Domesticating International Criminal Law: Bringing Human Rights Violators to Justice
Osofsky, Hari M., The Yale Law Journal
Consider the following dilemna. The former head of a Chinese prison is visiting the United States for his daughter's wedding. A number of former prisoners whom he personally tortured(1) before their release and subsequent emigration to the United States would He to file a civil suit against him under the Alien Tort Claims Act (ATCA)(2) and the Torture Victim Protection Act (TVPA)(3) in an effort to obtain monetary compensation. Meanwhile, the Justice Department is compiling evidence that might allow an indictment under the new U.S. anti-torture criminal law(4) within a few months of his visit. The President, however, is trying to conclude a major treaty negotiation with China and fears the political repercussions of either suit, especially the criminal one. Should either action go forward?
This example illustrates the potential complexities arising from Congress's beginning to accept national criminal jurisdiction over severe human rights violations. In 1994, the United States changed its criminal code to provide that any U.S. national or person physically located within the United States could be held criminally liable for torture he or she commits anywhere against anyone.(5) This Statutory Change, part of the U.S. ratification of the Convention Against Torture and Other Cruel Inhuman and Degrading Treatment,(6) represents a watershed in the evolution of U.S. human rights protection. Not only can torturers face civil liability for their abuses under the ATCA and the TVPA, but they also can be jailed for up to twenty years or even receive life imprisonment or the death penalty if their behavior resulted in death.(7)
This statute thus expanded U.S. reliance upon universal jurisdiction. International law recognizes five grounds upon which states can base their jurisdiction: Territorial jurisdiction stems from wrongs occurring within a nation's territory; nationality jurisdiction is based on an offender's being a national of the state taking jurisdiction; passive personality jurisdiction occurs when a victim is a national of the state; protective jurisdiction is based on the acts impinging upon important state interests or national security; and universal jurisdiction stems from the notion that some international prohibitions are so important that a violation of them by anyone, anywhere, warrants any nation's taking jurisdiction.(8) This universality principle is the jurisdictional base for nations to prosecute human rights offenders; their violations are such egregious wrongs that their behavior is of every nation's concern.
Although the U.S. criminal law regarding torture represents an important new vehicle for bringing human rights offenders to justice, it is a natural evolution of the existing international and domestic criminal law. Unlike the early human rights conventions, more recent treaties contain specific provisions requiring prosecution or extradition of offenders within their borders.(9) Both international treaty and customary law recognize many human rights norms as conferring universal jurisdiction. Likewise, U.S. statutes increasingly have provided for national criminal jurisdiction in areas connected to human rights, such as terrorism and hostage taking.(10) In addition to the traditional territorial base, judicial decisions have recognized nationality, universality, and passive personality jurisdictional bases in a criminal context. The courts also have given great leeway in cases involving forcible abduction of defendants in other countries and have denied many constitutional protections to alien defendants.(11) Together, these developments indicate a growing U.S. assertiveness and recognition of its international obligations in the criminal jurisdictional sphere.
Not surprisingly, these changes have had their critics. Scholarly literature in particular has questioned the judicial acceptance of forcible abduction and denial of rights to defendants abroad.(12) Many scholars have discussed how far national criminal jurisdiction should reach, with particular exploration of nationality, passive personality, and universal jurisdiction. …