Universal Jurisdiction

by

Margarita Robles

• LAST REVIEWED: 28 March 2018
• LAST MODIFIED: 28 March 2018
• DOI: 10.1093/obo/9780199796953-0054

Introduction

The history of universal jurisdiction (UJ) has always been considered in dramatic terms, sometimes tragic. It has been the story of the heroes of justice against the slaves of politics, unpunished criminals against innocent victims, privileges and immunities against equality and dignity—in short, oppressors against the oppressed. The evolution has also been described in dramaturgical terms as the rise and fall of the gods or as an opera in three acts. From Eichmann in Jerusalem in the 1960s to Hissène Habré Extraordinary African Chamber in 2013, there is a long and tortuous road with undeniable mistakes, setbacks, and abuses. But there are also significant and valuable results and a constant determination in the fight against impunity. It has not been the path of rise and fall, as argued by some doctrine, but rather that of the definitive assertion of a principle and the progressive determination of its scope and limits. More than anything else, UJ is a clearly established principle located in the intersection between international and domestic law whose main objective is the fight against impunity. Its existence cannot be questioned, but it is still under construction because it has become necessary to restate and clarify its purpose, rationale, nature, scope, and limits as a result of its practical application. The principle is not applied homogeneously, nor is its application implemented without difficulty. The polemical questions are neither few nor lightly dismissed. According to the Princeton Principles, UJ “is criminal jurisdiction based solely on the nature of the crime, without regard to where the crime was committed, the nationality of the alleged or convicted perpetrator, the nationality of the victim, or any other connection to the state exercising such jurisdiction.” The first section of this article is devoted to its origins and evolution. The next five sections are organized by authorship, including general or global contributions on UJ bringing us different and complementary approaches and working methods: general overview, academic institutions, international journals, institutional and political forums, and nongovernmental and civil society organizations. Each of them, by their nature and objectives, provides a unique perspective on UJ. These sections are systematized by subject: foundation; concept, nature, and typology; relationship with other principles and institutions; implementation; scope of application; and, finally, territorial application.

Origins and Evolution

The Adolf Eichmann and the Augusto Pinochet cases represent a landmark in the evolution of UJ, although, as is known, they are quite different from each other. The Eichmann case was controversial for three main reasons: the way in which he was captured, the grounds of jurisdiction and the trial, and the evolution followed by Israel concerning UJ. About this case, Arendt 1963 develops its lucid study of the banality of evil that had deserved to go down in history rather than the process itself. Nearly forty years later, a Spanish judge ordered the arrest of Pinochet, the Chilean general. Remiro Brotóns 1999 makes an accurate analysis of the whole process. At the beginning of the 1990s, Belgium had passed some legislative reforms recognizing UJ. Both the legislative and judicial have led to the so-called explosion of litigation from 2000 onward. In fact, its origin and foundation are located long before in Hugo Grotius, Diego de Covarrubias, Emmerich de Vattel, and Jeremy Bentham. Orford 2009 goes back to the Holy Roman Empire. Cowles 1945 is an original study on the universality of jurisdiction. The subsequent evolution is well explained in Seroussi 2008. The current situation can be illustrated with two opposite approaches. More than a decade after the Pinochet Case, UJ remains polemical. The general assessment of its existence and value are parallel to the increase of discussion about its scope and limits. Even the question of its nature should be considered from three different perspectives: functional, analytical, and constitutive. In the hearth of the controversy, there are two irreconcilable views. According to Remiro Brotóns 1999, the accusation of the dictatorship of judges conceals the discomfort or displeasure with the independent exercise of judicial power. For Kissinger 2001, a movement without precedent has emerged to submit international politics to judicial procedures with the danger and risk of substituting the tyranny of judges for that of governments. The year 2013 brought us two different results of UJ. In April, in Kiobel v. Royal Dutch Petroleum Co., the US Supreme Court decided that there is a presumption against extraterritorial application of the Alien Tort Statute and that presumption can be overcome only when the matter touches and concerns the United States with sufficient force. In February, in the Habré Case, the Extraordinary African Chambers were finally inaugurated in Dakar. Robles Carrillo 2014 explains the dynamics of universalization and regionalization of UJ, while Langer 2015 explores its evolution through two different paradigms.

