be due to the wanton over-assertion but rather the under-assertion of universal jurisdiction due to repression of the legal system on the part of the sovereign. Indeed it is generally understood to be a principle of international law to grant immunity to charges brought under universal jurisdiction for sitting officers of a sovereign nation. The U.N. sensibly took such a measure to safeguard against precisely the sort of catastrophic diplomatic incidents predicted by the fanciful and alarmist demagoguery of Henry Kissinger. However, there does not seem to be anything within the doctrine of universal jurisdiction itself that necessitates this result.
A court is limited to the scope within which the sovereign state grants it jurisdiction, and the sovereign may limit the operation of universal jurisdiction of its courts howsoever it pleases. In practice the assertion of universal jurisdiction will never rise to the level of diplomatic catastrophe that Henry Kissinger and the critics predict. As noted above, the Pinochet trial represents a precedent that was only able to be set based on Spanish national law which enabled Garzón to spearhead the investigation despite objections on the part of the Spanish prosecutors. The case was able to be brought against Pinochet because of “laws allowing public interest organizations, as well as aggrieved individuals, to file and maintain criminal complaints even without the backing of, and in this case over the strenuous opposition of, the state prosecutors office.” Had this not been the case, diplomatic pressures likely kept the prosecutor’s office from pursuing the Pinochet case of its own initiative despite having means under Spanish law to do so, namely the Ley Organica del Poder Judicial. Even had the Ley Organica not been in place, however, it would be no less correct, in principle, for a court to have asserted universal jurisdiction based on international law alone.
In fact, it would appear that Henry Kissinger is correct in his assessment that, all else being equal, any magistrate in any court in any nation could potentially bring charges against any official of any nation. However, the apparatus of the International Criminal Court is readily capable of streamlining the process should its jurisdictional scope be sufficiently expanded by the United Nations. One could imagine an argument based on the doctrine of ius de non evocando would be effective against an assertion of universal jurisdiction brought by some overzealous magistrate in a foreign nation, as the International Criminal Court is clearly the regular and established court for such universal jurisdiction based proceedings. Thus it appears that there is little foundation in rationality with regard to the nightmarish scenarios of chaos and tyranny imposed by magistrates of one nation upon another.
Ius de non evocando
As the court in Pinochet notes with respect to crimes against the law of nations, there is a duty incumbent upon any potential forum state to defer to the proceedings of an international court or a court in a state which would otherwise have jurisdiction.
“Without question, the intervening entity or state must exercise great caution before concluding that intervention is necessary… …the emphasis must remain on ‘serious’ violations of humanitarian rights, as non-intervention remains the ‘preemptive international norm, and intervention is what requires justification.’ Intervention thus is permissible only if a government is violating clearly established international obligations.”
This reasoning is in line with an important principle governing proceedings in international criminal law, that is the doctrine of ius de non evocando, which, according to a ruling by the International Criminal Tribunal for the former Yugoslavia, operates “to avoid the creation of special or extraordinary courts… without guarantees of a fair trial.” Though the international trial may be a great distance from the national forum where the criminal might otherwise be tried, this does not offend the principle of ius de non evocando so long as the international tribunal is “at least equally fair.” Without doubt, the principle of ius de non evocando has the potential to figure prominently in future developments in the law of universal jurisidiction.
Complementarity and the International Criminal Court
The International Criminal Court was established to ensure that “the most serious crimes of concern to the international community as a whole must not go unpunished.” It is important to take notice of the principle of complementarity, one of the founding principles of the International Criminal Court, which only enables the Court to assert jurisdiction when “the national courts prove to be unable or unwilling genuinely to try persons accused of serious international crimes[.]” The corollary of this is the principle that if a nation has already begun legitimate proceedings against a foreign national on the basis of universal jurisdiction, the International Criminal Court must defer to those proceeding.
