Ruchi Parekh’s recent post on the South African appellate decision on universal jurisdiction suggests that the ruling—which compels the South African authorities to investigate potential international crimes even if the putative defendant is not presently within the forum—may raise concerns among U.S. military and civilian leadership. I thought it might be useful to catalog the universal jurisdiction (UJ) cases brought in foreign courts against U.S. personnel to date to get a realistic sense of the scope of any such risk. Spoiler alert: The data suggest that so long as the U.S. continues to project its power and station its personnel abroad, particularly in armed conflict situations, there will always be some litigation risk, either pursuant to UJ statutes or other more standard forms of jurisdiction (such as territoriality or nationality). The United States has, however, always been able to successfully manage this risk through diplomacy, legal argumentation, and—at times—more forceful forms of response. Central to this strategy has been the principle of complementarity and the ability of the United States to credibly argue that it will investigate any alleged crimes itself. This suggests that the best way of protecting against litigation risk (under UJ or any other forms of jurisdiction) is a two-fold strategy of:
(1) ensuring a robust system of accountability at home and
(2) continuing to promote the complementarity norm in multilateral fora.
The Prevalence of UJ Cases
As indicated in our prior posts, the codification of international crimes subject to extraterritorial forms of jurisdiction is now quite common. Actual cases brought under these statutes, however, remain exceptional. And, as with the underlying statutes, it is not always clear when an actual prosecution constitutes the exercise of pure UJ versus some jurisdictional hybrid. In many instances, for example, the defendant or the victim has either immigrated to the prosecuting forum or has significant contacts with that forum, thus implicating the nationality jurisdiction principle. This rather ordinary prosecutorial authority, exercised every day the world over, comes in two forms: active nationality (which involves the prosecution of crimes committed by a state’s nationals) and passive nationality (which involves the prosecution of crimes committed against a state’s nationals).
In a seminal empirical study of the use of UJ, Professor Máximo Langer catalogues around 1000 complaints worldwide implicating UJ. However, this total includes complaints filed by victims or victims’ groups in jurisdictions (mainly civil law states) that recognize the concept of the partie civile, which allows private parties to endeavor to initiate a criminal suit by filing a complaint. The filing of such a complaint does not necessarily ripen into a full-blown case. In fact, if we look at cases that have actually progressed beyond this preliminary stage to trigger the actions of the public authorities (by way of an indictment, formal investigation, or actual prosecution), the numbers diminish considerably. Indeed, of Langer’s 1050 complaints, only 32 cases went to trial.
Of those that go to trial, about 80% of cases resulted in a conviction on at least some of the charges. In terms of the origins of the cases that went to verdict, Belgium & Netherlands are in the lead. Belgium & Spain once had the most expansive UJ statutes (since scaled back); they also claim the most failed cases—i.e., cases that were dismissed early on without reaching a verdict. As for the origin of defendants themselves, they tend to come from former repressive or war-torn regimes, e.g., Rwanda, the former Federal Republic of Yugoslavia (FRY), Nazi Germany, Guatemala, the Democratic Republic of Congo. Indeed, of the 32 cases that went to trial, 24 involved defendants hailing from the FRY, Rwanda, and Nazi Germany. Two of these trials proceeded in absentia. I should note that all these data are in motion, since a couple of dozen cases filed to date are still ongoing, most now in France. Notable is a recent UK case involving a Nepalese defendant that is worth watching. (The U.K. is also in the process of extraditing Rwandan defendants found in England to Rwanda, whom it originally refused to extradite for fear that they would not receive a fair trial there.)
