Talk:Universal jurisdiction

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[edit] We need to separated fact from advocacy

The entire article, before I started editing it, reads like a justification for the ICC.

We need to separated fact from advocacy.

This exercise of universal jurisdiction is well settled international law, universally accepted and free from controversy.

The above sentence is part of an argument and should be labelled as such -- and attributed to its advocate. --Ed Poor 19:49 Sep 6, 2002 (UCT)

Ed: Firstly, the International Criminal Court does not have universal jursidction, and has nothing to do with universal jurisdiction. Secondly, universal jurisdiction is not "a novel legal concept" -- it has been around since the 18th or 19th centuries, when it was developed to enable states to try piracy on the high seas, even if they themselves had not been victims of piracy. In and of itself it is uncontroversial -- I am not aware of a single country in the world that disputes the legal existence of universal jurisdiction. The dispute is rather over what crimes does it apply to (everyone agrees it applies to piracy on the high seas -- but for other more politicial crimes, it is more controverisal), in what circumstances can it be applied (e.g. can a state try foreign government officials using universal jurisdiction, even ignoring their immunity? -- there was a recent case on this in the ICJ involving Belgium's use of universal jurisdiction), and whether its politically a wise tool to use. However, no serious legal opinion disputes anywhere the fact that universal jurisdiction exists -- its a settled feature of international law.

You will find all this in any decent book on international law. Try the Third Restatement of the Foreign Relations Law of the United States for a good explanation. Unless you can find a serious legal opinion disputing the existence of universal jurisdiction, then no matter how many people (for political reasons) dispute its existence, it exists. -- SJK 08 Sep 2002

From what I've gleaned online recently, it is the TERM universal jurisidiction which is new, as opposed of the PRACTICE of applying law beyond a state's boundaries. I would like the article to explain how crimes such as piracy on the high seas were treated by the major powers. I'd like to see a compare and contrast between historical enforcement of internationally accepted norms and "universal jurisdiction" as defined in the late 20th century.

If you know anything about this, please add it to the article. --Ed Poor

What is the purpose of the quotes in this article? Kissinger says this, Roth says that -- but neither really provides the reader with much information. I moved them to the end, but I would propose dropping them altogether. If we want to quote someone, maybe we should quote something more authorative (e.g. international law textbooks, journals, etc.) than simply what two political lobbyists have to say. --- SJK

A belated answer: this article seems almost entirely an argument in favor of universal jurisdiction: that it's always been around, or that it's needed, etc. Arguments in favor of some political ideal ought to be balanced with arguments against that ideal, especially when the issue is highly controversial or if one party to the issue appears to hold all the cards: as is the case with the US in terms of universal jurisdiction, the ICC; or on environmental issues such as global warming and the kyoto protocol. --Uncle Ed 22:14 Feb 13, 2003 (UTC)


This is incorrect....

Spain claimed jurisdiction over Pinochet for his role in overthrowing Allende in Chile, and for alleged violations of human rights of Chileans thereafter.

Spain claimed jurisdiction over Pinochet for his role in allegedly killing and torturing Spanish citizens living in Chile after the 1975 coup. It then invoked a treaty which it claimed obligated Britain to extradit Pinochet to Spain.

Spain didn't invoke universal jurisdiction at all.


Since these have already been covered in the article, I'm not sure that the quotes add anything.


In The Pitfalls of Universal Jurisdiction, Henry Kissinger writes,

"The very concept of universal jurisdiction is of recent vintage. The sixth edition of Black's Law Dictionary, published in 1990, does not contain even an entry for the term. The closest analogous concept listed is hostes humani generis ("enemies of the human race"). Until recently, the latter term has been applied to pirates, hijackers, and similar outlaws whose crimes were typically committed outside the territory of any state. The notion that heads of state and senior public officials should have the same standing as outlaws before the bar of justice is quite new." [1]

In The Case For Universal Jurisdiction , Kenneth Roth writes,

"Strictly speaking, the ICC will use not universal jurisdiction but, rather, a delegation of states' traditional power to try crimes committed on their own territory." [2]

[edit] Suggestions for new headings

This article really needs to be cleaned up. I suggest that we add a new heading titles "bases of universal jurisdiction" or "crimes attracting universal jurisdiction" and modifying the other titles.

