Universal Jurisdiction

In the law, the concept of jurisdiction is a fundamental constraint on judicial power. A court must have subject matter jurisdiction to hear a case; i.e., the cause of action must lie within the scope of those over which the court may validly preside. In the US, for example, the federal securities laws specifically provide that cases arising thereunder may not be heard by state courts.

A court must also have personal jurisdiction. The defendant must be within the geographic limits of the court's reach.

In international law, there are many widely accepted grounds on which the court of one nation may exercise personal jurisdiction over a defendant. Nationality is an obvious basis for jurisdiction: Courts typically can haul their own nationals to the bar. Presence in the state is another. Under the principle of territorial jurisdiction, if an alien commits a crime in the US and is brought before a US court, the fact that he's a foreigner will not preclude the US court from trying him. So-called effects jurisdiction is somewhat more controversial, but I believe is fairly well accepted in US law. Under it, actions effected outside the US by a non-US national can subject the alien to US court jurisdiction if the conduct in question, as § 402 of the Restatement of Foreign Relations Law of the United States puts it, "has or is intended to have substantial effect within" the US.

Now we come to the doctrine of universal jurisdiction. Wikipedia explains:

Universal jurisdiction or universality principle is a principle in international law whereby states claim criminal jurisdiction over persons whose alleged crimes were committed outside the boundaries of the prosecuting state, regardless of nationality, country of residence, or any other relation with the prosecuting country. The state backs its claim on the grounds that the crime committed is considered a crime against all, which any state is authorized to punish, as it is too serious to tolerate jurisdictional arbitrage. The concept of universal jurisdiction is therefore closely linked to the idea that certain international norms are erga omnes, or owed to the entire world community, as well as the concept of jus cogens - that certain international law obligations are binding on all states and cannot be modified by treaty.

Universal jurisdiction originated as a justification for states taking action against conduct like piracy and slave trading that often took place outside the reach of any state. After World War II, the victors extended the principle to include war crimes so that they could conduct the Nuremberg Prosecutions and their counterparts in Japan.

I'm not an international lawyer, although I played one in law school as the Research & Projects Editor of the Virginia Journal of International Law. So I write here as a more or less educated layman in the field to offer some concerns about the state of universal jurisdiction.

I do not mean to excuse the horrific crimes committed by Germans and Japanese  during WW II. But even so one can argue that the expansion of universal jurisdiction to war crimes was an unprecedented and unprincipled act of fiat by the Allies to provide a legal fig leaf for their "victors' justice." Since then, moreover, human rights lawyers have taken the concept and run with it to include such things as torture, genocide, and the like.

As John Bolton points out in today's WSJ, this expansion raises some serious questions:

Today's version of universal jurisdiction masquerades as a legal concept, but is in fact a form of political morality. It empowers prosecutions in states with little or even no connection to alleged offenses such as war crimes and gross abuses of human rights. And in many countries, as in Britain, the ability of private citizens to trigger the criminal process only adds to the danger of politicized prosecutions.

Bolton cites a specific recent example:

'Universal jurisdiction" sounds like a term plucked from obscure international law journals, but it has pernicious and profoundly antidemocratic consequences in the real world. A British arrest warrant, issued over the weekend in London for former Israeli foreign minister Tzipi Livni, shows precisely why.

The warrant charged Ms. Livni—the current leader of the Knesset opposition—with war crimes allegedly committed by Israeli forces during Operation Cast Lead in the Gaza Strip last winter. Ms. Livni and other Israeli leaders have always staunchly defended their operation against Hamas ....

Like Bolton, I find this attempted prosecution quite troubling. As I wrote when crusading Spanish judge Baltasar Garzón, who gained international notice for his efforts to bring former Chilean dictator Augusto Pinochet to justice before a Spanish court, went after a bunch of Bush officials for alleged human rights violatios in connection with the GWOT:

Universal jurisdiction raises several concerns when extended to these kinds of cases, as opposed to piracy and the similar crimes it was originally developed to deal with. Piracy and terrorism often involve non-state actors whose conduct occurs at sea or in failed states or with the aid of state sponsors. Absent some form of universal jurisdiction, there is no chance of punishing and deterring such crimes.

