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.

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.

[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 vPeñaIrala, 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?

July 26, 2011

“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.

[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. at 2641 [citation omitted].

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.

[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.

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).

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.