By Dylan Hastings

Abstract

This paper examines and critiques the doctrine of universal jurisdiction (UJ), a principle in international law that allows states to prosecute serious crimes regardless of where they occurred or who was involved. While UJ emerged from a post–World War II drive for justice, I suggest that it undermines due process, national sovereignty, and prospects for peace. Drawing on legal cases and theoretical critiques, the paper argues that UJ enables powerful states to dominate international justice, disproportionately affecting weaker nations. It highlights cases where UJ has obstructed conflict resolution, such as Israeli-Palestinian peace talks, and raises concerns about double jeopardy and the absence of local accountability. Lastly, I advocate for strengthening the International Criminal Court (ICC) as it is a more just and consensual route to justice, concluding that UJ, despite its intentions, causes more harm than good.

Introduction:

Universal jurisdiction is a relatively new concept in the international legal field. It is the doctrine that allowed Israel to domestically prosecute Adolf Eichmann after World War II. More recently, the United Kingdom used the concept to arrest Pinochet for his wrongdoings in Chile. Even the United States has had cases regarding universal jurisdiction, although, in the last decade, the judiciary has lessened its power. In this article, I will start by explaining what universal jurisdiction is and briefly mention when it has been used. I will go on to provide a short case in favor of universal jurisdiction followed by my critiques of it. Universal jurisdiction undermines basic due process rights as well as sovereignty and allows for states to get involved for no reason whatsoever. Justice is what is sought after in these trials, and I will show universal jurisdiction, because of these weaknesses, does more harm than justice. These inherent flaws undermine universal jurisdiction so significantly that I believe there is no place for it in international law.

Defining Universal Jurisdiction and its History:

Universal jurisdiction has been a tool used by domestic courts around the world to formally charge and prosecute individuals for crimes committed outside of that state. This means there need not be a direct connection to the country bringing the charges. There is no need for a link between the victim, the offender, or the place where the crime was committed. Universal jurisdiction was founded “to compensate for the failure of national courts to provide justice.… There has been a growing recognition since the Second World War that certain crimes are so serious that they should not go unprosecuted, and that therefore other states should take responsibility for prosecuting them”.1 Numerous countries around the globe have enacted universal jurisdiction statutes to empower their judiciaries. This allows the state to prosecute any person they accuse of committing a serious international crime. Each country has its own definition and different offenses under its legislation.

Universal jurisdiction (UJ) now exists in over 125 states and they all have at least one serious offense they can pursue in their courts. Historically, more than 15 countries have used their UJ statutes to either open an investigation or have a full-blown prosecution, or somewhere in between, of a suspected offender. Countries like Australia, Canada, France, and the United States have all participated in using this doctrine to some extent. Its origins come from piracy as pirates were seen as an enemy to everyone and then it was not used again until post World War II. Since then it has evolved and become more prominent in international law for prosecuting leaders of violent regimes and alleged war criminals.

The Case for Universal Jurisdiction:

After an unsuccessful attempt at preventing another worldwide conflict subsequent to World War I, the idea of punishment and deterrence was at the top of necessities for countries around the globe. As a result, the doctrine of universal jurisdiction was implemented to provide justice for the victims. Unequivocally, the appeal to universal jurisdiction is the ability to put heinous leaders that committed atrocious war crimes behind bars, or even to death. There is certainly a sympathetic and humanitarian approach to this that speaks volumes to many. For these reasons, universal jurisdiction is a popular way to punish violators of human rights. In other words, it has “developed over time as a response to international recognition of serious crimes whose perpetrators were otherwise likely to escape prosecution”.2 Authoritarian leaders for centuries were able to escape punishment because of their status in the state after committing what we now call, crimes against humanity, war crimes, and more. Shielded from any legal repercussions by their power, leaders were able to carry out their regimes until their death, or until they wanted to retire and hand the regime over. This, obviously, feels unjust to allow such gross acts of violence to occur with no punishment. All the more reason to introduce universal jurisdiction, one would think.

