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date: 18 January 2018

Domestic Application of International Human Rights Norms and Universal Jurisdiction

Summary and Keywords

Domestic courts play an important role in the adjudication of international law, including international human rights law. The relationship between international and domestic law has often been characterized as a continuum between monism and dualism. In a monist system, international law is automatically a part of domestic law, and a conflict between the two is resolved in favor of international law. In a dualist system, domestic law is superior to international law within the domestic legal system, while international law is superior to domestic law within the international legal system. A conflict between domestic law and international law is thus not always resolved in the same way in both systems. In addition, one of the areas with the most active use of international law in a domestic legal system is under a theory of universal jurisdiction. Universal jurisdiction most often involves both the incorporation of international law into a domestic legal system and the assertion outward (extraterritorially) of domestic judicial system. Universal jurisdiction arose initially in the context of criminal prosecutions, but is also found to some extent in civil litigation, particularly in the United States. Under the principle of universal jurisdiction, a state may assert jurisdiction over an offender regardless of the nationality of the offender or victim, the place of commission of the wrongful act, or any other link to the state asserting jurisdiction.

Keywords: domestic law, international law, international human rights law, universal jurisdiction, monism, dualism

Introduction

International law is mostly enforced in domestic legal systems. It was only with the creation of the Permanent Court of International Justice after World War I, which gave way to the present-day International Court of Justice, that formalized legal institutions were established to adjudicate and pronounce upon matters of international law. Following World War II, the international community created numerous international adjudicatory and related bodies, a process that gained even more momentum after the end of the Cold War. Despite the proliferation of international bodies, domestic courts still play an important role in the adjudication of international law, including international human rights law, and there is no doubt that they will continue to do so. First, not all countries are within the jurisdiction of the three existing regional human rights courts (in Africa, the Americas, and Europe). Second, it is a general principle of international law, including international human rights law, that an international body will not hear a dispute unless the parties have exhausted all domestic remedies. Thus even if, or when, all countries are subject to the jurisdiction of an international human rights court, domestic courts and legal systems will continue to play an important role in adjudicating, interpreting, and enforcing international human rights law. The question of the relationship between international law and domestic legal systems is thus today an important one, and will continue to be important for the foreseeable future.

This essay provides a brief introduction to some of the major themes and doctrines concerning the incorporation of international human rights law into a domestic legal system. While aspects of this discussion also apply more generally to the incorporation of international law into a domestic legal system, this essay is limited to a discussion of international human rights law. International human rights law includes the major international and regional treaties concerning human rights (e.g. the International Covenant on Civil and Political Rights; the International Covenant on Economic, Social, and Cultural Rights; the African Convention on Human and People’s Rights), but also to some extent what is more properly called international criminal law (see Slye and Van Schaak 2009). With the creation of ad hoc international criminal tribunals for the former Yugoslavia and Rwanda, the creation of a permanent international criminal court, and the creation of hybrid tribunals which have both domestic and international elements (e.g. Cambodia, Sierra Leone, East Timor), there has been an enormous increase in the development of international criminal law at the global level that has inevitably trickled down into domestic legal systems. For example, many states have passed legislation to criminalize domestically those crimes within the jurisdiction of the international criminal court in order to take advantage of that court’s deference to national criminal legal processes. The ad hoc tribunals have initiated a process of winding down that includes the transfer of some of their cases to domestic courts for prosecution. These and other related developments are beyond the scope of this essay.

Monism and Dualism

The relationship between international and domestic law has often been characterized as a continuum between monism and dualism. Monism posits a seamless legal system with international law occupying a superior position to domestic law. In a monist system, international law is automatically a part of domestic law, and a conflict between the two is resolved in favor of international law. Dualism posits two separate yet co-existing legal systems – one domestic, the other international. In a dualist system, domestic law is superior to international law within the domestic legal system, while international law is superior to domestic law within the international legal system. A conflict between domestic law and international law is thus not always resolved in the same way in both systems. In a dualist system, an individual’s rights may be violated as a matter of international law, but not necessarily as a matter of domestic law. Some refer to monism as the adoption theory, and dualism as the transformation theory (Bayefsky 1997:295). This binary approach is challenged by some scholars, though there is no question that it is the dominant paradigm through which the relationship between the two bodies of law is viewed.

