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Universal Civil Jurisdiction: Is it Legal? Is it Desirable?

Universal civil jurisdiction or universal tort jurisdiction may be defined as the principle under which civil proceedings may be brought in a domestic court irrespective of the location of the unlawful conduct and irrespective of the nationality of the perpetrator or the victim, on the grounds that the unlawful conduct is a matter of international concern. Domestic laws explicitly enabling courts to exercise jurisdiction on this basis are very rare indeed. The two pieces of U.S. legislation that tend to be cited as examples of laws providing for universal civil jurisdiction in fact do not qualify as such. The Alien Tort Statute (ATS) provides for a cause of action only for aliens and not for U.S. nationals. The 1991 Torture Victim Protection Act (TVPA) does provide for a right for persons of any nationality but it applies only to crimes committed “ under actual or apparent authority, or color of law, of any foreign nation” (emphasis added). It therefore excludes proceedings against U.S. officials unless they were acting under the authority of another state. In contrast to the familiar case law under the ATS and the TVPA, in the United States there have been no proceedings based on universal criminal jurisdiction so far. Although U.S. legislation permits the exercise of universal criminal jurisdiction in respect of the crime of torture, none of the numerous foreign perpetrators of torture found on U.S. territory have so far been brought to justice. The United States worked hard to try and find other states willing to try Pol Pot and it cooperated with Israel in the extradition of John Demjanjuk so that he could stand trial in that county. But mostly the United States openly and proudly deports perpetrators of human rights abuses committed abroad found on its territory without any attempt to obtain prior assurances that they will be prosecuted in those foreign states. Through this policy of exporting criminals rather than bringing them to justice on the basis of universal jurisdiction, the United States is in fact sponsoring their continued impunity. The only other state in which there is anything resembling a practice of civil proceedings based on universal jurisdiction is the United Kingdom. There is therefore an intriguing discrepancy between countries with a common law system and those with a civil law system. In civil law countries, the attention of the authorities and activists alike tends to be focused on the exercise of universal jurisdiction under criminal law. All convictions so far on the basis of universal jurisdiction have occurred in civil law countries (Belgium, Denmark, Germany, the Netherlands, and Switzerland). One reason for this may be the stricter rules of evidence in common law countries. Testimony taken abroad, which is often a crucial element in universal criminal jurisdiction cases, is usually not admissible as evidence in common law jurisdictions. The idea of universal civil jurisdiction raises two main questions: (1) Is it permitted by international law? and (2) Is it a desirable response to impunity of perpetrators of international crimes?