In contrast, here we are dealing with state actors. Applying universal jurisdiction here raises a number of concerns.

First, do we really want a lone national judge in one state interfering with issues of global diplomacy? Suppose the UN worked out a deal for Sudanese President Omar al-Bashir to step down and be replaced by a democratically chosen civilian. As part of the deal, the UN and the ICC agreed to drop al-Bashir's indictment for war crimes and crimes against humanity. Just as al-Bashir is about to leave Sudan, however, Garzón indicts him in Spain for the same charges. The diplomatic apple cart all too easily could be upset by a rogue jurist.

My point is vividly illustrated by the potential diplomatic fallout from the Livini case. The WSJ reports that:

Israel called for "immediate" action from the U.K. to block plaintiffs from using its legal system to put Israeli leaders on trial for actions in the Palestinian territories. Ms. Livni is the fourth senior Israeli official since 2004 that pro-Palestinian activists have sought to detain using British courts.

Israel and the U.K. have enjoyed generally good relations, and Britain often plays a high-profile role in the so-called Quartet on Mideast peace issues. The Quartet includes the U.S., the European Union, Russia and the United Nations. Former British Prime Minister Tony Blair is currently the Quartet's special envoy to the region.

Israel officials threatened to boycott any further British role in the Mideast dialogue. "If Israeli leaders cannot visit Britain in a proper, dignified fashion, this will, quite naturally, seriously compromise Britain's ability to play the active role in the Middle East peace process that it desires," the Foreign Ministry said in a statement.

The U.K. Foreign Office said that it was looking into the implications of the case "urgently" and stressed that Israeli leaders need to be able to visit for talks with the British government.

How is the UK supposed to play an important diplomatic role if rogue lawyers and judges can derail the process by invoking universal jurisdiction? Perhaps it is no wonder that a virtual nonentity in the diplomatic game like Spain harbors Judge Garzón or lawyers in a bit player like Belgium went after Donald Rumsfeld. But for their invocations of universal jurisdiction, who would care what they said or did? In contrast, the UK is a major player and, moreover, wants to "punch above its weight." You can't do that if foreign public figures have to worry about being arrested when they set foot anywhere in the UK (or a country with an appropriate extradition treaty with the UK).

In my earlier blog post, I also suggested that:

Second, there is a serious risk of politicization of claims premised on universal jurisdiction. Do you want a far left judge backed by an anti-American regime being able to pursue a political agenda against US state actors? Conversely, do you want a neo-fascist judge backed by a far right regime going after Israeli officials who conduct West Bank settlement policy (which, after all, is arguably at least as egregious a violation of international law as anything John Yoo did)?

Well,that precise hypothetical came to fruition in the Livini case. Yet, as Bolton observed:

It is no accident that arrest warrants never seem to be issued for the likes of Kim Jong Il or Mahmoud Ahmadinejad, since the real targets of universal jurisdiction these days are Western nations. Ultimately, what it targets is the very ideas of sovereign accountability and political independence. ...

... human-rights activists who view their morality as higher than that of elected governments are satisfied by nothing less than prosecution. That is precisely why contemporary universal jurisdiction is so profoundly antidemocratic.

Undoubtedly, leaders of constitutional democracies make mistakes about whom they do and do not prosecute. But to substitute the judgments of self-designated international Platonic Guardians for representative governments and independent judiciaries is perilous at best, and authoritarian at worst. It's the time to unambiguously reject universal jurisdiction before its infection spreads even further.

I don't think we should eliminate universal jurisdiction. It has its place even today. It should be vigorously used against Somali pirates, for example. As I wrote back in April:

I think a case can be made for restricting invocation of universal jurisdiction by individual states to cases like piracy, while restricting its use in cases like this one to multi-state international courts, such as the ICC, that are subject to checks and balances so obviously absent in Spain.

Unfortunately, many states seem to be more reluctant to use universal jurisdiction against the Somali pirates than against folks like John Yoo and Tzipi Livni.

