How Universal is Universal Jurisdiction?

Pictured: A damaged building in Aleppo
Photo by aladdin hammami on Unsplash

By Andrew Johnson

The violations of international humanitarian law and gross human rights abuses that have occurred in Syria since 2011 have been well-documented.[1]  The Assad Regime has perpetrated attacks against civilians, tortured and executed political prisoners, starved the Syrian people through siege warfare, and used chemical weapons indiscriminately.[2]  There is no question that these acts constitute war crimes and crimes against humanity that warrant criminal liability under international law.[3]  However, criminal accountability at the International Criminal Court may not be feasible because Syria is not a party to the Rome Statute of the ICC, and thus the ICC does not have jurisdiction over Syrian officials.[4]  

Some European states have turned to exercising universal jurisdiction to hold Syrian officials accountable.[5]   Most recently, Germany and France have exercised universal jurisdiction to arrest Syrian officials found in their territories.[6]  The trials are forthcoming, and they present an opportunity to provide some kind of justice to the Syrian people.[7]  As political will to hold human rights violators accountable ostensibly increases, one of the relevant questions is what the United States can do to promote accountability and justice in Syria.  United States courts do not have universal jurisdiction over international crimes.[8]  Furthermore, the Alien Torts Statute (ATS), which has been the traditional avenue to address human rights violations abroad, has become so constrained that it may not be a viable option in the Syria context.[9] To pursue justice and promote true accountability in the Syria context, the United States should implement the Rome Statute in its criminal code as a step toward instituting universal jurisdiction for international human rights violations. 

UNIVERSAL JURISDICTION IN FRANCE AND GERMANY 

Germany’s Code of Crimes against International Law (CCAIL) became effective in 2002, allowing German courts to exercise universal jurisdiction over those who commit genocide, crimes against humanity, and war crimes.[10] The universal jurisdiction enumerated in the CCAIL provides German courts with jurisdiction over an individual who violates the code, even if the act held no relation to Germany or a German national and the perpetrator was not a German national.[11]  Some of the more recent arrests in Germany were of high-ranking members of the Syrian Intelligence Service.[12]  They are alleged to have committed acts of torture against Syrian opposition activists in 2011 and 2012.[13]  These acts fall within the purview of the CCAIL and thus allow Germany to bring them to trial even though they are not German nationals.[14]

In 2010, France codified the Rome Statute, which instituted a restricted form of universal jurisdiction under certain circumstances.[15] France’s statute is similar to Germany’s, but it differs in a significant way that limits the courts’ ability to exercise universal jurisdiction.[16]  France’s criminal code stipulates that courts can only exercise universal jurisdiction if the individual regularly resides in France.[17]  While the jurisdictional requirement constrains the universal jurisdiction of the courts, it still allows France to prosecute the Syrian official arrested in February because he resided in France at the time.[18]

WHAT ABOUT THE UNITED STATES?

The United States criminal code does not allow courts to exercise universal jurisdiction, although there are statutes criminalizing war crimes, torture, and genocide.[19]  The Alien Torts Statute (ATS) is perhaps the most comparable to universal jurisdiction in the United States; however, it departs from universal jurisdiction in a variety of ways.[20]  The ATS states simply that “[t]he district courts shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States.”[21] The case of Filartigaopened the door for courts to use the ATS as a means to hold perpetrators of gross human rights violations accountable.[22]  The plaintiff, Dolly Filartiga, was originally from Paraguay, where her father was an outspoken critic of the Paraguayan government, and Filartiga received asylum in the United States for fear of political persecution.[23]  Filartiga resided in New York when she sued the Inspector General of Police in Asuncion, Paraguay for the torture and wrongful death of her brother.[24]  Even though neither the death nor the torture occurred in the United States, the court found that it has jurisdiction over the case under the ATS because the crime of torture violated a norm of international law.[25]

As quickly as the door to use ATS for finding jurisdiction opened, it began to close.  From its outset, the ATS required that the individual who is alleged to have perpetrated an act reside in or visit the United States when the suit is brought for jurisdiction to apply, which placed a strict jurisdictional criterion to the law.[26]   On top of the significant  jurisdictional constraints already imposed, the ATS only applies to civil suits, and thus does not impose criminal liability on human rights abusers.[27] Due to these restrictions, courts since Filartiga have narrowly interpreted jurisdictional questions under ATS. For example, Kiobel and Jesner put greater constraints on plaintiffs’ ability to sue under the ATS.[28]  In Kiobel, the RoyalDutch Petroleum Company and Shell Transport and Trading Company, PLC allegedly aided the Nigerian government in crimes against humanity, including the killing and torture of villagers protesting the extractive company’s search for oil.[29]  The Nigerian victims’ lives and homes were destroyed, forcing them to seek asylum in the United States, where they sued the Dutch Petroleum Company, which was incorporated in the Netherlands and the United Kingdom.[30]  The United States Supreme Court held that it did not have jurisdiction over the case under the ATS because the conduct occurred entirely overseas.[31]

