Universal Jurisdiction Too Easily Sweeps Political Differences into Legal Arena

By John  R. Bolton

Most corporate CEOs would be surprised to learn that they have something in common with former Chilean President Augusto Pinochet.

Most corporate CEOs would be surprised to learn that they have something in common with former Chilean President Augusto Pinochet. After all, they lead companies that produce useful goods and services, while Gen. Pinochet stands accused of murder, torture, and other “crimes against humanity” as head of a military government. What may ultimately unite the two is a concept called universal jurisdiction.

Until recently an obscure, theoretical creature in the academic domain of international law, universal jurisdiction is now revered as the latest icon in the legal theology of human rights activists. What no one knows for certain is how far its power may finally reach or who may be eventually swept up in its grasp.

Defining universal jurisdiction is not easy because the idea is evolving so rapidly. For example, the sixth edition of Black’s Law Dictionary, published in 1990, does not even contain an entry for the term. The idea was first associated with pirates, who were said to be hostes humani generis–“enemies of the human race.” Following its definition of the Latin phrase, the 1990 Black’s Law Dictionary notes, “i.e., pirates, ” signifying that they alone are covered.

Because pirates were beyond the control of any state and thus not subject to any existing criminal justice system, the idea developed that it was legitimate for any aggrieved party to deal with pirates. Such “jurisdiction” could be said to be “universal” because the crime of piracy was of concern to everyone, and because such jurisdiction did not comport with more traditional jurisdictional bases, such as territoriality or nationality. In a sense, the state that prosecuted pirates could be seen as vindicating the common interest of all states. (Slave trading is also frequently considered to be the subject of universal jurisdiction.)

A key element in the criminal characterization of piracy is that, by definition, pirates operate on the high seas, beyond state boundaries. As the Italian Alberico Gentili wrote in the late 16th century, the sea “is by nature open to all men and its use is common to all, like that of the air.” Referring to ancient history, Gentili argued:

Romans justly took up arms against pirates even though those people had touched nothing belonging to the Romans, to their allies, or to any one connected with them; for they had violated the common law of nations. . . . Piracy is contrary to the law of nations and the league of human society. Therefore war should be made against pirates by all men.

In short, this is not “jurisdiction” in a legal sense, but instead is a justification for the legitimate use of force. It is a far cry from what the human rights activists, non-governmental organizations (NGOs), and academics, who repeatedly confuse the roles of force and law, have in mind today.

Unbidden Enlargement

From a very narrow foundation, theorists have enlarged the concept of universal jurisdiction to cover far more activities, with far less historical or legal support, than arose earlier in the context of piracy. At the same time, they have omitted reference to the use of force and substituted their preferred legal process. The proscribed roster now typically includes genocide, torture, war crimes, and crimes against humanity, which are said to vest prosecutorial jurisdiction in all states.

Announcing his judgment in the Nov. 25 decision of Ex parte Pinochet, Lord Nicholls described the crimes of which the general stood accused by saying, ” International law has made it plain that certain types of conduct . . . are not acceptable conduct on the part of anyone.” Although that decision by the United Kingdom’s highest court (which was recently overturned and set for rehearing Jan. 18 because of lapses in judicial ethics by one of the majority judges) did not actually rest on universal jurisdiction, Lord Nicholls was, in fact, stating the doctrine’s essential foundation.

The worst problem with universal jurisdiction is not its diaphanous legal footings but its fundamental inappropriateness in the realm of foreign policy. In effect (and in intention), the NGOs and theoreticians advocating the concept are misapplying legal forms in political (or military) contexts. What constitutes crimes against humanity and whether they should be prosecuted or handled otherwise–and by whom–are not questions to be left to lawyers and judges. To deal with them as such is, ironically, so bloodless as to divorce these crimes from reality. It is not merely naive, but potentially dangerous. Take Pinochet as an example.

Morally and politically, what Pinochet’s regime did or did not do is primarily a question for Chile to resolve. (I address here only the jurisdictional issue, not the arguably more important question of whether the underlying offenses are “criminal” in any conventional legal sense or how they came to be so characterized.) Most assuredly, Pinochet is not, unlike a pirate or slave trader, beyond the control of any state.

Although many people worldwide intensely dislike the solution that Chile adopted in order to restore constitutional and democratic rule in 1990, especially the various provisions for amnesty, the terms and implementation of that deal should be left to the Chileans themselves. They (and their democratically elected government) may continue to honor the deal or, as seems increasingly likely, they may choose to bring their own judicial proceedings against Pinochet. One may accept or reject the wisdom or morality of either course (and I would argue that they should uphold the deal), but it should be indisputable that the decision is principally theirs to make.

