1 of 100 DOCUMENTS
Copyright (c) 2001 New England School of Law
New England Law Review
Winter, 2001
35 New Eng.L. Rev. 227
LENGTH: 2708 words
SYMPOSIUM: UNIVERSAL JURISDICTION: MYTHS, REALITIES, AND PROSPECTS: Foreword
Michael P. Scharf * and Thomas C. Fischer **
* Professor of Law and Director of the Center for International Law and Policy, New England School of
Law.
** Professor of Law and former Dean, New England School of Law; Chairman of the Board of Advisers of
the Center for International Law and Policy.
SUMMARY:
... This volume of the New England Law Review contains a collection of the remarks, articles, and essays generated
by the Center's fall 2000 symposium, entitled Universal Jurisdiction: Myths, Realities, and Prospects. ... Universal
jurisdiction refers to the authority of domestic courts and international tribunals to prosecute certain crimes, regardless
of where the offense occurred, the nationality of the perpetrator, or the nationality of the victim. ... Thus, the myth of
universal jurisdiction over piracy became the reality of universal jurisdiction over war crimes and crimes against
humanity at Nuremberg. ... Advocating a strict construction of the Genocide Convention based on its negotiating
record and reasons of policy, Professor William Schabas, Director of the Irish Centre for Human Rights at the National
University of Ireland, takes the position that the crimes committed in Cambodia and Kosovo did not qualify as
genocide, though they were certainly crimes against humanity. ... According to Professor Brown, from the option to
prosecute the odd pirate of the 17th century, the doctrine of universal jurisdiction has developed through treaty practice
to the point where states now accept the obligation to prosecute certain of the newer universal jurisdiction crimes, while
retaining prosecutorial discretion based on the level of the offender, the gravity of the offence, and the sufficiency of the
evidence. ...
TEXT:
[*227]
The Center for International Law and Policy at the New England School of Law was established in 1996 to
promote the study and understanding of the relationship between international law and policy, with special emphasis on
problems of an economic, environmental, criminal or humanitarian nature. In addition to its other projects and
programs, each year the Center holds a major symposium to address a pressing issue in the field of international law.
This volume of the New England Law Review contains a collection of the remarks, articles, and essays generated by the
Center's fall 2000 symposium, entitled Universal Jurisdiction: Myths, Realities, and Prospects.
The Pinochet case and the pending establishment of the International Criminal Court (ICC) have reawakened
interest in and fears concerning the exercise of universal jurisdiction over international crimes. Universal jurisdiction
refers to the authority of domestic courts and international tribunals to prosecute certain crimes, regardless of where the
offense occurred, the nationality of the perpetrator, or the nationality of the victim.
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Of all the bases for extraterritorial jurisdiction, the universal basis remains the most controversial. Debate
continues on what crimes trigger universal jurisdiction, whether universal jurisdiction crimes are subject to head of state
and diplomatic immunity, whether treaty-based universal jurisdiction can apply to the nationals of Non-Party States,
whether universal jurisdiction is permissive or mandatory, and whether the benefits of universal jurisdiction outweigh
the risks. The United States has existing criminal laws providing for universal jurisdiction over certain terrorist offenses
and torture, but not over war crimes, crimes against humanity, or genocide. In this respect, the United States lags behind
such other democracies as Australia, Belgium, Canada, Denmark, France, Germany, Israel, [*228] Italy, Spain,
Switzerland and the United Kingdom in ensuring that our courts have jurisdiction to bring to trial the perpetrators of
serious international crimes committed abroad. Is a new legislative initiative in this area warranted?
These issues were considered during our 2000 Symposium. It featured many of the foremost academic experts,
practitioners, and policy-makers in the field of international criminal law. The conference was designated a Regional
Meeting of the American Society of International Law, and was cosponsored by the American Bar Association, the
International Law Association, the International Law Students Association, the Lawyers Committee for Human Rights,
the Coalition for an International Criminal Court, and the Taipei Economic and Cultural Office in Boston.
In his keynote address, U.S. Ambassador for War Crimes Issues, David Scheffer, submitted that the central
purpose of the conference should be to unravel the complexity of universal jurisdiction and make some sense of it. He
challenged the participants to consider practice as well as theory, and pitfalls as well as prospects, in an effort to find
ways to strengthen the international community's ability to effectively and prudently prosecute genocide, war crimes
and crimes against humanity in national and international courts. Of particular historic note is Ambassador Scheffer's
candid description of his efforts to convince other countries to exercise universal jurisdiction to prosecute Pol Pot,
Mengistu, Ocalan, and Saddam Hussein. "In so many of these cases," Ambassador Scheffer relates, "I wanted to use the
U.S. legal system. But we are hampered by statutes of limitations and by the gaps in our own law."
