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.

I commented on seeing this crisis coming over a year and a half ago, and I take no pleasure in seeing it borne out.  Via H&J, a recent report published in the Duke Law Journal states:

Sanction motions and sanction awards for e-discovery violations have been trending ever-upward for the last ten years and have now reached historic highs. At the same time, the frequency of sanctions against counsel for e-discovery violations, though small in number, is also increasing. Although serious e-discovery misconduct by parties and counsel should continue to be the subject of sanctions, appropriate consideration should be given to the complexity of e-discovery in ruling upon the increasingly frequent e-discovery sanction motion.

The e-discovery process is indeed complex.  But it is possible for a prudent attorney to avoid an ethical lapse with sufficient diligence and a thorough understanding of the technology involved in the process.  See, for instance, the Qualcom case:

One common but easily avoided e-discovery trap involves the failure to properly oversee the production of electronically stored information.  Courts are increasingly willing to sanction attorneys for failing to make “reasonable inquiry” into their clients’ production of electronically stored information during discovery.

[…]

The Qualcomm court determined that some of Qualcomm’s attorneys “assisted, either intentionally or by virtue of acting with reckless disregard for their discovery obligations” in Qualcomm’s discovery violations. While there was no direct evidence that Qualcomm’s attorneys helped to conceal damaging emails, the court found that the attorneys “contributed” to the discovery violation because they chose “to accept the unsubstantiated assurances of an important client that its search was sufficient” and ignored warning signs that Qualcomm’s document search and production were inadequate. The court imposed considerable sanctions against both Qualcomm and its attorneys because the attorneys did not make a “reasonable inquiry” into Qualcomm’s discovery search and production.  In addition to substantial monetary sanctions against Qualcomm, the court referred the sanctioned attorneys to the state bar for investigation and possible sanctions and ordered the attorneys to participate in a comprehensive discovery program to identify the failures in their case management and discovery protocol.

from Navigating E-Discovery: How to Avoid Common Pitfalls

In order to obtain service by publication there must be a “diligent search and inquiry” for the party being served.  It is the obligation of the party seeking service to embark upon this diligent search, and an affidavit attesting that such a search has indeed been performed must be filed with the court before attempt at service by publication can be valid.[1]

But what does a diligent search and inquiry look like?  The statutes aren’t very helpful in this regard, but the the case law might be instructive.  If  we look at the 1926 Florida Supreme Court case of Ortell v. Ortell,[2] we see at least what a diligent search ought not to look like:

The fact that this affidavit stated that the affiant believed the present mail address of the defendant to be Hendersonville, North Carolina, does not cure the defect with reference to the inadequacy of the affidavit as applied to the residence of the defedant […]. For aught that appears in the affidavit, this “mailing address” may have been purely transient, temporary, and ineffective.  Furthermore, in view of the generality of the mailing address given, it would have been a better compliance with the spirit of the statute either to have given the street address in Hendersonville, which we judicially know was by no means a village[.]


[1] § 49.051 Fla. Stat. (2010)

[2] Marie Phyllis Ortell v. Frank J. Ortell, 91 Fla. 50 (1926)

What happens to a civil complaint where the opposing party cannot be served?  Such is often the case is divorces, what we call a “dissolution of marriage” action here in Florida, where the party seeking the divorce often has not had contact with the opposing party and may even be unaware of their whereabouts.  The answer is found in a form of service of process known as “constructive” service.

In order for a court to obtain jurisdiction over dissolution of marriage cases, proper service of process must be made upon the respondent.  Dissolutions of marriage are actions in rem, and thus the res of the action over which the court asserts jurisdiction is the marriage itself.  Therefore the court does not need personal jurisdiction over the respondent to dissolve a marriage; the court merely requires jurisdiction over the marriage itself, or one of the parties to the marriage (the petitioner).

Although the court needs no personal jurisdiction over the respondent, service of process upon the respondent is still required in order that the court to obtain a valid judgment over the res of the action.  In cases where the respondent cannot be found, and substituted service of process[1] cannot be made on an appropriate party, it is still possible to effect constructive service upon the respondent by means of service by publication.  Service by publication can only be had for proceedings in rem.[2]

An affidavit of diligent search and inquiry is a “condition precedent to service by publication.”[3] Diligent search and inquiry is essential to any attempt at constructive service.[4] The last known address of the defending party must be contained within the affidavit.  But what exactly constitutes a “diligent search and inquiry” with respect to service of process?  The answer is not as clear as one might like it to be, and as I will go on to show, this lack of clarity can be quite problematic when it comes to ensuring due process for respondents.


[1] “Substituted service and constructive service have not always been distinguished by the courts.” Trawick’s Florida Rules and Practice, Section 8:19, at page 165

[2] Id.

[3] Florida’s Statute Title VI, Chapter 49.031

[4] Trawick’s, supra N1, at page 169

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.


[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.

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.


[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

According to a comparative study of fifty-nine nation by Koppel, Moody and Nemerov, published in the Texas Review of Law and Policy, concluded that “there is a statistically significant relationship between higher per capita gun ownership and freedom from corruption, economic freedom, and economic success. […] As a general (but not invariable) rule, countries with more guns have more economic freedom, less corruption, and more economic success. […] [T]he data raise serious doubts about whether the gun-reducing agenda makes sense as a categorical imperative, at least if freedom ranks highly in one’s hierarchy of values.”

The study went on to discuss some of the ways in which “Freedom causes guns” but also ways in which “guns cause freedom,” to wit: “American civil rights workers were able to protect themselves from the Ku Klux Klan because so many civil rights workers had guns.” The study also shows only rare circumstances in which guns reduce freedom, such as the Ivory Coast and the Congo, concluding that “guns in the wrong hands reduce freedom.”

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.


[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 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.


[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.

Eichmann

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

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

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

Pinochet

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


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

[2] Id. at 19.

[3] Id. at 16.

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

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