Universal jurisdiction

Universal jurisdiction allows states or international organizations to claim criminal jurisdiction over an accused person regardless of where the alleged crime was committed, and regardless of the accused's nationality, country of residence, or any other relation with the prosecuting entity. Crimes prosecuted under universal jurisdiction are considered crimes against all, too serious to tolerate jurisdictional arbitrage. All states parties to the Convention against Torture and the Inter-American Convention are obliged whenever a person suspected of torture is found in their territory to submit the case to their prosecuting authorities for the purposes of prosecution, or to extradite that person. In addition, it is now widely recognized that states, even those that are not states parties to these treaties, may exercise universal jurisdiction over torture under customary international law. Universal jurisdiction allows states or international organizations to claim criminal jurisdiction over an accused person regardless of where the alleged crime was committed, and regardless of the accused's nationality, country of residence, or any other relation with the prosecuting entity. Crimes prosecuted under universal jurisdiction are considered crimes against all, too serious to tolerate jurisdictional arbitrage. The concept of universal jurisdiction is therefore closely linked to the idea that some international norms are erga omnes, or owed to the entire world community, as well as the concept of jus cogens – that certain international law obligations are binding on all states. According to Amnesty International, a proponent of universal jurisdiction, certain crimes pose so serious a threat to the international community as a whole that states have a logical and moral duty to prosecute an individual responsible; therefore, no place should be a safe haven for those who have committed genocide, crimes against humanity, extrajudicial executions, war crimes, torture and forced disappearances. Opponents such as Henry Kissinger, who himself was called to give testimony about the US Government's Operation Condor in a Spanish court, argue that universal jurisdiction is a breach of each state's sovereignty: all states being equal in sovereignty, as affirmed by the United Nations Charter, 'idespread agreement that human rights violations and crimes against humanity must be prosecuted has hindered active consideration of the proper role of international courts. Universal jurisdiction risks creating universal tyranny – that of judges.' According to Kissinger, as a practical matter, since any number of states could set up such universal jurisdiction tribunals, the process could quickly degenerate into politically driven show trials to attempt to place a quasi-judicial stamp on a state's enemies or opponents. The United Nations Security Council Resolution 1674, adopted by the United Nations Security Council on 28 April 2006, 'Reaffirm the provisions of paragraphs 138 and 139 of the 2005 World Summit Outcome Document regarding the responsibility to protect populations from genocide, war crimes, ethnic cleansing and crimes against humanity' and commits the Security Council to action to protect civilians in armed conflict. The Institutes of Justinian, echoing the Commentaries of Gaius, says that 'All nations ... are governed partly by their own particular laws, and partly by those laws which are common to all, natural Reason appoints for all mankind.' Expanding on the classical understanding of universal law accessible by reason, in the seventeenth century, the Dutch jurist Grotius laid the foundations for universal jurisdiction in modern international law, promulgating in his Dē Jūre Prādae (Of the Law of Captures) and later Dē jūre bellī ac pācis (Of the Law of War and Peace) the Enlightenment view that there are universal principles of right and wrong. At about the same time, international law came to recognize the analogous concept of hostēs hūmānī generis ('enemies of the human race'): pirates, hijackers, and similar outlaws whose crimes were typically committed outside the territory of any state. The notion that heads of state and senior public officials should be treated like pirates or outlaws before the global bar of justice is, according to Henry Kissinger, a new gloss on this old concept. From these premises, representing the Enlightenment belief in trans-territorial, trans-cultural standards of right and wrong, derives universal jurisdiction. Perhaps the most notable and influential precedent for universal jurisdiction were the mid-20th century Nuremberg Trials. U.S. Justice Robert H. Jackson then chief prosecutor, famously stated that an International Military Tribunal enforcing universal principles of right and wrong could prosecute acts without a particular geographic location, Nazi 'crimes against the peace of the world'—even if the acts were perfectly legal at the time in Fascist Germany. Indeed, one charge was Nazi law itself became a crime, law distorted into a bludgeon of oppression. The Nuremberg trials supposed universal standards by which one nation's laws, and acts of its officials, can be judged; an international rule of law unbound by national borders. On the other hand, even at the time the Nuremberg trials appeared to be victor's justice, revenge papered over with legal simulcra. US Supreme Court Chief Justice Harlan Fiske Stone remarked that his colleague Justice Jackson acting as Nuremberg Chief prosecutor was 'conducting his high-grade lynching party in Nuremberg. I don't mind what he does to the Nazis, but I hate to see the pretense that he is running a court and proceeding according to common law. This is a little too sanctimonious a fraud to meet my old-fashioned ideas.'