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. ...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:
... 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 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.