The Future of Universal Jurisdiction

Peter Weiss

Universal Jurisdiction: What a novel, revolutionary idea! No wonder it is meeting with so many difficulties.

That is one way of looking at it. Another way is just the opposite: It is one of the oldest ideas around and, while its translation into enforceable legal norms will take some time, its underlying principles are too firmly established ever to be dislodged again. Let me illustrate with a few quotes: "Particular law is that which each community lays down and applies to its own members: this is partly written and partly unwritten. Universal law is the law of Nature. For there really is, as every one to some extent divines, a natural justice and injustice that is binding on all men, even on those who have no association or covenant with each other."

This is Aristotle speaking, in Book I of his Rhetoric, ca. 350 B.C.E. About five centuries later, Cicero puts it this way: There will not be different laws at Rome and Athens, or different laws now and in the future but one eternal and unchangeable law will be valid for all nations and for all times.

And Marcus Aurelius, shortly after Cicero, explains the principle of universality in the following syllogism: If our intellectual part is common, the reason also, by virtue of which we are rational beings, is common; if so, common also is the reason which commands us what to do and what not to do; if so, there is a common law; if so, we are fellow citizens; if so, we are members of some political community; if so, the world is in a manner a state.

None of these statements is a prescription for world government, which, in any case, would be a bad idea, given the enormous disparity of wealth and power prevailing in the world today. But all, allowing for a certain amount of evolution, are formulations of the fundamental norms defining common decency in human behavior, in war as well as peace. In war, they have come to be articulated in the major instruments of humanitarian law of the last century and a half, led by the products of Hague and Geneva; in peace, by the Universal Declaration of Human Rights and its many offspring in treaties and conventions.

In this sense, the world is indeed in a manner a state. "No man is an island, entire of itself", much more so in this age of globalization than when John Donne penned these famous words. And he would agree, I think, that not only any man's death diminishes him, because he is "involved in mankind", but every act of torture, every violation of what we have come to call a basic human right, diminishes each one of us, no matter by whom or where committed. Universal jurisdiction is the expression of this yearning for Aristotle's natural justice, derived from the nature of human beings in society. Universal jurisdiction is the attire draped over the naked body of universal norms.

But, I can hear you saying, didn't Aristotle defend slavery and wasn't he also something of a male chauvinist? Precisely. Some of the loftiest principles are enunciated by those least able or willing to put them into practice. We must always be careful to separate the enunciator from the practitioner. How else explain the fact that Condolezza Rice was recently heard to say that no country - I repeat, no country - has done more for human rights than the United States of America? Or that, every time new atrocious details about the treatment of detainees in Abu Ghraib or Afghanistan or Guantanamo are disclosed, some general or other assures the world that the United States is fully committed to humane treatment in accord with the Geneva Conventions?
How then are we to deal with this dysfunction between the law and practice of universal jurisdiction? The same way, I suppose, that progress is made in any other area of domestic or international law: through a combination of creative litigation, civil society pressure on executive and legislative bodies and, in terms of Article 38(d) of the Statute of the International Court of Justice, "the teachings of the most highly qualified publicists of the various nations" (including some of those attending this conference).

If, as I believe, Aristotle was right in saying that "every one to some extent divines a natural justice and injustice that is binding on all men" then, sooner or later, the paradox of unpunished genocide, war crimes or crimes against humanity, will lead to a new willingness on the part of prosecutors to indict and judges to convict the perpetrators of such crimes in universal fora, both domestic and international. It is not foolhardy to predict that this trend will be fueled by the rising anger of civil society at the varieties of false reasoning which prosecutors and judges have been using to date to escape their moral and legal obligations in this respect.

There is a threshold of unacceptability which the manipulators of political power cross at their risk. A good example is the decision of the American administration to hold detainees of the Afghan and Iraq wars indefinitely, or until "the war on terror is over", a chronological limit which, according to Secretary Rumsfeld, may require several generations to reach, and that they were not entitled to seek relief in American courts. This position was so shocking in its disregard for the most fundamental norms of procedural justice that the United States Supreme Court, which normally defers to the administration in matters of national security, decided last year that the detainees could have their day in court, and that 50 law firms, including some of the most establishment, corporate firms, are now undertaking, pro bono, a mass defense of the Guantanamo detainees, coordinated by the Center for Constitutional Rights. (See New York Times article, May 30, 2005).

What Is To Be Done?

As stated above, a multifaceted approach is required in order to bring the practice of universal jurisdiction in line with its theory. The 14 Principles on the Effective Exercise of Universal Jurisdiction, proposed by Amnesty International, are a good beginning, (http://web.amnesty.org/ library/index/engior530011999?OpenDocument). Let me here concentrate on Step No. 7, No political interference. In the days of the Soviet Union, the reliance of judges on orders from the government or the party was described as "telephone justice". Something similar may be at work in certain dismissals of universal jurisdiction complaints by prosecutors, particularly in high profile cases. This is not, however, a general condition: It is well known, for instance, that the Aznar government in Spain did not look with favor on the Pinochet case initiated by Judge Garzon; nevertheless that case went forward and became an inspiration to prosecutors and judges in other countries. But where the political branches do not hesitate to interfere with the judicial ones, civil society should not hesitate to make its views known to the politicians. That, after all, is how democracy is supposed to work. As of this writing, thousands of Cubans and Venezuelans are in the streets demanding the extradition to Venezuela from the United States of Luis Posada Carriles, the notorious plane bomber, yet the American public is strangely silent about the apparent division by the American government of terrorists into good terrorists and bad terrorists.

One way to take politics out of the quest for justice is for the victims to become prosecutors in civil cases. The Alien Tort Claims Act, which the Center for Constitutional Rights resuscitated from its 200 year slumber in 1978, has become one of the most successful instruments for exposing torture, disappearance and other grave human rights violations committed outside the United States, through civil suits brought in American courts. There are many advantages for victims or their survivors to proceeding in this way: they can initiate the litigation instead of having to persuade a public prosecutor to do so; once commenced, they can control the litigation through lawyers of their choice; they can introduce all the admissible evidence at their disposal, including that which public prosecutors might be reluctant to use for political reasons and last, but not least, they can receive compensation for the injury done to them or their murdered relatives. It is somewhat paradoxical that the United States, enemy number one of the International Criminal Court, is also the country whose judiciary - including, as of last year, the Supreme Court - has been most hospitable to the exercise of this kind of self-help universal jurisdiction. It would, in my view, advance the cause of justice if other countries adopted legislation similar to the Alien Tort Claims Act and its more recent offshoot, the Alien Tort Victims Act.

A Glimmer of Hope

In speculating about the future of criminal universal jurisdiction, one cannot but pay homage to the pioneering role of Spain, its internationalist legislature, its vigorous human rights lawyers and its courageous judges. Spain has given us not only "The Pinochet Precedent", but, more recently, the first case in which a non-citizen, the Argentine Adolfo Scilingo, has been found guilty of crimes against humanity committed outside of the country exercising jurisdiction and sentenced to serve a very long prison term in the country exercising jurisdiction. The law builds upon precedents. This is one to be celebrated, and to urge us on to greater efforts in pursuit of what will surely be one of the most important international law developments in this century: the rise of universal jurisdiction.

May 31, 2005, Peter Weiss, Vicepresident Center for Constitutional Rights,
Vicepresident International Lawyers against Nuclear Arms

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