Global Policy Forum

By Cynthia van Maanen

Earlier this month, Spain's National Court decided to hear a case arising by a lawsuit from a pro-Tibet group against seven Chinese officials over the pre-Olympics repression of protests in Tibet. This case draws on that court's Doctrine of Universal Jurisdiction, as no Spaniards were personally harmed and, of course, the events in question did not occur on Spanish territory. Perhaps the most notable instance of Spain's use of Universal Jurisdiction is the charge of genocide against former Chilean dictator, Augusto Pinochet (those interested specifically in this case may want to check out my review of a recent documentary chronicling Chile's attempts at reconciliation)--though, of course, the initial charges against Pinochet in Spain arose because of his crimes specifically against Spanish citizens in Chile. Spain isn't the only country that has begun to use such a legal doctrine more widely in recent years to attempt prosecutions for crimes against humanity. Belgium and Canada are among the handful of countries that have asserted similar jurisdiction to prosecute crimes against humanity extra-territorially.

Plenty of law review articles have been written about Universal Jurisdiction and what it means for international law, but what might it mean for international relations more generally? What does it mean that one state can rule against the actions of another that don't directly affect citizens or property of the first state? Is this the death knell for the sovereign state? While courts can assert their right to prosecute any crime against humanity, whether it takes place within their territory or not, one must question the value of such legal motions without international enforcement. Spain can ask for the extradition of those that its court finds responsible for crimes against humanity, but the Chinese government, for example, will not grant it. What is Spain to do then about enforcing its court's rulings? It's very unlikely that this will lead to war between these two states, though it may limit international travel of the Chinese officials in question if immunity from extradition cannot be guaranteed.

Some, like Henry Kissinger--who was, himself, subject to questioning under the Doctrine of Universal Jurisdiction in Spain--argue that it may be dangerous to allow law to trump politics. The advocates of universal jurisdiction argue that the state is the basic cause of war and cannot be trusted to deliver justice. If law replaced politics, peace and justice would prevail. But even a cursory examination of history shows that there is no evidence to support such a theory. The role of the statesman is to choose the best option when seeking to advance peace and justice, realizing that there is frequently a tension between the two and that any reconciliation is likely to be partial. The choice, however, is not simply between universal and national jurisdictions. (Foreign Affairs, 2001)

The argument that the law of one country cannot replace international politics is probably the strongest argument against Universal Jurisdiction contained in Kissinger's essay. His other critiques revolve primarily around the original intent of the Spanish law and inconsistencies in its use, or in the potential for the courts to abuse their power over other nations. John Forbes' critique suggests that the consolidation of the International Criminal Court is the solution to, rather than part of, Kissinger's problems with the doctrine because it provides a global basis for accountability, rather than leaving the potential for judges to go mad in fits of political activism--which seems to be Kissinger's deepest fear. The ICC, of course, is not as efficient as it could be, which may be why some states, like Spain, have chosen to pursue justice through their national courts. Besides, if the court of Spain has no real power of enforcing its request for extradition of officials in China, what power is there to abuse?

One can argue that the Doctrine of Universal Jurisdiction, then, is more of a signaling tool designed to send the message that states using this doctrine intend to be champions of human rights, even if it risks their good political or economic relations with other states. Another argument might be that this doctrine acts as a norms-building tool outside of international institutions which must be compromised in order to build some kind of wider accession of their functioning--but I'll ask those readers more comfortable tossing around terms like, 'norms-building,' to flesh that argument out a bit more. While Spain is using this doctrine more and more in the past decade, and at least a couple of other states are attempting to play with the doctrine as well, I am unsure of any true effect on international relations that such legal doctrines might have. The ICC as a multi-national organization with voluntary jurisdiction offers its 106 member-states a scapegoat for international tensions; that is, one need not hold any other single state accountable for an unpopular ruling because the responsibility of prosecution and judgment is taken out of the hands of a single state.

My guess is that the implications for state sovereignty that Universal Jurisdiction might really hold depend on enforcement. If Spain were to militarily enforce its extradition orders, then we might actually see a change in behavior of international actors, and a meaningful change in what sovereignty means in the international community. There is the potential for the role of military power to be affected as well--if other kinds of power over other states are available, then military force might not be such an important factor in international relations. Or--maybe more likely--only those states with plenty of military power in the first place will be those to enforce their courts' rulings under universal jurisdiction. However, a future in which the European Union is willing to enforce the rulings of Spain's National Court, or the ICC, is foreseeable. First, of course, they would have to establish a military and a common foreign policy. This has been something of a hurdle for the EU in its history, but may not be far off. Perhaps not surprisingly, Spain has led the charge to create a multinational naval force to combat piracy. While Spain seems to want "as many countries as possible" to participate, in the words of Defense Minister Carme Chacón, it may be that becomes primarily a European venture, if not directed entirely by the European Union.