Tag Archives | universal jurisdiction

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

[...]

Continue Reading 0

New Paper: “Kiobel Surprise: Unexpected by Scholars But Consistent with International Trends”

My article on Kiobel v. Royal Dutch Petroleum is up on SSRN. It is forthcoming in the Notre Dame Law Review‘s Federal Courts Issue.

Here is the abstract; comments on the article are welcome:

The unanimous ruling in Kiobel v. Royal Dutch Petroleum blind-sided the legal academy. The case involved one of the most contentious and dynamic aspects of U.S. foreign relations law, the Alien Tort Statute (ATS). Yet the Court surprised observers by deciding the case on grounds almost entirely ignored by the academy – the presumption against extraterritoriality.

Amazingly, despite an extensive academic literature on the ATS, the winning issue in Kiobel had never been examined in a law review until a 2003 student note. No court ruled on it until 2010. Indeed, the issue had not even been part of the litigation in Kiobel until the Court sua sponte raised it during oral argument. Finally, the Court’s unanimous endorsement of an extraterritoriality limitation came as yet another surprise to most observers, who predicted a split along more ideological lines.

The story of the extraterritoriality issue in ATS litigation is a case study in the path dependence of legal doctrine and of agenda-setting by the Supreme Court and the Justice Department. This Article examines the intellectual history of extraterritoriality arguments in ATS litigation, while placing Kiobel in a broader context of international trends in universal jurisdiction. The Article also considers possible reasons for this academic oversight. While normative approval of ATS litigation no doubted contributed to the neglect of the issue in the exciting early years of ATS litigation, its longstanding omission must also be attributed to broader intellectual factors. It demonstrates the power of sub silentio decisions: while courts had never dealt with presumption in ATS cases, most observers assumed the issue to have been

[...]

Continue Reading 0

Foreign Commerce Authority for Universal Jurisdiction over Terrorists

The government is prosecuting three foreigners for the participating in “combat operations” in a foreign civil war.

The indictment apparently alleges no connection to America, or even foreign commerce (unlike a similar 2011 case that lacked an apparent connection to the U.S.) The defendants are Somalis who fought in Somalia. In a previous post, I discussed why the prosecution exceeds’s Congress’s Define & Punish powers; here we’ll consider other possible Art. I grounds. Today – the Foreign Commerce Clause; later today, War and Treaties. Tomorrow: additional thoughts about American exceptionalism in universal jurisdiction.

Foreign Commerce Clause
My previous post focussed on the Define & Punish Clause as the basis for the MST law; today, we will examine some other suggestions. I addressed the Define & Punish clause first because it is the first Art. I power Congress cited in its “findings” in support of the section. (sec. 301(a)(2) of the public law). Later, the findings do suggest the Commerce powers as a tertiary rationale: terrorism discourages travel from the U.S. to affected country, and vice versa. It also mentions general harm to “market stability.” This sounds a lot like the arguments rejected by the Supreme Court in U.S. v Morrison . Surely Congress’s can’t regulate any crime anywhere in the world just because it upsets things. The commerce argument is even weaker here: if someone moves out of their state because of violence against women, they presumably move to another U.S. state. But if they move from Somalia, they do not presumably move to the U.S.

The connection to U.S. commerce would have to be shown. In the one prior universal jurisdiction “material support” case, Ahmed , the government claimed in the indictment, without providing specifics, that it could show real links to commerce. The district judge accepted [...]

Continue Reading 0

Material Support Statute: A Neutrality Act for Everyone

In the next few days, I’ll discuss possible sources of Art. I authority for the the federal prosecution of three foreigners for fighting on the side of al-Shabab in Somalia, and brought forcibly to the U.S. for trial. Previously, I’ve argued that this prosecution cannot be sustained under the Offenses Clause. But first lets put this in historical and political context.

The use of the material support statute to prosecute foreign fighters in foreign wars is certainly novel, but it has a a historical cousin, which highlights the unusualness of the present prosecution in Brooklyn.

The Neutrality Proclamation of 1793, and subsequent Act, banned Americans from participating, or providing what we might call material support, to the belligerents in the Napoleonic Wars. The idea was such involvement could drag the U.S. into the war. The measures were extremely controversial, leading to the Pacificus-Helvedius debate between Hamilton and Madison. One of the secondary questions was the source of constitutional authority: it was variously placed in what I’d call the “dormant war power” – violations of neutrality by citizens undermined Congress’s prerogative of choosing our wars – or various treaty obligations to the particular warring states. Foreign commerce would do too. (I discuss the Art. I basis for the law in Part II.D.2 of this new article.)

