Should One Nation Be Able to Judge the Entire World?
Belgium's Prosecution of Ariel Sharon, and Other Invocations of "Universal Jurisdiction"

A system of "universal jurisdiction" would endow every nation-state in the world with the power to judge certain grave crimes, no matter where and by whom they were committed. Under this system, so the argument goes, the Pinochets and Milosevics could run, but they couldn't hide: No matter where they fled, they could still be prosecuted. Eventually, they would be brought to justice.

It is not surprising, then, that the community of human rights lawyers - which passionately wants to see human rights criminals brought to justice - largely favors universal jurisdiction. However, one can strongly support human rights, and still oppose universal jurisdiction.

That's because universal jurisdiction has many troubling flaws - and thus may end up creating not justice, but only miscarriages of it.

Breaking the Jurisdiction/Territory Link

Before the advent of the concept of universal jurisdiction, the usual rule was (and indeed, remains) that jurisdiction had to be based on either a territorial connection (to the place where the crime was committed), or the nationality of either the offender or the victim. In answer to the jurisdictional question - why should this nation-state's court be able to adjudicate this crime? - simple answers were offered.

This was the right court, it was argued, because the crime happened within this nation's borders, or involved one of its citizens. Thus, for the nation to maintain domestic order, or protect its own, it had to be able to assert jurisdiction over the crime.

The modern trend is now to try to break the territory/jurisdiction link entirely, when the crime at issue is sufficiently heinous. For example, Mary Robinson, the former United Nations Commissioner for Human Rights, has insisted that "certain crimes are so harmful to international interests that states are entitled - and even obliged - to bring proceedings against the perpetrator, regardless of the location of the crime or the nationality of the perpetrator or victim." A clearer repudiation of traditional jurisdictional principles could hardly be imagined.

To cite another example, in 2001, an elite Princeton group of international lawyers championed universal jurisdiction for the United States and every other country in the world. The United States has resisted adoption of this principle, even for war crimes. However, many European states have endorsed the idea.

Belgium's Attempt to Assert Universal Jurisdiction to Prosecute Ariel Sharon

Belgium, for example, has achieved notoriety for its willingness to prosecute Ariel Sharon, and other high-ranking Israeli military officials, for alleged crimes against humanity committed against Palestinians in Beirut in 1981. Obviously, there is no territorial link, and no Belgian citizens were involved. Belgium nevertheless wants to go forward on the "universal jurisdiction" theory that a crime against humanity is a crime against all, that can thus be prosecuted anywhere.

Recently, a decision by the International Court of Justice (ICJ) prevented Belgium from prosecuting Sharon, so long as he remains Prime Minister of Israel. Many observers had thought Belgium would respond to the ICJ ruling by stopping all of the prosecutions of Israelis. But it didn't. Just last month, the Belgian Supreme Court ruled that the prosecution could now proceed against the other high-ranking military figures allegedly associated with the Beirut massacre.

Meanwhile, Israelis have threatened, in reprisal, to prosecute Belgian officials for the 1961 murder of Patrice Lumumba in the Congo.

You might ask: What's the problem with the Belgian prosecution? If the officials are culpable, they'll be convicted; if not, not. End of story.

But that would be a naive view. For one thing, it seems doubtful the Israelis would encounter a neutral forum in Belgium. After all, Belgium went after only Sharon and the other Israelis - not other figures alleged to also be guilty of human rights crimes relating to Israeli/Palestinian conflicts. Belgium is not prosecuting Yaser Arafat or other Palestinians alleged to have committed human rights crimes. Nor has it gone after obvious human rights violators such as Saddam Hussein.

Obviously, Belgium has a political axe to grind. And whether or not one thinks Sharon is indeed a human rights criminal, we should all be able to agree that he - and his associates - are entitled to a fair, neutral forum to determine if that is the case. (If not, then what would prevent, say, Libya, from trying Bush Administration officials for Afghanistani actions tomorrow?) Belgium has failed to impress the world as a politically neutral forum.

