Criminal Justice is Local: Why States Disregard Universal Jurisdiction for Human Rights Abuses.

• Author: Rabkin, Jeremy A.

Table of Contents I. Introduction 376 II. Cosmopolitan Justice is Not Embraced in State Practice 381 A. Not Even Inviting in an Inviting Era 382 B. No End to Impunity 386 C. Not Affirming International Norms 390 III. Imagined, Advocated-but Not Practiced 394 IV. Why No Cosmopolitan Justice in America? 401 V. Universal Jurisdiction for National Concerns 411 A. Drugs 411 B. Terrorism 414 C. Limited Interventions 418 D. Immigration Backstop 421 VI. Justice is Primarily Local 425 A. The Substantial Costs of Cosmopolitan Justice 426 B. The Insubstantial Benefits of Cosmopolitan Justice 428 VII. Conclusion 431 I. INTRODUCTION

On February 24, 2021, a German court convicted a former Syrian official, Eyad al-Gharib, for perpetrating torture and other abuses-described as "crimes against humanity" (1)--during the Syrian civil war.

Human rights activists hailed this as a "landmark decision," (2) as "a historic verdict," (3) and as "a message to all criminals who still commit the most horrific crimes." (4) As if to emphasize the dramatic implications of the German verdict, a week later a criminal complaint was filed in a French court against Bashar al-Assad, the Syrian dictator who presided over tens of thousands of "crimes against humanity." (5)

Yet the world yawned. Major media gave little attention to the German verdict against a previously unknown figure. (6) More specialized reports acknowledged that technical issues might still persuade appeals courts to overturn the verdict. (7) No one seriously expected President Assad to end up on trial in a French court. Foreign ministries expressed no views about the German case. Organs of the United Nations also greeted this development with silence.

After all, the world has been here before. The world has learned not to expect much from transnational prosecutions. It was different when British police arrested former Chilean president Augusto Pinochet in October 1999, as he was recovering from surgery in London. (8) After much legal wrangling, Britain's highest court finally approved Pinochet's extradition to Spain, where an activist prosecutor sought to try him for extreme human rights abuses against Chilean nationals, committed on Chilean territory, while Pinochet was Chile's chief executive. (9) Commentators at the time said it was "pathbreaking," (10) "breathtaking," (11) a "watershed [event]," (12) and a decision that "turned [the world] upside down." (13)

Human rights advocates claimed the British ruling had finally established the doctrine that "universal jurisdiction" extends to extreme human rights offenses, so any state can try any perpetrator without needing to show that the abuses had any traditional nexus (regarding territory or nationality) with the prosecuting state. The precedent did not prove fruitful, however. British authorities allowed Pinochet to return to Chile, ostensibly because he was too old and feeble to stand trial. (14) He lived on in apparent good health for nearly seven years thereafter. He never faced trial, either back in Chile or elsewhere.

Over the next decade, there was talk about pursuing such transnational claims against US President George W. Bush, Israeli Prime Minister Ariel Sharon, and Nicaraguan President Daniel Ortega--to cite only the most prominent figures. But no head of state has yet been tried in the national courts of another state. Nor have third-party states managed to hold second or third-ranking officials to judgment for human rights abuses.

This pattern was not what observers had predicted at the outset of the new century. Human rights advocates depicted the Pinochet "precedent" as the first in a coming "justice cascade," that would release a surging current of transnational prosecutions. (15) Critics at the time warned that universal jurisdiction claims would unleash conflict and chaos in world affairs, as rival states threatened to arrest each other's top officials. (16) Hardly anyone predicted that universal jurisdiction would largely remain an academic theory with very little effect on the actual practice of states.

Long articles have continued to appear, arguing whether universal jurisdiction has now become established in customary international law. (17) The debate testifies to the relative paucity of universal jurisdiction cases and their ambiguous or marginal status. The analysis here does not take sides in the technical debate about customary law status. Rather, this Article looks at the larger pattern and what it suggests about the underlying nature of criminal justice.

