The Effect of a Domestic Amnesty on the Ability of Foreign States to Prosecute Alleged Perpetrators of Serious Human Rights Violations

Cornell International Law Journal

Volumn 33, Issue 2, 2000, Pages

  Boed, Roman ^a  

^a NONE

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EID: 0346484694     PISSN: 00108812     EISSN: None     Source Type: Journal    
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References (222)

1. Norman Weisman described amnesty as "an act of sovereign power granting forgiveness for a past offense . . . ." Norman Weisman, A History and Discussion of Amnesty, 4 COLUM. HUM. RTS. L. REV. 529 (1972). He observed that "[t]he history of amnesty dates back to 404 B.C., when Thrasybulus, an Athenian general, forbade any punishment of Athenian citizens for political acts committed before the expulsion of the tyrants." Id. at 530.
2. See Douglass Cassel, Lessons from the Americas: Guidelines for International Response to Amnesties for Atrocities, 59 LAW & CONTEMP. PROBS. 197, 200-01 (1996); see also Alejandro M. Garro, Nine Years of Transition to Democracy in Argentina: Partial Failure or Qualified Success?, 31 COLUM. J. TRANSNAT'L L. 1, 10-11 (1993) (describing amnesty and similar measures in Latin America).
3. See Douglass Cassel, Lessons from the Americas: Guidelines for International Response to Amnesties for Atrocities, 59 LAW & CONTEMP. PROBS. 197, 200-01 (1996); see also Alejandro M. Garro, Nine Years of Transition to Democracy in Argentina: Partial Failure or Qualified Success?, 31 COLUM. J. TRANSNAT'L L. 1, 10-11 (1993) (describing amnesty and similar measures in Latin America).
4. See, e.g., Diane F. Orentlicher, International Criminal Law and the Cambodian Killing Fields, 3 ILSA J. INT'L & COMP. L. 705, 708-09, 711 (1997).
5. While the amnesty measures generally provide a shield to accountability, the South African model, which couples amnesty granting with truth seeking, allows the amnesty-granting body to withhold an amnesty from a person if, because of the egregious nature of the offense, the grant of an amnesty would not serve the objective of reconciliation. See Diane F. Orentlicher, Swapping Amnesty for Peace and the Duty to Prosecute Human Rights Crimes, 3 ILSA J. INT'L & COMP. L. 713, 714 (1997); see also MARTHA MINOW, BETWEEN VENGEANCE AND FORGIVENESS 55-57 (1998) (describing the South African amnesty model).
6. While the amnesty measures generally provide a shield to accountability, the South African model, which couples amnesty granting with truth seeking, allows the amnesty-granting body to withhold an amnesty from a person if, because of the egregious nature of the offense, the grant of an amnesty would not serve the objective of reconciliation. See Diane F. Orentlicher, Swapping Amnesty for Peace and the Duty to Prosecute Human Rights Crimes, 3 ILSA J. INT'L & COMP. L. 713, 714 (1997); see also MARTHA MINOW, BETWEEN VENGEANCE AND FORGIVENESS 55-57 (1998) (describing the South African amnesty model).
7. Of course, General Pinochet's case raises not only amnesty issues, immunity being guaranteed by the Chilean 1978 Amnesty Decree and the parliamentary immunity provided by the Chilean Constitution of 1990, but also the issue of head of state immunity. See Regina v. Bartle, [2000] 1 App. Cas. 61 (1998) (appeal taken from Q.B. Div'l Ct.). See generally Amnesty International, United Kingdom: Universal Jurisdiction and Absence of Immunity for Crimes Against Humanity (visited Mar. 24, 1999) 〈http:// www.amnesty.org.uk/news/pinochet/report.html〉.
8. The other bases for extraterritorial jurisdiction are (i) the nationality principle (entails jurisdiction over acts committed by a State's nationals abroad), (ii) the protective principle (acts against a State's security interests committed by aliens abroad), and (iii) the passive personality principle (acts against a State's nationals committed by aliens abroad). See generally Roman Boed, United States Legislative Approach to Extraterritorial Jurisdiction in Connection with Terrorism, in II INTERNATIONAL CRIMINAL LAW: PROCEDURAL AND ENFORCEMENT MECHANISMS 145, 146-50 (M. Cherif Bassiouni ed., 2d ed. 1999) (discussing these bases for extraterritorial jurisdiction).
