Universal Jurisdiction: National Courts and the Prosecution of Serious Crimes under International Law
Ed. by Stephen Macedo
Summary written by Eric Brahm, Conflict Research Consortium
Citation: Stephen Macedo, ed. Universal Jurisdiction: National Courts and the Prosecution of Serious Crimes under International Law. Philadelphia, PA: University of Pennsylvania Press, 2004.
Recently, a wave of human rights cases have been opened in national courts around the world, often with what traditionally would seem to be tenuous claims for jurisdiction. Legal action brought against such high-profile figures as Augusto Pinochet, Henry Kissinger, Ariel Sharon, and Yasir Arafat have drawn attention to the concept of universal jurisdiction, in other words, the right of "third-party" states to assert jurisdiction over certain crimes deemed particularly heinous by the international community. Although courts have asserted more direct claims to jurisdiction in many of these cases, the trend has prompted contemplation of the theoretical and policy implications for international affairs of a move toward the broader use of universal jurisdiction. This edited volume is an important addition to this discussion.
The Princeton Principles on Universal Jurisdiction (reproduced with commentary in the volume), the product of a 2001 meeting of internationally-respected scholars and jurists, define universal jurisdiction as "the principle that certain crimes are so heinous, and so universally recognized and abhorred, that a state is entitled or even obliged to undertake legal proceedings without regard to where the crime was committed or the nationality of the perpetrators or the victims."
Historical essays illustrate how the concept of universal jurisdiction is not a new one. M. Cherif Bassiouni traces the origins of universal jurisdiction, arguing that the concept is not as clearly defined as many activists assert. Bassiouni urges a cautious approach in line with the Princeton Principles that reserves universal jurisdiction for the most heinous of cases. Stephen A. Oxman argues for the importance of clarity in defining the meaning of the concept. A. Hays Butler chronicles the increasing use of national legislation in support of universal jurisdiction.
Other chapters chronicle what appears to be a more novel phenomenon -- the growing role of universal jurisdiction in enforcing human rights law. What remains to be fully articulated is how universal jurisdiction should be defined and utilized in a responsible way. Case studies explore the use of universal jurisdiction in a range of important cases. Regarding the Eichmann trail, Gary J. Bass describes how the case made plain the difficult intersection of universal Nuremberg principles and particular interests defined in Israeli law. Richard A. Falk focuses on the Pinochet case and points out that, although universal jurisdiction was not part of the strict legal grounds used by the British House of Lords, the concept helped to legitimize the entire proceedings and focused attention on its future use. Stephen P. Marks examines the effort to bring charges against former Chadian dictator Hissene Habre. He argues the effort was justified, but the ultimate failure reinforced impunity for former heads of state.
Other authors pursue a more analytical approach. Anne-Marie Slaughter discusses the potential pitfalls for the two primary justifications for universal jurisdiction, namely the universally heinous nature of certain crimes and the practical benefit that might often be derived from universal jurisdiction. Leila Nadya Sadat examines the potential connections between trials based on universal jurisdiction and other forms of transitional justice such as truth commissions or amnesties. She argues these alternative mechanisms are best seen as complements to prosecution rather than as alternatives. Diane F. Orentlicher considers enforcement issues and, given the use of ad hoc tribunals and the creation of the ICC, potential problems that may arise from competing claims of jurisdiction. She points to the crucial role of NGOs in providing information about alleged crimes as a basis for bringing a case.
The volume also benefits from the input of policymakers. Mary Robinson provides a preface to the Princeton Principles. Australian High Court judge Michael Kirby examines the pros and cons of universal jurisdiction from the point of view of a common law judge. Finally, former Canadian foreign minister Lloyd Axworthy reflects on the benefits Canadians saw in ratifying the ICC, the importance of the complementarity principle, and the resulting reexamination of domestic law.