I mean, it makes no mention of the Geneva Conventions, which clearly provides signitories jurisdiction over war crimes. For example, Article 49 of the First Geneva Convention states:

“Each High Contracting Party shall be under the obligation to search for persons alleged to have committed, or to have ordered to be committed, such grave breaches, and shall bring such persons, regardless of their nationality, before its own courts. It may also, if it prefers, and in accordance with the provisions of its own legislation, hand such persons over for trial to another High Contracting Party concerned, provided such High Contracting Party has made out a prima facie case.”

Just a few more examples of other crimes attracting universal jurisdiction:

The Genocide Convention 1948 makes the crime of genocide a jus cogens norm, meaning that this crime as part of international law is binding on states even if they are not party to it.

The crime of torture as under the Torture Convention is now arguably a jus cogens norm [see the rulings of Furundzija as well as Pinochet [No 3] in the House of Lords].

"The Genocide Convention 1948 makes the crime of genocide a jus cogens norm". Arguably, that's impossible. A treaty cannot create a peremptory norm -- only custom can. (Treaties only bind their parties; only customary law binds everybody, but for a norm to be peremptory it must bind everybody) --SJK 14:05, 8 August 2006 (UTC)

[edit] Eichmann?

No mention is made here of Israel's trial of Adolph Eichmann on a claim of universal jurisdiction. Eichmann's crimes were not committed on Israeli soil, and none of his victims were Israeli citizens at the time. I don't know enough about it to add anything good, but could someone who does, please add?


This may be better thought of as an extraterretorial claim of jurisdiction under Israeli national law, rather than universal jurisdiction under international law? Ben@liddicott.com 09:53, 3 Jun 2005 (UTC)

I would not agree, the issues are separate. Is it an "extraterretorial claim of jurisdiction under Israeli national law"? Yes, of course it was. But that's irrelevant to the question of what it was under international law. The question is -- was Israel's trial of Eichmann legal under international law? Now, there are quite a few ways in international law which can render a state's trial of a person legal, but the main ones othern than universal jurisdiction are based on territory (did the crime occur on Israel's territory? No), nationality of accused (was Eichmann an Israeli citizen? No), nationality of victims (were the Eichmann's victims Israeli citizens or residents at the time of his crimes? No -- the State of Israel did not exist then, and most of his victims had never stepped foot anywhere near it). So (unless there is some other applicable ground of jurisdiction I have not mentioned above), there are only two possibilities: either universal jurisdiction exists and Israel used it; or else universal jurisdiction does not exist, and in trying Eichmann Israel violated international law. Of course, this puts Israel a bit between a rock and a hard place: they need to acknowledge universal jurisdiction to justify their trial of Eichmann as legal, yet at the same time they are very worried that universal jurisdiction might be used against their own officials or military, especially in countries (e.g. much of Europe) where many of Israel's actions are very unpopular. --SJK 14:03, 8 August 2006 (UTC)

[edit] jus cogens versus universal jurisdiction

How is jus cogens related to universal jurisdiction?

It is my understanding that when a peremptory norm (jus cogens)has been considered to be violated by the international community that this grants (under international law) the prosecuting state(s) universal jurisdiction for that crime. Mot all proscecutions claimed to fall under universal jurisdiction are violations of any currently adapted peremptory norm though. --Cab88 06:06, 6 July 2006 (UTC)

[edit] Universal DMCA?

Should some mention be made of the US's having held Dmitri Kasparov in the US while he was attending a conference for alleged violations of the DMCA that he performed while physically in Russia and not under jurisdiction of US DMCA laws?

While this is not a formal UJ law, it does seem to represent the US's apparent belief that such laws are not necessary, as they can prosecute anyone they choose at any time anyway.

