The Prevalence of 'Present-In' Jurisdiction

Abstract

In August 2011, President Obama issued Presidential Study Directive No. 10 (PSD-10), declaring the prevention of genocide and other mass atrocities to be a ‘‘core national security interest and core moral responsibility’’ of the United States. He thus directed the National Security Advisor to launch an interagency process to comprehensively review the U.S. government’s anti-atrocity capabilities and recommend steps for creating a whole-of-government policy framework for preventing mass atrocities that includes the creation of an Atrocities Prevention Board (APB) featuring high-level interagency representation. In April 2012, President Obama approved the recommendations generated by this review and directed his administration to take a range of steps to strengthen the U.S. government’s ability to foresee, prevent, and respond to mass atrocities.

In one particular line of effort, the U.S. government (USG) is identifying ways to improve the ability of U.S., foreign, and international courts to prosecute atrocity crimes. To this end, the Departments of Justice, Homeland Security, and State have been directed to develop proposals that would strengthen the USG’s ability to prosecute perpetrators of atrocities found in the United States, and permit the more effective use of immigration laws and immigration fraud penalties to hold accountable perpetrators of mass atrocities. We are also working to support national, hybrid, and international accountability mechanisms when doing so advances U.S. interests and values, consistent with the requirements of U.S. law. In addition, State, DOJ, and DHS are developing options for assisting with witness protection measures and providing technical assistance in connection with foreign and international prosecutions.

As part of this process, we surveyed the practice of other national systems in both incorporating international crimes into their penal codes and prosecuting such crimes under the full range of jurisdictional bases — including universal jurisdiction (UJ) — in an effort to identify the relevant law, state practice and opinio juris. Although there are multiple ways to tally relevant statutes and cases, the results of this empirical research reveal a distinct trend toward the codification of the core international crimes (subject to a certain degree of definitional variation), but more limited state practice when it comes to actual prosecutions. In addition, states are finding creative ways to build forms of oversight and limiting principles into their exercise of UJ to protect against prosecutorial over-reaching and ensure high-level engagement in any prosecution. This comparative approach provides a set of useful models as the USG looks for ways to expand our own prosecutorial authorities in keeping with PSD-10.

Keywords: universal jurisdiction, Title 18, atrocities prevention board, accountability, war crimes, crimes against humanity, genocide, child soldiers, terrorism

JEL Classification: K14, K33