Much of the literature on the relationship between domestic and international law takes a positivistic, technical, and comparative approach: positivistic as it focuses on positive law (whether it be legislation or case law, domestic or international); technical as it focuses on the technical legal doctrines by which international law is incorporated into a domestic legal system; and comparative as it focuses on the positivist and technical approaches taken by different domestic legal systems. Because these scholars look at comparative state practice, their work may also provide evidence of either customary international law or general principles of law. A smaller, though significant, group of scholars takes a more theoretical approach to the subject, and in particular challenges the accepted monist/dualist paradigm. I will refer to the first school (the positivist, technical, and comparative approach) as the comparativist school, and the second school as the theoretical school. Like many such labels, they do not adequately describe the diversity of approaches within their respective spheres. Those I group under the comparativist school often ground their work on strong theoretical assertions and make important theoretical contributions. Those I label theorists often look at and discuss state practice either to ground their more theoretical approach or as illustrative examples. Hersh Lauterpacht was a strong proponent of monism who brought a keen theoretical eye to the subject (Lauterpacht 1955:38). Hans Kelsen (1945:363–80; 1966:553–88) is also a good example of this approach.

Comparativists

Good examples of the first, comparativist, school, can be found in a volume edited by Bendetto Conforti and Francesco Francioni (1997), and a volume written by Christof Heyns and Frans Viljoen (2002). The former looks at the incorporation and influence of international human rights law in 12 different countries (Argentina, Austria, Canada, Chile, China, France, Germany, Israel, Italy, Japan, United States, and United Kingdom); the latter in 20 (Australia, Brazil, Canada, Colombia, Czech Republic, Egypt, Estonia, Finland, India, Iran, Jamaica, Japan, Mexico, Philippines, Romania, Russia, Senegal, South Africa, Spain, and Zambia). The study by Heyns and Viljoen adopts a more deliberate empirical approach, whereas the volume edited by Conforti and Francioni provides a more impressionistic approach. The former applies a common methodology to each of the 20 case studies, including a series of interviews with domestic actors; the latter consists of essays written by different contributors, each of whom has been given by the editors discretion in how they approach the topic. As its title suggests, the Heyns and Viljoen volume focuses on the incorporation of human rights treaties, and thus is narrower in its scope than Conforti and Francioni, which looks at international human rights law more broadly.

Heyns and Viljoen look at a number of indicators to measure the influence of human rights law on domestic legal systems, including (1) the mandatory instruction of international human rights law in law schools (which is found in the Czech Republic, Egypt, India, Romania, South Africa (for most law schools), and Spain); (2) the reference to human rights treaties found in the media; and (3) legislative change as a result of treaty ratification, and some in response to concluding observations by human rights treaty mechanisms. The volume is not purely descriptive; it draws upon its findings among 20 different case studies to make a number of prescriptive proposals for enhancing the influence of human rights treaties.

While Heyns and Viljoen narrow their focus to human rights treaties, some scholars focus on the influence of specific human rights treaties within domestic legal systems, or on a specific subject within international human rights law. One of the better examples of both a treaty- and subject-based focus is found in a volume edited by Rebecca Cook (1994), which focuses on the influence of the Convention on the Elimination of Discrimination against Women (CEDAW) on domestic legal systems. (See particularly the essays in Part IV of that volume.) In addition to focusing on the influence of one treaty, this volume also has one of the few accessible essays centering on incorporation within the context of an Islamic legal system – the Sudan (Halim 1994). Carmen Tiburcio (2001) looks at the incorporation of international law concerning aliens into various domestic legal systems. Tiburcio’s is less of a study of the mechanics of how international law is incorporated, and more an inquiry concerning how well different domestic legal systems conform with international law.