Additionally, many believe the main alternatives to universal jurisdiction lack in regard to the punishment of these perpetrators, in which they are correct. Both prosecutions of perpetrators in their respective national courts as well as prosecutions by international criminal courts, or more specifically the ICC, have their own deficiencies. For example, Saddam Hussein was not going to be prosecuted by Iraqi courts while he was in power. It is not until his government is toppled we see a trial and conviction followed by his execution. The current ICC is limited in its ability to prosecute. Only three crimes are outlined by the ICC: war crimes, genocide, and crimes against humanity. If an offense does not fall under the three international crimes listed the ICC cannot pursue the case further. It is these issues that lead many to believe “neither the national courts of the perpetrators nor international courts, then, are as yet up to the job of curbing impunity for the world’s worst crimes. Hence the need for an additional prosecutorial option: universal criminal jurisdiction exercised by courts of nations not directly involved in the crimes”.3 Thus, many are led to believe universal jurisdiction is the most impactful and effective way to approach justice. However, I will show it does not provide justice for the victims, the state, or the perpetrator. Grasping at straws in an attempt to provide justice, is not just for anyone.

The Case Against Universal Jurisdiction:

Prima facie, universal jurisdiction is undoubtedly an attractive tool for countries to use in order to attempt to bring violators to justice. When one digs below the surface, though, universal jurisdiction does more harm than justice. First and foremost, when going to trial, due process rights are absolutely essential. Without certain due process guarantees, the trial as a whole is undermined and can easily be overturned if there is a higher appellate court. Lacking due process rights jeopardizes the entire entity and must, therefore, be a significant factor when discussing prosecution. “The accused has the most to lose from an unfair prosecution – an unjust conviction, an undeserved loss of years in prison, and in some countries, even his life” .4 In the United States, and elsewhere, there are significant safeguards for the accused because it is important to have a fair trial.

One goal is to ensure an innocent person is not wrongfully convicted while also safeguarding the validity of a conviction from being questioned. Domestically, the presumption of innocence provides for a fair trial for the accused. Internationally, however, “this is all taken for granted by criminal lawyers…this elementary truth about criminal justice has yet to impress the international lawyers who have campaigned successfully for universal jurisdiction”.5 Taking the presumption of innocence for granted can easily turn into a presumption of guilt in a war crime trial. This means before the trial even starts, we can see an undermining of due process rights provided in many countries, especially the countries that have generally been the users of universal jurisdiction. It is extraordinarily hypocritical to claim innocence until proven guilty domestically and then to proceed to throw the guarantee out the window when applying it internationally.

Universal jurisdiction also raises questions regarding double jeopardy. When the Tokyo Trials were created by the victors of World War II, many of the Japanese leaders were already convicted and serving sentences in Japan for the atrocities they committed. Nonetheless, the savior West came in and decided it was not good enough to prosecute them once, but they had to do it twice, this time under international law. This is oddly against the domestic law in the United States, but they pursued the trial regardless. From the United States Constitution to the Constitution for Europe and elsewhere across the world, it was decided “subjecting criminal suspects to repeated prosecutions for the same offence undermines their liberty and subjects them to potentially unlimited states’ supervision”.6 This hypocrisy, once again, undermines the trials before they even get underway. In universal jurisdiction it is not absolute that the prosecuting bodies will not harass the accused until they get what they feel is justice. Without an endpoint for the accused, it subjects them to complete and utter control of the state, or states, involved in prosecution. Fortunately, in recent years some countries have begun to adopt the belief that “universal jurisdiction without specified limits is too unbounded, too subject to confusion, when more than one jurisdiction can prosecute the same course of conduct”.7 It is wholly true it is too unbound and creates enormous confusion when double jeopardy due process rights are entirely disregarded. There is no place in the world for states to retry individuals until they deem the punishment fit; that is the very authoritarianism they sought to prosecute in many of these instances.