As the court observed in the case of the Ambrose Light, even murderers can be considered to be hostes humani generis and it could be argued that the nascent ius cogens of the present era may yet evolve further such that even the crime of murder is sufficient to offend the community of nations generally. But even if that were the case, why would it be such a bad thing? Principles of international law already require that preference be given to the national courts of the sovereign in question, contingent on those courts being competent and willing to hear the case. Admittedly there is a potential arise for complex litigation to arise due to zealous, though legitimate, international assertion of universal jurisdiction on the part of “local magistrates” that could create situations which might be impolitic or otherwise disruptive to international diplomacy.
However, any such Gordian knot that might arise could easily be cut by means of these commonsense principles, and to an important extent the machine required for this already in place. Whatever additional layer of complexity which universal jurisdiction might add does not seem, then, to be too high a price to pay to bring to justice offenders against the ius cogens, whether they be war criminals or murderers. Even granting the possibility that abuse of universal jurisdiction could be problematic in practice, these would amount to little more than legal and bureaucratic difficulties which could scarcely be seen as comparable to the nightmarish tyranny of the judiciary Henry Kissinger would have us believe awaits around the corner, and any sort of diplomatic concerns this raises hardly justifies curtailing the application of universal jurisdiction.
 Kraytman at 99.
 Roht-Azzaria at 313.
 Darfur Report at paragraph 606.
 For instance, see: “ICJ rejects Belgian arrest warrant for foreign ministers of Democratic Republic o Congo,” United Nations Information Service (15 February, 2002), http://www.unis.unvienna.org/unis/pressrels/2002/afr379.html
 Roht-Azzaria at 313.
 As the court observed: “[L]a jurisdicción de un Estado deberia abstenerse de ejercer jurisdicción sobre hechos, constitutivos de genocido, que estuviesen siendo enjuiciados por los tribunals del pais en que occurrieron o por un tribunal penal internacional.” Anto de la Salade lo Penal de la Audiencia Nacional confirmando la jurisdiccion de Espana para conocer de los crimenes de genocidio y terrorismo comtedidos durante la dictadure chilena, Nov. 5, 1998, Rollo de Apelacion 173/9.
 Sammons at 120-121, Quoting Robert H. Jackson, International Community Beyond the Cold War, in Beyond Westhphalia? State Sovereignty and International Intervention 21, 22, Gene M. Lyons & Michael Mastanduno eds., 1995 at 80.
 See: Decision on the Defense Motion for Interlocutory Appeal on Jurisdiction, Prosecuter v. Tadic, International Criminal Tribunal for the former Yugoslavia, Case No. IT-94-1-AR72, Appeals Chamber at Paragraph 62 (Oct. 2, 1995).
 Rome Statute of the International Criminal Court, at Preamble and at Article 5, UN Doc. A/CONF. 183/9; 37 ILM 1002 (1998); 2187 UNTS 90. Article 5 extends “jurisdiction in accordance with this Statute with respect to the following crimes: (a) The crime of genocide;(b) Crimes against humanity;(c) War crimes;(d) The crime of aggression.”
 Darfur Report at Paragraph 606.
 Id. at Paragraph 616. Reflecting on precedent in Spain and Germany, the Commission stated: “While a referral by the Security Council [of a case to the International Criminal Court] will normally be based on the assumption that the territorial State is not administering justice because it is unwilling or unable to do so, there is instead no reason to doubt a priori the ability or willingness of any other State asserting… universal jurisdiction[.]”
 United States v. The Ambrose Light, 25 Fed. 408, 423-424 (S.D.N.Y. 1885).
 Darfur Report at paragraph 609. The Commission observes here that “a referral by the Security Council is normally based on the assumption that the territorial State is not administering justice because it is unwilling or unable to do so.”
April 10, 2010
The tenability of the piracy analogy
As one critic argued, “piracy was never an international crime but strictly grounds for extraordinary jurisdiction.” However, the rationale behind this kind of criticism is clearly mistaken if not an outright attempt at revisionist history of the evolution of universal jurisdiction in international law and legal scholarship. As we have seen above the idea of piracy as a crime against the community of nations goes back to the earliest origins of international law in Gentili, Grotius and Vattel. In the time of the Enlightenment, perhaps ius cogens among the nations was more concerned with issues of international trade, but this does not alter the ancient principle that ius cogens cannot be violated legitimately by any sovereign.