In addition to these more academic approaches to the subject, there are those who write about the domestic incorporation of international human rights law from an advocacy perspective. Thus Hurst Hannum’s Guide to International Human Rights Practice (Hannum 2004), particularly the contribution by Ralph Steinhardt (2004), provides a more advocacy-oriented approach to the subject. Steinhardt’s primary focus is on United States practice, but he includes some brief comparative discussion of other countries, though this is limited to Europe, Canada, South Africa, and Japan. (Steinhardt notes, however, that most of his information comes from Conforti and Francioni (1997) discussed above, as well as Scott (2001)).

Finally, there are also studies of individual countries and their treatment of international law. One of the more thoughtful examples of this genre is John M. Roger’s study (1999) of the incorporation of international law into the legal system of the United States. He provides not only a thorough discussion of early case law on the subject, but also a thoughtful discussion of the policies underlying US doctrine, a policy-oriented discussion that is useful when looking at the treatment of international law in other domestic legal systems.

While Heyns and Viljoen look at a wide variety of indicators for measuring the influence of international human rights law domestically, most of the comparativist school focuses on a handful of technical doctrines that govern the incorporation of international law into a domestic legal system. The most direct incorporation is found in countries that provide an automatic cause of action domestically for international law. Germany, for example, in Article 25 of its Basic Law, treats “general principles of international law” as superior to statutory law and inferior to constitutional law, and thus gives this body of international law direct effect.

These more empirical, comparativist studies tend to focus on a number of incorporation doctrines: self-execution; treaty reservations, understandings, and declarations; and doctrines of interpretation.

Self-Executing Treaties

Treaties may be directly incorporated into a domestic legal system if (1) the treaty is considered to be self-executing and (2) the domestic legal system allows such direct incorporation. The doctrine of self-execution refers to treaties, or provisions of treaties, that automatically become part of a state’s domestic law. Treaties, or treaty provisions, that are not self-executing require domestic legislation in order to make their provisions applicable domestically. In the United States, most provisions of international human rights treaties have been treated as though they are non-self-executing, and thus require congressional legislation before they become applicable as part of domestic law. Article 98(2) of the Japanese Constitution has been interpreted to make treaties directly enforceable under domestic law. Treaties are also superior to statutes under Japanese law – that is, their provisions prevail over a later-enacted statute (Iwasawa 1997).

Whether a treaty is self-executing or not raises particular problems in a system like that of the United States where the process by which treaties are ratified is different from the process by which statutes are passed. In the United States the latter requires a majority vote by both houses of Congress (i.e. the House of Representatives and the Senate), whereas the former requires a two-thirds vote of just the Senate. (Both also require presidential approval.) This means that the President and two-thirds of the Senate can enact legislation in the United States through the treaty power, assuming of course that the treaty provisions are considered to be self-executing, and thus enact legislation without the involvement of the most democratic legislative body, the House of Representatives.

Reservations, Understandings, and Declarations

Treaties are also subject to reservations. A state party may attach reservations, understandings, or declarations to a treaty – often referred to collectively as “RUDs.” Understandings are meant to clarify, but not alter, the legal meaning or effect of a provision. A declaration is normally used to indicate a state’s agreement to a particular optional part of a treaty – for example, allowing other state parties to bring complaints alleging a violation of the state’s obligations under the treaty (as provided under Article 41(1) of the International Covenant on Civil and Political Rights).

A reservation is a statement expressing the state party’s intent to alter the legal effect of a treaty provision with respect to that state’s treaty obligations. Provisions labeled as an understanding or a declaration that in fact reflect an intent to alter the legal effect of a treaty provision are treated as reservations despite the label placed on them by the ratifying state. Most states have attached reservations to the major human rights treaties. In fact CEDAW has one of the highest incidents of reservations of any treaty in the world. The United States, among other states, often attaches a reservation to its ratification of human rights treaties declaring that its provisions are not self-executing, and thus not automatically incorporated into domestic US law. Germany attached a reservation to the Children’s Convention effectively saying that existing German law takes precedent over any provision of the Convention (Simma et al. 1997:79). While reservations are considered invalid if they are incompatible with the “object and purpose” of a treaty, there is a lack of clarity about what would constitute a treaty’s object and purpose, and in the case of multilateral human rights treaties no clear rule of enforcement against a state that is found to have attached an invalid reservation to a treaty.