Jesner imposed further restrictions on the application of the ATS by holding that foreign corporations cannot be sued under the ATS.[32]  The Arab Bank, PLC was a Jordanian corporation that had contacts with the United States.[33]  The plaintiffs alleged that the corporation funded a terrorist group that caused the death of plaintiffs’ family members.[34]  However, the Supreme Court found that corporations could not be sued under the ATS because there needed to be a violation of international law and no international law held corporations accountable for human rights violations.[35]  While Kiobel and Jesner both deal with corporations rather than individuals, they display the reluctance of the courts to read the ATS broadly and suggest that the ATS may not be the most effective avenue to address human right violations in the United States.

CONCLUSION

Individual accountability is essential not only to deter future human rights abuses, but it also serves to recognize and dignify the victims of human rights abuses.  However, in the ATS’s current form, it is difficult to see a scenario in which Syrian officials could be held accountable under the statute.  If the United States has the political will to hold members of the Assad regime accountable, it should codify the Rome Statute of the ICC so that there is an implemented framework to impose criminal liability for violations of international law. 


[1] See Human Rights Watch, Syria: Events of 2018, Human Rights Watch,https://www.hrw.org/world-report/2019/country-chapters/syria(last visited Mar. 3, 2019). 

[2] See id.

[3] See Rome Statute of the International Criminal Court, A/CONF.183/9, art. 7-8, July 17, 1998, 2187 U.N.T.S. 38544; see also Protocol Additional to the Geneva Conventions of 12 August 1949 and relating to the protection of victims of non-international armed conflicts Aug. 6, 1977, 1125 U.N.T.S. 17513. 

[4] See Rome Statute of the International Criminal Court, A/CONF.183/9, art. 13, July 17, 1998, 2187 U.N.T.S. 38544. 

[5] See Riham Alkousaa, Three Syrians Arrested in Germany and France for Suspected Crimes against Humanity, Reuters (Feb. 13, 2019), https://www.reuters.com/article/us-germany-syria/three-syrians-arrested-in-germany-and-france-for-suspected-crimes-against-humanity-idUSKCN1Q21FO.

[6] See id. 

[7] See id.

[8] See generally 18 U.S.C. § 3231 (2019). 

[9] See generally Jesner v. Arab Bank, PLC, 138 S. Ct. 1386, 1407 (2018); Kiobel v. Royal Dutch Petro. Co., 596 U.S. 108, 113 (2013).

[10] See Völkerstrafgesetzbuch [VStGB] [Code of Crimes Against International Law] §§ 6-8 https://www.gesetze-im-internet.de/vstgb/BJNR225410002.html (Ger.).  

[11] See id. at art. 1(1). 

[12] See Alkousaa, supra note 5.

[13] See id. 

[14] See Völkerstrafgesetzbuch [Code of Crimes Against International Law] §§ 7-8. 

[15] See Loi 2010-930 du 9 août 2010 portant adaptation du droit pénal à l’institution de la Cour pénale internationale [Law n ° 2010-930 of 9 August 2010 adapting criminal law to the institution of the International Criminal Court] art. 1 (Fr.). 

[16] See id.

[17] See Code Penal [C. Pen.] [Penal Code] art. 689-11.

[18] See Alkousaa, supranote 5; see alsoCode Penal [C. Pen.] [Penal Code] art. 689-11.

[19] See generally 18 U.S.C. §§ 1091, 2441 (2019). 

[20] See 28 U.S.C. § 1350 (2019). 

[21] See id.  

[22] See Filartiga v. Pena-Irala, 630 F.2d 876, 890 (2d Cir. 1980).  

[23] See id. at 878. 

[24] See id.

[25] See id. at 890.

[26] See 28 U.S.C. § 1350. 

[27] See id.

[28] See Jesner v. Arab Bank, Jesner v. Arab Bank, PLC, 138 S. Ct. 1386, 1407 (2018); Kiobel v. Royal Dutch Petro. Co., 596 U.S. 108, 113 (2013).

[29] See Kiobel, 596 U.S. at 113. 

[30] See id. 

[31] See id. at 124. 

[32] See Jesner v. Arab Bank, PLC, 138 S. Ct. 1386, 1407 (2018).

[33] See id. at 1394. 

[34] See id. 

[35] See id. at 1407.