The first panel, titled "Historical Development," began with a discussion of the theoretical underpinnings of
universal jurisdiction by Professor Leila Nadya Sadat of Washington University School of Law. Based on distinctions
between jurisdiction to prescribe, jurisdiction to adjudicate, and jurisdiction to enforce, her article provides a valuable
methodology for conceptualizing and analyzing the proper exercise of universal jurisdiction. Drawing upon the rules
governing conflict of laws and conflicts of jurisdiction, Professor Sadat points the way toward the development of a set
of guidelines to assist states in determining whether to recognize amnesties and immunities granted to perpetrators of
universal crimes.
Most scholars point to piracy as the first crime of universal jurisdiction recognized by the international
community, and liken other crimes to piracy in order to justify, by analogy, the application of universal jurisdiction to
those crimes. However, the country's foremost expert on piracy, Professor Alfred Rubin of the Fletcher School of Law
& Diplomacy, maintains that there has never been a successful prosecution in any country for piracy without the
prosecuting state's jurisdiction being based on the nationality of the offender, the nationality of the victims, the
nationality of the victim ship, or the territory where the act occurred. In his article, Professor [*229] Rubin
demonstrates that the historic and theoretical foundations for expansive notions of universal jurisdiction under
customary international law are not as sound as they are conventionally believed to be.
Despite what may be questionable historic origins, the article by Professor Henry King of Case Western Reserve
University School of Law documents that the post-World War II Nuremberg Tribunal prosecuted on the basis of
universal jurisdiction. Thus, the myth of universal jurisdiction over piracy became the reality of universal jurisdiction
over war crimes and crimes against humanity at Nuremberg. Professor King, who served as one of the American
prosecutors at Nuremberg fifty years ago, suggests that the most important legacy of the Nuremberg Trial was its
contribution to the modern growth of universal jurisdiction.
The Nuremberg Trial was immediately followed by the first international effort to codify a form of universal
jurisdiction in the Genocide Convention of 1948. The second panel, titled "Problems of International Codification,"
examined the contours and limits inherent in the definition of genocide as applied to the atrocities committed by the
Khmer Rouge in Cambodia in the late 1970s and by the Milosevic forces in Kosovo in 1999. Advocating a strict
construction of the Genocide Convention based on its negotiating record and reasons of policy, Professor William
Schabas, Director of the Irish Centre for Human Rights at the National University of Ireland, takes the position that the
crimes committed in Cambodia and Kosovo did not qualify as genocide, though they were certainly crimes against
humanity. Championing a somewhat more expansive view of the law based on developments since 1948, Mr. Jason
Abrams of the United Nations Office of Legal Affairs argues that crimes in Cambodia and Kosovo could be prosecuted
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as genocide. With so little precedent to draw upon, the debate, contained in the articles by Professor Schabas and Mr.
Abrams, highlight the difficulties inherent in the interpretation and application of treaties defining crimes of universal
jurisdiction. It also raises the question of whether there is or should be a hierarchy of international crimes, with
Professor Schabas taking the position that genocide is "the crime of crimes," while Mr. Abrams criticizes the tendency
to relegate crimes against humanity, that do not technically fall within the definition of genocide, to a lower status.
The third panel focused on "Contemporary Developments" related to the exercise of universal jurisdiction. The
article by Professor Naomi Roht-Arriaza of the University of California, Hastings College of Law provides a detailed
analysis of the recent Pinochet case. This analysis covers the Spanish court's approval of the indictment of Pinochet on
charges of genocide and torture, the British House of Lords decision to grant Spain's extradition request to prosecute the
former Chilean dictator on the basis of universal jurisdiction, and the ongoing criminal proceedings against General
Pinochet in Chile. In his article Reed Brody, Advocacy [*230] Director of Human Rights Watch, provides a
discussion of the case of Senegal's recent attempt to prosecute Hissene Habre, the former dictator of Chad, who he
describes as "the African Pinochet." Both cases raise the question of whether head of state immunity can shield a former
leader from prosecution for crimes of universal jurisdiction, and both indicate the extent that criminal proceedings
involving former foreign officials may be influenced by domestic and international politics.
Professor Madeline Morris of Duke University School of Law takes this concern a step farther, contending, in her
article, that the exercise of universal jurisdiction entails "a significant risk of bias" and may often "become a source and
an instrument of interstate conflict." Professor Morris warns that the enormous potential of universal jurisdiction is in
the process of being recognized "not only by the well-intentioned states and organizations of the world, but also by the
malefactors."
American opponents of the International Criminal Court (ICC), which will likely be fully operational within the
next five years, have expressed similar apprehension about politicized indictments and trials. One of the arguments
against the International Criminal Court has focused on its authority under article 12 of the Rome Treaty to indict
nationals of Non-Party States for crimes committed on the territory of state parties. This, it has been said, violates the
international legal principle that a treaty cannot abrogate the rights of Non-Party States. Professor Scharf uses this issue
as a vehicle for examining the broader question of whether the United States or any other country can exercise universal
jurisdiction granted by a multilateral treaty over the nationals of states that have not ratified the treaty. In addition to
addressing the legal concerns, his article makes the case that limiting the application of the universal jurisdiction treaties
to nationals of state parties would significantly undermine their effectiveness since international crimes are most often
committed by nationals of Non-Party rogue states that condone or encourage such activity.