There is little jurisprudence on what constitutes the object and purpose of a treaty. The International Court of Justice declared in an advisory opinion that a reservation was invalid if it was incompatible with the object and purpose of the treaty (International Court of Justice 1951). The Human Rights Committee of the International Covenant on Civil and Political Rights has issued a general comment on reservations and human rights treaties that is not without controversy (United Nations 1994). Goodman (2002) canvasses these and other authorities in one of the more thoughtful discussions of the appropriate remedy for an invalid reservation.

Interpretation

International human rights law may also influence domestic law by providing guidance for the interpretation of domestic law. Many domestic legal systems contain a presumption that domestic statutes are to be interpreted consistent with international law unless the legislature has made clear its intent to legislate contrary to international law. A smaller number of countries apply a similar doctrine of interpretation to their higher or constitutional law. This doctrine of interpretation may be created by a judicial decision (e.g., the United States and Germany); directly by an express constitutional provision (e.g., Portugal, Guatemala, Colombia, and Spain); indirectly by a reference to international human rights law in the constitution (e.g., Nicaragua); or by a statute (e.g. Argentina and China). Germany, for example, through a judicial decision applies this doctrine of interpretation to the provisions of its Basic Law (i.e., its constitution), even though the provisions of the Basic Law are doctrinally superior to international law (Simma et al. 1997:95). The United States also adopts such a rule of interpretation that has its origin with an early Supreme Court case called “The Charming Betsy” (United States 1804). The same position is constitutionally mandated in Portugal and Spain, the constitutions of which require that its rights are interpreted consistently with international human rights norms (Simma et al. 1997:95, n. 91). The 1985 Guatemalan constitution expressly provides that human rights treaties take precedence over domestic law, as does the 1991 Colombian constitution. Nicaragua, by contrast, in its 1987 constitution makes specific reference to both the Universal Declaration of Human Rights and the American Declaration of Human Rights, thus allowing each of them to be used as a guide for interpretation of its constitutional provisions.

In a decision in the early 1990s, the Argentinean Supreme Court interpreted the Vienna Convention on the Law of Treaties, to which Argentina was a party, to require that domestic law not be in conflict with international law. This was binding on Argentina because, as a matter of domestic law, the government had ratified and thus incorporated the Vienna Convention into domestic law (Vinuesa 1997:155–64). Note, however, that the Argentinean Supreme Court soon after narrowed its interpretation of this decision, so that in practice Argentina is not a pure monist system.

Argentina thus presents an interesting example of a dualist mechanism (the incorporation of a treaty domestically through legislation) creating a monist system. Although the effect of this decision was quickly narrowed by the courts, Argentina amended its constitution in 1994 to accord to the provisions of human rights treaties (but pointedly not other treaties) the same authority as provisions of the constitution itself.

Li (1997:339–40) asserts that Article 238 of the Civil Procedure Law provides that provisions of a treaty prevail over any other statute. It is not clear if customary international law is given the same force, and Li’s discussion is rather confusing as in the same article he notes that human rights treaties in China are not “directly applicable.” It appears that China adopts a position more like that of the United States – asserting that most human rights treaties are non-self-executing and thus require implementing legislation. This would explain the seemingly contradictory assertions in Li.

Theorists

Theoretical approaches to domestic incorporation of international law have been dominated by – and some would say trapped in – the binary paradigm of monism and dualism. Starke (1989:71–7) provides a thoughtful, and slightly nuanced, treatment of monism and dualism in a basic international law treatise. In the last century this paradigm has dominated. One of the modern classic treatises on public international law, Principles of Public International Law by Ian Brownlie (1998:33–4), notes the inadequacy of the monist/dualist paradigm, but devotes less than a short page to alternative theories. Brownlie devotes the vast majority of his discussion on the topic to practical questions of how international law is incorporated into various domestic legal systems, focusing primarily, though not exclusively, on the United Kingdom.

