Academic journal article Proceedings of the Annual Meeting-American Society of International Law

Domestic Treatment of Universal Jurisdiction

Academic journal article Proceedings of the Annual Meeting-American Society of International Law

Domestic Treatment of Universal Jurisdiction

Article excerpt

This panel was convened at 10:45 am, Friday, April 5, by its moderator, Maximo Langer of the University of California at Los Angeles, who introduced the panelists: Richard Dicker of Human Rights Watch; Charles Jalloh of the University of Pittsburgh; Beth Van Schaack of the U.S. Department of State; and Sienho Yee of Wuhan University. *

* Professor Jalloh did not contribute remarks to the Proceedings. The basis for his remarks was his article, Universal Jurisdiction, Universal Prescription ? A Preliminary Assessment of the African Union Perspective on Universal Jurisdiction, 21 Crim. L. Forum 1 (2010).

INTRODUCTORY REMARKS BY MAXIMO LANGER ([dagger])

This panel examined emerging regional attitudes and national trends in the application of universal jurisdiction. In recent years, many states have called for a reassessment of universal jurisdiction, and some have modified their legislation in response to pressures both legal and political. Panelists discussed the future of the concept of universal jurisdiction and assessed proposals for resolving the tensions between the need to prevent impunity and the obligation to respect national sovereignty.

The panel was arranged to reflect diverse regional and institutional perspectives on universal jurisdiction. The panel included as speakers Richard Dicker from Human Rights Watch, Charles Jalloh from the University of Pittsburgh, Beth Van Schaack from the U.S. Department of State, and Sienho Yee from Wuhan University, in Wuhan, Hubei, China.

([dagger]) Professor of Law, University of California at Los Angeles School of Law.

A FEW REFLECTIONS ON THE CURRENT STATUS AND FUTURE DIRECTION OF UNIVERSAL JURISDICTION PRACTICE

By Richard Dicker ([double dagger])

THE ROLE OF UNIVERSAL JURISDICTION AND PRACTICAL OBSTACLES

From the perspective of Human Rights Watch, the expanding use of universal jurisdiction by national courts over the crimes of torture, war crimes, crimes against humanity, and genocide is an important component of the fledging system of international justice. While, of course, it is preferable for victims of these crimes to gain redress in the courts of the states where the crimes were committed, universal jurisdiction has an important specific function: it is a "safety net" when cases are not tried either by territorial courts or by international courts. This practice is rooted in the longstanding principle that certain crimes are so heinous that they are of concern to every state, wherever they occur.

However, in practice courts face formidable challenges in conducting UJ investigations and prosecutions. From the initial complaint to the conclusion of trial and appeal, universal jurisdiction cases present special demands on police, investigative judges, prosecutors, and defense counsel. The alleged crimes occurred in another country and often many years earlier. Furthermore, investigators and prosecutors may lack familiarity with the historical and political context of the alleged crimes. The state in which the crime was committed may decline to cooperate. Witnesses may be dispersed across several countries and difficult to access. Finally, universal jurisdiction cases can also create intense diplomatic controversy.

IS UNIVERSAL JURISDICTION BEING "ABUSED"?

This segues to the relevant history of the perceived risks of the "abuse" of universal jurisdiction. Claims of "abuse" have arisen in two distinct phases from two very different sources.

The first phase came in the years immediately after the Pinochet litigation in London when victims, human rights activists, and practitioners were enthused about universal jurisdiction as a new tool in the fight against impunity. Based on its broad 1999 law, complaints were filed in Belgium against Ariel Sharon, Jiang Zemin, George H.W. Bush, and then-Secretary of Defense Dick Cheney. These complaints gave rise to a storm of criticism and pressure. …

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