Dodger 15:42, 29 January 2006 (UTC)

This is also shown by the incarceration of the prisoners in Guantanamo Bay (SP?). The American Govt. claims that these ppl are guilty of being Illegal Combatants, and of breaking US Law, while not being covered by the Fifth Ammendment.Phil alias Harry 07:00, 1 June 2006 (UTC) (will expand on this latyer)

Much as I think that the DMCA & Guantanamo both stink, I'd have to disagree. Neither of these are exercises of universal jurisdiction.

The case against Dmitri Kasparov was based on territorial jurisdiction. Kasparov had written a program that was available in the US. Because it was available in the US, the US claimed that meant the crime was committed in the US. To give an example: I am a drug dealer in country X. I ship drugs to the territory of country Y for sale. Even though I never stepped foot in Y, I have still committed a crime there, because I am the proximate cause from afar of an act which occurs on Y's territory (much as if I had murdered someone by firing a gun across the border). Whereas, if I sell my drugs to another dealer, and he ships them to country Y, but I have no idea where he is shipping the drugs to, then I arguably have not been the proximate cause of any act which occurs in Y, and thus have not committed any crime against its laws. Yeah, its all very complicated and murky. Which one was it in Dmitri Kasparov's case? I don't know. But its certainly not an example of universal jurisdiction.

As to Guantanamo -- the captors of POWs have legal jurisdiction over them, to prosecute war crimes committed before their capture, or ordinary crimes committed during their capture. This is not considered to be an example of universal jurisdiction -- its much less controversial & much more settled. Of course, the US claims they are not POWs. But, they are talking about whether or not they are POWs in the sense of the Geneva convention -- and whether the US is right or wrong (personally I think wrong), they definitely are POWs in the sense of the international law of basises of jurisdiction. --SJK 13:44, 8 August 2006 (UTC)

[edit] Absence of a specific term in a dictionary

I deleted the citation tag in reference to an absence of the subject term for this article in a law dictionary. The statement in the article is a negative statement. You generally don't need to prove or provide a citation for this kind of negative statement. There might be no authority or source outside Wikipedia that says that this term is NOT found in any legal dictionary -- just as there probably is no source outside Wikipedia that says that the term "blueberry pancakes" is not found in a legal dictionary anywhere.

In most cases, there is no need to cite to an authority that says that something does NOT exist, or is NOT found somewhere.

By contrast, if you were to say in the article that the term IS found in a legal dictionary, then you WOULD have the burden of citing to the source.

PS: Just for fun, I'll try to remember to check Black's Law Dictionary for this term later. —The preceding unsigned comment was added by Famspear (talk • contribs) 22:00, 24 January 2007 (UTC).

Ah, thanks! Famspear 22:03, 24 January 2007 (UTC)

Oh, just as a side comment, I am expressing no opinion as to whether or not "universal jurisdiction" is a "new concept" as discussed in the article. Yours, Famspear 22:25, 24 January 2007 (UTC)

OK, I do not see the term "universal jurisdiction" in the Fifth Edition of Black's Law Dictionary (1979). However, there are more recent editions. Yours, Famspear 04:55, 25 January 2007 (UTC)

[edit] Rumsfeld prosecution?

I have changed the text in the article to add a citation tag on the assertion that the German prosecutor is going after Donald Rumsfeld. The ABC news article which is listed as the source for this says (in relevant part):

Civil rights groups have filed a suit with German prosecutors, seeking war crimes charges against outgoing US Defence Secretary Donald Rumsfeld for the alleged abuse of detainees at Abu Ghraib and Guantanamo prisons.
[ . . . ]
The New York-based CCR is one of several groups which had filed the roughly 380-page complaint and application for a criminal investigation to be launched with the Federal Prosecutor's Office in Karlsruhe.
The prosecutor's officer confirmed receipt of the suit.

I see nothing in here that says that the German prosecutor has actually agreed to prosecute -- just that the civil rights group has asked him to do so, and that he/she confirms receipt of the suit.