The idea that Spain or any other country that subsequently filed extradition requests in the United Kingdom has an interest superior to that of Chile–and can thus effectively overturn the Chilean deal–is untenable. And yet, if the British ultimately extradite Pinochet to Spain or elsewhere, that is exactly what will happen. A Spanish magistrate operating completely outside the Chilean system will effectively have imposed his will on the Chilean people. One is sorely tempted to ask: Who elected him? If this is what universal jurisdiction means in practice (as opposed to the theoretical world of law reviews), it is hopelessly flawed.

Spain does have a legitimate interest in justice on behalf of Spanish citizens who may have been held hostage, tortured, or murdered by the Pinochet regime. And the Spanish government may take whatever steps it ultimately considers to be in the best interest of Spanish citizens. But its recourse lies with the government of Chile and certainly not with that of the United Kingdom. This attempt to extradite Pinochet while he is abroad is not the exercise of law; it is political theater.

(Of course, the entire matter could have been averted had Pinochet been properly accredited and accepted by the United Kingdom as having diplomatic status. Now the extradition ploy has exposed this loophole in universal jurisdiction. Others have surely taken heed, and thus this kind of episode is unlikely to occur again.)

If the government of Spain–as opposed to a loose-cannon magistrate–were truly serious, it would have approached the government of Chile directly. Whether Spain proceeded by a judicial action or through diplomatic channels (or both) would, of course, have been up to Spain; in turn, Chile could certainly have responded as it chose. But in this proper bilateral context, the Pinochet question would have been a political matter.

Indeed, the predominant American view is that this is precisely the kind of dispute best left to the political branches. Chief Justice Melville Fuller said clearly in Underhill v. Hernandez, 168 U.S. 250 (1897): “Redress of grievances by reason of such acts must be obtained through the means open to be availed of by sovereign powers as between themselves.” Judge Robert Bork, concurring in Tel-Oren v. Libyan Arab Republic, 726 F.2d 774 (D.C. Cir. 1984), warned against a role for courts that “would raise substantial problems of judicial interference with nonjudicial functions, such as the conduct of foreign relations.”

Stressing the purely legal aspects of a dispute, which is central to the entire concept of universal jurisdiction, not only ignores the political component, but foists responsibility onto the least-equipped branch of government. Widespread use of the doctrine would almost surely exacerbate political tensions between countries without adequately addressing the underlying causes of their original disagreement.

However the Pinochet matter is resolved, we can be certain that the issue of universal jurisdiction will be with us for quite some time. Indeed, because of the publicity surrounding Pinochet, we can expect copycat efforts covering a range of other crimes against humanity in the near future.

But adding purported crimes (shocking though they may be) to the list of what triggers universal jurisdiction does not make the concept any more real. Nor does a flurry of law review articles (and there has been far more than a flurry) make concrete an abstract speculation. In fact, “universality” is conceptually circular: Universal jurisdiction covers the most dastardly offenses; accordingly, if the offense is dastardly, there must be universal jurisdiction to prosecute it. Precisely because of this circularity, there is absolutely no limit to what creative imaginations can enlarge it to cover, and we can be sure that they are already hard at work.

Creative License

Any concept that can expand so dramatically so quickly–from piracy to genocide–is unlikely to slow down soon. Although one area of expansion will almost certainly be the official conduct of foreign policy, the realm of business and commercial activity will not be overlooked. Typically, the existing “universal jurisdiction” crimes require an element of illicit governmental action, but not all do. For the creative activist, glossing over a “state action” requirement should prove no hurdle at all in proscribing what, in Lord Nicholls’ words, is “not acceptable conduct on the part of anyone.” Consider just a few possibilities:

* Major environmental disasters, particularly those with international implications like an oil spill at sea, could easily be envisaged as crimes against humanity, and therefore subject to prosecution universally. An analogy to maritime piracy would be strained, to say the least, but not beyond either the ability or inclination of NGOs and academic theorists.

* Unsatisfactory wages, hours, or other conditions of employment at multinational corporations are already targets of union and human rights activists, who would not need much encouragement to liken such practices to slavery.

* Mining or manufacturing near sites of cultural or historical interest– what UNESCO devotees like to call the “common heritage of mankind”–could quite readily become the subject of universal jurisdiction, especially since the states where such activities occur might be classified as too weak to vindicate their own interests.

Thus, an oil company whose tanker broke up on the high seas could be brought to trial in an environmentally conscious Nordic state. A low-wage transnational could be prosecuted by a righteous Social Democratic government in Europe. A “culturally insensitive” company could be indicted almost anywhere cultural sensitivity is an issue. In each case, senior corporate executives could be arrested, detained, and ultimately extradited for trial in countries far removed from any traditional nexus to the alleged offenses. Surely no one will object, for they are, after all, hostes humani generis, are they not?

We are not yet at this point, but the danger flags are up. Consigning universal jurisdiction to the isolated debates of legal academics is ill- advised from both foreign and economic policy perspectives, and more dispassionate analysis of the concept is sorely needed. Law is too important to be left to law professors.