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Universal Jurisdiction: a Practice Guide Just Atonement Universal Jurisdiction: A Practice Guide JUST ATONEMENT UNIVERSAL JURISDICTION A PRACTICE GUIDE JUST ATONEMENT UNIVERSAL JURISDICTION A PRACTICE GUIDE TABLE OF CONTENTS EXECUTIVE DIRECTOR NOTE ..............................................................................................v PART ONE: INTRODUCTION ...........................................................................1 I. THE PURPOSE OF THE PRACTICE GUIDE .................................................................... 1 II. PRACTICE GUIDE ROADMAP............................................................................................. 2 PART TWO: THE THEORY OF UNIVERSAL JURISDICTION (written by Victoria Yundt) ...............................................................................................................3 III. THE DOCTRINE OF UNIVERSAL JURISDICTION IN INTERNATIONAL LAW ....... 3 IV. UNDERSTANDING UNIVERSAL JURISDICTION AND ITS PLACE WITHIN THE REALM OF INTERNATIONAL LAW .................................................................................. 7 A. THE ROLE OF CUSTOM IN INTERNATIONAL LAW ...................................................... 8 1. IDENTIFYING LEGALLY & NON-LEGALLY BINDING CUSTOMARY NORMS OF INTERNATIONAL LAW...................................................................................... 10 1.1. Evidence of State Practice and Opinio Juris.............................................. 13 B. CONFLICTING CONCEPTS OF UNIVERSAL JURISDICTION & STATE SOVEREIGNTY ...................................................................................................................................... 14 C. NORMS OF JUS COGENS IN THE INTERNATIONAL NORMATIVE HIERARCHY.......... 16 1. IDENTIFYING PEREMPTORY NORMS (JUS COGENS) IN INTERNATIONAL LAW 16 D. UNIVERSAL OBLIGATION TO PROSECUTE JUS COGENS VIOLATIONS ..................... 20 1. THE DOCTRINE OF UNIVERSAL JURISDICTION & NORMS OF JUS COGENS...... 22 1.1. The Pinochet Case: Opening the Doors to the Universal Jurisdiction.... 22 2. THE DOCTRINE OF UNIVERSAL JURISDICTION & RIGHT OF ACCESS TO JUSTICE ......................................................................................................................... 28 3. THE DOCTRINE OF UNIVERSAL JURISDICTION & CUSTOMARY INTERNATIONAL LAW ................................................................................................................. 35 4. THE DOCTRINE OF UNIVERSAL JURISDICTION & OBLIGATIONS ERGA OMNES ......................................................................................................................... 37 E. DIFFERENTIATING BETWEEN AUT DEDERE AUT JUDICARE AND UNIVERSAL JURISDICTION .............................................................................................................. 39 V. CONCLUDING REMARKS FOR PART TWO: THE THEORY OF UNIVERSAL JURISDICTION ...................................................................................................................... 39 PART THREE: THE PRACTICE OF UNIVERSAL JURISDICTION IN THE UNITED STATES (written by Victoria Yundt) ....................................................41 I. INTRODUCTION TO UNIVERSAL JURISDICTION IN THE UNITED STATES ...... 41 i II. EVOLUTION OF UNIVERSAL JURISDICTION IN UNITED STATES LAW............. 43 A. THE HISTORY OF THE “LAW OF NATIONS”............................................................... 43 B. THE EARLY ROLE OF PIRACY AND THE LAW NATIONS ........................................... 46 C. THE ORIGIN OF THE ALIEN TORT STATUTE!............................................................. 48 III. MODERN USE OF UNIVERSAL JURISDICTION IN UNITED STATES COURTS ... 50 A. UNITED STATES, INTERNATIONAL LAW & TERRITORIAL JURISDICTION .............. 51 1. THE INFLUENCE OF THE TERRITORIALITY PRINCIPLE & THE DIFFERENTIATION FROM UNIVERSAL JURISDICTION .................................................................... 52 B. THE INCREASINGLY DUALIST LEGAL SYSTEM IN THE UNITED STATES ................ 58 C. PRECEDENT FOR UNIVERSAL JURISDICTION IN UNITED STATES COURTS ............ 64 1. CRIMES INVOKING UNIVERSAL ‘CRIMINAL’ JURISDICTION IN U.S. COURTS . 65 1.1. Modern-Day Piracy ..................................................................................... 70 United States v. Hasan (2010) ....................................................................... 71 United States v. Ali (2013) ............................................................................ 73 Concluding Remarks on Precedent for Prosecuting Modern Piracy ............. 80 1.2. Genocide ....................................................................................................... 81 Genocide Implementation Act of 1987 (The Proxmire Act) ......................... 