The Emerging Recognition of Universal Civil Jurisdiction

2006 ◽  
Vol 100 (1) ◽  
pp. 142-163 ◽  
Author(s):  
Donald Francis Donovan ◽  
Anthea Roberts
Keyword(s):  
International Law ◽  
United States Supreme Court ◽  
The United States ◽  
Universal Jurisdiction ◽  
Crimes Against Humanity ◽  
Criminal Prosecution ◽  
National Courts ◽  
Recent Developments ◽  
Injured Party ◽  
Fundamental Value

Modern international law takes as a fundamental value the condemnation and redress of certain categories of heinous conduct, such as genocide, torture, and crimes against humanity. Recognizing the need to end impunity for those crimes, international law permits a state, by the principle of universal jurisdiction, to prosecute them even when they take place outside its territory and do not involve its nationals.In virtually all domestic legal systems, an individual who engages in wrongful conduct causing personal inj ury or death will be subject not only to criminal prosecution, but to a civil action by the injured party. Yet, though the principle of universal jurisdiction is well established in the criminal sphere, it is still regarded as novel in the civil context.Recent developments—most notably the decision of the United States Supreme Court in Sosa v. Alvarez-Machain—will cause greater examination of the function and scope of universal jurisdiction as authorization for national courts to hear civil claims based on heinous conduct proscribed by international law. We here consider whether a civil dimension of universal jurisdiction has emerged, whether it should correspond to the criminal dimension, and whether its use as a basis of jurisdiction should depend on the absence of effective remedies in jurisdictions with traditional links to the proscribed conduct.

U.S. Law Enforcement Abroad: The Constitution and International Law

1989 ◽  
Vol 83 (4) ◽  
pp. 880-893 ◽  
Author(s):  
Andreas F. Lowenfeld
Keyword(s):  
United States ◽  
Law Enforcement ◽  
International Law ◽  
The United States ◽  
Universal Jurisdiction ◽  
International Lawyer ◽  
Recent Developments ◽  
New Applications

In recent years, the Congress of the United States has enacted a series of laws criminalizing certain activities committed outside the territory of the United States, even by persons who are not nationals of the United States. The international lawyer would doubtless characterize those laws as assertions by the United States of authority to exercise jurisdiction to prescribe laws on the basis of the principle of “passive personality”—to punish actions directed at the state’s nationals—or perhaps as new applications of principles of universal jurisdiction; one might then examine those laws in the light of recent developments in the international law governing state jurisdiction to prescribe.

The Puzzle of Atrocity Criminalization

2020 ◽  
pp. 1-24
Author(s):  
Mark S. Berlin
Keyword(s):  
Human Rights ◽  
International Law ◽  
Criminal Law ◽  
Crimes Against Humanity ◽  
Criminal Courts ◽  
Qualitative Case Studies ◽  
National Courts ◽  
Domestic Courts ◽  
Quantitative Analyses

Why do governments take atrocity offenses, like genocide, war crimes, and crimes against humanity, from international law and legislate them into domestic criminal law, empowering national courts to prosecute their own, and sometimes other states’, government and military officials? The question is important, because the international community has constructed an international legal regime to prosecute the most serious human rights violations, but that regime is designed to rely primarily on domestic criminal courts to try offenders. To fulfill this role, domestic courts often require specific legislation that defines and criminalizes these offenses in national law. Yet, the adoption of national atrocity laws is puzzling, since in a number of ways, these laws appear to threaten states’ interests. This introductory chapter highlights the puzzle of atrocity criminalization and discusses its importance for the functioning of the international atrocity regime. It then situates this study in existing literatures and highlights the book’s contributions to research on atrocity justice, human rights, and international law. Next, it summarizes the book’s main arguments and details the study’s multi-method research design, which combines quantitative analyses of new, original datasets with in-depth qualitative case studies of Guatemala, Colombia, Poland, and the Maldives.

III. Case Concerning the Arrest Warrant of April 00 (Democratic Republic of the Congo v. Belgium)

2001 ◽  
Vol 50 (3) ◽  
pp. 670-675
Author(s):  
Malcolm D. Evans ◽  
Chanaka Wickremasinghe
Keyword(s):  
International Law ◽  
Democratic Republic ◽  
Democratic Republic Of Congo ◽  
Foreign Minister ◽  
Crimes Against Humanity ◽  
International Crimes ◽  
National Courts ◽  
Geneva Conventions ◽  
Republic Of The Congo ◽  
Sensitive Issues

An initiating Application filed by the Democratic Republic of Congo (DRC) against Belgium on 17 October 20001 potentially raises similar issues to those raised by the Pinochet case,2 namely the scope of “universal” jurisdiction in relation to serious international crimes against individuals (in this case “grave breaches of the 1949 Geneva Conventions and the 1977 Protocols thereto and crimes against humanity”) and the question of immunity where State officials (in this case a Foreign Minister) are accused thereof. As such it may represent an opportunity for the Court to give an authoritative ruling on these highly controversial and sensitive issues of international law, which seem to be raised with increasingly regularity before national courts. However for now such a ruling is a matter for the future, as on 8 December 2000 the Court dismissed the DRC application for provisional measures, and thus made no comment on the substantive issues of the case. Instead it found that certain intervening factual developments had removed from the application for provisional measures the requisite elements of irreparable prejudice to the rights of the applicant and urgency, thus obviating any need for an Order to be made at this stage.

