The Zapato Is on the Other Foot: Argentine Court to Hear Case on Spanish Human Rights Violations

In an interesting turn of events, via IPS News, Spanish human rights violations during the Franco-era are being heard in an Argentine court.  According to the article, “One of the plaintiffs is 91-year-old Darío Rivas, who is seeking justice in the murder of his father, Severino Rivas, purportedly killed in 1936 by members of Spain’s fascist Falange movement.”

It seems that the plaintiffs are arguing that Argentine courts have proper jurisdiction over the case on the principle of universal jurisdiction.  Of course, universal jurisdiction requires that the court with proper territorial jurisdiction be unable or incompetent to hear the case of their own volition.  So is this the case in Spain?  Well, with Spanish amensty for Franco-era war crimes, and the rail-roading of human rights crusader Baltasar Garzón, it seems pretty clear that Spain has no interest in seeking justice for these victims, and may even be obstructing justice.  So, in the absence of a willing territorial court, any court is competent to try a hostis humani generis.

And of course, these is no small amount of poetic justice that Argentina should pick up the slack for Spain’s human rights failure.  The concept of universal jurisdiction is steadily making strides in promoting global justice.  It will be interesting to see how this plays out.

Universal Jurisdiction, both “Ancient” and “Modern,” in United States Domestic Law

In the United States, a respect for the norms of international law has been part and parcel to domestic law since the framing of the Constitution; “[i]n fact, the Framers held the Constitutional Convention in large part due to the perceived inability of the Confederation to uphold American obligations under international law.”[1]  This was confirmed by the U.S. Supreme Court in the famous 1796 case of Ware v. Hylton.[2]  Significant in the case is a dictum by Justice Samuel Chase:

If Virginia as a sovereign state, violated the ancient or modern law of nations in making the law of 29 October 1777, she was answerable in her political capacity to the British nation, whose subjects have been injured in consequence of that law.”[3]

Here, Chase acknowledges the role played by the shifting norms of international law in the domestic law of the United States.  Both the “ancient” and “modern” norms are binding.  As the norms of international law change and expand with the times, so to does the law of the United States change with them.  And, as we can see by the offhandedness of the dictum, in 1796 this was not a controversial stance.  But the shifting nature of international law is a double-edged sword.  These norms can expand to encompass a broader respect for human rights (and we have seen almost uninterrupted progress in this regard for generations), but likewise there is a danger that the norms of international law can shrink, or regress as nations shirk their international obligations.

Indeed, jus cogens norms can decline as the standards of the international community decline.  But, likewise, these norms of the international community can become stronger and more vigorous, and on the whole the trend has been towards an increasing respect for human rights. Indeed, this is why it is all the more important to protect the ground that has been gained.  If crimes against jus cogens norms are not vigorously prosecuted, we run the risk that the progress made in the cause of human will simply slip away.

In the United States, there had been early attention to a significant number of international crimes that can be committed by private perpetrators and provide universal jurisdiction for criminal or civil sanctions, including piracy; war crimes; breaches of neutrality, territorial infractions, “aggression,” and other crimes against peace; unlawful capture of vessels; the slave trade; violence against foreign ministers and other officials; poisoners, assassins, and incendiaries[sic]; counterfeiters of foreign currency; banditti and brigands; terroristic publications; violation of passports; violation of safe-conducts; and more generally “all . . . trespasses committed against the general law of nations” and the treaties of the United States.

Today, the number of specific international crimes that can be committed by private individuals has increased from earlier categories to include, among others, the following: genocide; other crimes against humanity; apartheid; race discrimination; hostage-taking; torture; forced disappearance of persons; terrorism; terrorist bombings; financing of terrorism; aircraft hijacking; aircraft sabotage and certain other acts against civil aviation; certain acts against the safety of maritime navigation, including boatjacking; murder, kidnapping, or other attacks on the person or liberty of internationally protected persons; trafficking in certain drugs;  slavery;  and mercenarism.[4]

That the poisoners, assassins and arsonists of Vattel’s day might be tried in any court in any country was unlikely; in practice universal jurisdiction was most frequently applied to pirates, and later, slave-traders.
.  Today, these considerations are no longer academic, but practical.  The gains have been tremendous since the post-World War II era; horrendous practices such as apartheid, once carrying the full force of law in many places, is now considered a crime against the human race, punishable anywhere by means of universal jurisdiction.  Such offenders, who could previously be protected by sovereign immunity, now truly know no safe harbor.  In theory, at least.