The last due process concern raised by universal jurisdiction is the location of the trial. Here in the United States, the Sixth Amendment says a trial will take place “wherein the crime shall have been committed.” The reason for this may not be obvious but is deceivingly important when searching for justice. When crimes are committed, certainly when those crimes are war crimes, genocide, or crimes against humanity, there are not only the victims that were violated but the community as a whole. The Jews who survived the Holocaust watched their friends and family die, those watching the Boston Marathon in 2013 witnessed their legs blown off, and the Rwandans who watched their peers get slaughtered in their villages are permanently scarred by what they experienced and all want justice to be served. The locality of prosecution is absolutely essential to due process and justice, and universal jurisdiction disregards that entirely. The community, after gross human rights violations, will undoubtedly require healing and resolution. Taking the pursuit of justice out of the hands of the people who were there or can resonate with the events turns the desire for justice entirely on its head.

Of course, all of these due process guarantees mean there will be instances where guilty offenders will go free. The purpose of these rights is not to be perfect but to be as close to perfect as possible. The great British jurist William Blackstone once quipped it is “better that ten guilty persons escape, than that one innocent suffer.” Many countries have adopted this approach. Certainly, the countries most likely to use universal jurisdiction have adopted this belief. This is the price we all pay when we commit ourselves to fair trials and rudimentary respect for the accused.

Now that the disregard of due process in universal jurisdiction has been addressed, let us begin on the topic of another country, one that has no horse in the race, getting involved and thwarting the goals of another with no precedent to point to other than universal jurisdiction. In the latter half of the 2000s, Israel-Palestine peace talks had real potential. At the time Hamas was—and still is—the representative party of the Palestinian people at the peace accords. In order to sign onto the peace agreement, Hamas demanded their captured military leader who was facing charges of genocide, and more, in Israel, be released. Israel agreed to do so under the agreement of permanent peace. There was one problem: universal jurisdiction. Hamas realized their leader could be charged with these violations anywhere that has a universal jurisdiction statute (at this time it was around 125 different countries). Egypt even threatened to prosecute if Israel did not pursue charges. Hamas then asked Israel to guarantee no other nation in the world would charge their leader and Israel was willing to ask countries not to prosecute but, obviously, could guarantee nothing. In response, Hamas canceled the treaty signing meeting, and peace negotiations were stalled and there is now another mass loss of life because of the lack of peace.8 Here we see a significantly negative outcome not because of what universal jurisdiction acts upon, but simply because of the mere existence of the doctrine.

Universal jurisdiction undeniably did more harm than good in this instance. The locale where the crimes took place decided not to prosecute in the name of peace. Nonetheless, because universal jurisdiction exists, peace negotiations were thwarted and now 15 years later we have an intense conflict with thousands dead and peace talks appearing to be virtually nonexistent. If a state determines peace is greater than a prosecution, it is not the duty of another state lacking any sort of relation to the case to deter the desired outcome between two parties. Here, many independent states all played a role in tearing down peace negotiations solely because of universal jurisdiction. “How the sovereign state then authorizes its own judicial bodies to adjudicate the matter is up to the state’s domestic law”.9 This also stands for the lack of adjudication. When a sovereign state authorizes a non-prosecution, they do so under domestic law because the government believes that is the best course of action, and in this Israel-Palestine peace negotiation this notion rings true. It is not the duty of another sovereign nation to interfere with the domestic policy and negotiations of another sovereign nation.

Sovereignty is another beast when it comes to universal jurisdiction. One cannot have universal jurisdiction without a complete disregard for sovereignty. Powerful states benefit the most from universal jurisdiction as it only empowers them more because they have the resources to use UJ. In the case of Israel-Palestine, “the result would be that over time, the balance of power between Palestinians and Israelis would shift to the benefit of the Israelis. Israelis’ capacity to kill with impunity would increase. Palestinian capacity to resist the colonial power of the Israelis would decrease”.10 Israel has the resources to prosecute and inflict punishment much more so than the quasi-judicial state of Palestine. This is the case all around the world, not just in the Middle East. The United States could enforce universal jurisdiction in virtually every corner of the world if it chose to. This would make the smaller states even smaller and the larger ones even larger. In a world where we are attempting to address inequality and fairness, universal jurisdiction could not be any further from advantageous for the people around the world.