The extraterritorial application of the Material Support statute to foreigners engaged in foreign wars essentially applies the Neutrality Act to the world. Not only must Americans stay of the of designated conflicts, everyone else must to. Of course, the effect is the opposite of the Neutrality Act: instead of distancing the US from foreign wars, it imports them into U.S. court rooms.

It is interesting to note that two of the men have Swedish citizenship, and the third had British citizenship. He became a [...]

Continue Reading 0

The Offenses Clause & Universal Jurisdiction Over Terrorists

A few days before Christmas, the U.S. indicted three men at the Federal District courthouse in Brooklyn for plotting suicide bomb attacks. This is an extraordinary, almost unique case: none of the people or conduct has any connection to the U.S. The defendants are foreign nationals, captured by some African government ont their way to join up with al-Shabab, the Somali Islamist group. To be clear, there is no suggestion that they planned to target American nationals or facilities, or had even ever been to this country before.

This is an aggressive – and unconstitutional – assertion of universal jurisdiction. The U.S. is prosecuting foreign nationals for their participation in a foreign civil war. Congress, as the Supreme Court recently reminded us in the Health Care decision, is truly one of limited regulatory powers, and thus the first question about such a case is what Art. I power gives Congress the power to punish entirely foreign conduct with no U.S. nexus.

The men have been charged under the “material support for terrorism” statute, 18 USC 2339B . Apart from the many controversies about the substantive sweep of the law, it casts a very broad jurisdictional net. By its terms, it applies to foreigners who support designated foreign terror groups with no connection to the U.S. In other words, it makes terrorism anywhere a federal offense.

While the statute has previously been used to prosecute extraterritorial conduct by foreigners that conducted significant dealings in the U.S., this is only the second apparently “universal” prosecution.

The Art I. authority for prosecuting conduct under universal jurisdiction is the “Define and Punish” clause. Yet the clause limits universal jurisdiction to crimes, like piracy, that are i) “offenses against the law of nations,” and ii) treated as universally cognizable by the law [...]

Continue Reading 0

The Cross-Cutting Politics of the ATS and Universal Jurisdiction

In discussions of Kiobel v. Royal Dutch Shell and the Alien Tort Statute, many commentators suggested if the Supreme Court limits corporate liability or extraterritoriality under the ATS, it would eviscerate the statute, and be bad for human rights. More generally, limiting the ATS is thought to serve broadly conservative interests.

These points are only weakly true for the ATS, as I’ll explain below. But more broadly, a limited understanding of the role of universal jurisdiction (UJ) and the Constitution’s Offenses power would have a variety of cross-cutting political valences when applied to other statutes. I have been describing the sources and scope of the constitutional limits on UJ in prior posts. So if reigning in foreign-cubed suits under the ATS can be “scored” as a liberal loss, the logic for doing so would give conservatives a loss under the material support for terrorism law, and both a conservative and liberals loss under the Maritime Drug Law Enforcement Act (but a libertarian win!).

To put it differently, UJ – the exercise of judicial power in foreign-cubed suits – has no inherent political valence; this depends on the norms being universalized. The ATS is one of a few instances of such jurisdiction, and a restriction on it could have several ripples and ramifications in other important contexts.

Moreover, it should be remembered that the ATS itself has other uses besides foreign-cubed suits against companies. Restricting such actions does not make the ATS meaningless, it only stops one particular genre of claims. ATS suits can and have been brought against individual American nationals, even as the new briefs in Kiobel are being written. Also, it should be noted that the ATS suits are not limited to liberal causes, and limiting it could obstruct some more conservative initiatives. Consider two pending ATS [...]

Continue Reading 0

Individual Mandates for Foreigners and Indians

In my previous post, I argued that the broad interpretation of the Commerce Clause advocated by the government would have the absurd result, when applied to the parallel foreign commerce clause, of allowing Congress to impose mandates on foreigners with no prior contacts with the U.S.

Many commentators fought the hypothetical, saying such a law was stupid, unenforceable, and unlikely, so not a good proof of anything. Two responses. First, one man’s idiotic and unenforceable is another man’s Patient Protection and Affordable Care Act, which aside from its merits is itself unlikely (once in a few centuries), and hard to enforce (waivers). Second, arguments from absurd consequences are valid even if the hypothetical law would be ill-advised; indeed, since presumably no one wants absurd consequences, such arguments inherently assume the possibility of legislative error.