Cases Against U.S. Defendants
What about cases involving U.S. defendants? To be sure, U.S. nationals have been on the receiving end of complaints filed in foreign courts alleging the commission of international crimes. Several of these cases do not qualify as exercises of UJ since they involve crimes committed on the territory of the prosecuting state or against nationals of the prosecuting state—standard bases for asserting penal jurisdiction.
a) Non-UJ Cases
For example, the Romano case in Italy involved a 2003 CIA-led rendition of an Egyptian cleric, known as “Abu Omar,” from Italy to Egypt, where he was allegedly tortured. In 2009, Italy convicted in absentia Col. Joseph Romano along with 22 co-defendants from the CIA on the basis of territorial jurisdiction (because the alleged crimes were committed on Italian territory). (Some Italian personnel were also prosecuted for their role in this extraordinary rendition). Col. Romano himself was ultimately pardoned by the Italian President, who noted that President Obama had made important changes to U.S. national security policy. Romano should have benefited from a Status of Forces Agreement (SOFA) between Italy and the United States, which provided at Article 7 that the United States
shall have the primary right to exercise jurisdiction over a member of the force … in relation to … offences arising out of any act or omission done in the performance of official duty.
The ostensible violation of the operative NATO SOFA along with quiet diplomacy by the Department of Defense on Romano’s behalf and other forms of pressure may also explain the pardon.
It originally appeared that none of the CIA personnel was likely to face any jail time since Italy suspended their sentences, although one defendant—former CIA station chief Robert Seldon Lady—did lose a retirement home in Italy, which was seized by way of compensatory damages (civil law states more readily award money damages in the context of criminal trials). However, in July 2013, Panama arrested Lady on the authority of an INTERPOL international arrest warrant (apparently the only Red Notice sought by Italy in connection with this rendition given the severity of the sentence against him). The Red Notice is not on INTERPOL’s website (it may have been on a so-called restricted list). Panama later released Seldon and he reportedly returned to the United States. Although Italy & Panama reportedly do not have an extradition treaty, the latter could have sent him to Italy without a treaty in place.
Another notable case involving or the José Couso case in Spain, which involves five members of the U.S. military accused by a Spanish Court of killing a Spanish national in Iraq in 2003. Couso was a journalist staying in the Palestine Hotel, where a number of journalists covering the 2003 war were staying, when a U.S. tank fired on the Hotel, in an effort to eliminate an Iraqi forward observer in an intense battle with Iraqi forces. An investigation by the Committee to Protect Journalists concluded that attack was not intentional, but was avoidable. Three of the implicated Americans involved in the tank attack have been indicted—an example of passive personality jurisdiction. A leaked memorandum revealed that the U.S. government (unsurprisingly) placed pressure on Spain to drop the charges.
b) UJ Cases
This leads us to the cases more directly invoking UJ stricto sensu against U.S. defendants. By my count (and I welcome corrections), there have been 7 separate sets of proceedings involving multiple defendants that have moved forward beyond a preliminary stage. Although there have been additional complaints filed against U.S. personnel over the years, the majority of these were not taken up in any substantive way by the domestic authorities, were dismissed in preliminary stages, or were largely symbolic.
The chart below catalogs these 7 sets of cases that arguably presented a real litigation risk to the United States. As this chart reveals, some cases were initiated by victims or by NGOs representing victims pursuant to the partie civile principle. The allegations concerns war crimes and torture dating back to the First Gulf War, although most involve the wars in Afghanistan and Iraq and allege detainee abuse.
All but one set of cases have been dismissed; the case that remains pending now involves a Spanish victim so is no longer a UJ case. In some of these dismissed cases, the United States was able to successfully argue (either in formal pleadings or through diplomatic channels):
- transnational complementarity (that the U.S. was investigating the crimes in question);
- subsidiarity (that cases should be prosecuted close to their “center of gravity”), or
In the alternative, the underlying legislation was amended before the cases moved forward, often due to pressure from the United States and other countries (such as Israel, whose officials have also been the target of suit). For example, the German and French complaints, which were filed in part by U.S.-based human rights law firm the Center for Constitutional Rights, were dismissed based on complementarity (with the Germany prosecutor indicating that the U.S. would investigate and prosecute alleged abuses); immunity; or on the ground that the alleged offenders were not present in the forum or expected to be found there as is provided for by German legislation. The Spanish and Belgian UJ laws were amended to require a tighter nexus between the facts of any case and the forum and to eliminate the ability of private parties to initiate investigations. An appeal in the Spanish “Bush Six” case remains pending, although as mentioned, this case does not involve UJ case, since one of the victims is a Spanish citizen.
So, is there a risk that a U.S. defendant may become embroiled in a case premised on UJ? Of course. Is it a significant one? No, if past practice is any guide.