The Answer to The Issues:

The International Criminal Court began operation in 2002 after the adoption of the Rome Statute. A strong and effective ICC could be a phenomenal resource to achieve justice for international war crimes. With over 120 member states, much of the world has subjected themselves to ICC oversight. The ICC will, without question, be imperfect. However, it is such a better resource than universal jurisdiction because it does not have the same issues as I just suggested UJ inherently possesses. The ICC can effectively implement—and has done so in many instances—due process guarantees that call for a presumption of innocence to provide for a fair trial of the accused. Moreover, the ICC will not run into the issue of double jeopardy after trying an individual. The Court cannot move from The Hague south to Brussels and try the defendant again in another country.

The last due process concern I presented was the locale issue of universal jurisdiction. The ICC certainly has this issue as well, but I suggest it is a better way to address the problem than UJ, even if it still possesses the same faults. To be prosecuted by the ICC, the nation-state the individual is physically in must be a member of the Rome Statute (which, of course, presents problems in itself I will address later). This means the states are delegating, consensually, the right of their locales to seek justice from another body. The difference between why the ICC is a substantially more impactful entity than UJ is because of the consent. In universal jurisdiction, there is no consent to take the sought-after justice out of the hands of the community that had these mass atrocities, but with the ICC the state gives up the rights of their community to seek justice and puts it in the hands of the Court, for better or for worse. This notion of voluntary association is extraordinarily significant in order to keep sovereignty while delegating some prosecutorial powers.

Lastly, the topic of sovereignty arises in relation to the ICC. Yet, as mentioned previously, it is the voluntary association that means everything when it comes to prosecuting at the ICC. The Court cannot prosecute individuals in states that have not signed onto the Rome Statute, thus, if a state signs on it gives up sovereignty to be the sole prosecutor of individuals for international crimes. For this reason, I believe the sovereignty argument to be entirely farcical. The true issue is not the sovereignty of nations agreeing to the statute; it is those that do not agree. Countries that are not a part of the ICC’s jurisdiction can have bad actors, and those actors can evade prosecution; we are back to square one for UJ and why countries have implemented it all across the world. 123 countries have signed onto the Rome Statute as member states, with many of those countries being influential such as Australia, England, Brazil, Japan, Canada, and more (ICC). There will be instances in which some offenders will go unprosecuted because they are from a superpower like the United States, China, or Russia. There is simply no answer for this other than it goes in the list of unjust actions. Universal jurisdiction will be of no use when prosecuting individuals from these countries; they will not simply hand over their own to satisfy a UJ prosecution.

For this reason, the ICC is the best way to approach these issues. The ICC has effective jurisdiction over more than 60% of the countries in the world. In the United States, there is a strong justice system to address international war crimes if they are committed—again, not perfect of course—and ways to punish those bad actors. Between strong individual justice systems and the ICC, a tremendous portion of the world is subject to justice if gross human rights violations occur. Nothing is going to be perfect and I do not suggest the ICC is a perfect agency, but it is a far better tool to use than universal jurisdiction because of the concern of due process and sovereignty. Justice is not something that should be found at grasping hands looking desiring prosecution, rather it is meticulously and thoughtfully examined to search for the most justice we can provide.

Conclusion:

The compassionate and moral thinkers of the world understandably have argued for universal jurisdiction post World War II to provide justice for mass atrocities that have been committed worldwide. When deliberated through the lens of righteousness, I can understand why it is so appealing to have universal jurisdiction. However, when thought about legally and in terms of justice, this practice is severely lacking. The desire to prosecute bad actors is an overzealous attempt to find justice and does far more harm than justice. Justice is not found when grasping the thin air of international law; it is found in a well-grounded and extensively discussed form that features basic due process rights, sovereignty, and, preferably, local as well. We should aim to hold these bad actors accountable domestically and if that is not possible we go to the ICC. UJ should not even be a worst-case scenario; we should aim to have a world where it ceases to exist. Ideally, we can—and should—strive for a world where this can be domestically or through the ICC. Holding tyrants and war criminals accountable is certainly a hope we all share, but doing so unjustly is detrimental to the pursuit of justice everywhere. It is for these reasons that I believe universal jurisdiction to be destructive to the world, a world where we must seek justice passionately but in a caring and humane way.