Unraveling Universal Civil Jurisdiction: A Novel Ground for Global Justice?

[Mohamed Eltawila is a judge at Egypt’s Court of Cassation’s Technical Bureau, and a former prosecutor and visiting professional at the Office of the Prosecutor of the International Criminal Court. He holds a master’s degree in international law from the Geneva Graduate Institute.]

The intersection of national statutes like the American Torture Victim Protection Act (TVPA) of 1991 and the overarching canopy of international law presents a complex and intriguing dialogue on jurisdiction, human rights, and access to justice. The TVPA, a United States law that allows for civil suits against individuals who have committed torture or extrajudicial killings abroad, is a concrete manifestation of the principle of universal civil jurisdiction (UCJ). This principle posits that certain crimes are so heinous and universally condemned that any state should have the authority to address them through its legal mechanisms, regardless of where the wrongful act was committed, or the nationalities of the parties involved.

The question of whether international law accommodates UCJ approach opens a scholarly debate on the evolution of jurisdictional norms and the commitment of the global community to human rights enforcement. Critics and proponents alike weigh in on UCJ’s compatibility with international law, considering the delicate balance between state sovereignty, immunities of high state officials, and the imperative to provide redress for victims of international crimes.

This analysis focuses on the critical role of the Torture Victim Protection Act (TVPA) as a method of redress for victims of international crimes. By aligning with the dynamic norms of international law, the TVPA emerges as a powerful instrument within the realm of UCJ. It stands out as a significant legal recourse for victims of heinous crimes committed overseas, offering them a path to justice that may otherwise be inaccessible. In the wake of the current global atrocities, the TVPA exemplifies how domestic laws can effectively embody international legal standards, serving as a vital link between disparate legal systems. The TVPA’s integration into international law discourse is far from theoretical; it represents a tangible effort to ensure that survivors of international offenses are empowered with a voice and a means to seek justice. As such, the TVPA could serve as an exemplary model for other nations to emulate, fostering a global environment where the pursuit of justice knows no borders.

What is the TVPA

The Torture Victim Protection Act (TVPA) is a pivotal statute in the realm of international human rights law, providing a means for individuals to seek redress for certain human rights violations. Acting in an official capacity, the TVPA extends its applicability to individuals who have functioned under the authority of any foreign nation, thereby encompassing acts committed by government officials or agents. It empowers victims to initiate civil suits in the United States, allowing them to pursue recovery of damages from those responsible for committing acts of torture or extrajudicial killing. A critical component of the TVPA is the requirement for the exhaustion of local remedies. Plaintiffs are obliged to demonstrate that they have pursued all reasonable legal avenues within the jurisdiction where the crime occurred, provided that such remedies are both adequate and accessible. This provision ensures that the TVPA serves as a last resort for justice when local systems fail to provide relief.

The Act defines extra judicial killing as “a deliberated killing not authorized by a previous judgment pronounced by a regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized peoples. Such term, however, does not include any such killing that, under international law, is lawfully carried out under the authority of a foreign nation.”  It also defines torture as “any act, directed against an individual in the offender’s custody or physical control, by which severe pain or suffering (other than pain or suffering arising only from or inherent in, or incidental to, lawful sanctions), whether physical or mental, is intentionally inflicted on that individual for such purposes as obtaining from that individual or a third person information or a confession, punishing that individual for an act that individual or a third person has committed or is suspected of having committed, intimidating or coercing that individual or a third person, or for any reason based on discrimination of any kind; and (2) mental pain or suffering refers to prolonged mental harm caused by or resulting from— (A) the intentional infliction or threatened infliction of severe physical pain or suffering; (B) the administration or application, or threatened administration or application, of mind altering substances or other procedures calculated to disrupt profoundly the senses or the personality; (C) the threat of imminent death; or (D) the threat that another individual will imminently be subjected to death, severe physical pain or suffering, or the administration or application of mind altering substances or other procedures calculated to disrupt profoundly the senses or personality.

It is clear that both definitions encompass a wide range of war crimes and crimes against humanity, irrespective of the prerequisite contextual elements outlined in the Rome Statute.