I don't know how it works in Germany, but in the USA the mere fact that someone asks a prosecutor to prosecute someone does not mean that he or she will do so. Prosecutors refuse to prosecute lots of people even though the police have arrested the subjects and have asked for a prosecution.

Does anyone have any back up or other information? Yours, Famspear 22:15, 24 January 2007 (UTC)

Post-script: The headline for the article reads: "Rumsfeld faces war crimes suit in Germany." This is a far cry from saying he is actually being prosecuted. Yours, Famspear 22:18, 24 January 2007 (UTC)

I removed the section that mentioned Rumsfeld as it seemed to me only have an future as an {{examplefarm}} --Philip Baird Shearer 13:59, 3 July 2007 (UTC)

[edit] Notable cases

As I said above I removd this section because it seemed to me only have an future as an {{examplefarm}}. What is worse much of it is misleading. The unsourced first paragraph is wrong.

The second paragraph does not mention the ICJ Arrest Warrant Case, which almost certainly makes these suit a none starter. Also the information is out of date see German prosecutor rejects war crimes complaint against Rumsfeld April 27, 2007 "... was rejected on the basis that the connection with Germany was tenuous. Echoing the same reasons cited in 2005, Federal Prosecutor Monika Harms said US courts were a more appropriate forum for investigating the matter." --Philip Baird Shearer 21:05, 30 July 2007 (UTC)

Could you explain how this negates the fact that the case was filed under universal jurisdiction? Whether or not it is accepted or there is a guilty verdict it still was brought to Germany invoking universal jurisdiction making it an acceptable example. Please explain why it can't be used. Nomen NescioGnothi seauton 13:51, 31 July 2007 (UTC)

Please read the section Universal jurisdiction#A new concept? which details why this case was a non starter. Please explain what about universal jurisdiction is illuminated in the section you wish to reinstate so as not to make it an {{examplefarm}} --Philip Baird Shearer 15:15, 31 July 2007 (UTC)

[edit] International Crimes

This article focuses a lot on torture, genocide, and war crimes but recently a whole host of countries have started implementing 'Universal Jurisdiction' to combat normal crimes that have an international aspect. Chief among these are the child sex tourism industry, international drug trafficking, and various environmental crimes. To date, most of these countries have limited themselves to prosecuting their own citizens who are engaged in near universally unaccepted practices (like child sex tourism) while abroad. But a growing number of people are starting to voice the 'slippery slope' argument about this practice.

I recently read that America has a law against harming a certain type of penguin in Antarctica, that only applies to Americans. This is a good example (even if one agrees with the principle of the law) of a country extending it's jurisdiction into territory it does not truly control. If left unchecked, it may come to the point where citizens of a country can not do things abroad, that are absolutely legal in the country they do them. Examples might be, violating fishing quotas, creating pollution, or using narcotics (like in Amsterdam).

Also, there are two quotes listed here by Henry Kissinger about this 'new' practice, without any mention that he is listed as a war criminal in several countries, and is subject to arrest if he ever goes to these countries, or ones with extradition treaties to these. It's somewhat disingenuous to list his quotes against this practice without pointing out his personal stake in the debate. It might be better to have more neutral sources of quotes (both in favor, and against) than Kissinger.

Tiki God 06:20, 3 September 2007 (UTC)
I edited in the link to Henry Kissenger's article. If the Reader wants to know about him, the link should be there, but this article is not about him. If you have better quotes, please edit them in. Raggz 15:09, 21 September 2007 (UTC)

"There is disagreement over whether universal jurisdiction is an old or new concept." Who says this? Presently this is original research. The idea that every nation may enforce their domestic law within any nation - anywhere in the world is new? Did Nazi Germany advance this, I seem to recall this, but am not certain. Raggz 15:02, 21 September 2007 (UTC)

[edit] PAX AMERICANA

The most interesting implication of universal jurisdiction is the reciprocal application of it, particularly if the United States decides that U.S. law is to be enforced with universal jurisdiction. No doubt this is presently being studied by the US, how the U.S. will enforce U.S. law in a world where every nation claims universal jurisdiction.