9. See, e.g., Cassel, supra note 2, at 197-98.
10. Claudia Annacker identified an erga omnes obligation as a duty with a "non-bilaterlizable structure." Claudia Annacker, The Legal Regime of Erga Omnes Obligations in International Law, 46 AUSTRIAN J. PUB. INT'L L. 131, 136 (1994). An erga omnes obligation "can only be fulfilled or breached vis-à-vis all States belonging to a community . . . of all States which are bound by a norm of treaty or customary international law . . . ." Id. (emphasis in original) (footnote omitted). Clearly, human rights obligations have this character. If a State breaches human rights protected by a treaty to which it is a party or by custom, that State breaches its express (in case of a treaty) or implicit (in case of custom) promise to protect those rights vis-a-vis all other States similarly bound. The injury from the breach thus reaches all States in the community. See LAURI HANNIKAINEN, PEREMPTORY NORMS (JUS COGENS) IN INTERNATIONAL LAW 282-83 (1988) (identifying basic human rights obligations as owed to the community of States); see also RESTATEMENT (THIRD) OF FOREIGN RELATIONS LAW OF THE UNITED STATES § 702 cmt. o (1987) (noting that violations of certain customary human rights obligations "are violations of obligations to all other states") [hereinafter RESTATEMENT (THIRD)].
11. Claudia Annacker identified an erga omnes obligation as a duty with a "non- bilaterlizable structure." Claudia Annacker, The Legal Regime of Erga Omnes Obligations in International Law, 46 AUSTRIAN J. PUB. INT'L L. 131, 136 (1994). An erga omnes obligation "can only be fulfilled or breached vis-à-vis all States belonging to a community . . . of all States which are bound by a norm of treaty or customary international law . . . ." Id. (emphasis in original) (footnote omitted). Clearly, human rights obligations have this character. If a State breaches human rights protected by a treaty to which it is a party or by custom, that State breaches its express (in case of a treaty) or implicit (in case of custom) promise to protect those rights vis-a-vis all other States similarly bound. The injury from the breach thus reaches all States in the community. See LAURI HANNIKAINEN, PEREMPTORY NORMS (JUS COGENS) IN INTERNATIONAL LAW 282-83 (1988) (identifying basic human rights obligations as owed to the community of States); see also RESTATEMENT (THIRD) OF FOREIGN RELATIONS LAW OF THE UNITED STATES § 702 cmt. o (1987) (noting that violations of certain customary human rights obligations "are violations of obligations to all other states") [hereinafter RESTATEMENT (THIRD)].
12. Barcelona Traction, Light and Power Co., Ltd. (Belg. v. Spain), 1970 I.C.J. 3, 32 (Feb. 5) (citation omitted).
13. Id. Lauri Hannikainen found that in addition to the views of the International Court of Justice, the work of the International Law Commission and the writings of scholars support "the view that there exist obligations of States towards the international community of States in the observance of which all States have a legal interest." HANNIKAINEN, supra note 8, at 274, 276.
14. Hannikainen observed that while the prevailing view is that "there exist obligations towards the international community of States in the vindication of which all States have a legal interest," it is uncertain how the vindication of such obligations "can be realized in contemporary international law." HANNIKAINEN, supra note 8, at 276. Hannikainen suggested that vindication of such obligations may be through actio popularis, but stated that "actio popularis can be realized properly only as an exercise of the right to institute proceedings in international juridical bodies." Id.
15. See OSCAR SCHACHTER, INTERNATIONAL LAW IN THEORY AND PRACTICE 209-10 (1991). An erga omnes obligation can arise not only under a treaty, but also under custom. See LOUIS HENKIN, INTERNATIONAL LAW: POLITICS AND VALUES 216-17 (1995) (stating that customary law of human rights "recognizes the interests of all states in the human rights of all human beings"); Annacker, supra note 8, at 135 ("An erga omnes obligation can be an obligation towards all the parties to a multilateral treaty . . ., an obligation vis-à-vis a community of States bound by a rule of regional customary international law or an obligation towards the international community.").
16. See OSCAR SCHACHTER, INTERNATIONAL LAW IN THEORY AND PRACTICE 209-10 (1991). An erga omnes obligation can arise not only under a treaty, but also under custom. See LOUIS HENKIN, INTERNATIONAL LAW: POLITICS AND VALUES 216-17 (1995) (stating that customary law of human rights "recognizes the interests of all states in the human rights of all human beings"); Annacker, supra note 8, at 135 ("An erga omnes obligation can be an obligation towards all the parties to a multilateral treaty . . ., an obligation vis-à-vis a community of States bound by a rule of regional customary international law or an obligation towards the international community.").