Hersh Lauterpacht, another classic author in the field of international law, also raised questions about the utility of the monist/dualist distinction. He suggested that the distinction is “to a large extent unreal and that, in fact, no practical consequences of importance follow from any of the solutions adopted” (Lauterpacht 1970:153). Lauterpacht took a very strong pro-international law position, concluding that international law is as much concerned with individuals as it is states, and thus that the binary monist/dualist distinction is less useful. In doing so he presaged the pervasiveness and strength of the modern international law of human rights (Lauterpacht 1970:151–77; 216–30).

The dualist/monist distinction has been recently challenged in a thoughtful volume edited by Janne Nijman and Andre Nollkaemper (2007). In their introductory essay, the editors trace the political context in which the distinction arose and flourished – in particular the period between the two world wars. Noting the dramatic changes that have occurred since – the rise of international institutions; human rights; rise of non-state centers of power and influence; globalization – the editors and some of their contributors raise the question of whether the distinction has any relevance or usefulness today. They are thus revising a debate that occupied international law scholars for centuries, but which has been largely absent from the academy in the last hundred years.

Nijman and Nollkaemper (2007), as well as some of the contributors to their volume, argue that attention should be shifted away from international law and its influence on domestic legal systems, and instead focus on universal values and their influence on domestic legal systems. Focusing on values rather than law allows a move away from a focus on technical legal doctrines to a more nuanced evaluation of the influence of international processes and politics on their domestic counterparts.

A focus on values has been one of the more promising avenues of discussion for the relationship between a notion of universal values of human rights and value systems that are in tension with some of these asserted universal values. This approach is best represented by the work of Abdullahi An-Na’im (1990a; 1990b), who adopts a cross-cultural dialogue approach to bridge the conflict between Islam and more Christian and Western versions of universal human rights.

Nijman and Nollkaemper (2007:349) refer to “neo-monism,” an approach that looks beyond the states as coherent but separate entities, and deconstructs the dyadic international–national paradigm to look at transnational processes. This is an approach that has been growing within academic circles, particularly among international law academics and international relations theorists who move between both of their respective fields. These theorists look beyond the static polarity of monism and dualism, and instead look at the multiple iterations of relationships among various political, legal, and economic actors. Thus Harold Hongju Koh (1998) looks at transnational legal processes – those processes by which law moves both up to the international level and down to the domestic level, and across different states. Anne-Marie Slaughter (2004) looks at the influence of state institutions in one country on similar institutions in other states and internationally. She thus focuses on the international relationships among regulatory agencies, parliaments, courts, and other core government agencies, and on horizontal and vertical networks organized by substantive area of focus, which she argues provides a better way of understanding the international political, and legal, landscape, including the influence of international and domestic law on each other. In practice, one sees these networks bypassing traditional national government channels. In the United States, for example, local municipalities and states willingly adopt, as either policy or law, the provisions of various international treaties (Women’s Enterprise and Development Agency n.d.).

These theoretical approaches challenge the focus of much of the positivistic literature on incorporation, for example. Instead they draw attention to cultural, political, and economic processes to understand better how values, rather than laws, make their way across systems. These modes of analysis have by no means replaced the dominant monism/dualism paradigm and its focus on incorporation that one finds in virtually every court judgment concerning the relationship between international and domestic law. Their growing purchase in the halls of academia may presage their incorporation into judicial pronouncements.

Universal Jurisdiction

Regardless of whether the theorists supplant the comparativists, one of the areas where one sees the most active use of international law in a domestic legal system is under a theory of universal jurisdiction. Universal jurisdiction most often involves both the incorporation of international law into a domestic legal system and the assertion outward (extraterritorially) of domestic judicial system. Universal jurisdiction arose initially in the context of criminal prosecutions, but is also found to some extent in civil litigation, particularly in the United States.

Under the principle of universal jurisdiction, a state may assert jurisdiction over an offender regardless of the nationality of the offender or victim, the place of commission of the wrongful act, or any other link to the state asserting jurisdiction. The principle of universality asserts that there are certain acts that are so heinous, and that so violate the integrity of the international community, that any state may prosecute or otherwise assert jurisdiction over an individual suspected of committing them.

