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2004 Universal Criminal Jurisdiction Douglass Cassel Notre Dame Law School, [email protected]

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Recommended Citation Douglass Cassel, Universal Criminal Jurisdiction, 31 Hum. Rts. 22 (2004). Available at: https://scholarship.law.nd.edu/law_faculty_scholarship/966

This Article is brought to you for free and open access by the Publications at NDLScholarship. It has been accepted for inclusion in Journal Articles by an authorized administrator of NDLScholarship. For more information, please contact [email protected]. long been recognized by customary Other bases of jurisdiction frequently Uni'versal international law over piracy, slavery, are inadequate to ensure that persons slave trading, and, more recently, geno- who perpetrate grave international cide. In the last half-century an expand- are brought to justice. The two ing series of treaties has recognized main alternatives to universal jurisdiction universal jurisdiction over such serious are prosecutions of criminals by their Jun..sd~ic tion international crimes as "grave breaches" national and prosecutions before of the 1949 Geneva Conventions and international criminal courts. Neither to the 1977 Geneva Protocol I and over date has proved sufficient to bring the By Douglass Cassel certain acts of international terrorism world's worst criminals to justice. such as hijacking aircraft and torture. National courts are often incapable The most recent treaties, ratified by the of prosecuting international crimes com- in 2002, authorize univer- mitted by their own citizens, although sal jurisdiction over terrorist bombings an increasing number of courts are rec- and financing of terrorism. International ognizing their responsibility to do so Convention for the Suppression of under international law. Genocide and Terrorist Bombings, 37 I.L.M. 249, art. acts of -sponsored terrorism, by 6.4 (1998); International Convention for nature, are committed by order of or the Suppression of Financing of with the tolerance of high-ranking mili- Terrorism, 39 I.L.M. 270, art. 7.4 (2000). tary or civilian leaders, who then shield Current federal law confers universal themselves and subordinates from pros- jurisdiction on federal civilian courts ecution by national courts. Friends in niversal criminal jurisdiction is an over at least the following crimes: pira- high places often shield war criminals Simportant tool in the worldwide cy; torture; air hijacking, destruction of and torturers as well. No Iraqi , for example, could or did prosecute struggle to end impunity for ser aircraft, and violence at international ous international crimes. Together with airports; violence against foreign offi- Saddam Hussein or the security officers other ABA entities, the Section on cials, official guests, and internationally who carried out his orders, at least protected persons; hostage taking; vio- while he remained in power. Similarly, Individual Rights and Responsibilities is sponsoring a Recommendation on univer lence against ships or fixed maritime certain often shelter inter- sal criminal jurisdiction for consideration platforms; financing of terrorism; and national terrorists by refusing to prose- at the February 2004 ABA Midyear terrorist bombings. In addition, general cute them or extradite them to the Meeting of the House of Delegates. The courts-martial have universal jurisdiction countries whose peoples they victim- Recommendation recognizes universal over war crimes to the extent permitted ized. The Taliban regime in Afghanistan, by the law of war, which includes grave for example, sheltered Osama bin criminal jurisdiction as essential and sug- breaches of the Geneva Conventions Laden despite his in the gests safeguards against its potential abuse. and Protocol. United States. International criminal courts have Universal Jurisdiction in International Need for Universal Criminal Jurisdiction made valuable contributions to the rule and American Law Universal criminal jurisdiction devel- of law within the last few decades. But Universal criminal jurisdiction is the oped over time as a response to interna- they do not yet have universal jurisdic- principle of international law that per- tional recognition of serious crimes tion or sufficient resources. Ad hoc tri- mits any to prosecute certain whose perpetrators were otherwise like- bunals such as Nuremberg and Tokyo serious international crimes, regardless ly to escape prosecution. The first such and those recently established for Yugoslavia, Rwanda, Sierra Leone, and East Timor are limited to prosecuting only certain crimes committed in partic- ular hostilities or countries. In theory, the solution could be the permanent International Criminal Court (ICC) with global jurisdiction over the of where they are committed, by whom was piracy, which all most serious international crimes, a con- or against whom, or any other unique were authorized to prosecute because cept previously endorsed by the ABA. tie to the prosecuting nation. The of the nature of the crimes and the ease But the ICC as currently configured Recommendation applies whether or with which pirates might evade jurisdic- lacks universal jurisdiction. For exam- not an accused is in custody and does tion. Much the same dual rationale- ple, it has no jurisdiction over crimes not address the separate topics of uni- heinous crimes otherwise left in committed before July 2002 and may versal jurisdiction in civil cases or the impunity-has fueled the modern exten- prosecute crimes occurring after that immunities of senior offi- sion of universal jurisdiction over war date only with the consent of the coun- cials before foreign national courts. crimes, genocide, torture, and acts of try where the crime was committed or Universal criminal jurisdiction has international terrorism. whose citizen is the . To date,