17. The breach would enable actio popularis at least to the extent that nearly all States are parties to the treaties that create the erga omnes obligations recognized by the Barcelona Traction opinion. See SCHACHTER, supra note 12, at 210; see also supra text accompanying note 9 (noting the sources of erga omnes obligations).
18. See SCHACHTER, supra note 12, at 210-11; Annacker, supra note 8, at 165.
19. See A. J. J. de Hoogh, The Relationship between Jus Cogens, Obligations Erga Omnes and International Crimes: Peremptory Norms in Perspective, 42 AUSTRIAN J. PUB. INT'L L. 183, 196 (1991) ("[I]t is obvious that even if a State possesses a legal interest, it still cannot dispense with the requirement of a jurisdictional link under art. 36 of the Statute [of the International Court of Justice]."); see also HANNIKAINEN, supra note 8, at 280 ("[I]t appears that actio popularis can be realized only among those parties to the Statute which have accepted the compulsory jurisdiction of the ICJ.").
20. See HANNIKAINEN, supra note 8, at 282; SCHACHTER, supra note 12, at 210-11.
21. Restatement (Third), for example, sets out as remedies for violations of human rights obligations the following: (1)A state party to an international human rights agreement has, as against any other state party violating the agreement, the remedies generally available for violation of an international agreement, as well as any special remedies provided by the agreement. (2) Any state may pursue international remedies against any other state for a violation of the customary international law of human rights. RESTATEMENT (THIRD), supra note 8, § 703 (emphasis added) (citation omitted). Any remedy for a breach of an erga omnes human rights obligation lies against a State, not against an individual.
22. See Barcelona Traction, Light and Power Co., Ltd. (Belg. v Spain), 1970 I.C.J. 3 (Feb. 5); see also supra note 10 and accompanying text.
23. See ROSALYN HIGGINS, PROBLEMS AND PROCESS: INTERNATIONAL LAW AND HOW WE USE IT 57 (1994). Higgins noted that the Court's dictum in Barcelona Traction "is often incorrectly used as authority for more than it can sustain." Id. Higgins continued: It is spoken of . . . as if the Court was affirming universal jurisdiction in respect of each of these offences. Of course, the Court was doing nothing of the kind. Its dictum was made in the context not of the assertion of jurisdiction but of an examination of the law relating to diplomatic protection. Id.
24. See id.; see also SCHACHTER, supra note 12, at 269.
25. But see Amnesty International, supra note 5, sec. II.B ("The legal interest erga omnes permits any state to exercise universal jurisdiction over persons suspected of committing crimes against humanity."); Kenneth C. Randall, Universal Jurisdiction Under International Law, 66 TEX. L. REV. 785, 830 (1988) (arguing that the concept of erga omnes obligations "may subsidiarily support the right of all states to exercise universal jurisdiction over . . . individual offenders [who violate rights that States are under an erga omnes obligation to protect]").
26. See HIGGINS, supra note 19, at 58 ("The right to exercise jurisdiction under the universality principle can stem either from a treaty of universal or quasi-universal scope, or from acceptance under general international law."); see also STEVEN R. RATNER & JASON S. ABRAMS, ACCOUNTABILITY FOR HUMAN RIGHTS ATROCITIES IN INTERNATIONAL LAW: BEYOND THE NUREMBERG LEGACY 141 (1997).
27. Restatement (Third) lists, inter alia, the following factors as relevant in determining whether exercise of jurisdiction over a person or activity is reasonable: (c) the character of the activity to be regulated, the importance of regulation to the regulating state, the extent to which other states regulate such activities, and the degree to which the desirability of such regulation is generally accepted; (d) the existence of justified expectations that might be protected or hurt by the regulation; (e) the importance of the regulation to the international political, legal, or economic system; (f) the extent to which the regulation is consistent with the traditions of the international system; (g) the extent to which another state may have an interest in regulating the activity; and (h) the likelihood of conflict with regulation by another state. RESTATEMENT (THIRD), supra note 8, § 403(2); see also IAIN CAMERON, THE PROTECTIVE PRINCIPLE OF INTERNATIONAL CRIMINAL JURISDICTION 333-37 (1994) (discussing the application of the rule of reasonableness); HENKIN, supra note 12, at 242-46 (discussing the principle of reasonableness); RATNER & ABRAMS, supra note 22, at 141 (stating that under the rule of reasonableness, "even where a state enjoys a recognized basis for asserting jurisdiction, its exercise of that jurisdiction will not be proper if another state has a more profound interest in exercising jurisdiction over the offender").