Universal jurisdiction is one of four bases of jurisdiction recognized under international law. In addition to universality, international law recognizes three other bases for a state to assert jurisdiction: territoriality; nationality; and protection. Territoriality, which is the least controversial of the four bases of jurisdiction, provides a state with jurisdiction over all activities that occur within its territory. More controversially, the territorial principle has been expanded to include jurisdiction over acts that occur outside of a state’s territory but that have effects within its territory. Nationality is itself divided into two parts: active and passive. Active nationality provides a state with jurisdiction over the acts of its nationals regardless of whether such acts occur within its territory. Passive nationality (sometimes referred to as passive personality) provides a state with jurisdiction where the victim of the offense is a national of the state. Historically this has been the most controversial, and the least accepted, basis for asserting jurisdiction, though with the rise of legislation against acts of terrorism it is growing in appeal and strength. Finally, the protective principle permits a state to assert jurisdiction over any act that threatens the integrity of the state. While one may be tempted to interpret the protective principle so as to encompass military, political, or economic threats against a state, the overwhelming consensus is that this principle is limited to acts like counterfeiting and fraud perpetrated upon a diplomatic officer.

Universal jurisdiction was developed to address a pressing problem facing eighteenth and nineteenth century Europe and North America: piracy. Pirates were often effectively stateless and committed their crimes on the high seas (although attacks on flagships often triggered territorial jurisdiction). Consequently, it was at times difficult for states to assert jurisdiction over pirates under any of the traditional principles of jurisdiction. Pirates were referred to as hostes humani generis (“enemies of all humankind”). Under the then novel theory of universal jurisdiction, any state could prosecute a pirate even if that state or its citizens had not been harmed. Alfred Rubin (1998) provides a good discussion of the early history and law of piracy.

While universal jurisdiction is often invoked to support assertions by a state to prosecute criminally an individual for a violation of international criminal law, it may also be invoked to support the assertion of non-criminal jurisdiction over a wrongdoer. The most vigorous use of universal jurisdiction outside of the criminal area is found in cases brought in the United States under the Alien Tort Statute (28 USC §1350: “The district courts shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States”). In a seminal case, the US Court of Appeals for the Second Circuit interpreted the phrase “tort […] committed in violation of the law of nations or a treaty of the United States” as referring to the modern body of customary and treaty-based international human rights law (United States 1980). Under the Alien Tort Statute, a foreign citizen may bring a civil suit against anyone (whether foreign or domestic) alleging a violation of that plaintiff’s human rights regardless of where that alleged violation may have occurred. Ironically, US citizens may not invoke the Alien Tort Statute as, by its terms, it only confers rights on aliens (i.e., non-citizens). Congress modified this anomaly partially by passing the Torture Victim Protection Act – though the latter provides US citizens with the right to bring claims only for torture and extrajudicial killing, and not for any other “tort in violation of the law of nations” that is available to aliens. The Torture Victim Protection Act can be found in a note appended to 28 USC § 1350.

More common than the assertion of civil jurisdiction under a theory of universal jurisdiction is the assertion of criminal jurisdiction. The attempt to prosecute General Augusto Pinochet by a Spanish court, and the legal battle that ensued in the United Kingdom over Spain’s request for the extradition of General Pinochet, is one of the most prominent, if not the earliest, example of the assertion of universal jurisdiction. The current prosecution of the former President of Chad, Hissène Habré, by Senegal is another, and more recent, example of the use of universal jurisdiction to prosecute a foreign national for acts that have no direct connection to the state prosecuting.

