The Volokh Conspiracy - The decline of the universal jurisdiction statute.

Reports out today indicate that Spain is reconsidering its universal jurisdiction statute and may repeal or restrict it. A universal jurisdiction statute gives courts jurisdiction over international crimes that do not meet ordinary jurisdictional requirements—that is, do not take place on the state’s territory, or involve the state’s nationals as perpetrators or victims. Here is the WSJ:

But the investigations by the judges, who are independent from the executive and legislative branches, have become a growing headache for the Spanish government. The Chinese government warned Spain that bilateral relations could be damaged over the case regarding Tibet crackdowns. The Israeli government strongly criticized the investigation into its 2002 attack on a Hamas leader, which killed 14 other people. Israeli Prime Minister Benjamin Netanyahu said the case "makes a mockery out of international law."

The U.S. has publicly taken a softer line. Behind the scenes, however, U.S. officials have met with the Spanish government and its prosecutors to try to halt the two cases related to the U.S. prison camp, according to officials of both countries.

…

Critics say the National Court judges should focus on slimming down the backlog of domestic cases that sometimes stretch back more than a decade. Government prosecutors also say that cases involving events in far-flung countries have little chance of succeeding without cooperation from the government of the country where the events occurred.

So far, only one case involved a clear-cut win: In 2005, Judge Garzón secured the conviction of a former Argentine military officer, Adolfo Scilingo, for throwing drugged prisoners from planes.

The last point is worth pondering. These statutes have been around for quite some time. They are on the books of dozens of countries, which have duly adopted them in order to comply with international treaties, such as the Convention Against Torture, which obliges states to prosecute violations that occur anywhere in the world. Amnesty International has made much of these statutes, claiming on the basis of state practice that domestic prosecution of international crimes ion the basis of universal jurisdiction is an established principle of international law. But as AI itself concedes, prosecutions and convictions are as rare as hen’s teeth. States legislate but do not act. Restrictions in the statutes, plus in some cases political control over prosecution (which is otherwise unacceptable in inquisitorial systems), do the job. Where they do act, as Spain is learning, they run into trouble.

For an earlier post on universal jurisdiction statutes, which expressed skepticism that former Bush administration officials would be prosecuted under them, see here. I acknowledged that investigating judges in Spain are independent of political control and thus can do what they want, and this could cause trouble for vacationing ex-officials. But I was probably too cautious. It is becoming clear that governments are happy enough to enact universal jurisdiction statutes so as to make a show of keeping their treaty obligations—just as long as they don’t have to use them.

Update:

Here is Ken Anderson's take.

	[Eric Posner, May 21, 2009 at 1:03pm] Trackbacks The decline of the universal jurisdiction statute. Reports out today indicate that Spain is reconsidering its universal jurisdiction statute and may repeal or restrict it. A universal jurisdiction statute gives courts jurisdiction over international crimes that do not meet ordinary jurisdictional requirements—that is, do not take place on the state’s territory, or involve the state’s nationals as perpetrators or victims. Here is the WSJ: But the investigations by the judges, who are independent from the executive and legislative branches, have become a growing headache for the Spanish government. The Chinese government warned Spain that bilateral relations could be damaged over the case regarding Tibet crackdowns. The Israeli government strongly criticized the investigation into its 2002 attack on a Hamas leader, which killed 14 other people. Israeli Prime Minister Benjamin Netanyahu said the case "makes a mockery out of international law." The U.S. has publicly taken a softer line. Behind the scenes, however, U.S. officials have met with the Spanish government and its prosecutors to try to halt the two cases related to the U.S. prison camp, according to officials of both countries. … Critics say the National Court judges should focus on slimming down the backlog of domestic cases that sometimes stretch back more than a decade. Government prosecutors also say that cases involving events in far-flung countries have little chance of succeeding without cooperation from the government of the country where the events occurred. So far, only one case involved a clear-cut win: In 2005, Judge Garzón secured the conviction of a former Argentine military officer, Adolfo Scilingo, for throwing drugged prisoners from planes. The last point is worth pondering. These statutes have been around for quite some time. They are on the books of dozens of countries, which have duly adopted them in order to comply with international treaties, such as the Convention Against Torture, which obliges states to prosecute violations that occur anywhere in the world. Amnesty International has made much of these statutes, claiming on the basis of state practice that domestic prosecution of international crimes ion the basis of universal jurisdiction is an established principle of international law. But as AI itself concedes, prosecutions and convictions are as rare as hen’s teeth. States legislate but do not act. Restrictions in the statutes, plus in some cases political control over prosecution (which is otherwise unacceptable in inquisitorial systems), do the job. Where they do act, as Spain is learning, they run into trouble. For an earlier post on universal jurisdiction statutes, which expressed skepticism that former Bush administration officials would be prosecuted under them, see here. I acknowledged that investigating judges in Spain are independent of political control and thus can do what they want, and this could cause trouble for vacationing ex-officials. But I was probably too cautious. It is becoming clear that governments are happy enough to enact universal jurisdiction statutes so as to make a show of keeping their treaty obligations—just as long as they don’t have to use them. Update: Here is Ken Anderson's take.