Publication Date

2001

Publication Title

The University of Chicago Legal Forum

Abstract

The conventional wisdom among international law scholars is that customary international law-that is, the law that results from the customary practices and beliefs of nations-places limitations on the authority of nations to apply their laws extraterritorially.1 Unless a nation's extraterritorial law falls within one of five categories 2 -territoriality, nationality, protective principle, passive personality, or universality-it is said, the nation violates international law rules governing "prescriptive jurisdiction."3 All but one of these categories require a nexus between the regulating nation and the conduct, offender, or victim. Under the territorial category, a nation may regulate conduct within its territory as well as foreign conduct that has substantial effects or intended effects in its territory. Under the nationality category, a nation has broad authority to regulate the conduct of its nationals anywhere in the world. Under the protective principle, a nation may regulate certain foreign conduct that threatens its national security or government operations. Under the passive personality category, a nation may regulate certain foreign conduct that harms or is intended to harm its nationals.4 These four categories may also be subject to a "reasonableness" limitation.5 However, for offenses covered by the fifth category-"universal jurisdiction"-- no such nexus is required, and no reasonableness test is applied. Rather, those who commit such offenses are hostes humani generis-"enemies of all mankind"-and all nations of the world are said to have the authority to regulate their conduct.

United States courts invoked universal jurisdiction in the nineteenth century to justify the regulation of piracy on the high seas.6 Although there is some debate over what additional offenses are now subject to universal jurisdiction, most scholars seem to agree that it extends to the slave trade, genocide, war crimes, and torture.7 The Nuremberg trials and other war crimes trials following World War II arguably involved the exercise of universal jurisdiction.8 In addition, Israel invoked universal jurisdiction (along with other jurisdictional concepts) to justify its trial of Adolf Eichmann after it had abducted him from Argentina. 9 More recently, Spain invoked the universal jurisdiction theory in its effort to obtain custody of and try Augusto Pinochet for human rights abuses committed in Chile, and by the British House of Lords in its decision denying Pinochet residual head-of-state immunity.10 Furthermore, there is growing support for extending the universal jurisdiction theory to certain acts of terrorism, and a number of U.S. terrorism statutes appear to rely on this theory.

There are many uncertainties concerning the sources and scope of universal jurisdiction. How exactly did this jurisdictional concept become international law? What role has national consent played in the formation of universal jurisdiction? What is the relationship between the customary international law of universal jurisdiction and treaties that authorize this form of jurisdiction? Is the universal jurisdiction concept relevant only to national (and subnational) exercises of jurisdiction, or is it also relevant to exercises of jurisdiction by international tribunals (such as the proposed International Criminal Court)?11

In addition to these legal uncertainties, universal jurisdiction implicates difficult questions of international policy. Although the exercise of universal jurisdiction may in some instances promote international justice and accountability, it may also entail significant costs. By vesting individual nations with worldwide prosecutorial power-including nations that may have a particular axe to grind-the universal jurisdiction concept is subject to potential manipulation and abuse. There is also no assurance that the prosecuting nations will apply fair standards of criminal procedure in adjudicating these cases. And there is a danger that the prosecution of foreign citizens under this concept-especially foreign leaders-will undermine peaceful international relations.12

For purposes of this Article, I put those international law and policy questions to one side and focus instead on the relationship between the universal jurisdiction concept and U.S. law. Assuming the universal jurisdiction theory is valid, what implications does it have for the scope and application of U.S. law? This question is becoming increasingly important in light of recent expansions of international criminal law, the broadening of U.S. efforts to regulate criminal activity beyond its borders, and the ever growing number of civil lawsuits concerning foreign human rights abuses. The terrorist attacks on the United States on September 11, 2001, which occurred as this Article was in page proofs, will likely further enhance the significance of this topic.

I begin in Part I by considering the relationship between the universal jurisdiction concept and congressional power. I argue here that the exercise of universal jurisdiction by the United States is ultimately determined by Congress, not international law or the federal courts. Nevertheless, the international law of prescriptive jurisdiction may properly have some role in the interpretation of Congress's enactments. This role is likely to be modest, however, and is always subject to congressional override.

I examine in Part II the relationship between the universal jurisdiction concept and the U.S. Constitution. As I explain, under current doctrine, the U.S. Constitution does not impose any significant restraint on the exercise of universal jurisdiction. Contrary to some academic commentary, however, I conclude that the most promising areas for constitutional limitation of universal jurisdiction appear to be structural rather than due process-oriented.

In Part III, I consider the relationship between the universal jurisdiction concept and U.S. civil litigation. I argue here that judicial and congressional reliance on the universal jurisdiction concept is legally more problematic in the civil rather than criminal context. This civil versus criminal distinction, while counterintuitive at first glance, is supported by a number of conceptual and practical considerations."13

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