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].

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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.