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Debate: Universal Jurisdiction

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Should any court have jurisdiction over offenses in other countries?

Background and context

Following events such as genocidal regimes and atrocities in civil wars, there is often an accountability gap because the people who perpetrated the acts will not be subject to prosecution for them in their own country. Belgium’s 1993 universal jurisdiction law permitted victims to file complaints there for atrocities committed abroad. It was repealed in 2003, apparently at least in part because of U.S. concerns about potential prosecutions of visiting politicians/military chiefs, etc. (witness ex-Chilean leader General Pinochet’s 1998 arrest in England and, on a civil basis, the development of “alien tort” claims even in U.S. courts). The new International Criminal Court at the Hague, and the United States’ very active lobbying against it, has further raised the importance of the issue in public.

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Argument #1

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Yes

There are basic standards of justice which merit global application. Certain crimes against humanity offend against basic and universal norms of justice. Therefore, all people have an interest in seeing them upheld and should have the legitimate expectation that this will happen. It is a fallacy to argue that asserting universal rights is a form of cultural imperialism. As long as the universal jurisdiction is focused on serious transgressions that are clear violations of the global judicial code (e.g genocide, torture mistreatment of prisoners of war), issues of differing cultural practices are irrelevant.

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No

There are no agreed international moral standards. The idea of universal jurisdiction offends against cultural relativism. Different acts acquire or lose their criminal nature depending on the culture and context – even, for example, killing is not universally condemned, and is acceptable in many supposedly progressive countries if performed in self-defence. The use of cluster bombs by the USA and Britain in recent conflicts has also been controversial, given their potential to harm civilians and to pose a continuing threat for many years after the war ends. Therefore, it is patronising to argue that, first, there is a set of global moral norms and, secondly, that a particular country’s courts know with certainty what they are.

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Argument #2

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Yes

Individuals who have suffered (or their representatives) have a right to some sort of due process of law and remedy for the wrong. It is wrong to deny them that right just because they reside in a country where the act will not be prosecuted. Even more importantly, the global community has a strong interest in deterring future crimes by showing that those who commit atrocities will never be safe from justice and punishment.

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No

Most nation states reject any supranational level as the appropriate level of decision-making. Therefore “Global” solutions to problems are inherently flawed. This is why so many global organisations are effectively no more than powerless talking shops. Any universal jurisdiction cannot be imposed at will, but will need to be agreed bilaterally with each sovereign state. As the experience of the International Criminal Court has shown, this is a slow, difficult and potentially impossible process.

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Argument #3

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Yes

Individual states cannot always be relied upon to pursue justice. Many states do not attempt to pursue certain wrongdoing within their borders, either because of corruption or lack of political will. Therefore it falls to “third party” states to fill the shortcoming in such situations. There is often an active disincentive for a country to prosecute its worst human rights offenders. The example of genocide is typical: the perpetrators may be in control of the judicial process, or they may be able to intimidate those who are in control of it, e.g by threatening civil unrest or a political coup. The government may also be loathe to prosecute as it may set a precedent which will be used against some of its own members in subsequent years.

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No

Universal jurisdiction offends the idea of national self-determination. Sovereign states should have complete and inextinguishable sovereignty over what happens in their countries. If they choose to pool, devolve or abrogate part of this sovereignty, that is one thing – but it is quite a different thing for a third party state to do that to them. Universal jurisdiction is an impediment to effective domestic justice. It effectively creates a two-track system which would fragment the judicial response to what is sometimes a single set of acts i.e. some people would be tried in the domestic courts, others under the international jurisdiction. This offends principles of fairness. The system would also warp the domestic justice system, for example by attracting some of its best legal talent to work overseas under the universal jurisdiction. Finally, prosecutions abroad may undermine local amnesties for past crimes given as the price of ending a bitter civil war or in the transition from dictatorship to democracy, and so lead to political instability and possibly even renewed fighting and further suffering.

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Argument #4

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Yes

Many countries simply lack an effective justice system. Many countries, especially in the developing world, lack a justice system which is either effective or receives proper resources. So, even if they wanted to prosecute wrongdoers, they effectively lack the capability to do so effectively. In such situations, it makes sense to allow third party states that have better judicial systems to become involved in the matter.

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No

Universal jurisdiction will stray from justice into politics. It is inevitable that universal jurisdiction will see states (or individual plaintiffs) trying to use the system as a means of perpetrating their political strategy via another forum. (Indeed, this is why Belgium scrapped its law: the U.S. strongly hinted that it would lobby for NATO to move its headquarters from Belgium, because it would not risk visiting military officials being arrested under the universal jurisdiction rule).

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Argument #5

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Yes

Universal jurisdiction does not replace domestic courts. Rather, it simply allows another avenue to justice so that, if the domestic judicial system fails to act on something, the possibility of justice is not extinguished. If anything, this should create an effective incentive for national judicial systems to be more efficient in pursuing wrongdoers. Universal jurisdiction would be an effective system. Because of the importance of its decisions, it would likely attract a significant proportion of leading legal talent. Therefore, it would be a well thought out and properly run jurisdiction. Enforcement of its decisions could be by multilateral or bilateral treaties.

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No

As well as relegating domestic courts to a second class status, Universal jurisdiction would be very expensive to run. This is especially so because of the additional costs any international system involves e.g. travel, translation, etc. It would also be difficult to agree the decision-making process. For a system to have some sort of legitimacy, there would need to be at least some level of international consensus on its substance and process. This would be very time-consuming and controversial to agree; and enforcement would remain a problem. Unless other states co-operate, can defendants be physically brought to trial against their will? If so, how? Or should they be tried in absentia with no ability to defend themselves?

See also

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