Some international treaties provide for universal jurisdiction, usually through a requirement that a state either extradite an individual to a state that will prosecute him, or prosecute the alleged offender themselves. These aut dedere aut judicare (“extradite or prosecute”) provisions are found, for example, in Article 7 of the Convention against Torture. The phrase is a variation on aut dedere aut punire (“extradite or punish”), coined centuries ago by one of the founders of modern international law, Hugo Grotius (Grotius 1925: 526–9; Bassiouni and Wise 1995:3). One of the purest expressions of universal jurisdiction is found in Article V of the Apartheid Convention, which provides in relevant part: “Persons charged with the acts enumerated in article II of the present Convention may be tried by a competent tribunal of any State Party to the Convention which may acquire jurisdiction over the person of the accused.” The Geneva Conventions of 1949 – the only treaties to have attained ratification by all states of the world – provide for universal jurisdiction for offences that are listed as “grave breaches” of those conventions.

While some treaties clearly provide for universal jurisdiction, it is less clear – in fact, somewhat contested – whether customary international law provides for universal jurisdiction for certain heinous acts. A recent and comprehensive study of universal jurisdiction, both within domestic legal systems and internationally, concludes that as of 2002 customary international law does not permit a state to assert universal jurisdiction (Reydams 2003). Luc Reydams, the author of this study, also clearly does not think as a matter of policy that customary international law should allow for pure universal jurisdiction. Pure universal jurisdiction refers to the right of a state with no connection to an offense (thus an act not committed in its territory; not involving any of its nationals; and not threatening the integrity of the state), including having no custody over a responsible individual, to assert jurisdiction over that individual. In contrast, conditional universal jurisdiction refers to the assertion of jurisdiction over an act that has no connection with the state asserting jurisdiction, but in which the state has obtained custody of a responsible party. The difference between these two types of universal jurisdiction turns on the physical presence of the defendant. Pure universal jurisdiction permits a state to assert jurisdiction over a suspect even if that individual has never set foot within its territory. Pursuant to pure universal jurisdiction, a state may thus investigate, indict, and issue an arrest warrant against a foreign individual who has never set foot within its territory, for an act with no connection to the state asserting jurisdiction. While some states allow criminal trials in absentia, most do not. Thus a state asserting jurisdiction based upon a theory of pure universal jurisdiction will not be able to try and, assuming the evidence warrants it, convict the individual unless he is within the custody of the prosecuting state. Conditional universal jurisdiction requires the presence of the individual defendant within the territory of the state asserting jurisdiction at the time such assertion is made. (Reydams adopts a more complicated typology of universal jurisdiction than I use here, referring to “pure universal jurisdiction” as “unilateral limited universal jurisdiction” and “conditional universal jurisdiction” as “cooperative limited universal jurisdiction.” The “limited” in his definitions refers to the limitations on the type of crimes covered, and not on the scope of the jurisdiction.)

This distinction between pure and conditional universal jurisdiction is set forth in one of the few international judicial decisions concerning universal jurisdiction, a case brought against Belgium by the Democratic Republic of the Congo challenging the issuance by the former of an arrest warrant against the then Foreign Minister of the latter (International Court of Justice 2002). While the majority of the opinions focused on issues of immunity, three of the judges felt it necessary to determine if there was jurisdiction at all (based upon universality) before reaching the question of whether a foreign minister was entitled to immunity. Those three judges made a distinction between pure and conditional jurisdiction, and asserted that under customary international law pure universal jurisdiction was permitted, while at the same time noting that there was no generally accepted definition of universal jurisdiction under either customary or conventional international law. Two other judges (Koroma and van den Wyngaert) also found that universal jurisdiction was permitted by customary international law. The other judges on the court either did not address the issue, found that there was no customary international law rule supporting universal jurisdiction in absentia (thus rejecting pure universal jurisdiction), or suggested that they support some form of universal jurisdiction.