As society has progressed, the normative principles that form the body of ius cogens have matured along the way, and in the modern era ius cogens has grown to encompass human rights, which are generally recognized as inviolable and protected under the law of nations. As one commentator observed with regard to the assertion of universal jurisdiction over terrorists:
“[H]ostile infliction of biological agents is outside the limits of civilized behavior, and therefore must be a jus cogens crime against humanity . . . . [and] should also serve to establish universal jurisdiction. The analogy here is piracy, and, as in piracy law, any state that can apprehend bioterrorists or investigate their activities should be legally obligated to do so and should have legal authority to prosecute them.”
Standard among the critics is the attempt to divorce universal jurisdiction from its application to heinous crimes in order to undermine the jurisdictional analogue between crimes against humanity and the crime piracy. According to this argument, piracy is no more heinous than the related crime of robbery, and universal jurisdiction was only applied to piracy because it occurred upon terra nullius, namely on the high seas, which is outside of territorial borders of any sovereign. So, because universal jurisdiction was only applied to the non-heinous crime of piracy, the critics conclude, there is no historical precedent for the application of universal jurisdiction to heinous crimes committed within the borders of a national sovereign.
Henry Kissinger and other critics, however, are attacking a straw man insofar as they assume that the appeal to the heinousness of war crimes represents a fundamental flaw in the precedential foundation of the piracy analogy as a basis for modern theories of universal jurisdiction. While it is true that universal jurisdiction over war crimes specifically stems in part from the heinousness of the crime (and this is arguably true about piracy as well), it is not the heinousness itself nor any other intrinsic element of the crime, that renders the alleged war criminal or pirate susceptible to universal jurisdiction. Rather an offense must rise to a level that constitutes an affront to all nations that creates universal cognizability in a crime.
Heinousness is a necessary element (although not in and of itself sufficient) for a crime to fall within the ambit of universal jurisdiction, i.e. an incident of petty vandalism on the high seas will not rise to the level of piracy nor the threshold of offense to all nations that allows universal jurisdiction to operate upon it. Thus heinousness of an offense serves as a useful yardstick against which to determine whether a crime committed within national borders has risen to the level of a violation of ius cogens. It is not heinousness in and of itself that makes a crime universally cognizable, but that the heinousness of crimes such as war crimes and human violations causes these crimes to offend the international community.
It has been argued that terra nullius is a requirement of universal jurisdiction, and that when sovereign power has been voluntarily ceded by treaty to grant universal jurisdiction that “[i]n effect, the state becomes analogous to terra nullius for purposes of criminal jurisdiction.” However, this analogy to terra nullius does not somehow transmute the territory of a state into terra nullius, not even by legal fiction. It is merely an analogy of convenience, and the analogy itself serves to undermine the very notion that terra nullius is requisite to assert universal jurisdiction over piracy, namely because ius cogens offense are not limited only to those crimes ceded to it by sovereign nations.
By its very definition, not to mention based on long and distinguished historical precedent, universal jurisdiction applies equally to all alleged criminals under the purview of ius cogens. This applies equally whether the criminals are nationals of sovereign nations that are party to international treaties acknowledging ius cogens as such, nations not party to any such treaty, or criminals operating within the jurisdiction of no nation at all.
As regards the application of universal jurisdiction, the doctrine has not changed since its foundations. A violation of the ius cogens remains central, rendering the criminal a hostis humani generis and subject to universal jurisdiction. What has changed with the modern era, rather, is the substance of ius cogens.
Defining ius cogens
The argument has also been advanced that the rationale for the extension of universal jurisdiction to piracy is not because piracy is a crime against international law, but rather falls within the normal ambit of state criminal jurisdiction. The argument for this is something along the lines of, well it is against the law in every nation so might as well extend jurisdiction even to nations who would have had no territorial or personal jurisdictional interest otherwise. As evidence of this, critics point to differing definitions of the crime of piracy in different nations:
“Prior to the codification of the definition of piracy by the 1958 Convention on the High Seas, scholars even argued that the evidence of numerous definitions of piracy under various municipal statutes (and conversely the lack of a single established international definition of the crime of piracy under international law) meant that piracy was not actually a crime under the law of nations, as it is often referred to, but simply a ‘special ground of state jurisdiction’ which may or may not be exercised by the custodial state depending on its own municipal definition of piracy.”
