A Call for Congressional Action: Revisiting Universal Jurisdiction in the United States.

• Author: Soileau, Alida

This Comment examines the United States' failure to invoke universal jurisdiction, even when doing so would likely have net positive effects in the foreign policy sphere. Instead, when war criminals turn up in the United States, the government may charge them with immigration offenses relating to their failure to disclose information about their past. Unless the accused is a United States citizen or there is a nexus between their crimes and the United States, the government will not prosecute jus cogens offenses--offenses so egregious that all of humanity has a duty to prevent and prosecute them, like genocide--unless strict jurisdictional requirements are met.

But for war criminals and the like, immigration-related convictions are not justice. Justice requires a formal criminal charge, the severity of which accounts for the nature of the crimes committed. This Comment argues that the United States, as a world leader, should assume the burden of investigating and prosecuting those accused of jus cogens offenses.

Specifically, Congress should enact legislation providing federal district courts with jurisdiction over jus cogens crimes that occur outside of the United States. This authority would enable the criminal prosecution of alleged crimes that occurred extraterritorially, without the need for a nexus between the crime and the United States. However, by limiting the subject matter to jus cogens offenses and imposing additional guiderails, the Act would mitigate concerns of legislative interference in the foreign policy realm.

By carrying out these prosecutions, the United States would better satisfy its obligations towards the international community, solidify its position as a world leader and humanitarian, and communicate to the world that egregious offenses will not go unpunished, regardless of where they occur.

1. Introduction

   The principle of universal jurisdiction allows a nation-state to extend jurisdiction over a party who is alleged to have committed a certain kind of crime when it would not normally have jurisdiction to prosecute the offender, as may be the case when the defendant is not a United States citizen. (1) A United States court generally has jurisdiction when it has authority over a case's subject matter and either control over the defendant or the property at issue. (2) Historically, countries invoked universal jurisdiction to prosecute offenses that were universally considered abhorrent, such as piracy and slavery. (3) Today, countries and international bodies invoke universal jurisdiction to prosecute crimes such as genocide, war crimes, and crimes against humanity. (4)

   Some countries are much more willing to invoke universal jurisdiction to prosecute alleged criminals than others. (5) In the United States, the judiciary's unwillingness to invoke universal jurisdiction arguably stems from a concern with the constitutionally mandated separation of governmental powers: prosecuting a non-citizen inherently implicates foreign policy, which is generally the domain of the political (executive and legislative) branches. (6) The German government, in contrast, has been more proactive in its exercise of universal jurisdiction. In November 2021, a German court convicted an Islamic State combatant of crimes against humanity and war crimes for "tying up a 5-year-old Yazidi girl he had bought as a slave in Iraq and leaving her in scorching heat to die of thirst." (7) In doing so the German government invoked universal jurisdiction, as neither the defendant nor his victim were German, and the crime occurred in Iraq. (8) The defendant was located in Greece, arrested, and extradited to Germany. (9) Notably, the facts presented no clear connection to Germany, apart from Germany's willingness to invoke universal jurisdiction and prosecute. (10) Further, this was the first time the Islamic State's persecution of Yazidi persons was prosecuted as a genocide. (11) This powerful designation will hopefully open the door to additional prosecutions in Germany and elsewhere where governments enforce laws against genocide through the use of universal jurisdiction.

   The United States has historically been reticent to invoke universal jurisdiction to prosecute crimes condemned by most all nations--like piracy, slavery, genocide, war crimes, and crimes against humanity--unless the alleged offenses satisfy traditional jurisdictional requirements of subject matter and either in rem or in personam jurisdiction. In limited circumstances, a non-United States national may utilize the United States court system to seek redress for egregious offenses such as those enumerated above by filing a claim under the Alien Tort Statute ("ATS"). However, as discussed in Part II, this is a civil remedy for what are clearly criminal offenses. In Part III this Comment addresses the limited ability of the International Criminal Court ("ICC") to prosecute violators of international law. As the United States is not a member of the ICC, Part IV analyzes what options are exist in the United States to prosecute offenders. Part V of this Comment explains that on more than one occasion, the United States charged war criminals discovered living in the United States with immigration law violations. However, an immigration law conviction is not justice when the offenses at issue are war crimes and the like. Part VI sets forth policy proposals that would enable United States courts to more readily invoke universal jurisdiction. Part VII of this Comment draws conclusions.

2. The Alien Tort Statute

   The clearest avenue for a non-United States national to bring suit in a United States court is through the Alien Tort Statute ("ATS"). The statute provides: "The district courts shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States." (12) Thus, the statue provides subject matter jurisdiction over torts generally, but it does not specify causes of action. (13)

   Torts "committed in violation of the law of nations or a treaty" (14) arguably include all jus cogens crimes. Jus cogens crimes are those offenses so abhorrent that they are recognized as crimes most everywhere in the world. (15) Examples of jus cogens crimes include genocide, war crimes, and crimes against humanity. (16) When something is jus cogens, or "compelling law," (17) it is a peremptory norm of international law that states cannot derogate from. (18) Further, jus cogens norms are erga omnes norms, meaning that they apply "towards the international [c]ommunity as a whole," (19) regardless of whether a state consents to being governed by them. (20)

   While torts "committed in violation of the law of nations or a treaty" (21) likely include all jus cogens crimes, United States jurisprudence has narrowed the offenses that are cognizable under ATS. (22) An ATS claim must charge a violation of an international law that is (1) specific, (2) universal, and (3) obligatory. (23) Further, a claim under ATS must "touch and concern" the United States "with sufficient force to displace the presumption against extraterritorial application." (24) This is a difficult standard to meet. Historically, ATS jurisdiction was limited to the three offenses against the law of nations enumerated by Blackstone: violation of safe conducts, infringement of the rights of ambassadors, and piracy. (25) Today, the Supreme Court does not recognize ATS claims for violations of international law when the law is any less definite than Blackstone's three enumerated offenses were at the time ATS was enacted. The United States Supreme Court has addressed universal jurisdiction head-on in several cases. As relevant here, they are Sosa v. Alvarez-Machain and Kiobel v. Royal Dutch Petroleum Co.

   In Sosa, the Supreme Court addressed a claim brought under ATS by a Mexican physician who was involved in the torture and subsequent death of an American Drug Enforcement Administration agent in Mexico. (26) Mexican nationals hired by the United States government abducted the physician in Mexico and took him across the border into Texas so that he could be charged in the United States. (27) The physician filed suit under ATS in the same court that first issued a warrant for his arrest, the United States District Court for the Central District of California, (28) alleging, as relevant here, that Sosa, one of the Mexican nationals involved in his abduction from Mexico, had violated the law of nations under the ATS. (29) The Court held that the physician did not have a viable claim under ATS, because "... a single illegal detention of less than a day, followed by the transfer of custody to lawful authorities and a prompt arraignment, violates no norm of customary international law so well defined as to support the creation of a federal remedy." (30) Effectively, the Court ruled that it did not matter how the physician came to be in an American court, so long as he was physically present there. (31) This was the first modern case to narrow the scope of ATS by establishing that a viable ATS claim must allege a violation of an international law that is (1) specific, (2) universal, and (3) obligatory. (32) Today, federal courts cannot recognize causes of action under ATS for violations of international law, with "less definite content and acceptance among civilized nations than the 18th-century paradigms" that were recognized as norms of international law, or jus cogens norms, at the time ATS was enacted. (33) Those paradigms are widely accepted to be the three enumerated by Blackstone: (1) violation of safe conducts, (2) infringement of the rights of ambassadors, and (3) piracy. (34)

   Nine...