There is a good deal of support for the proposition that customary international law permits the assertion by states over certain crimes under a theory of universal jurisdiction. Most agree that the list of crimes subject to universal jurisdiction includes piracy, slavery, genocide, crimes against humanity, certain war crimes, torture, and perhaps some forms of terrorism (United States 1987). Reydams, among others, is critical of the assertion that universal jurisdiction has risen to the level of customary international law. He examines 14 countries that include some form of universal jurisdiction within their legal systems – Australia, Austria, Belgium, Canada, Denmark, France, Germany, Israel, Netherlands, Senegal, Spain, Switzerland, United Kingdom, and United States – as evidence of state practice, and concludes that a rule of customary international law permitting pure universal jurisdiction cannot be established. Antonio Cassese, a prominent expert in international criminal law and former President of the International Criminal Tribunal for the former Yugoslavia, is also skeptical that customary international law at the moment provides for universal jurisdiction (Cassese 2003a:289–90; 2003b). This view is by no means universally held. Questions have been raised, for example, about the accuracy of some of Reydams’ assertions concerning domestic legal practice (Cockayne 2005). A good debate concerning the pros and cons of universal jurisdiction was carried in the journal Foreign Affairs between the former US Secretary of State, Henry Kissinger, and the executive director of Human Rights Watch, Kenneth Roth (Kissinger 2001; Roth 2001).

On a more prescriptive side, a prominent group of international law academics and practitioners convened as the Princeton Project on Universal Jurisdiction to develop a set of principles to guide the application of universal jurisdiction. The resulting Princeton Principles (Princeton Project on Universal Jurisdiction 2001) are designed to guide the prosecution of international crimes in national courts under universal jurisdiction. They set forth criteria for determining when it is appropriate to assert such jurisdiction, thus stating that the “imprudent or untimely exercise of universal jurisdiction could disrupt the quest for peace and national reconciliation in nations struggling to recover from violent conflict or political oppression.” Where a custodial state is asserting jurisdiction over an offender the Princeton Principles adopt an ad hoc, case-by-case test. Pursuant to Article 9, the custodial state is to “base their decision [to assert universal jurisdiction] on an aggregate balance of the following criteria:

  1. (a) multilateral or bilateral treaty obligations;

  2. (b) the place of commission of the crime;

  3. (c) the nationality connection of the alleged perpetrator to the requesting state;

  4. (d) the nationality connection of the victim to the requesting state;

  5. (e) any other connection between the requesting state and the alleged perpetrator, the crime, or the victim;

  6. (f) the likelihood, good faith, and effectiveness of the prosecution in the requesting state;

  7. (g) the fairness and impartiality of the proceedings in the requesting state;

  8. (h) convenience to the parties and witnesses, as well as the availability of evidence in the requesting state; and

  9. (i) the interests of justice.”

This case-by-case balancing-of-factors test echoes a test recommended by the three judges in the Arrest Warrant case to which reference was made above. Those three judges set forth the following conditions for a state to assert universal jurisdiction in absentia: (1) the national state of the accused must be given an opportunity to act on the allegations; (2) the prosecution must be initiated by a prosecutor or juge d’instruction, who is independent from control by the government; (3) special circumstances must exist to justify the assertion of jurisdiction, such as a request by the victims for the initiation of such a case; and (4) such jurisdiction must only be asserted over the most heinous crimes (Joint Separate Opinion of Higgins, Kooijmans, and Burgenthal).

There is no question that states have grown in their willingness to assert universal jurisdiction over some of the worst international crimes. The creation of the International Criminal Court (ICC) has if anything further encouraged states to assert such jurisdiction, as the ICC is premised on a jurisdictional regime of complementarity – that is, the ICC will only assert jurisdiction if a state is unable or unwilling to assert jurisdiction. State practice will thus continue in this area, providing further support to those who argue for a customary international law permission to assert universal jurisdiction, and providing more evidence of the contours of this increasingly important mechanism for holding individuals accountable for some of the worst crimes known to humanity.

References

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Electronic Information System for International Law (EISEL). At www.eisil.org, accessed May 14, 2009. This is the online research portal established by the American Society of International Law. It provides a good set of links to a variety of international law sites and resources.

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Oxford Reports on International Law. At www.oxfordlawreports.com, accessed May 14, 2009. This is a good resource on international decisions generally, but even more importantly it has a section on international law in domestic courts, one of the few such online resources that provide primary materials on the topic.

Trial Watch. At www.trial-ch.org, accessed May 14, 2009. A good source for summaries of international criminal trials, both at international tribunals and within domestic courts. Unlike the Oxford Reports these are limited to criminal trials, and they mostly do not contain full text of the decisions.