The Diplomacy of Universal Jurisdiction: The Political Branches and the Transnational Prosecution of International Crimes
American Journal of International Law, Vol. 105, p. 1, 2011
101 Pages Posted: 19 Aug 2010 Last revised: 23 Feb 2011
Date Written: July 1, 2010
Defenders of universal jurisdiction claim that it is a crucial tool to bring justice to victims, to deter State or quasi-state officials from committing international crimes, and to establish a minimum international rule of law by substantially closing the “impunity gap” regarding international crimes. Critics of the regime argue that universal jurisdiction disrupts international relations, provokes judicial chaos, and interferes with political solutions to mass atrocities. One of the issues missing in this debate is the role of the political branches, specifically the executive and the legislature. By identifying the main incentives for political branches in universal jurisdiction cases and explaining the relationship among these incentives, this article articulates a theoretical framework that (1) accounts for the current state of universal jurisdiction, (2) predicts how universal jurisdiction is likely to evolve in the future, and (3) provides what should be a starting point for any non-ideal-world normative assessment of universal jurisdiction as well as for the institutional design of the universal jurisdiction regime.
This article shows two ways in which political branches of individual States have acted consistently with the incentive structure this article identifies. First, relying on the results of a first-of-its-kind survey carried out for this project that aims at covering all universal jurisdiction cases brought since Eichmann, this article will show that universal jurisdiction defendants who have gone to trial are primarily Nazis, former Yugoslavs, and Rwandans. In other words, they are the type of defendants that the international community has most clearly agreed should be prosecuted and punished and that their own States of nationality have not defended - actors that make more likely that the political benefits of universal jurisdiction trials outweigh the costs. Those who fall outside these three categories have been nationals of States that have not exercised their leverage to defend their nationals abroad, or that have been too weak to stop trials from occurring. Second, relying on statutes, judicial decisions, and other materials in their original language, this article will show how these incentives explain State behavior through analysis of case-studies from five States - Germany, England, France, Belgium, and Spain.
This article also explores some of the more significant normative and institutional design implications of its theoretical framework and empirical findings. Key among these is the fact that universal jurisdiction will never establish a minimum international rule of law - that is, it will never substantially close the “impunity gap” regarding international crimes - given that high-cost, most mid-cost, and many low-cost defendants are beyond the reach of the universal jurisdiction enforcement regime. This article’s findings also suggest that a number of common criticisms of universal jurisdiction are unfounded, given that States have incentives to concentrate on defendants against whom there is broad agreement in the international community and whose own States of nationality are not willing to defend. For these reasons, universal jurisdiction is unlikely to lead to unmanageable international tensions, to judicial chaos, or to interference with political solutions to mass atrocities.
Keywords: Universal jurisdiction, international criminal law, transnational prosecution, prosecutorial discretion, law & politics
JEL Classification: K14, K33, K41, K42
Suggested Citation: Suggested Citation