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[1] Ryan Goodman & Derek P. Jinks, Filartiga’s Firm Footing: Federal Common Law and International Human Rights, 66 FORDHAM L. REV. 463 (1997) [citation omitted].

[2] According to the Court in Filártiga v. Peña–Irala, 630 F.2d 876 (2d Cir. 1980): “Thus it is clear that courts must interpret international law not as it was in 1789, but as it has evolved and exists among the nations of the world today.” See Ware v. Hylton, 3 U.S. (3 Dall.) 198, 1 L.Ed. 568 (1796) (distinguishing between “ancient” and “modern” law of nations.)” 630 F. 2d at 881.

[3] Ware v. Hylton, 3 U.S. (3 Dall. )199 at 223-4

[4] Jordan J. Paust, The Reality of Private Rights, Duties & Participation, 25 MICH. J. INT’L L. 1229 At 1237-40 [citations omitted].

Can Jus Cogens Regress?

“States that respect human rights and operate on democratic principles tend to be the world’s most peaceful and stable.  On the other hand, the worst violators of human rights tend to be the world’s aggressors and proliferators.  These states export threats to global security, whether in the shape of terrorism, massive refugee flows, or environmental pollution.  Denying human rights not only lays waste to human lives; it creates instability that travels across borders.”[1]

The peremptory norms recognized by the international community as jus cogens, the law from which no sovereign derogation is permitted, appears to be an ever-expanding body of law.  There is little agreement among scholars as to precisely how jus cogens norms acquire their status, but when a norm has risen to such a level–  to appropriate a phrase from Justice Stewart– one knows it when one sees it.  There is little doubt, even among those critical of the expansion of jus cogens as a threat to traditional Westphalian notions of sovereignty, there is broad agreement that there indeed has been an expansion.[2]

But what makes a jus cogens norm, international consensus, can also break a jus cogens norm.  As the failure of important players in the international community to live up to basic standards of human rights becomes all too frequent, the risk becomes greater that these expanded body of jus cogens norms might erode away.

Thus, in Henkin’s words, “almost all nations observe almost all principles of international law… almost all of the time.”‘  When a nation deviates from that pattern of presumptive compliance, frictions are created? To avoid such frictions in a nation’s continuing interactions, national leaders may shift over time from a policy of violation to one of compliance. It is through this transnational legal process, this repeated cycle of interaction, interpretation, and internalization, that international law acquires its “stickiness,” that nation-states acquire their identity, and that nations come to “obey” international law out of perceived self-interest. In tracing the move from the external to the internal, from one-time grudging compliance with an external norm to habitual internalized obedience, the key factor is repeated participation in the transnational legal-process. That participation helps to reconstitute national interests, to establish the identity of actors as ones who obey the law, and to develop the norms that become part of the fabric of emerging international society.[3]

Such a regression, disastrous to the cause of human rights, is a function of the nature of jus cogens itself.  The doctrine, though rooted in Enlightenment-era concepts of natural rights, has long been understood to be the product of the positive consent of nations.  It represents a voluntary concession of sovereignty for the sake of a global conscience.  The crimes against jus cogens are those so repugnant to the community of nations as the warrant universal condemnation.  The jus cogens perpetrator is a hostis humani generis, an enemy of all humanity.

But when the behavior at issue is commonplace, the danger of erosion of jus cogens becomes very real. When the global community does not take action to punish a behavior, or punishes inconsistently, the argument can be made that the norms are being abandoned by the global community.  That they are, in effect, no longer crimes jus cogens at all.

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[1] Warren Christopher, In Our Own Best Interests:  How Defending Human Rights Benefits Us All (2002). At p. xix.

[2] See, e.g.: Jason Ralph, Defending the Society of States: Why America Opposes the International Criminal Court and its Vision of World Society.  “In international law such rules are considered jus cogens, that is ‘a peremptory rule of law which may only be superseded by another peremptory rule’.”

[3] Koh, Harold Hongju, “Why Do Nations Obey International Law?” (1997).Faculty Scholarship Series. Paper 2101. http://digitalcommons.law.yale.edu/fss_papers/2101 at 2641 [citation omitted].

Gentili on Jus Cogens and Universal Jurisdiction

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.

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[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.

Jus Cogens and the “Classical Structure of International Law” Part II

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).

Jus Cogens and the “Classical Structure of International Law”

In An Empirical Examination of Universal Jurisdiction for Piracy, Professor Eugene Kontorovich (whose historical claims disputing the connection between piracy and war crimes I have repeatedly debunked) and coauthor Steven Art, allege that:

“The establishment of individual criminal liability, enforceable by any nation, departs from the classical structure of international law, which only regulated relations between states and depended on the consent of nation states.”

