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.

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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.”

Nuremberg

In preparation for the trials of former Nazi party members at Nuremberg, the International Law Commission was instructed by the United Nations to formulate a list of principles to govern the proceedings.[1] These principles were based upon principles of international law affirmed by the Charter which governed the proceedings. According to the fourth of these Nuremberg principles:  “The fact that a person acted pursuant to order of his Government or of a superior does not relieve him from responsibility under international law, provided a moral choice was in fact possible to him.”[2] Moreover, as was observed in the charter itself the “official position of defendants, whether as Heads of State or responsible officials in Government Departments, shall not be considered as freeing them from responsibility or mitigating punishment.”[3]

Although at no point does the court in Nuremberg acknowledge universal jurisdiction as such, the Charter and the principles derived from it serve as an embodiment of the inchoate changes that were occurring in the ius cogens.  Thus Nuremberg can indeed be seen as among the earliest modern precedent for this, which demonstrates the expansion of peremptory norms among the nations to encompass contemporary notions of ius cogens, viz. crimes against the peace, war crimes and crimes against humanity.[4]


[1] U.N. General Assembly Resolution 177 (II), paragraph (a) U.N. Doc. A/CN.4/85  (1947).

[2] Principles of International Law Recognized in the Charter of the Nürnberg Tribunal and in the Judgment of the Tribunal at Principle IV U.N. Doc. A/CN.4/SER.A/1950/Add.1 (1950).

[3] Charter of the International Military Tribunal at Article, 7 82 UNTS 279; 59 Stat. 1544; 3 Bevans 1238; 39 AJILs 258 (1945).

[4] Id. at Article 6.