How Broader Acceptance of Universal Jurisdiction Makes it Look Worse

At JustSecurity, Ryan Goodman challenges the methodology of Amnesty International’s updated report of universal jurisdiction, which finds the vast majority of nations implement UJ in their legislation. Prof. Goodman argues Amnesty over-counts (see Kevin Jon Heller’s dissent).

Yet even if Amnesty’s numbers are accurate, they may actually paint a dismal picture of UJ.

The broader question is whether legislation is what we should be counting, rather than cases. As for the actual exercise of UJ, a comprehensive study by Maximo Langer has found only 32 such cases have gone to trial since World War II. Three-quarters of these involved defendants from three particular conflicts that had been made the subject of extraordinary international tribunals (Rwandas, Yugoslavia, Germany).

I discuss trends in UJ in Kiobel Surprise: Unexpected by Scholars but Consistent with International Trends, forthcoming in the Notre Dame Law Review. State practice has been moving away from exercising UJ, and Kiobel is the latest example. As I write:

As a proportion of cases that qualify for UJ prosecution, the enforcement rate approaches zero. Of course, a major practical limitation for criminal UJ is obtaining custody over the world’s war criminals and genocidaires… Even given this limitation, the exercise of UJ is extremely rare. For example, in Britain the Home Office is aware of nearly 700-800 suspected war criminals residing in Britain; over 100 applied for asylum in 2012 alone. Yet the government only seeks to return those against whom there is credible information to their home countries. Indeed, while Britain provided a massive publicity boost for universal jurisdiction in the Pinochet case (which itself did not directly raise universality issues), it has only universally prosecuted two defendants – an Afghan paramilitary officer and a Nepalese colonel, both for torture. Both defendants resided in Britain, and had committed their crimes under a defunct regime that did not object to their prosecution.

The more nations allow for UJ in their codes, the more striking their failure to exercise it. If nations had not accommodated their domestic legislation to allow for UJ, the extremely low enforcement rate could be attributed to this technicality. Then one might think that when nations update their code, there would be much broader prosecution (this is what happened with piracy, starting with 2009).

Whether high rates of UJ enabling legislation is a tribute or eulogy for UJ depends depends on what you think matters more in international law, action or sentiment. I think Langer’s approach (following Luc Reydams and earlier work) is more instructive. In Kiobel, amicus briefs from Prof. Oona Hathaway took the Amnesty approach, arguing that the ATS “is in good company” because of the broad acceptance of UJ elsewhere. Yet almost all of that acceptance was on paper, and not, like the ATS, in practice. After Kiobel, the practice is much thinner.

Interestingly, Amnesty’s “update” is specifically geared to “assist” a U.N. General Assembly committee tasked with examining the state of UJ. Amnesty may not like how these discussions have been going lately. As I described in my article, past discussions in the committee have revealed far more dispute about the very existence and scope of UJ than one would have imagined.

Several states, including China, clearly rejected the existence of universality beyond piracy, while others suggested it was still an “incipient” but not full-fledged norm. On the whole, the international consensus about UJ seems to fall short of the well-settled norms described by many publicists.