Let’s examine this statement to see how thoroughly inaccurate it is.

I happen to be familiar with Professor Kontorovich’s work, so I am aware of the faulty arguments that lead to statements like this.  But it can be highly misleading to people who are unfamiliar with the dispute. The application of universal jurisdiction is only highly controversial to Professor Kontorovich and a few others advancing a viewpoint on the fringes of American legal academia.

To the international community there simply is no controversy, nor has their been. The classical structure of international law has recognized the variety of jus cogens crimes since Grotius and Vattel. There has been uninterrupted progress in the expansion of hostes humani generis to include the pirate, the slave trader, the torturer, the war criminal and the genocidaire, well within the classical framework envisioned by the early commentators and borne out by generations of international jurisprudence.

Jus Cogens and the French Experience

While the body of jus cogens law has become generally accepted to encompass human rights crimes, and not to permit sovereign exception, there remains much opposition to this expanding doctrine. It is therefore not surprising that universality is met with some resistance, and is seen by many as an unacceptable encroachment on national sovereignty qua territorial jurisdiction.[1] This particularly seems to be the case among officials of the national governments themselves, who have a vested interest in the absolute notion of sovereignty.  Nevertheless, there are many countries that are embracing aleadership role in this area of law, France being one of the most outspoken.  France is unique among the countries of Western Europe in thoroughly embracing the growing role of jus cogens and the universality of jurisdiction that goes with it.

The representative of France challenged that claim during the plenary drafting session, expressing his government’s opposition to Article 53 “because it did not agree with the recognition that article gave to jus cogens,” while another government called jus cogens “still a highly controversial concept which raised the fundamental question of how to recognize the scope and content of a peremptory norm of general international law,” noting that time had revealed “a divergence of views since 1969 regarding the nature of norms of jus cogens, which it had not been possible to define.”[2]

Indeed, the French have always been some of the strongest advocates for a robust principle of universality, perhaps because of their own national history. Indeed, the French experience with international human rights norms represents something of a microcosm of the  “an opportunity to observe first hand the struggle with, and ultimate acceptance of, an international legal norm by a domestic legal order, and not just by courts, but by political elites as well.”[3] Certainly, the French experience under Nazi occupation during World War II would seem to have given them a firsthand experience with violations of international law:

The French experience with the Nuremberg principles provides an extraordinary example of this thesis in action – an opportunity to observe first hand the struggle with, and ultimate acceptance of, an international legal norm by a domestic legal order, and not just by courts, but by political elites as well. It provides an opportunity to observe empirically what scholars have postulated as a matter or theory – how and why a nation comes to adopt and embrace a particular set of international legal rules, even rules that may appear contrary to self-interest, at least to some constituencies.[4]

Perhaps there is a lesson here for the United States and other countries reluctant to embrace robust principles of universal jurisdiction.

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[1]Michael Akehurst, Jurisdiction in International Law (1974), reprinted in Jurisdiction in International Law 25 (W. Michael Reisman ed., 1999).

[2] Dinah Shelton, Normative Hierarchy in International Law,  100 A.J.I.L. 291.

[3] Leila Nadya Sadat, The Nuremberg Paradox, 58 Am. J. Comp. L. 151.

[4] Id.

Qualified Sovereignty and Jus Cogens as the International Grundnorm

The 65th anniversary of the United Nations is just around the corner. It is important to note that, while the United Nations Charters guarantees “the sovereign equality of all its Members,”[1] there is certainly nothing that asserts the absoluteness of national sovereignty. Nevertheless, even as the UN Charter takes on the role of an international constitution,[2] and the ICJ and ICC take on the role of World Courts, there remains a deeply rooted misunderstanding about the nature of national sovereignty and its relationship with international peremptory norms.