Comments

[gs]

1. A modest proposal: since the Interstate Commerce Clause unduly stifles our wise and benevolent governmental hierarchy, let's repeal the Clause and give every US state "universal jurisdiction" about what happens in every other state. (Seriously--good point about the Somali pirates--, I agree with the poster that universal jurisdiction has a legitimate though limited place. Unfortunately, universal jurisdiction may be becoming as hard to limit as the Elastic Clause was.)

2. I was horrified by the Pinochet affair: the next time it is more cost-effective to buy out an entrenched thug dictator than to remove him by force, the thug will remember what happened to Pinochet.

[Richard Millard]

There's a simple and easy way to put a stop to this, and an American administration that had any guts would use it.

All it takes is for President Obama to stand up and say, the next time a Spanish or Belgian judge issues a writ against Rumsfeld, Bush, Yoo or any other American for actions taken in furtherance of official American policy, that America views these proceedings against its government officials as acts of war, and that any attempt to seize American citizens under this type of order will be met with a full exercise of American power, including military force.

End of problem.

[Steven]

I was pretty sure the basis for Nuremberg was that the victors were acting in their jurisdiction as the (occupation) government of Germany and Japan. The legal innovation was the concept of crimes against humanity, which included acts that were not otherwise violations of German/Japanese laws.

[Thomass]

Another, more nebulous problem (i.e., hard to explain), is that leftists tend to equate murder and death with any disagreement on policy. It’s a basic core identity trait…

Joe Lieberman just got a refresher in the game. Warmonger on Iraq to the left and thereby a man with blood on his hands (whereas, if you don’t support military operation supported by the left, you’re an isolationist and probably also guilty for the casualties caused by inaction)… he was just tarred in similar terms by the usual suspects for not supporting ‘health care reform’.

So, any disagreement on a policy will be a means towards a lawsuit. Regardless of reason, facts, room for disagreement… et ecetera… Don’t support the left on something, you’re an international criminal (they'll figure out how... somehow)...

[Morton Doodslag]

I am no lawyer -- but if the overheated rhetoric of the Left is to be believed, many in Europe (and sadly the USA) consider Bush & Co. to be a rogue operation on par with the Somali pirates or other terrorists. They regularly assert that the Bush's administration is guilty of high crimes including terrorism, torture, and crimes against humanity. Some of these opinions were even espoused by high ranking government representatives in Europe viz. Jaschka Fischer (Foreign Minister of Germany) comparing Bush to Hitler in his 2002 election campaign.

Of course such assertions are insane, but millions of dangerous Leftists, some of whom are actually running nations in Europe, would assert that: "Absent some form of universal jurisdiction, there is no chance of punishing and deterring such crimes."

It seems that your logic for excluding the application of Universal Jurisdiction against figures like Bush & Co. is basically the same logic used by far left nut cases to employ it.

[mark arnold]

There is no question that the Nuremberg trials ere a clear case of victors' justice. Admiral Doenitz, who headed the u-boat campaign, got ten years in Spandau for waging illegal submarine warfare -- precisely the same kind of submarine warfare that the U.S. practiced against Japan.

[Akatsukami]

I suggest that attempts to assert universal jurisdiction over those with no respect for their own laws, let alone others, will be futile, if not actually negative. Knowing that precludes the attempt, from a lack of will amounting to cowardice.

[Fat Man]

"I don't think we should eliminate universal jurisdiction. ... It should be vigorously used against Somali pirates ..."

This would be more interesting if any country had attempted to clean out the Somali pirate's nest. The fact is that they haven't, and they have acted like they don't want to touch it. Maybe the concept should follow the intestinal fortitude of the West into Davy Jones' locker.

[Matt]

I'm not completely sure how I feel about universal jurisdiction. I can see some arguments for it for particularly serious crimes, but also some real drawbacks. But my understanding is that when Garzón went after Pinochet it wasn't on the basis of universal jurisdiction, but rather on the grounds that some of the people killed by death squads operating under Pinochet's direction were Spanish citizens and that he therefore had jurisdiction under normal Spanish law, just as a US court would, at least arguably, under US law. I think he's a big proponent of universal jurisdiction, but my understanding is that the actual cases he's brought have not made use of it. Is that not right? If it is right then the criticism here is at least a little bit off on the factual matter.