Does anyone have any good citations that suggest that the U.S. may not declare universal jurisdiction – or that it may not use force to enforce U.S. law universally? Isn't this how the concept of universal jurisdiction will eventually be applied, that relative enforcement capability will decide when laws conflict?

Is there any valid legal principle that restricts the enforcement of U.S. drug laws within Europe (if universal jurisdiction is accepted to be valid)?

This is the place to discuss if a Pax Americana is an appropriate section for the article, if supported by citations. Of course this here is now OR, of course it will not be put into the article without reliable citations.Raggz 17:22, 21 September 2007 (UTC)

The point isn't that all nations enforce all laws, rather that any of them can enforce certain laws that apply universally, thus there is no conflict of laws, just a question of which nation enforces.—Preceding unsigned comment added by 137.146.132.194 (talk • contribs) 02:43, 24 October 2007
Raggz you might find this interesting: it is an article by David Leppard with the headline US says it has right to kidnap British citizens published on December 2, 2007 in the Sunday Times (Extraordinary rendition by the United States ). But it does not mean that Pax America is universal jurisdiction more Extraterritorial jurisdiction --Philip Baird Shearer (talk) 15:11, 6 January 2008 (UTC)
Thank you, the US being a sovereign nation may do almost anything it wishes legally, unless US law or the UNSC says otherwise. It may declare universal jurisdiction at any point, and eventually enforce any laws that it may wish to enforce. Bali of course may do the same, only the capacity for enforcement seperates these two nations in regard to universal jurisdiction. Extraordinary rendition is really about universal jurisdiction, and apparently is quite legal for the US to undertake. I'm surprised that so many don't see where the yellow brick road leads to. Raggz (talk) 06:13, 19 January 2008 (UTC)
It is not quite that simple sovereign states are bound by treaties that the agree to. For example it did not take a genius to work out that when the US Supreme Court looked at the question of detainees captured on a battle field that GCIII Art. 5 would apply because the Supreme Court had not visited this area since before the US ratified GCIII and the Supremacy clause would cover it. In international relations "My word is my bond" is very important. A state can always give due warning that it will no longer be bound by a treaty, but it can not walk away from certain responsibilities (e.g. sovereign debt. Other states will demand payment indefinitely and usually make the raising of new finance conditional on the old debt -- as happened to the Soviet Union with the old Tsarist debts). In the case of universal jurisdiction certain treaties like the Genocide convention lean towards universal jurisdiction (Articles 4,5,6,7 and 8)--Philip Baird Shearer (talk) 11:57, 19 January 2008 (UTC)

[edit] Debate

Removed text

War crimes, crimes against humanity, genocide and torture may be subjected to universal jurisdiction. However, it remains a controversial matter.[citation needed]
The controversy has two aspects: a legal aspect (Is the exercise of universal jurisdiction for these crimes permitted, at the present stage of its development, by customary international law?), and a political aspect (Is the application of universal jurisdiction to these crimes a good idea? Will it actually be effective at preventing them? Is it an unwarranted interference in the sovereignty of other states? Is it open to abuse for political purposes? Will its widespread use lead to instability in international relations?).[citation needed]
A separate but related issue is whether heads of state, ministers of government and diplomatic representatives of a state possess immunity in relation to these crimes. It is generally recognized by governments that it would be very difficult to accommodate a law allowing judgment of actual heads of state.[citation needed]

It was correct that the text was removed because it carried no citations. But we need a section that explains these points so I hope putting it here will prompt someone to write something similar with with citations. --Philip Baird Shearer (talk) 15:02, 6 January 2008 (UTC)

[edit] Proposed Addition to Article

I believe an explanation regarding pure (absolute) versus conditional universal jurisdiction is warranted in this article. The confusion between whether universal jurisdiction is recognized to a degree of providing for in abstentia hearings is an important aspect of the doctrine. Comments? 67.160.161.176 (talk) 08:05, 4 March 2008 (UTC)

Sorry I don't understand what you have written please explain further --Philip Baird Shearer (talk) 11:14, 4 March 2008 (UTC)