“Sovereignty has long been considered the grundnorm [sic] of international law. The sovereignty norm affirms the territorial integrity of the state and the rule of non-intervention. While many scholars have traced its development to the Peace of Westphalia, the sovereignty norm did not enter the lexicon of international law until the 18th Century, with the writings of Emerich de Vattel. Since then, the stature of the sovereignty norm has increased. In 1945, its primacy in international law was affirmed through codification in Article 2(4) of the United Nations Charter: “All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state … .” The International Court of Justice (“ICJ”), which is the principal judicial organ of the United Nations, has acknowledged the importance of the sovereignty norm on numerous occasions.”[3]

The supposedly absolute nature of national sovereignty is in fact qualified by peremptory norms, which are determined by jus cogens. Jus Cogens (literally “compelling law”) should be viewed as the authentic Grundnorm[4] of modern international law. Of course, if one takes a pragmatic view of international law, that “[s]tate consent plays an important role in maintaining an international legal order [and t]he obligation of a contract in civil law, or the obligation of a treaty in international law, clearly arises by way of [sovereign] consent.”[5] However, the body of jus cogens, being one from which “no derogation is permitted,” represents a dramatic limitation to the authority of the sovereign.

Customary rules allow objectors to abstain from following the rule; jus cogens rules require objectors’ obedience. Jus cogens norms restrain state behavior and only the emergence of another norm possessing the same character can modify them. War crimes, crimes against humanity, and prohibitions on piracy, genocide, and slavery are all considered jus cogens norms of peremptory international law. However, “there is very little agreement as to which other norms fall within the category of jus cogens norms,” or how a norm reaches this level.

Though some debate still exists, jurists and academics generally agree that the prohibition against torture has reached the status of a jus cogens norm. The Ninth Circuit wrote, “We conclude that the right to be free from official torture is fundamental and universal, a right deserving of the highest status under international law, a norm of jus cogens.” The House of Lords recognized the jus cogens nature of the torture prohibition in Pinochet. The ICTY held that “because of the importance of the values it protects, this principle has evolved into a peremptory norm or jus cogens, that is, a norm that enjoys a higher rank in the international hierarchy than treaty law and even ‘ordinary’ customary rules.”[6]

The “restraint on sovereignty” provided by peremptory norms is an essential characteristic of jus cogens. If jus cogens does not function as Grundnorm, and rather requires the positive consent of the sovereign, then sovereign is able to “opt out,” thus rendering the doctrine utterly ineffectual.

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[1] United Nations Charter, Article 2, http://uncharter.org/article/2

[2] See, for example, Bardo Fassbender The United Nations Charter As Constitution of The International Community, 36 Colum. J. Transnat’l L. 529

[3] William J. Aceves, Relative Normativity: Challenging the Sovereignty Norm Through Human Rights Litigation 25 Hastings Int’l & Comp. L. Rev. 261 at  261[citations omitted]

[4] Grundnorm, meaning “ground norm,” was coined by famed jurist Hans Kelsen.  I use the term somewhat more colloquially here than Kelsen may have intended.

[5] Jianming Shen, The Basis of International Law: Why Nations Observe, 17 Dick. J. Int’l L. 287 at 316 [citations omitted]

[6] Stacy Humes-Schulz, Limiting Sovereign Immunity in the Age of Human Rights, 21 Harv. Hum. Rts. J. 105 at 110-111

The Historical Basis of Universal Jurisdiction

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.”[1]  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.[2]

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.[3]  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.[4] 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.[5] 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.”[6]  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.[7]

“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.”[8]

            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.”[9]  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.”[10]  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.”[11]  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[.]”[12]  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.[13]

As the court observed in the case of the Ambrose Light, even murderers can be considered to be hostes humani generis[14] 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.[15]  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.

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[1] Kraytman at 99.

[2] Roht-Azzaria at 313.

[3] Id.

[4] Darfur Report at paragraph 606.

[5] 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

[6] Roht-Azzaria at 313.

[7] 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.

[8] 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.

[9] 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).

[10] Id.

[11] 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.”

[12] Darfur Report at Paragraph 606.

[13] 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[.]”

[14] United States v. The Ambrose Light, 25 Fed. 408, 423-424 (S.D.N.Y. 1885).

[15] 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.”

The Piracy Analogy and Modern Universal Jurisdiction

The tenability of the piracy analogy

As one critic argued, “piracy was never an international crime but strictly grounds for extraordinary jurisdiction.”[1] 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.”[2]

Heinousness

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.[3][4] 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.

Terra Nullius

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.”[5] 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.[6] 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.”[7]

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.”[8] 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.[9]

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.

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[1] Kraytman at 99.

[2] Barry Kellman, An International Criminal Law Approach to Bioterrorism, 25 Harv. J.L. & Pub. Pol’y 721, 730–31 (2001).

[3] 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.

[4] 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.

[5] 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.

[6] Kraytman at 97-99.

[7] Kraytman at 103.

[8] Jeffrey L. Dunoff, Steven R. Ratner & David Wippman, International Law: Norms, Actors, Process 561 (2002).

[9] 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.