[LarryD]

If some State got offended enough by, say, Spain's judge Baltasar Garzón, and downgraded relationships to a state of hostility, not just of Spain but the entire EU (which supposedly has a united foriegn policy). the negatives might be brought home.

The Allies at least had the justification that many of the war crimes were commited against their solders, and in some cases civilians, and as victors, they had at least temporary jurisdiction over (and responsibility for and to) other victims.

But an functioning and unconquered State might well consider a claim of universal jurisdiction against its official acting in their official capacity, as an Act of War.

[Cornellian]

"Today's version of universal jurisdiction masquerades as a legal concept, but is in fact a form of political morality. It empowers prosecutions in states with little or even no connection to alleged offenses such as war crimes and gross abuses of human rights."

Bolton is hardly in a position to complain about universal jurisdiction in other countries since he claims it for America. In his view, America's right of self defense gives it the right to intervene militarily anywhere in the world, subject only to the military difficulty (so we won't invade Russia), economic self interest (so we won't invade China) or desire not to alienate countries we like (so we won't invade Britain). Frankly, given the choice between a foreign country that confers jurisdiction over me on its courts even though a I live in the US, and a foreign country that claims the right to bomb me here in the US, I'll choose the former.

[Anne Herzberg]

Universal jurisdiction isn't necessarily a bad thing if proper controls are in place such as a requirement for Attorney General or other Executive approval of such cases. But it is appalling that NGOs and other private actors, who wish to circumvent foreign policy they disagree with and interfere with diplomatic relations, have the ability to secure arrest warrants without the knowledge of government officials

Please see my monograph on NGO "Lawfare": Exploitation of Courts in the Arab-Israeli Conflict and my oped in the wsj for more on universal jurisdiction cases against Israelis.

http://www.ngo-monitor.org/data/images/File/lawfare-monograph.pdf

http://online.wsj.com/article/SB122583394143998285.html

Anne Herzberg, Legal Advisor
NGO Monitor (www.ngo-monitor.org)

[willis]

"There is no question that the Nuremberg trials ere a clear case of victors' justice. Admiral Doenitz, who headed the u-boat campaign, got ten years in Spandau for waging illegal submarine warfare -- precisely the same kind of submarine warfare that the U.S. practiced against Japan."

Doenitz headed a u-boat campaign against the US for an extended period of time when the US was not at war with Germany. How can you equate that to the US waging a u-boat campaign against Japan which had declared and iniated war against the US before we iniated military action of any kind?

[John Farren]

Bolton stated: "It is no accident that arrest warrants never seem to be issued for the likes of Kim Jong Il or Mahmoud Ahmadinejad, since the real targets of universal jurisdiction these days are Western nations."

He may well be correct about the underlying motivation; however in relation to the case of Ms. Livni, I have read that had she been a serving minister a warrant could not have been issued, as one was refused for Ehud Barak from the same court. See http://www.timesonline.co.uk/tol/comment/leading_article/article6958044.ece

As Kim etc. tend to remain in office, they also tend to keep sovreign immunity.

IIRC this was a major issue in the arguments between Sudan and the Hague Court on the indictment of Pres. Bashir: the ICC has determined that it may indict but cannot prosecute present holders of state office.

In most European countries there are now requirements for consultation with govt. attorneys before issuing warrants based on universal jurisdiction: Britain is the only country both upholding universality and without means for the attorney general to tell the courts to stop being silly, due to the combination of the 1957 Geneva Conventions Act and the 2001 International Criminal Court Act.

Typical failure of the Labour govt. lawyers to think issues through, in other words. I predict this will be remedied as soon as parliamentary time becomes available (i.e.after the election).

In continental Europe, it is notable that so far at least suits have been filed or magistrates investigations initiated against e.g. John Yoo, Gen. Franks, Rumsfeld etc. but so far all have been dismissesd, dropped, blocked or had the responsible magistrate replaced.