The fourth panel explored the question of whether universal jurisdiction is permissive or mandatory, a question
with implications for countries considering amnesty for perpetrators of international crimes as a way to induce them to
relinquish power, paving the way to transition to peace and democracy. Such amnesty for peace deals have been
endorsed by the United Nations in recent years for Cambodia, El Salvador, Haiti, South Africa, and Sierra Leone. In
addressing this issue, the article by Professor Bartram Brown of Chicago-Kent School of Law explores the relationship
between universal jurisdiction and the doctrines of jus cogens and obligations erga omnes. According to Professor
Brown, from the option to prosecute the odd pirate of the 17th century, the doctrine of universal jurisdiction has
developed through treaty practice to the point where states now accept the obligation to prosecute certain of the newer
universal jurisdiction crimes, while retaining prosecutorial discretion based on the level [*231] of the offender, the
gravity of the offence, and the sufficiency of the evidence. The next logical step in the evolution of universal
jurisdiction, Professor Brown suggests, is the recognition of a duty to prevent such crimes from being committed and a
corresponding right of humanitarian intervention.
The fifth panel examined the case for expanding U.S. codification of universal jurisdiction. In his article, Mr.
Bruce Broomhall of the Lawyers Committee for Human Rights focuses on the practical and political problems that can
arise in the attempt to legislate universal jurisdiction. He observes that the incorporation of definitions and the provision
of jurisdiction through national legislation are not enough; there must also be revisions to laws relating to immunity,
mutual legal assistance, and extradition.
Professor Douglass Cassel, Director of the Center for International Human Rights at Northwestern University
School of Law, advises that whether or not the United States ultimately supports the International Criminal Court, it
would be prudent to expand the universal jurisdiction of U.S. courts to include all of the crimes within the ICC Statute.
This would ensure that such crimes could be prosecuted domestically rather than by the ICC, which is designed to be a
court of last resort under the principle of "complimentarity" enshrined in its statute. Professor Cassel's article also points
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out that U.S. courts already have wide-ranging civil jurisdiction over atrocities under the Alien Tort Claims Act and the
Torture Victims Protection Act, and suggests that wholly apart from the ICC, U.S. criminal laws should be updated to
provide for universal jurisdiction to prosecute such serious crimes if we are to make real our oft-stated commitment to
bring to justice those who commit the most serious violations of international humanitarian law.
In the Symposium Issue's final article, Attorney Mark Zaid, who represents the families of the victims of the Pan
Am 103 bombing in the civil case against Libya, points out that existing U.S. law has the perverse effect of providing
alien victims of war crimes and crimes against humanity with greater rights than their American counterparts. An alien
who has suffered injury as a result of war crimes or crimes against humanity committed abroad may initiate a civil
action against the perpetrator when the perpetrator is found in the United States under the Alien Tort Claims Act, but a
U.S. citizen injured by the same atrocity would not have a cause of action in U.S. court. Labeling compensation the
"second pillar of justice" and an important aspect of universal jurisdiction, Mr. Zaid argues that any expansion of
universal criminal jurisdiction in the United States must be accompanied by the creation of corresponding civil remedies
for American, as well as foreign, victims of international crimes committed abroad.
A month after the Universal Jurisdiction conference was held, the academic discussion was transformed into front
page news when the Republic [*232] of Congo requested that the International Court of Justice annul a Belgian arrest
warrant, which had been issued against the Congo Minister for Foreign Affairs, Abdulaye Yerodia Ndombasi, for
"serious violations of international humanitarian law." The Belgian criminal proceedings were based on universal
jurisdiction over international crimes committed by Ndombasi and his followers in the Congo civil war. The Republic
of Congo argued that the warrant effectively prevented the Minister from leaving the Congo to perform his duties, and
violated the diplomatic immunity of a sovereign state's foreign affairs minister. The International Court of Justice
declined to grant provisional relief, but indicated that the case (which involves many of the issues addressed in this
Symposium Issue) should proceed to the merits. n1
We are extremely grateful to our distinguished panelists for their participation in the Universal Jurisdiction
Conference and contributing to this Symposium Issue of the New England Law Review. Our appreciation also goes out
to the student editors of this volume who worked diligently on the preparation of this publication. We believe the
articles contained herein represent a significant contribution to the literature in this important area of the law. It is our
hope that the ideas, theories, and proposals of the symposium participants, as contained in this Symposium Issue, will
help shape the ongoing debate, both at the international and national level, on how and when universal jurisdiction
should be employed to ensure accountability for international crimes.
FOOTNOTES:
n1 See Bruce Zagaris, ICJ Denies Provisional Relief to Congo in Belgian Arrest Warrant against Foreign
Minister, 17 Int'l. Enf. L. Rep. 55-56 (2001).