Domesticating international criminal law: bringing human rights violators to justice.

• Author: Osofsky, Hari M.

Consider the following dilemna. The former head of a Chinese prison is visiting the United States for his daughter's wedding. A number of former prisoners whom he personally tortured(1) before their release and subsequent emigration to the United States would He to file a civil suit against him under the Alien Tort Claims Act (ATCA)(2) and the Torture Victim Protection Act (TVPA)(3) in an effort to obtain monetary compensation. Meanwhile, the Justice Department is compiling evidence that might allow an indictment under the new U.S. anti-torture criminal law(4) within a few months of his visit. The President, however, is trying to conclude a major treaty negotiation with China and fears the political repercussions of either suit, especially the criminal one. Should either action go forward?

This example illustrates the potential complexities arising from Congress's beginning to accept national criminal jurisdiction over severe human rights violations. In 1994, the United States changed its criminal code to provide that any U.S. national or person physically located within the United States could be held criminally liable for torture he or she commits anywhere against anyone.(5) This Statutory Change, part of the U.S. ratification of the Convention Against Torture and Other Cruel Inhuman and Degrading Treatment,(6) represents a watershed in the evolution of U.S. human rights protection. Not only can torturers face civil liability for their abuses under the ATCA and the TVPA, but they also can be jailed for up to twenty years or even receive life imprisonment or the death penalty if their behavior resulted in death.(7)

This statute thus expanded U.S. reliance upon universal jurisdiction. International law recognizes five grounds upon which states can base their jurisdiction: Territorial jurisdiction stems from wrongs occurring within a nation's territory; nationality jurisdiction is based on an offender's being a national of the state taking jurisdiction; passive personality jurisdiction occurs when a victim is a national of the state; protective jurisdiction is based on the acts impinging upon important state interests or national security; and universal jurisdiction stems from the notion that some international prohibitions are so important that a violation of them by anyone, anywhere, warrants any nation's taking jurisdiction.(8) This universality principle is the jurisdictional base for nations to prosecute human rights offenders; their violations are such egregious wrongs that their behavior is of every nation's concern.

Although the U.S. criminal law regarding torture represents an important new vehicle for bringing human rights offenders to justice, it is a natural evolution of the existing international and domestic criminal law. Unlike the early human rights conventions, more recent treaties contain specific provisions requiring prosecution or extradition of offenders within their borders.(9) Both international treaty and customary law recognize many human rights norms as conferring universal jurisdiction. Likewise, U.S. statutes increasingly have provided for national criminal jurisdiction in areas connected to human rights, such as terrorism and hostage taking.(10) In addition to the traditional territorial base, judicial decisions have recognized nationality, universality, and passive personality jurisdictional bases in a criminal context. The courts also have given great leeway in cases involving forcible abduction of defendants in other countries and have denied many constitutional protections to alien defendants.(11) Together, these developments indicate a growing U.S. assertiveness and recognition of its international obligations in the criminal jurisdictional sphere.

Not surprisingly, these changes have had their critics. Scholarly literature in particular has questioned the judicial acceptance of forcible abduction and denial of rights to defendants abroad.(12) Many scholars have discussed how far national criminal jurisdiction should reach, with particular exploration of nationality, passive personality, and universal jurisdiction.(13) Despite all of this commentary, no systematic analysis of national criminal jurisdiction over human rights violators has occurred

This Note aims to fill that gap by tracing the development of national criminal jurisdiction in international human rights law and its manifestation in U.S. law. It advocates an expanded statutory regime and a systematic approach to prosecution. After considering some of the potential pitfalls of broader criminal jurisdiction over international human rights violations, it recommends statutory and litigative approaches to address them. Part I describes the evolution of international human rights law toward the recognition of national criminal jurisdiction and the United States's implementation of such jurisdiction. Part II analyzes policy reasons for expanding national criminal jurisdiction: the need to enforce universal norms, the limitations of international mechanisms, and the incompleteness of national civil jurisdiction. Part III considers some problems do might result from broader jurisdiction, such as sovereignty and legitimacy concerns, undermining of civil redress mechanisms, ambiguities of scope, and difficulties of accessing prosecution. Part IV suggests statutory criminalization of clearly established international human rights violations and discretionary use of criminal litigation based on a comparative forum conveniens analysis. International criminal jurisdiction, the Note concludes, provides an important mechanism of justice beyond that provided by civil law but should be expanded carefully.

1. Development of National Criminal Jurisdiction Over International Wrongs

   From the early recognition of pirates as enemies of mankind whom any nation had jurisdiction to prosecute, international law has evolved to contain explicit treaty provisions requiring national criminal jurisdiction for particular human rights violations. These provisions represent a shift from post-World War II international criminal law, which provided for much more limited national jurisdiction or no explicit discussion of such jurisdiction. U.S. law gradually has followed this evolution, with the criminalization of torture representing an important expansion. To explore the international basis for U.S. criminal jurisdiction over human rights offenders, this part reviews the growth of national jurisdiction through human rights treaties and custom and discusses the U.S. implementation of these norms in the criminal context.

   1. Evolution of International Law

      The use of universal jurisdiction in a national criminal context has expanded greatly in the latter half of this century. Traditionally, international law has recognized five bases for national jurisdiction: territoriality, nationality, passive personality, protectiveness, and universality.(14) Until the middle of the twentieth century, however, domestic exercise of criminal jurisdiction was based almost exclusively on territorial grounds. Both public and private international law indicated do criminal law should apply primarily to crimes occurring within a nation's territory.(15) Piracy served as an important exception to this rule and thus as the progenitor of some of the later jurisdictional expansions.(16)

      Even before the growth of human rights law following World War II, international criminal law and universal jurisdiction existed in the form of piracy prohibitions. Pirates were considered "hostis humanis generis,"(17) 17 enemies of mankind, and any nation could take jurisdiction over them. This approach toward piracy, however, did not stem from the expansive views of national criminal jurisdiction embodied in modern treaties. Instead, the peculiar character of piracy probably accounted for its internationalization as a crime; pirates committed offenses on the high seas, which were not within the jurisdiction of any country.(18)

      The conception that some acts occurring within national borders are so unacceptable that they violate international law came with the end of World War II. Through the Charter of the International Military Tribunal(19) and the Convention on the Prevention and Punishment of the Crime of Genocide (also known as the Genocide Convention),(20) the international community established crimes against peace, war crimes, crimes against humanity,(21) and genocide(22) as international crimes.

      This recognition, however, did not include particularly expansive notions of national jurisdiction over these crimes. The Charter for the international Military Tribunal did not mention national jurisdiction at all, and the Genocide Convention specified two Possible places for a trial: the country in which the abuses occurred or an international tribunal.(23) in accord with this limited national jurisdiction, the world community held trials at international tribunals established in Nuremberg and Tokyo.(24) While numerous national prosecutions of German and Japanese war criminals occurred, they did not rest on these international conventions' granting universal jurisdiction.(25) For example, although Israel was able to try Adolph Eichmann for genocide on universal jurisdiction grounds,(26) the initial human rights conventions did not provide explicitly for national jurisdiction over international crimes.

      An important step toward an increased national role in policing human rights abuses came in 1956 with the Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery.(27) This Convention criminalized the "act of conveying or attempting to convey slaves from one country to another by whatever means of transport, or of being accessory thereto ..."(28) Article 3 of this Convention required the national criminalization of the slave trade, "effective measures" to prevent mechanisms of trade within the territory of signatories...