Indeed it is true that the extension of universal jurisdiction to piracy, according to Professor Dunoff, “had little to do with human dignity at all; rather, states sought to punish pirates as individuals because they were not (by definition) the agents of any states.” But it is incorrect to assume that this absence of an offense against human dignity implies an absence of any precedential analogy between the exercise of universal jurisdiction over piracy and over human rights violations. The analogy is, however, one degree farther attenuated, than the critics seem to recognize. Perhaps a better analogue can be a found in that of a privateer, whose operations are sanctioned under a letter of marque granted by a sovereign state and thus what would otherwise be a pirate ship is rendered a legitimate agent of the sovereign, and thus engage in legal warfare which is not in violation of the law of nations.
However, the authority of the Westphalian sovereign to grant letters of marque is (at least de iure if not de facto) limited by the law of nations/ius cogens, and the privateer who has overstepped the boundaries of legal warfare would thereby become considered a pirate. The privateer in our example has thus committed a crime against the law of nations/ ius cogens and has become a hostis humani generis, forfeiting any claims to immunity granted him by the sovereign by way of letter of marque. In the same way, when an official acting in a capacity sanctioned by a sovereign nation commits a war crime or some other offense against human dignity has violated the ius cogens, beyond the legitimate power of any sovereign, and forfeited any claim to sovereign immunity. Thus those who commit such crimes, even acting under the pretense of sovereignty, are rightfully subject to universal jurisdiction.
In order to effectively protect against such violations of ius cogens it is necessary for universal jurisdiction to be able to usurp the role of the sovereign, both in cases where the sovereign itself has specifically consented and in cases where no such concession has been made by the sovereign state. For surely it is necessary to the application of universal jurisdiction that the offense be of such a nature, as noted above, that it warrants jurisdiction being applied by any court before which the defendant may be found.
Any crime falling within the purview of universal jurisdiction is a crime in which all nations have been equally affronted and thus, all else being equal, any nation will operate as a just and appropriate forum. It would be unfortunate for this ancient and well-founded means of jurisdiction to be effectively castrated by shoehorning a self-serving revisionist history of a national consent requirement, applying universal jurisdiction narrowly to crimes of piracy.
 Kraytman at 99.
 Barry Kellman, An International Criminal Law Approach to Bioterrorism, 25 Harv. J.L. & Pub. Pol’y 721, 730–31 (2001).
 Kissinger, work cited. As Henry Kissinger opined: in his famous essay: “The doctrine of universal jurisdiction asserts that some crimes are so heinous that their perpetrators should not escape justice by invoking… sovereign immunity[.]” emphasis added.
 Kontorovich, supra note 4, at 190. Viz.: “Under the heinousness argument, it was the substantive nature of pirates’ acts—not the pirates’ status as private actors or the location of their crimes—that made them susceptible to universal jurisdiction.” The mistaken assumption here is the “substantive nature” of the crime which renders pirates susceptible to universal jurisdiction, when it is in fact the condemnation of the community of nations for violationof ius cogens. Although the violation of ius cogens may stem from the underlying heinousness of a crime, it is not the heinousness itself but the offense to ius cogens which invokes universal jurisdiction.
 Anthony Sammons, The “Under-Theorization” of Universal Jurisdiction: Implication for the Legitimacy of Trials of War Criminals by National Courts, Berkley Law Review at 114.
 Kraytman at 97-99.
 Kraytman at 103.
 Jeffrey L. Dunoff, Steven R. Ratner & David Wippman, International Law: Norms, Actors, Process 561 (2002).
 For an fascinating discussion of the history and eventual demise of the practice of privateering, see: Alexander Tabarrok, The Rise, Fall, and Rise Again of Privateers, The Independent Review, v. XI, n. 4, Spring 2007, pg. 565-577.