TABLE OF CONTENTS I. INTRODUCTION A. Universal Jurisdiction in International Law B. Two Main Issues Confronting Universal Jurisdiction II. UNIVERSAL JURISDICTION IN ABSENTIA A. Defining Universal Jurisdiction in Absentia B. The Threat to Sovereignty C. Identifying a Practice of Jurisdictional Assertions Among States D. A Procedure for Pursuing Universal Jurisdiction in Absentia E. Universal Jurisdiction in Absentia as a Vehicle for International Law and Policy 1. Developing Custom and Interstate Relations 2. Combating Impunity a. Punishment/Deterrence of International Criminals b. Practical Feasibility III. A MODERN CATEGORY OF UNIVERSAL CRIME A. Genocide B. Slavery C. Torture D. Crimes Against Humanity and War Crimes E. Certain Acts of Terrorism IV. CONCLUSION I. INTRODUCTION
This Article explores the controversial international legal principle of universal jurisdiction--i.e., the principle that criminal jurisdiction by all states arises solely from the nature of the crime committed. The Article deals with two main issues confronting the modern doctrine and application of the principle: (i) whether a state may assert universal jurisdiction absent the presence of the accused on that state's territory, and (ii) what crimes give rise to universal jurisdiction. The purpose of this Article is to explore these issues fully, taking into consideration both theoretical and practical concerns, and to resolve the issues in favor of a modern principle of universal jurisdiction tailored to the oftentimes competing needs of international justice and peaceful relations among states.
Universal Jurisdiction in International Law
The term "jurisdiction" is a legal proxy for the power to apply and enforce laws over a defined group of persons. The persons may be defined by their physical presence in a given territory or by a legal relationship to that territory (for example, the relationship of citizenship or nationality). One of the most general forms of jurisdiction is that of a nation state over its own territory, (1) which is called by such diverse names as "national jurisdiction," "state jurisdiction," "domestic jurisdiction," or just "sovereignty." One jurisdiction may overlap with another jurisdiction; in such cases there is concurrent jurisdiction. (2) Of intense interest in recent international relations and academic debate is the legal question of when a state can assert its criminal jurisdiction over conduct that occurs outside its own borders. (3)
Jurisdiction in international law is seldom clear because its "international" dimension contemplates various and fluid factors, not the least of which is the potential impact of a given jurisdictional assertion on other states with concurrent jurisdictional claim over the accused offender. (4) There are a number of established bases or principles in customary law that describe jurisdiction. (5) The territoriality principle is invoked when the act over which a state wishes to assert jurisdiction takes place or has an effect on the territory of that state. (6) The so-called "flag principle" may be considered an extension of the territoriality principle because it holds that vessels carrying a state's flag are subject to that state's jurisdiction, (7) or put differently, the vessel is that state's territory. The nationality or active personality principle is invoked where the perpetrator of the offense is a national of the state, and the passive personality principle is invoked when the victim of the offense is a national of the state. (8) The protective principle is invoked where the offense "harms the state's interests." (9) The representation principle is applied where a custodial state--the state on whose territory the offender is found--prosecutes an offense by acting as a surrogate for the territorial state. Under the representation principle the crime need not be proscribed as a matter of international law, and some form of understanding or cooperation between the territorial and prosecuting state is necessary. (10)
Finally, the most controversial principle of jurisdiction is the universality principle. (11) This principle holds that international law considers certain acts to be so egregious that the nature of the crime itself engenders jurisdiction by any state irrespective of territorial or national links. (12) Serious crimes under international law that are potentially subject to universal jurisdiction (13) include genocide, slavery, torture, crimes against humanity, war crimes, and perhaps terrorism. (14) The focus of this Article is on universal crimes and the nature of the jurisdiction they engender. (15)
Two Main Issues Confronting Universal Jurisdiction
The controversy surrounding the universality principle stems from two main issues raised in modern theory and practice, both of which are fundamentally jurisdictional. The first issue focuses on the state asserting jurisdiction and asks whether that state may do so absent the presence of the accused on its territory--or what this Article will call "universal jurisdiction in absentia." The second issue focuses on the alleged universal criminal's jurisdiction-triggering conduct and asks what crimes give rise to universal jurisdiction.
In response to the first issue, Part II of this Article will take the position that states may assert universal jurisdiction in absentia--a position that has met with grave skepticism by courts and commentators alike. (16) This Part will first briefly define universal jurisdiction in absentia and distinguish it from issues associated with trials in absentia. It will then confront the difficulties inherent in universal jurisdiction in absentia--most particularly, the potential for serious clashes among states with concurrent jurisdiction and the resulting threats to sovereignty that in absentia assertions pose. The discussion will observe that much of the difficulty a traditional sovereignty analysis has with universal jurisdiction is based on a formalistic understanding of jurisdictional interplay among states whereby jurisdiction derives from an exclusive list of well-defined interests, most prominently, territorial and national. These interests measure the objective link that a given state has to an offense and provide for jurisdiction accordingly.
Of course, the problem with universal jurisdiction is that the objective link--the offense itself--theoretically exists for all states (that is, jurisdiction stems from all states having an interest in bringing universal criminals to justice). Thus, in order to cabin in the potentially arbitrary and sovereignty-destructive reach of this form of jurisdiction, some other objective criterion must be added. Although arguably unique to and theoretically inconsistent with universal jurisdiction, the requirement that the accused be present on the state's territory serves this function. While the presence criterion is external to the universal principle itself, it serves as a practical check on the ability of states to dilute and disrespect other states' sovereignty through in absentia assertions.
Accordingly, in resolving the threat that universal jurisdiction poses to sovereignty, Part II will identify a procedure whereby states practice universal jurisdiction in a way that respects sovereignty by balancing well-defined, established interests. The procedure uses established jurisdictional bases to describe a burgeoning custom underlying the increased--albeit still limited--practice of universal jurisdiction. The procedural model distributes jurisdictional competences according to a hierarchy of these established bases or interests: territoriality, nationality (active personality), passive personality, the extent to which the offense harms the state's interests, etc. The distribution of jurisdictional priority determines which state has a stronger jurisdictional claim over the offense and the accused. Those states having the strongest link to the offense and the accused will always have superior jurisdictional priority. However, absent their willingness to assert jurisdiction, the accused will not enjoy an effective grant of impunity because some other state may always step up to close the jurisdictional loophole. In this respect, an assertion of universal jurisdiction in absentia will act as a last resort option since any state on whose territory the accused is found--i.e., the custodial state--will have priority over another state which, absent traditional jurisdictional links, is looking to assert universal jurisdiction. Through this procedure, traditional jurisdictional bases, each rooted in self-contained notions of sovereignty (in that jurisdiction stems from the strength of a state's autonomous interest in prosecuting the harm), work together in a sovereignty-respectful way to protect not only a state's autonomous interest, but the larger international interest as well.
Part II will explain further how universal jurisdiction in absentia actually strengthens interstate relations because it provides for signaling among states. It will argue that such signaling develops and clarifies custom in a way that affords states more options to act against perpetrators of international crime. In this regard, it will show how in absentia assertions provide a means of communication among states whereby universal jurisdictional claims may be evaluated prospectively and reacted to by interested states, invariably adding to and refining the currently vague rule of universal jurisdiction and freeing states to act pursuant to a surer custom. Moreover, it will describe how this new form of universal jurisdiction through signaling is more respectful of sovereignty than the usual exercise of universal jurisdiction (where the accused is found on the state's territory), and even tends to focus international relations on human rights.
Last, Part II will demonstrate how universal jurisdiction in absentia combats impunity by providing a measure...