82 Concluding Remarks on Precedent for Prosecuting Genocide...................... 85 1.3. Torture.......................................................................................................... 85 The Extraterritorial Torture Law ................................................................... 85 The Trial and Conviction of Charles “Chuckie” Taylor, Jr........................... 87 Concluding Remarks on Precedent for Prosecuting Torture ......................... 95 1.4. Concluding Remarks on Universal Criminal Jurisdiction in the United States ............................................................................................................. 94 2. CRIMES INVOKING UNIVERSAL ‘CIVIL’ JURISDICTION IN U.S. COURTS......... 96" 2.1. U.S. Congress’s Intent in Enacting Similar Universal Jurisdiction Statutes: Case of the Alien Tort Statute, Torture Victim Protection Act & the Torture Act ........................................................................................ 97 2.2. The Modern Era of Human Rights Litigation Under the ATS ............... 99 Filártiga v. Peña-Irala (1980) ...................................................................... 100 Kadic v. Karadzic (1995) ............................................................................ 104 The “Second Wave” of ATS Litigation ...................................................... 105 2.3. Limiting Effects of Sosa & Kiobel on ATS .............................................. 107 Sosa v. Alvarez-Machain (2004)................................................................. 108 Kiobel v. Royal Dutch Petroleum Co. (2013)............................................. 112 3. CONCLUDING REMARKS ON CRIMES INVOKING UNIVERSAL ‘CIVIL’ JURISDICTION................................................................................................. 116" IV. CONCLUDING REMARKS ON PART THREE: THE USE OF UNIVERSAL JURISDICTION IN THE UNITED STATES .................................................................... 118 PART FOUR: SPECIAL CONSIDERATIONS REGARDING UNIVERSAL JURISDICTION..................................................................................................120 I. INTERNATIONAL CRIMINAL COURT WARRANTS AND THE USE OF UNIVERSAL JURISDICTION (written by Aurora Vasquez).......................................................120 A. WARRANTS ISSUED BY THE INTERNATIONAL CRIMINAL COURT ......................... 120 1. WHAT IS AN ICC WARRANT? ....................................................................... 120 2. HOW IS AN ICC WARRANT ISSUED?.............................................................. 121 2.1. Jurisdiction ................................................................................................ 121 2.2. Referral ...................................................................................................... 122 2.3. Investigation ............................................................................................. 123 3. CAN THE ICC ISSUE WARRANTS FOR NATIONALS OF NON-PARTY STATES? ....................................................................................................................... 124 4. HOW ARE ICC WARRANTS ENFORCED? ....................................................... 124 4.1. Obligations of States Parties .................................................................... 125 ii Referral to the Assembly of States Parties .................................................. 126 Referral to the United Nations Security Council ......................................... 127 4.2. Voluntary Cooperation by States Not Party to the Statute.................... 128 B. INTERNATIONAL CRIMINAL COURT WARRANTS IN THE UNITED STATES ........... 129 1. DO ICC WARRANTS HAVE FORCE OF LAW IN THE UNITED STATES?........... 129 2. SHORT OF RATIFYING THE ROME STATUTE IS THE UNITED STATES SUBJECT TO ANY OTHER INSTRUMENT OR NORM OBLIGATING IT TO EXECUTE ICC WARRANTS? .................................................................................................. 131 2.1. United Nations Security Council ............................................................. 132 2.2. International Criminal Police Organization ........................................... 133 3. CAN INDIVIDUALS (OR ORGANIZATIONS) TRIGGER ISSUANCE OF AN ICC WARRANT FOR AN ALLEGED PERPETRATOR PRESENT IN THE UNITED STATES? ....................................................................................................................... 134 4. CAN INDIVIDUALS COMPEL ENFORCEMENT OF AN EXISTING ICC WARRANT WHEN THE SUBJECT IS IN THE UNITED STATES? .......................................... 135 4.1. Triggering Enforcement of ICC Warrants for Foreign Nationals Present in the U.S. ..................................................................................................
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