A student of mine emailed me to raise a variant hypothetical much closer to home: Can Congress mandate Indians to purchase insurance? They “inevitably” leave their territory at some point in their lives (at least as “inevitably” as the healthy uninsured getting sick), so the arguments would be exactly the same as for the mandate under the Interstate Clause. So why have an Indian Commerce Clause at all? Factual query: does the ACA apply to Indians living on tribal land? (I invite the student to self-identify in the comments.)

Some suggested that Interstate Commerce is regulated “among” the states, whereas foreign and Indian commerce is only “with” other countries or tribes. This could suggest the interstate power is broader: commerce just “among” other nations seems explicitly excluded. But if “among” the states means not actually among but affecting things that are “among,” wouldn’t the same be true of “with”? Again, I think the best reading of the commerce clause is that the interstate power is [...]

Continue Reading 0

Can Congress Mandate the Japanese to Buy Detroit Cars? – The Commerce Clause and Foreign Commerce

One aspect of the ACA litigation that has not received due attention is the effect of the Court’s ruling on the scope Foreign Commerce Clause. An expansive, limitless definition of the scope of “Commerce” would presumably apply to Foreign Commerce as well. If there is no limiting principle for the former, it would be hard to have a limiting principle for the latter.

Under the logic of the government’s approach, Congress could regulate or mandate transactions purely between foreigners with no direct U.S. nexus. This is because these foreigners could have – should have! – engaged in transactions with the U.S instead. Purely foreign transactions affect the price of things in the U.S. If insurance would be cheaper if more people bought it, the same could be said about American cars. It makes no difference if the recalcitrant non-purchaser is foreign or domestic. Can the Japanese be required to buy U.S. cars? Certainly such a law would be closely related a major economic sector, as defenders of the ACA like to put it. (I am of course holding aside issues of enforceability to focus on the Commerce power.)

Or consider a rationale closer to the ACA case. If the mandate falls within Interstate Commerce, why not Foreign Commerce as well? Just as health people may get sick while uninsured, foreigners might come to the U.S. uninsured. At the time they come, no doubt Congress could require purchasing insurance as part of its Immigration powers. But by then it could be too late, they could be sick not insurable. So could Congress require foreigners to buy insurance or broccoli prior to coming to America on the theory that they might at some point come to America? Foreigners from countries where a sizable percentage visit the U.S.? Foreigners who have visited the [...]

Continue Reading 0

Precedent-setting Dutch Civil Universal Juris. Case

One of the peculiarities of the Alien Tort Statute is its mix of cosmopolitan conceptions of justice with American exceptionalism. Under the ATS the U.S. has been the only nation in the world allowing for universal jurisdiction (“UJ”) in civil suits. So while enforcing international law has been the justification for these suits, it has been a mode of enforcement otherwise unseen around the world.

That changed a tiny bit today with a precedent-setting decision in the Netherlands, that awarded damages in a UJ civil suit brought by a Palestinian man against Libyan officials for torture that took place in Libya – the notorious and bizarre fraudulent persecution of foreign medical workers for infecting patients with AIDs. (And this is when Qaddafi could still be seen in polite company.)

So what does this ruling mean for the ATS, and particularly the extraterritoriality issue to be argued in Kiobel? At first, it would seem to bolster the plaintiff’s case, by making civil UJ seem (very marginally) less anomalous. But it also cuts the other way, perhaps more strongly. The argument that there is no other forum where these serious wrongs can be redressed has underpinned broad notions of the ATS, both with regards to UJ extraterritoriality and corporate liability. Now, the danger of “impunity” has abated. Now a federal judge must now ask in a UJ ATS case – why wasn’t it brought in Holland? What if Holland is actually physically closer to the conduct (as in Kiobel)? Isn’t Holland where all the international lawyers are? Does plaintiff’s presumptive choice of forum apply to UJ cases?

Finally, the Libyan defendants were all sued as individuals (because of sovereign immunity), suggesting an absence of entity liability (like corporate liability) does not make a nullity of international justice and human rights litigation.

UPDATE: [...]

Continue Reading 0

Kiobel (III): Universality as a Constitutional Question

Lets take a break from the ACA to think about the federal government’s power to to deal with matters that have no connection to the U.S., an issue the Court will take up when it hears the expanded arguments in Kiobel, the ATS case.