Commentators generally agree that universal jurisdiction for human rights offenses has been invoked only infrequently and rarely, if ever, against senior political leaders. Scholars have not yet made much effort, however, to explain why things turned out this way. The most obvious explanation might seem to be that universal jurisdiction prosecution is a new practice and has not yet had time to become established. But this is, in fact, the least likely explanation. Universal jurisdiction for the most extreme crimes is not at all a new idea.

A century ago, an American legal scholar, Albert Levitt, urged in a prominent journal that criminal jurisdiction need not be limited to the state where the crime occurred. (18) Instead, he advocated a "cosmopolitan" theory, "based upon the ideas that civilized nations are inter-connected and inter-related," so any state might act against a perpetrator who "exhibited tendencies which the history of civilization has shown harmful to other human beings." (19) As shown below (in Part III), Levitt's argument for cosmopolitan justice was itself echoing much older doctrines, advocated by leading Enlightenment thinkers in the seventeenth and eighteenth centuries.

While advocacy for some version of cosmopolitan justice is old, resistance to it in state practice is also quite old. Even exceptions to territorial jurisdiction reflect special national priorities, as states remain unwilling to focus their enforcement efforts on an agreed set of universal crimes. This Article draws the following lesson: There seems to be something about criminal justice that resists appropriation for genuinely universal ends.

Part II shows that it is precisely the most plausible justifications for a universal approach to human rights enforcement that have engaged the least effort from national prosecutors. Cases most often cited as evidence of emerging state practice are least responsive to the universalist theories.

Part III demonstrates that something like universal jurisdiction was already advocated by prominent philosophers and jurists in the seventeenth and eighteenth centuries. Even in the nineteenth century, leading commentators did not offer very compelling arguments against it. Still, this historic version of universal jurisdiction, though long advocated, was never actually implemented.

Part IV looks at historic practice among US states. At various times, individual states might well have seen compelling reasons to extend their jurisdiction to crimes committed in other states of the union. There were no clear constitutional barriers to doing so. Yet universalist (or "cosmopolitan") theories, like Levitt's, were never implemented by US states nor even considered by state courts.

Part V looks at actual enforcement efforts that reach conduct occurring beyond national borders. American and European prosecutors have been willing to assert something that looks in some ways like universal jurisdiction--but notably not for the kinds of cases initially envisioned by human rights advocates. Prosecutors have declined to take up genuinely universalist enforcement of human rights norms. When they do assert transnational jurisdiction, it is invariably to promote more limited or specialized goals of the prosecuting state. American prosecutors have focused on cases involving terrorism, drug offenses, and commercial corruption. European prosecutors have focused on curbing abuses of their national immigration controls.

This Article is the first to highlight the wide gulf between the actual applications of "universal jurisdiction" in practice and the claims advanced for transnational or cosmopolitan justice--despite the long history of arguments for the latter (described in Part III). (20) As Part VI argues, the dearth of cases in this category (prosecutions on behalf of recognized standards of cosmopolitan or universal justice) demonstrates that states do not readily put their own prosecutorial authority in the service of humanity at large.

This pattern is worthy of note and reflection. There is, it seems, something about criminal law that is inherently local or national, bound to the aims and priorities of the particular political community enforcing that law. The reluctance of prosecutors around the world to pursue universalist claims reveals something important about the underlying nature of criminal law, at least in the sense that older natural law theorists claimed normative status for recurring patterns of practice. (21)

2. COSMOPOLITAN JUSTICE IS NOT EMBRACED IN STATE PRACTICE

   This Part sets out the predicate for the overall argument in this Article: Judged by the expectations of two decades ago, the campaign for transnational justice has failed miserably. The rest of this Article shows that the pattern does not reflect the novelty of transnational justice, so it likely reflects something deep in the logic of (or at least, the current understanding of) criminal justice. In this initial Part, the central claim is that there is, indisputably, a pattern of unexpected failure that compels deeper reflection.

   Subpart A below shows the scale of expectations at the outset of this century. There was not just a momentary burst of enthusiasm set off by the Pinochet case. There was a general mood of confidence, following the end of the Cold War, that human rights norms could now be seriously and reliably enforced through the efforts of...