National Courts, Global Cartels: F. Hoffman-LaRoche Ltd. v. Empagran, S.A. (U.S. Supreme Court 2004)

2004 ◽  
Vol 5 (9) ◽  
pp. 1095-1106 ◽  
Author(s):  
Hannah L. Buxbaum
Keyword(s):  
United States ◽  
Supreme Court ◽  
United States Supreme Court ◽  
The United States ◽  
Antitrust Enforcement ◽  
The European Union ◽  
National Courts ◽  
Antitrust Laws ◽  
The World ◽  
Fixed Prices

In its most recent term, the United States Supreme Court heard a case arising out of the activities of a price-fixing cartel in the vitamins market. The defendants were a number of major international pharmaceuticals companies, including F. Hoffman-LaRoche, Rhone-Poulenc, Daiichi Pharmaceutical, and BASF, that had fixed prices for bulk vitamins and vitamin pre-mixes in markets around the world. The cartel, which has been described as “probably the most economically damaging cartel ever prosecuted under U.S. antitrust law,” is estimated to have affected over $5 billion of commerce worldwide. Previous proceedings against the participants in the cartel, initiated in Australia, Canada and the European Union as well as in the United States, included administrative investigations and criminal prosecutions of individual executives. In these various proceedings, the cartel participants were found to have violated antitrust laws in the United States and elsewhere, and were subjected to heavy – indeed, record – fines in many countries. By all accounts, the countries engaged in investigating and then prosecuting the cartel participants did so in full cooperation with each other. In particular, they made use of the mutual assistance and information sharing agreements that have become an important component of coordinated international antitrust enforcement.

International Criminalization of Internal Atrocities

1995 ◽  
Vol 89 (3) ◽  
pp. 554-577 ◽  
Author(s):  
Theodor Meron
Keyword(s):  
World War Ii ◽  
Universal Jurisdiction ◽  
International Humanitarian Law ◽  
Genocide Convention ◽  
Criminal Prosecution ◽  
Humanitarian Law ◽  
International Consensus ◽  
National Courts ◽  
The Many ◽  
International Law Commission

For half a century, the Nuremberg and Tokyo trials and national prosecutions of World War II cases remained the major instances of criminal prosecution of offenders against fundamental norms of international humanitarian law. The heinous activities of the Pol Pot regime in Cambodia and the use of poison gas by Iraq against its Kurdish population are among the many atrocities left unpunished by either international or national courts. Some treaties were adopted that provide for national prosecution of offenses of international concern and, in many cases, for universal jurisdiction; but, with a few exceptions, these treaties were not observed. Notwithstanding the absence of significant prosecutions, an international consensus on the legitimacy of the Nuremberg Principles, the applicability of universal jurisdiction to international crimes, and the need to punish those responsible for egregious violations of international humanitarian law slowly solidified. The International Law Commission, veterans of the Nuremberg and Tokyo proceedings, individuals such as Rafael Lemkin (who advocated the adoption of the Genocide Convention) and a handful of academics (most notably M. Cherif Bassiouni), among others, helped keep alive the heritage of Nuremberg and the promise of future prosecutions of serious violators of international humanitarian law.

Act of State and Department of State: First National City Bank v. Banco Nacional De Cuba

1972 ◽  
Vol 66 (4) ◽  
pp. 795-814 ◽  
Author(s):  
Andreas F. Lowenfeld
Keyword(s):  
United States ◽  
Supreme Court ◽  
International Law ◽  
United States Supreme Court ◽  
The United States ◽  
United States Supreme ◽  
Recent Issue ◽  
Department Of State ◽  
The Supreme Court ◽  
Formal Communication

No recent issue has so divided lawyers and writers in the field of international law as the question whether courts of one nation should sit in judgment on the acts of other nations with respect to foreign held property—sometimes, always, or never. The United States Supreme Court in Banco Nacional de Cubav. Sabbatinosaid the answer was never—or at least hardly ever—thus upholding and reaffirming the “act of state doctrine”. The Congress in the Hickenlooper (or Sabbatino) Amendmentmade an effort to reverse that ruling, an effort that has proved largely unsuccessful. Now the State Department has taken its turn, arguing in a formal communication to the Supreme Court that when it perceives no objection to adjudication on foreign policy grounds, the courts should judge the validity of the foreign nation's acts under international law standards—at least as to counterclaims.

scholarly journals THE OBLIGATION TO PROSECUTE HEADS OF STATE UNDER THE ROME STATUTE OF THE INTERNATONAL CRIMINAL COURT (ICC) AND CUSTOMARY INTERNATIONAL LAW: THE AFRICAN AND U.S. PERSPECTIVES