Yesterday I talked about how the ATS extraterritoriality at issue in Kiobel is really something rarer and more extreme: universality. Thus the analysis starts with the classic universal crime and obscure constitutional provision – Piracy, which has gotten significant play in the courts of appeals’ extraterritoriality cases like Doe v. Exxon and Rio Tinto (as well as in the Kiobel oral arguments on corporate liability). Because Sosa held that piracy would be actionable under the ATS, it is clear that the battle over extraterritoriality in Kiobel will be a naval engagement. It is true that piracy occurs extraterritorially, and under the current piracy statute, can be prosecuted even with no connection to the U.S. But proponents of foreign-cubed draw precisely the wrong inferences from piracy’s exceptional status.

Piracy is not just any international crime: it has its own separate constitutional provision: Congress can punish “piracies and felonies on the high seas, and Offenses against the law of nations.” Thus whatever is true of “piracy” is not necessarily true of other “Offenses” that can be reached under the ATS: these are separate, though related, Art. I powers. The Constitution’s singling out of piracy is striking and demands explanation, because it creates a double-redundancy. Does anything make piracy different from other high seas felonies and international law offenses? Yes: it was the only universally cognizable offense at the time.

Starting with this textual observation, I have explained that Congress can at most only use universal jurisdiction over offenses that clearly have that status in international law (see The [...]

Continue Reading 0

Kiobel (II): Universality, Not More Extraterritoriality

[Cross-posted on OpinioJuris]

The new issue in Kiobel is not mere extraterritoriality, but rather universality. There are constitutional limits on universal jurisdiction (UJ); at most it can only be used for those “Piracies” and “Offenses” that have UJ status in international law. But Congress has not “defined” any offenses in the ATS. It delegated the task to the courts, but the courts must use this mandate narrowly and cautiously, as the “Define” power was given to Congress precisely because international law was too “deficient and vague” to be a common law rule.

Lower courts have discussed the application of the Alien Tort Statute to so-called “foreign-cubed” cases – where the parties are foreigners and the conduct takes place abroad – as a matter of extraterritoriality, a term that suggests the presumption of statutory construction against extraterritorial application. While there is a presumption against extraterritoriality, the application of U.S. law to conduct abroad is not uncommon. Yet even the most controversial or aggressive use of extraterritoriality typically involves the regulation of American conduct abroad, or at least conduct that has substantial effects in American or on particularly American interests. But this is not the extraterritoriality of Kiobel, which like many ATS cases have no connection to the U.S. whatsoever. Such universally extraterritorial scope is certainly only found in the face of the clearest statement of congressional intent, such as in the unusual Maritime Drug Law Enforcement Act.

Universal jurisdiction, of the kind asserted in Kiobel, is exceedingly rare and poses much greater problems than mere extraterritoriality. It raises the question of where the federal government, supposedly one of limited powers internally, gets the authority to regulate conduct with no domestic nexus, and have federal courts sit as little world courts.

As shall be seen, Supreme Court precedents clearly apply [...]

Continue Reading 0

ObamaCare and the ATS: Can the Feds Regulate the Whole World?

Today the Supreme Court takes on the scope of the Commerce Clause in the historic healthcare cases. The case raises the question of whether there are any substantive limits to the federal government’s domestic regulatory power. But another case soon to be (re)argued before the Court, Kiobel v. Royal Dutch Shell, manages to raise an even broader question: Are there any substantive limits to the federal government’s power to regulate matters occurring outside and having nothing do with the United States? Surprisingly, the latter question has not been generally regarded as a constitutional one.

The Supreme Court has expanded the issues under consideration in Kiobel, originally about corporate liability under the Alien Tort Statute, to include the extraterritorial application of the law. Like corporate liability, extraterritoriality had for decades just been assumed by the lower courts hearing ATS cases: now it will be fully explored.

This series of posts, also cross-posted on OpinioJuris, will focus on the constitutional/federal courts issues involved, and of course explore the early piracy precedents of the Supreme Court to get traction on the issues. In short: before thinking about the ATS, one must consider the constitutional basis for universal jurisdiction – which is quite narrow. Furthermore, there a some good reasons derived both from the constitution and precedent for interpreting the ATS narrowly, as not exercising whatever UJ power the federal government does have.

Before turning to the merits, it is amusing to note the strange bedfellows ATS doctrine makes. The litigation and accompanying academic debate over the meaning and scope of the Alien Tort Statute has been a marvel of surprising ideological transpositions, and more reversals of traditional roles than All’s Well That Ends Well. On the issue of corporate liability, liberals (crudely speaking) urge the Court look to parochial U.S. law, [...]

Continue Reading 0