The House Report referred to the principle of universal jurisdiction found in the Convention Against Torture, inter alia, as a main reason for its enactment. Although the Alien Tort Claims Act existed since 1789 offered a mechanism for litigating human rights violations in US courts, the TVPA is exclusively designed to address a certain type of wrongful acts of which state officials could be responsible for committing. The Senate’s report noted that the drafting committee does not intend to shield high state officials from civil actions based on the Act of State. It noted that acts like torture could ever be considered a legitimate aspect of a state’s official policy. Accordingly, the US courts were granted more latitude with respect to immunities and allowed for greater number of cases procedurally admissible. 

The TVPA does not explicitly exclude American citizens from its purview. Therefore, if an American citizen, acting in an official capacity for a foreign nation, commits acts of torture or extrajudicial killing, they could potentially be sued under the TVPA. However, the act of torture or extrajudicial killing must have occurred in a foreign country, as the TVPA is designed to address international human rights violations that did not take place on US soil. Accordingly, it does not provide immunity to American citizens if they meet the criteria set forth in the Act.

How International Law Accommodates Universal Civil Jurisdiction

Unlike universal criminal jurisdiction which is used by national courts as a powerful tool for enforcing international law, no rule of international law specifically authorizes let alone obliges the exercise of UCJ with respect to human rights offenders, (Kamminga, M). Nonetheless, the foundational principle established in the Lotus case concerning universal jurisdiction asserts that states possess the autonomy to broaden the scope of their legal frameworks to the extent of their choosing, provided there is no extant international legal statute that explicitly restricts such an expansion of jurisdiction. To affirm the legitimacy of UCJ, the  2015 resolution by the Institut de Droit International addresses the need for this mechanism to provide reparation for victims of international crimes, which include serious offenses such as genocide, torture, crimes against humanity, and war crimes.

Nevertheless, the recognition of UCJ as an independent claim has not yet achieved global deference. In the Arrest Warrant case, the ICJ referenced the US Alien Tort Statute (ATS) which allows federal courts to consider legal actions brought by non-U.S. citizens for wrongs that breach international law, as not receiving widespread endorsement from the international community. In addition, several European nations have adopted a stance akin to this perspective. They presented amicus briefs to the U.S. Supreme Court in the Sosa v. Alvarez-Machain case, contending that the ATS should only be invoked for cases that have a significant connection to the US. More recently, the ECtHR in Naït-Liman v. Switzerland decided that: “the prevalence of universal civil jurisdiction was not yet sufficient to indicate the emergence, far less the consolidation, of an international custom which would have obliged the Swiss courts to find that they had jurisdiction to examine the applicant’s action.” Although those remarks challenge the existence of opinio juris in relation to UCJ, they do not dispute its legal validity.

The hesitancy of sovereign states to recognize UCJ as a mechanism for the enforcement of international law may stem from a multitude of factors, which concurrently serve as also benefits for implementing this litigation instrument. First, universal criminal jurisdiction (UCrJ) is more of a national policy-controlled mechanism than an independent scheme seeking remedies for victims of atrocities. Criminal cases are typically handled by prosecution bureaus that may be subject to influence from the government’s executive arm. In contrast, civil cases are first addressed and resolved by judicial courts, which operate with greater independence and therefore chances are much higher for cases to advance forward. 

Second, the standard of proof in criminal law is ‘beyond reasonable doubt’, which requires that the prosecution’s evidence be so convincing that there is no uncertainty left in the mind of the jury or judge regarding the defendant’s guilt. In contrast, the standard of proof in civil cases is typically ‘preponderance of the evidence’ or clear and convincing evidence where the threshold of proof is much lower. Accordingly, UCJ provides a higher degree of accessibility to the justice system and greater efficiency.

