Monday, September 17, 2007

Does Universal Jurisdiction Exist? Yes and No.

Michael and Richard, welcome to Poor Richard's Almanac--Mark Anderson.

Amnesty International has collected case law from twelve separate nations grounded in claims to universal jurisdiction. Like most major issues in international law, universal jurisdiction is highly contested. There are many who favor it, even see it as the bare minimum for a civilized world, and many others who oppose its institution. At present, an objective observer would have to say that it is frequently and consistently being asserted by many different states and many different contexts. It has sometimes been enforced, sometimes defied, and sometimes abandoned by the states that claim it. In other words, it is frequently claimed, sometimes enforced, and sometimes opposed, often for political rather than legal reasons.

It is simply counterfactual to assert that such a highly contested and occasionally enforced doctrine of international law does not exist. There are legal schools of thought that oppose it. For those schools to assert that it "does not exist" is an assertion of a highly-contested interpretation they continue to actively promote, it is anything but an assertion of fact.

Lastly, isn't there a danger that opposition to universal jurisdiction retroactively challenges the legitimacy of Nuremberg and Tokyo War Crimes Trials? Why would the Geneva conventions apply to Axis powers, but not to the Allies? Why would they apply to enemies of the U.S., but not to the U.S. and its allies today? Isn't the alternative an effective concession that these were cases of victor's justice--that international law absent universal jurisdiction is a state of exception run out of Washington D.C. and the U.N. Security Council?