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Bainbridge on the problem of universal jurisiction

UCLA Law Professor Stephen Bainbridge

UCLA Law Professor Stephen Bainbridge

A previous post discussed the recent decision by the Spanish national security court to investigate several former Bush Administration lawyers. My good friend and UCLA Law legend, Steve Bainbridge, has some cautionary words on the application of the principle of universal jurisdiction. Universal jurisdiction, it will be recalled, is a principle of international law that allows a state to exercise criminal jurisdiction over an individual who commits a crime regarded as “universal” in nature. Typically, crimes such as piracy, slave trade, genocide, war crimes, torture, etc., have been regarded as universal in nature. Under customary international law, there need not be any connection between the individual accused of commiting such crime and the state exercising universal jurisdiction. Bainbridge writes:

I have concerns about the use of universal jurisdiction here. Spain is claiming jurisdiction to investigate and, if warranted, try US nationals for conduct committed in the US and which impacted, as far as I can tell, on 5 Spanish nationals for conduct they allegedly committed outside Spain. Because Spain’s ties to the conduct are so tenuous, Garzon is relying on the legal principle of universal jurisdiction. . .

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Universal jurisdiction raises several concerns when extended to these kinds of cases, as opposed to piracy and the similar crimes it was originally developed to deal with. Piracy and terrorism often involve non-state actors whose conduct occurs at sea or in failed states or with the aid of state sponsors. Absent some form of universal jurisdiction, there is no chance of punishing and deterring such crimes.

In contrast, here we are dealing with state actors. Applying universal jurisdiction here raises a number of concerns.

First, do we really want a lone national judge in one state interfering with issues of global diplomacy? Suppose the UN worked out a deal for Sudanese President Omar al-Bashir to step down and be replaced by a democratically chosen civilian. As part of the deal, the UN and the ICC agreed to drop al-Bashir’s indictment for war crimes and crimes against humanity. Just as al-Bashir is about to leave Sudan, however, Garzón indicts him in Spain for the same charges. The diplomatic apple cart all too easily could be upset by a rogue jurist.

Second, there is a serious risk of politicization of claims premised on universal jurisdiction. Do you want a far left judge backed by an anti-American regime being able to pursue a political agenda against US state actors? Conversely, do you want a neo-fascist judge backed by a far right regime going after Israeli officials who conduct West Bank settlement policy (which, after all, is arguably at least as egregious a violation of international law as anything John Yoo did)?

I think a case can be made for restricting invocation of universal jurisdiction by individual states to cases like piracy, while restricting its use in cases like this one to multi-state international courts, such as the ICC, that are subject to checks and balances so obviously absent in Spain.

It is always tempted to grasp a tool that lies readily at hand and offers short term results. Yet, expediency is all too often the opposite of prudence. The Bush policy on terror was a bad policy. But allowing Garzon to go forward is also a bad policy.

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Welcome! Who am I?

Anthony Clark Arend is Professor of Government and Foreign Service at Georgetown University and the Director of the Master of Science in Foreign Service in the Walsh School of Foreign Service.

Commentary and analysis at the intersection of international law and politics.