Lastly, judicial bodies presiding over civil proceedings possess greater latitude in adjudicating claims of immunity ratione materiae for senior state officials, as compared to their counterparts in criminal jurisprudence. The primary rationale is that the outcomes of criminal proceedings, such as arrest and incarceration, can significantly exacerbate diplomatic relations, whereas civil actions typically result in financial penalties alone. For example, in the case of Xuncax v. Gramajo (former Guatemalan Minister of Defense), the court, while awarding the claimant damages amounting to five million dollars under TVPA, abrogated the defense of immunity. It determined that acts of assassination are “clearly contrary to the precepts of humanity as recognized in both national and international law” and so cannot be part of official’s “discretionary” authority. Similarly, the Court of Appeals in the Lewis v. Mutond case decided that the defendants were not entitled to immunity because “TVPA subjects foreign officials to liability for acts undertaken in an official capacity and thus displaces any common-law, conduct-based immunity that might otherwise apply in the context of claims under that Act.  However, this does not invariably hold true. In several instances, US courts have maintained the stance of immunity defense, notably in the lawsuit filed against Ehud Barak, the former Israeli Minister of Defense for Israel, in relation to the ‘Gaza Freedom Flotilla’ incident. The Court of Appeals affirmed the district court’s dismissal of the action, citing that Barak was entitled to foreign official immunity. This decision was based on the grounds that his acts were performed in his official capacity, the sovereign government of Israel had ratified his conduct, and the U.S. Department of State had requested the judiciary to grant him foreign official immunity. The last ground is named according to American jurisprudence as a ‘suggestion of immunity’ being a form of judicial deference to Executive Branch immunity determinations with respect to foreign officials. 

Although (UCJ) offers a decentralized structure that is advantageous, it concurrently presents a challenge for victims in the realm of evidence substantiation—an issue that will be explored next.

Unveiling the Impact of Global Registers of Damage on Aiding UCJ

In 2016, the International, Impartial and Independent Mechanism (IIIM) was established by the United Nations General Assembly to assist in the investigation and prosecution of serious crimes under international law committed in Syria since March 2011. The Mechanism has quasi- prosecutorial function which collects and analyzes evidence, documents violations, and supports national and international judicial processes. Several European countries have launched investigations and prosecutions under the principle of universal jurisdiction using information provided by the IIIM. Most recently, the Paris Judicial Court has found three high-ranking Syrian officials guilty of complicity in crimes against humanity and war crimes and were sentenced to life imprisonment based on the information, evidence and analytical products provided by the IIIM. 

Two operational mechanisms currently exist that could fulfill a similar role, specifically in relation to civil suits brought under the framework of UCJ. The first one is the United Nations Register of Damage (UNRoD) established in accordance with General Assembly resolution A/RES/ES-10/17 of 15 December 2006. The UNRoD’s mandate is to “serve as a record, in documentary form, of the damage caused to all natural and legal persons concerned as a result of the construction of the Wall by Israel in the Occupied Palestinian Territory, including in and around East Jerusalem.” The Register’s establishment was principally based on the ICJ’s advisory opinion on the legal consequences of the construction of the wall which found that Israel had breached various obligations under international law and was therefore liable to pay compensation, in line with the relevant rules of international law, to all natural or legal persons who had incurred any material damage due to the wall’s construction. Despite the mechanism’s mandate being confined to addressing damages resulting from the construction of the barrier, there is an aspiration that its scope may broaden to encompass reparations for the destruction wrought by the conflict in Gaza. 

The second is the Register of Damage for Ukraine which is a specific mechanism established by the Council of Europe to document and record claims of damage, loss, or injury caused by Russia’s internationally wrongful acts against Ukraine. It serves as a centralized repository for evidence and claims, which could potentially be used to support future legal actions for compensation.

While the foundational purpose of both mechanisms did not encompass the facilitation of UCJ, they possess the potential to advance its fundamental goals by collecting credible and unbiased evidence, which may be utilized in civil litigation within any jurisdiction that upholds the principle of UCJ for grave human rights violations.

Conclusion

The persistent occurrence of atrocities across the globe necessitates a unified response from the international community to terminate these violations and offer reparations to those affected. The second objective could be realized through the expansion of frameworks that facilitate access to justice for victims who are otherwise deprived of their fundamental rights. UCJ presents a potential avenue, despite its current lack of global endorsement. The TVPA stands as an exemplary paradigm for nations considering the adoption of UCJ within their judicial systems, as well as a means to afford relief to victims through U.S. courts.