Universal Jurisdiction Suits in European Jurisdictions
Involving U.S. Personnel
|Forum||Complain-ants||Suspects||Alleged Crimes||Jurisdictional Basis||Outcome|
|Belgium||Iraqi Families||George Bush Sr. et al.||War crimes (First Gulf War)||UJ (residence/ presence requirement)||Complaint dismissed by Belgian Supreme Court (no jx following 2003 change of legislation)|
|Belgium||17 Iraqi and 2 Jordanian victims||Tommy Franks||War crimes (Second Gulf War)||UJ (residence/ presence requirement)||Complaint dismissed by Belgian Ministry of Justice (subsidiarity)|
|France||NGOs: FIDH; LDH; CCR; ECCHR||Donald Rumsfeld||Torture||UJ (residence/ presence requirement)||Complaint dismissed by prosecutor (immunity)|
|Germany||NGOs: CCR; RAV;4 Iraqi victims||Donald Rumsfeld, et al.||War crimes||UJ (no presence requirement)||Complaint dismissed by Prosecutor (subsidiarity)|
|Germany||CCR; RAV; FIDH; ECCHR; others||Donald Rumsfeld et al.||War Crimes||UJ (no presence requirement)||Complaint dismissed by Prosecutor (no prospect of successful investigation)|
|Spain||NGO: Assoc. Dignity of Male & Female Prisoners of Spain||‘Bush Six’||War crimes||UJ (now: subject to residence requirement)||Appeal against dismissal of complaint currently pending|
|Switzer-land||Solidarity w/ victims of the war against Iraq||George Bush Jr.||CAH; Genocide; War Crimes||UJ (presence requirement)||Complaint dismissed by prosecutor|
The Real-World Operation of UJ
Two contradictory assumptions are often advanced with respect to UJ.
- First, that UJ will be a tool of strong and powerful states that is deployed against weaker states.
- Second, that UJ will be misused to bring politicized cases.
Ultimately, the data and Langer’s study conclude that neither of these assumptions is borne out; what we’re actually seeing is UJ being used by middling Good Samaritan destination states in Europe against individuals who are accused of horrific crimes and who hail from repressive or formerly repressive regimes. Due to typical migration patterns, many of these cases involve a former colonizer prosecuting citizens of a former colony who have ended up within the forum. In his article, Professor Langer convincingly argues that the political costs of pursuing “high-cost” defendants (i.e., defendants hailing from powerful states that will actively oppose prosecution) are simply too high to be worth the effort. As a result, the balance of incentives favors “low-cost” defendants who (in Langer’s words):
impose little or no international relations, political, economic, and other costs on prosecution States—and especially over those low-cost defendants against whom there is a broad agreement in the international community.
A couple of exceptions to the observation that the sole center of gravity of UJ is in Europe should be noted. These include the South African case we’ve discussed and some cases moving forward in Argentina, whose Court of Criminal Cassation has reinstated a case against Chinese officials on behalf of Falun Gong practitioners. (The opinion is: Cámara Federal de Casación Penal, Causa No13.774 “Luo, Gan; Jiang, Zemin a recurso de casacion” and is dated 17 Apr. 2013). Another case there is considering the commission of crimes against humanity in Spain’s civil war. (Our readers will recall that a Spanish court dismissed abuse-of power charges against Spanish UJ champion Baltasar Garzón after he tried to pursue related Spanish civil war cases in Spain notwithstanding the 1977 amnesty law. These latter charges have drawn criticism from the U.N. High Commissioner for Human Rights Navi Pillay and the Geneva-based Human Rights Committee).
It cannot be gainsaid that UJ cases are hard to investigate, prosecute, and prove—especially if the state of nationality opposes the prosecution and will withhold mutual legal assistance (or even exert diplomatic and other pressure on the prosecuting state). Witnesses and evidence are usually located abroad, foreign prosecutors may have little knowledge of the context in which the crimes were committed, the passage of time may weaken evidence, and the elements of crimes are much more complex than any garden-variety criminal case. As such, it is unlikely that any prosecutorial authority would undertake such an investigation or prosecution lightly.