[Sound of Kevin Bashing His Head Against His Desk…]

by Kevin Jon Heller

I know I shouldn’t let mainstream American conservatives’ ignorance of international law bother me, but it does.  Today’s example:

The United States is not a signatory to the International Criminal Court, and Spanish judge and prosecutor Baltasar Garzon is a good reason why.

He is considering a lawsuit by lawyers for human rights groups seeking the arrest and extradition of six former Bush administration officials for sanctioning torture at Guantanamo Bay. The New York Times quoted an official as saying it is “highly probable” Garzon will grant the arrest warrants.

Spanish law and a doctrine called universal competence — an underpinning of the ICC — allow Spain and other governments to arrest and try persons for heinous offenses, generally war crimes, even if the crime did not occur on Spanish soil or involve Spanish citizens.

The author at least gets props for making as many mistakes as humanly possible in the space of three paragraphs: (1) the US is a signatory to the Rome Statute; (2) it’s “universal jurisdiction,” not “universal competence”; and (3) universal jurisdiction is not an “underpinning of the ICC.”

Oh, and by the way, the title of the editorial?  “A Misuse of International Law.”

PS: Before someone writes in to claim “gotcha,” I’m fully aware that universal jurisdiction is sometimes referred to as “universal competence,” particularly in reference to Belgium’s controversial law.  No one who knows anything about international law, though, would use that term instead of “universal jurisdiction.”

http://opiniojuris.org/2009/04/02/sound-of-kevin-bashing-his-head-against-his-desk/

7 Responses

  1. Didn’t Bush remove the signature from the Rome Statute?  Is it still considered signed?

  2. You cannot unsign a treaty, as explained in the ICC report that Duncan discussed in his recent post.  So yes, the US is still considered a signatory.

  3. Ok, I’ll give you #1 and #2, but #3 makes me scratch my head a little.

    Universal Jursidiction does indeed play a central role in the ICC.  Are you saying it doesn’t, or are you saying they appear to be implying that the ICC is responsible for Universal Jursidiction?

  4. The ICC relies solely on territorial and active-nationality jurisdiction. So how, exactly, does universal jurisdiction play a role in the ICC?  Some delegations wanted to the Court to have universal jurisdiction, but they lost the debate during the drafting of the Rome Statute.

  5. Well, I guess articles like the one from scrippsnews.com underline how important it is to recall Elihu Root’s appeal: “Of course it cannot be expected that the whole body of any people will study international law; but a sufficient number can readily become sufficiently familiar with it to lead and form public opinion in every community in our country upon all important international questions as they arise.” In other words, thanks Kevin for setting the record straight.

  6. I think perhaps M. Gross is referring to universal jx in the more general sense, i.e., an international criminal court that has the competence to hear criminal cases from places far outside of Den Hague.

    But the ICC’s jx is much more circumscribed than that. As Mr. Heller pointed out, it is based on territoriality (the act happened on the territory of a signatory) and nationality. This breaks down a bit though as the Security Counsel can refer cases to the prosecutor as well.

    Even in those instances, the ICC is not to exercise its jx in instances where the signatory state is already prosecuting (or reasonably decided to not prosecute) an alleged case. Only in instances where the state is unwilling or unable does the ICC step in.

    And, of course, the ICC has a limit of what I, as US lawyer would refer to as subject matter jx, in that it is only to hear cases of genocide, war crimes, etc.

    So I think it is a novel criminal international tribunal that has borrowed a number of different jurisdictional bases from national and international sources, but to say it exercises universal jurisdiction or that universal jurisdiction is one of the ICC’s underpinnings is indeed in error.

  7. It exercises universal jurisdiction in all, but perhaps in name.

    Every limit upon it’s reach has significant caveats, most of them avoidable by a determination of the body itself.

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