Human Rights "linter 2004 only about half the world's nations (the such jurisdiction. Many crimes already Covenant on Civil and Political Rights, United States not among them) have meet this test; however, not all interna- art. 14. This will limit significantly the consented to ICC jurisdiction by joining tional crimes are recognized as subject number of nations that may exercise uni- its . Although the ICC can also act to universal criminal jurisdiction. Crimes versal criminal jurisdiction because many in situations referred by the UN Security in violation of customary international do not in fact comply with these norms. Council, referrals may be vetoed by any law were prosecuted by the United Nations also should not exercise uni- of the five permanent powers. States at Nuremberg and, at the urging versal jurisdiction in the absence of facts The ICC currently has jurisdiction of the United States, by the International supporting a reasonable belief that a over only three crimes: genocide, war crimes, and crimes against humanity. It cannot prosecute other international crimes such as terrorism and torture, except insofar as they amount to one of the crimes over which it does have juris- diction. Additionally, even where the Criminal Tribunal for the Former crime subject to universal jurisdiction ICC has jurisdiction, its resources are Yugoslavia. Additional crimes may be may have been committed, limited, and it can prosecute only a added in the future by new treaties or small fraction of the world's serious by the evolution of customary interna- U.S. Military Personnel international crimes. tional law based on the general practice The proposed Recommendation in Neither the national courts of the of states. effect would allow nations whose criminal perpetrators nor international courts, The principle of legality also means justice systems meet international norms, then, are as yet up to the job of curbing that no person can be prosecuted under including the United States, to preempt impunity for the world's worst crimes. universal criminal jurisdiction for acts another nation from prosecuting their mili- Hence the need for an additional prose- not clearly recognized by treaty or cus- tary personnel. It specifically recognizes cutorial option: universal criminal juris- tomary international law as crimes at that the United States has adequate proce- diction exercised by courts of nations the time they were committed. E.g., dures to investigate and prosecute its sol- not directly involved in the crimes. International Covenant on Civil and diers. If the Recommendation were Political Rights, art. 15. Crimes subject followed by governments, then as long as Limitations to Prevent Abuse to universal jurisdiction also must be the United States used those procedures in While universal criminal jurisdiction defined with sufficient clarity to provide future cases to investigate reasonable alle- is needed to serve justice, safeguards fair notice to all concerned-a general gations and, where warranted by the evi- must be designed so that it is not principle of international law. dence, to prosecute them, the United abused by prosecutions that are frivo- The principle of necessity: Universal States could in effect preempt other lous or politically motivated or that vio- jurisdiction should not be exercised by nations from prosecuting its soldiers under late basic due process protections. another nation where the nation whose universal jurisdiction. Although European The proposed Recommendation citizen or lawful permanent resident is a nations decline to extradite with- adopts three safeguards against such suspect conducts a genuine investiga- out assurances that they will not face the abuses: the principles of legality, neces- tion and, if warranted, prosecution, pro- death penalty, for example, Soering v. sity, and due process of law. Only if all vided its procedures meet international United Kingdom, 161 Eur. Ct. H.R. (Series three are satisfied should universal juris- human rights norms for fair criminal tri- A) (1989), this is not a requirement of diction be exercised. Similar safeguards als. National courts exercising universal international law. have been proposed by three respected jurisdiction, therefore, have only sec- An issue could arise if the United judges of the International Court of ondary jurisdiction. In this they are con- States failed to investigate or, where Justice (IJC). Democratic Republic of strained in a manner similar to the ICC, warranted, to prosecute. The United Congo v.Belgium, ICJ Gen. List No. which likewise may exercise jurisdiction States has an independent interest in 121, Judgment of Feb. 2002, Separate only over matters not properly investi- avoiding such lapses. During the Opinion of Judges Rosalyn Higgins, gated or prosecuted by national courts. Vietnam War, for example, the United Pieter Kooijmans, & Thomas In the ICC context, this principle is States successfully prosecuted more Buergenthal. The full court did not reach called "complementarity"; the language than twenty cases involving war crimes, the issue of universal jurisdiction. Issues of the proposed ABA Recommendation including the My Lai massacre in 1968, of the proper reach of universal jurisdic- largely parallels the complementarity for which Lieutenant William Calley, the tion are now pending before the ICJ in provision of article 17 of the ICC statute. officer in charge of the patrol that actu- the case of Democratic Republic of The principle of due process of law: ally participated in the killing of as Congo . France, ICJ, Gen. List No. 129, A nation should not exercise universal many as 500 Vietnamese civilians, was Order of July 11, 2003. criminal jurisdiction if its courts fail to found guilty of . The principle of legality: Universal comply with international norms on the The U.S. record has been far from criminal jurisdiction should be exer- protection of human rights in criminal perfect, however. For example, although cised only over serious international proceedings, such as judicial independ- a final judgment in the case should crimes clearly recognized by treaty or ence and impartiality and the right to an customary international law authorizing adequate defense. E.g., International continued on page 25