They prosecuted and convicted four Hutu nuns for genocide in Rwanda, but these nuns were at least living in Belgium when prosecuted. The Belgian Supreme Court surprised many observers when they departed from German rule and declared that they would proceed against Israelis - regardless of any nexus between Belgium and the atrocities in Beirut.

The U.S.'s "Minimum Contacts" Requirements Are Wise

When it wisely required a nexus between the crime and the place of trial, Germany adopted a rule that has prevailed in American constitutional law since at least 1877, when the Supreme Court decided in Pennoyer v. Neff that a state could not render a valid judgment without jurisdiction over either the defendant or the land in dispute.

In Pennoyer, an Oregon court had issued a civil "default judgment" against a Californian who failed to appear in court. The plaintiff had not served process on the defendant in Oregon nor did the plaintiff attach the land at issue. With neither of these bases for jurisdiction satisfied, the Supreme Court held that the default judgment could not stand.

As this landmark case came to be interpreted, the due process clause requires "minimum contacts" between a given state and a given dispute. In Pennoyer, there was no judicial power over the defendant and there no established power to determine ownership of the land. No nexus meant no jurisdiction. Without jurisdiction there was no constitutional authority to decide the case.

If this principle limits the authority of the state in civil cases, it has an equally strong bearing in criminal cases. American states proceed exclusively on the basis of territorial jurisdiction. Oregon has no authority to prosecute crimes that occur entirely outside the state and have no connection to Oregon. Indeed, the Sixth Amendment mandates that criminal defendants have the right to jury trial in the "State and district wherein the crime shall have been committed." It makes no difference whether the crime is routine or especially heinous. Even the Washington-area snipers can be prosecuted only in states and districts where they have committed their murders.

If these are the rules that govern the location of trials under the American Constitution, why should the international arena be different? One argument might be that we have too much experience with states that simply refuse to prosecute their egregious criminals guilty of genocide, war crimes, and crimes against humanity. Arguably we need the International Criminal Court to handle these cases.

Indeed there is a compelling analogy between the jurisdiction of the ICC and federal criminal jurisdiction in civil rights cases. The American federal courts began to prosecute racist crimes when it became clear after the Civil War that Southern states were either unwilling or unable to bring these crimes of white against blacks to justice. The same standard applies in the ICC. The jurisdiction of the international court will apply if the state with primary jurisdiction is "unwilling or unable" to prosecute and convict the offenders.

These limitations on the authority of the International Criminal Court reveal the extraordinary pretensions of universal jurisdiction. Belgium need not have made a determination that Israel was "unwilling or unable" to prosecute Sharon. If they had looked into it, they would have discovered that Israel had made a good faith effort to determine Sharon's criminal responsibility. The blue-ribbon Kahan commission considered the precise question Belgium wants to raise once again: Was Sharon criminally responsible for the 1981 massacres in the Sabra and Shatila detention camp?

The International Criminal Court could not, in good faith, ignore the findings of the Kahan commission and decide to prosecute Sharon regardless of Israel's prior determination. Every criminal defendant has the right to avoid double jeopardy - to be tried first in one country, and then in another, and then in another - until some court is willing to convict.

Universal Jurisdiction Will Inevitably Threaten International Order

In the U.S., the "minimum contacts" regime that requires states to exercise some self-restraint in their choice of defendants furthers cooperation and harmony in a federal union. Similarly, mutual respect and forbearance contribute to stability in the international arena. Generally, California should prosecute alleged California crimes, and Israel alleged Israeli crimes. And if domestic order fails, there's no need for New York, or Belgium, to jump in to fill the gap.

The alternative is a cycle of judicial revenge and reprisal such as the one that Israel has threatened to begin if Belgium continues with its Beirut Massacre prosecutions. International stability requires mutual respect and forbearance. States need other states to recognize and enforce their courts' civil judgments. They also need other states to extradite their criminal suspects, and cooperate in joint criminal investigations. Prosecuting each other's defendants only imperils the international order - especially when nations must bypass the ICC to do so.

Like vigilantism, universal jurisdiction promises to bring instant justice, but breaks that promise and offers instability and disharmony instead.