2019 ◽  
Vol 7 (1) ◽  
pp. 33-56
Author(s):  
Fareed Mohd Hassan ◽  
Noor Dzuhaidah Osman
Keyword(s):  
International Law ◽  
Rome Statute ◽  
The United States ◽  
Trial Chamber ◽  
Criminal Court ◽  
Criminal Prosecution ◽  
Customary International Law ◽  
Head Of State ◽  
Jus Cogens ◽  
Heads Of State

The United States (U.S.), a Signatory, but not a State Party to the Rome Statute, entered into various Bilateral Agreements (BIAs) with almost all State Parties to the Rome Statute prohibiting the arrest, surrender, or prosecution of the US Head of State before the International Criminal Court (ICC). Similarly, the African Union (AU) Members, being the majority State Parties to the Rome Statute have decided in the AU Assembly of Heads of State and Government not to cooperate with the ICC and to grant immunity to African Heads of State after the ICC Pre-Trial Chamber issued two arrest warrants against the Sudanese President for allegedly committing genocide, crimes against humanity and war crimes. This paper examines the tension between States’ obligations under the Rome Statute to prosecute, surrender and arrest a head of State, including when referred to by the UN Security Council on the one hand, and the AU decision, the U.S. BIAs and customary international law which grants immunity to a sitting head of State from criminal prosecution by either an international or a foreign court on the other hand. It argues that States are bound by the obligations enshrined under the Rome Statute and both the AU decision and the BIAs are inconsistent with the duty of states to uphold jus cogens norms including those proscribed under the Rome Statute

scholarly journals Pelanggaran Prinsip Persona Grata Atas Penyerangan Duta Besar Ditinjau Dari Perspektif Hukum Internasional (Studi Kasus Penyerangan Duta Besar Amerika Serikat Di Benghazi Libya)

2021 ◽  
Vol 1 (2) ◽  
pp. 63-74
Author(s):  
Desi Yunitasari
Keyword(s):  
United States ◽  
International Law ◽  
Recipient Country ◽  
Secondary Data ◽  
The United States ◽  
Vienna Convention ◽  
International Obligation ◽  
Injured Party ◽  
The Government ◽  
Legal Consequences

The development of human history has proven that relations between countries are inevitable and are a necessity and often cause conflicts. Along with its development, an unavoidable event is an increase in violations of the provisions of international law, especially with regard to the principle of persona grata where officials or diplomat representatives should get protection when it has been received and placed in the recipient country. As happened in mid-2012 namely regarding the bombing incident carried out through a rocket attack on the United States Embassy (Libya) Office, Libya, in Benghazi City, on September 11, 2012. The attack resulted in the Ambassador and three embassy staff killed. In research that uses normative juridical methods, it is necessary to use secondary data, such as books, laws, and research results on research topics to determine the extent of the legal consequences of the principle of persona grata that has been violated. Based on the results of the study explained that the Libyan Government is responsible for the incident because it fulfills two elements of state responsibility including act or omission that can be imputable to a country, and the act or omission constitutes a violation of an international obligation, especially regarding the principle of persona grata. The Government of Libya as the recipient country is obliged to be responsible based on the 1961 Vienna Convention Article 22 Paragraph (2). As the injured party, the United States can hold the Libyan government diplomatically responsible, namely negotiations, bearing in mind that the benefits of negotiation settlement can be measured in all aspects.

PELANGGARAN PRINSIP PERSONA GRATA ATAS PENYERANGAN DUTA BESAR DITINJAU DARI PERSPEKTIF HUKUM INTERNASIONAL (STUDI KASUS PENYERANGAN DUTA BESAR AMERIKA SERIKAT DI BENGHAZI LIBYA)

2019 ◽  
Vol 1 (1) ◽  
pp. 49-59
Author(s):  
Desi Yunitasari
Keyword(s):  
United States ◽  
International Law ◽  
Recipient Country ◽  
Secondary Data ◽  
The United States ◽  
Vienna Convention ◽  
International Obligation ◽  
Injured Party ◽  
The Government ◽  
Legal Consequences

The development of human history has proven that relations between countries are inevitable and are a necessity and often cause conflicts. Along with its development, an unavoidable event is an increase in violations of the provisions of international law, especially with regard to the principle of persona grata where officials or diplomat representatives should get protection when it has been received and placed in the recipient country. As happened in mid-2012 namely regarding the bombing incident carried out through a rocket attack on the United States Embassy (Libya) Office, Libya, in Benghazi City, on September 11, 2012. The attack resulted in the Ambassador and three embassy staff killed. In research that uses normative juridical methods, it is necessary to use secondary data, such as books, laws, and research results on research topics to determine the extent of the legal consequences of the principle of persona grata that has been violated. Based on the results of the study explained that the Libyan Government is responsible for the incident because it fulfills two elements of state responsibility including act or omission that can be imputable to a country, and the act or omission constitutes a violation of an international obligation, especially regarding the principle of persona grata. The Government of Libya as the recipient country is obliged to be responsible based on the 1961 Vienna Convention Article 22 Paragraph (2). As the injured party, the United States can hold the Libyan government diplomatically responsible, namely negotiations, bearing in mind that the benefits of negotiation settlement can be measured in all aspects.

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