Winter 2004 Human Rights court declared the provisions of the alleging torture, arbitrary detention, and effect of the support): The district court McCarran-Walter Act unconstitutional "disappearances," in violation of inter- issued and the Ninth Circuit affirmed a and later held that immigrants and citi- national human rights law): The district preliminary injunction against enforce- zens have the same First Amendment court in a related case, Forti v. Suarez- ment of the prohibition on providing rights, and that Immigration and Mason, ruled that the "disappearances" "training" and "personnel." Naturalization Service (INS) use of were violations of customary interna- Almost two years after September 11 secret violates due process. tional law and awarded a judgment of and the passage of the USA PATRIOT The Supreme Court reversed the First $8 million; the district court in Act, Attorney General Ashcroft Amendment decision, ruling that the Martinez-Baca awarded a $21 million embarked upon a national public rela- 1996 Illegal Immigration and Immigrant judgment. tions campaign to shore up sagging Responsibility Act had divested courts • In re Randall; Randall v. Meese support for the USA PATRIOT Act and of jurisdiction over selective prosecu- (First Amendment litigation resisting the to lay groundwork for USA PATRIOT tion challenges. INS to deport feminist author Act II. This tour, like much of the gov- * Open Door Counselling, Ltd. v. Margaret Randall for advocating "world ernment's defense of the USA PATRIOT Republic of Ireland (a challenge under communism"): The Board of Act and other "'antiterrorism" measures, the European Convention on Human Immigration Appeals reversed the order reflects a growing awareness among the Rights to Ireland's constitutional prohi- of deportation for political writings on American public of the grave threats to bition on counseling about abortion): the ground that Randall never lost her liberty posed by post-September 11 law Ireland banned clinics from telling U.S. . enforcement action. women about opportunities to obtain * Wojnarowicz v.American Family Fortunately for those who believe in legal abortions outside of Ireland. The Association (the first lawsuit under the freedom, safety, and the U.S. European Court of Human Rights held New York Artists' Authorship Rights Constitution, David Cole continues to that the Irish ban violated Article 10 of Act): Artist David Wojnarowicz filed suit speak truth to power. the European Convention, guaranteeing against Reverend Donald Wildmon and Family Association for a freedom of expression and information. the American David Rudovsky is a senior fellow at the * Bullfrog Films, Inc. v. Wick (a leaflet misrepresenting Wojnarowicz's First University of Pennsylvania Law School. Amendment challenge to U.S. works of art in a mailing to 6,000 peo- He is also a founding partner at Kairys, Information Agency (USIA) regulations ple (including members of Congress) Rudovsky, Epstein & Messing in denying tax benefits to internationally dis- during the National Endowment for the tributed documentary films identified as Arts controversy. The district court Philadelphia, where he has been propaganda): The Ninth Circuit held the enjoined mailing of the leaflet and engaged in civil rights, civil liberties, regulations unconstitutional, and required a corrective mailing. and criminal defense litigation for more Congress subsequently enacted legisla- * Humanitarian Law Project v. Reno than thirty years. In 1986 he was award- tion barring USIA from issuing certificates (a First and Fifth Amendment challenge ed a MacArthur Fellowship for his work based on the political viewpoints of films. to a federal statute criminalizing materi- in the criminal justice field. * Martinez-Baca v. Suarez-Mason al support to designated terrorist organi- (suits against'an Argentine ex-general zations without regard to the purpose or

tary personnel first reported the allega- as an important tool in the global effort tions to their superiors. See Michael D. to establish the rule of law, and also Sallah & Mitch Weiss, "Buried Secrets, adopts principled limitations by which Brutal Truths," The Blade, Oct. 2003, nations may preempt foreign of continued from page 23 available at http://www.toledoblade. their own citizens and lawful permanent com/apps/pbcs.dlli/section?Category=SR residents, including their military per- await further developments, The Blade TIGERFORCE. sonnel, by investigating reasonable alle- of Toledo, Ohio, recently conducted an The potential exercise of universal gations and, where warranted, extensive investigation of alleged jurisdiction by another nation would prosecuting in accordance with interna- killings of unarmed civilians by the U.S. provide an additional incentive to tional human rights norms. 'Tiger Force" platoon during the ensure that such cases are not over- Vietnam War. This case also had been looked or ignored. At the same time, the extensively, albeit belatedly, investigated proposed Recommendation would pro- Douglass Cassel is a professor of law at by the U.S. military; although military tect American soldiers against frivolous Northwestern University School of Law in investigators reportedly substantiated or politically motivated universal juris- Chicago, Illinois. He is the director of the war crimes and recommended prosecu- diction prosecutions abroad. Center for International Human Rights. tions, commanding officers had declined to authorize prosecutions. Conclusion Following The Blade's revelations, the The proposed ABA Recommendation military recently reopened the case- embraces a balanced approach. It rec- more than three decades after U.S. mili- ognizes universal criminal jurisdiction

Winter 2004 Human Rights