• Arendt, Hannah. Eichmann in Jerusalem. New York: Viking, 1963.

  This report on the banality of evil is based on a series of articles that Arendt wrote about the trial as journalist for a newspaper. Structured chronologically, there are three main topics: the so-called “show” trial, Eichmann himself, and the treatment of Jews. The essay is essential to understanding the historical, political, and philosophical background surrounding the universalization of justice.

• Cowles, William B. “Universality of Jurisdiction over War Crimes.” California Law Review 33.2 (1945): 177–218.

  DOI: 10.2307/3477334

  Written just after the Second World War, the term “war criminal” was regarded from historical, doctrinal, legal, and jurisprudential perspectives. The methodology implemented consisted of comparing norms, analyzing military tribunals, and explaining case law. The author concludes that states have an interest and the jurisdiction to prosecute and punish any war criminal unless such prosecution is prohibited by international law.

• Kissinger, Henry A. “The Pitfalls of Universal Jurisdiction.” Foreign Affairs 80.4 (2001): 86–96.

  DOI: 10.2307/20050228

  The former US secretary of state strongly criticizes the process of UJ. The first part, titled “Risking Judicial Tyranny,” contains a description of the events prior to Britain’s detention of Pinochet. The second part, “A Dangerous Precedent,” attempts to show the incongruity of Spain as prosecutor taking into account its former dictatorship. Finally, it refers to international courts and includes some proposals to avoid UJ.

• Langer, Máximo. “Universal Jurisdiction Is Not Disappearing: The Shift from ‘Global Enforcer’ to ‘No Safe Haven’ Universal Jurisdiction.” Journal of International Criminal Justice 13.2 (2015): 245–256.

  DOI: 10.1093/jicj/mqv009

  This article offers an interesting alternative to the conventional views of the UJ’s evolution by explaining that its trajectory can be understood as an ongoing competition between two conceptions of the role of the states: the “global enforcer” and the “no safe haven” conceptions concerning the fight against impunity.

• Orford, Anne. “Jurisdiction without Territory: From the Holy Roman Empire to the Responsibility to Protect.” Michigan Journal Law Review 30.3 (2009): 981–1015.

  The most relevant part is “Territory and Jurisdiction in the Modern World” (pp. 984–992). It includes a historical study of UJ from early Roman law until the early 21st century, making references to royal, papal, and empire jurisdiction, among others, and to some scholars such as Thomas Hobbes.

• Remiro Brotóns, Antonio. El caso Pinochet: Los límites de la impunidad. Madrid: Política Exterior, 1999.

  The author presents a complete study of the Pinochet case. The book covers its facts, its process, and the all legal questions arising in this affair, and, more concretely, international crimes and universal prosecution, extradition, immunity, and interstate controversy. It was an early and clarifying work and is still a precise and rigorous analysis due to the author’s arguments and conclusions.

• Robles Carrillo, Margarita. “El principio de jurisdicción universal: Estado actual y perspectivas de evolución.” Revista Española de Derecho Internacional 66.2 (2014): 81–111.

  The author analyzes the evolution of UJ in two opposing directions. On the one side, UJ has been restricted by policy reforms designed to limit and control its exercise, and, on the other, UJ has been introduced in many other legal systems leading to a progressive globalization of this principle, which is a sine qua non condition to provide it with the necessary legitimacy.

• Seroussi, Julien. “La cause de la compétence universelle.” Actes de la Recherche en Sciences Sociales 173 (2008): 98–109.

  DOI: 10.3917/arss.173.0098

  This outstanding article explains the evolution of UJ from the perspective of nongovernmental organizations and civil society. Here, UJ is treated as a process divided into three parts: international mobilization in support of this principle, the appearance of divergences between the advocates of UJ, and the explosion of litigation. The most respected case law is analyzed from an original and constructive approach.