28. Restatement (Third), for example, states that "[a] state has jurisdiction to define and prescribe punishment for certain offenses recognized by the community of nations as of universal concern . . . ." RESTATEMENT (THIRD), supra note 8, § 404 (emphasis added).
29. See, e.g., M. CHERIF BASSIOUNI, INTERNATIONAL EXTRADITION: UNITED STATES LAW AND PRACTICE 298 (2d ed. 1987) (identifying, as the core of universality, conduct that "constitutes a violation against mankind") ("Any state, if it captures the offender, may prosecute and punish that person on behalf of the world community. . . . [Universal jurisdiction] allows states to protect universal values and the interests of mankind."); IAN BROWNLIE, PRINCIPLES OF PUBLIC INTERNATIONAL LAW 304 (4th ed. 1990) (describing universality-based jurisdiction as "jurisdiction over acts of non-nationals where the circumstances, including the nature of the crime, justify the repression of some types of crime as a matter of international public policy" (emphasis added)); HIGGINS, supra note 19, at 58 (noting that States apply universality to conduct which they treat as criminal and which "they perceive also as an attack upon international order"); Christopher C. Joyner, Arresting Impunity: The Case for Universal Jurisdiction in Bringing War Criminals to Accountability, 59 LAW & CONTEMP. PROBS. 153, 165 (1996) ("This principle is grounded in the assumption that the prosecuting state is acting on behalf of all states."); F. A. Mann, The Doctrine of Jurisdiction in International Law, 111 RECUEIL DES COURS 1, 95 (I/1964) (stating that the exercise of universal jurisdiction "is founded upon the accused's attack upon the international order as a whole").
30. See, e.g., M. CHERIF BASSIOUNI, INTERNATIONAL EXTRADITION: UNITED STATES LAW AND PRACTICE 298 (2d ed. 1987) (identifying, as the core of universality, conduct that "constitutes a violation against mankind") ("Any state, if it captures the offender, may prosecute and punish that person on behalf of the world community. . . . [Universal jurisdiction] allows states to protect universal values and the interests of mankind."); IAN BROWNLIE, PRINCIPLES OF PUBLIC INTERNATIONAL LAW 304 (4th ed. 1990) (describing universality-based jurisdiction as "jurisdiction over acts of non-nationals where the circumstances, including the nature of the crime, justify the repression of some types of crime as a matter of international public policy" (emphasis added)); HIGGINS, supra note 19, at 58 (noting that States apply universality to conduct which they treat as criminal and which "they perceive also as an attack upon international order"); Christopher C. Joyner, Arresting Impunity: The Case for Universal Jurisdiction in Bringing War Criminals to Accountability, 59 LAW & CONTEMP. PROBS. 153, 165 (1996) ("This principle is grounded in the assumption that the prosecuting state is acting on behalf of all states."); F. A. Mann, The Doctrine of Jurisdiction in International Law, 111 RECUEIL DES COURS 1, 95 (I/1964) (stating that the exercise of universal jurisdiction "is founded upon the accused's attack upon the international order as a whole").
31. See, e.g., M. CHERIF BASSIOUNI, INTERNATIONAL EXTRADITION: UNITED STATES LAW AND PRACTICE 298 (2d ed. 1987) (identifying, as the core of universality, conduct that "constitutes a violation against mankind") ("Any state, if it captures the offender, may prosecute and punish that person on behalf of the world community. . . . [Universal jurisdiction] allows states to protect universal values and the interests of mankind."); IAN BROWNLIE, PRINCIPLES OF PUBLIC INTERNATIONAL LAW 304 (4th ed. 1990) (describing universality-based jurisdiction as "jurisdiction over acts of non-nationals where the circumstances, including the nature of the crime, justify the repression of some types of crime as a matter of international public policy" (emphasis added)); HIGGINS, supra note 19, at 58 (noting that States apply universality to conduct which they treat as criminal and which "they perceive also as an attack upon international order"); Christopher C. Joyner, Arresting Impunity: The Case for Universal Jurisdiction in Bringing War Criminals to Accountability, 59 LAW & CONTEMP. PROBS. 153, 165 (1996) ("This principle is grounded in the assumption that the prosecuting state is acting on behalf of all states."); F. A. Mann, The Doctrine of Jurisdiction in International Law, 111 RECUEIL DES COURS 1, 95 (I/1964) (stating that the exercise of universal jurisdiction "is founded upon the accused's attack upon the international order as a whole").
32. See, e.g., M. CHERIF BASSIOUNI, INTERNATIONAL EXTRADITION: UNITED STATES LAW AND PRACTICE 298 (2d ed. 1987) (identifying, as the core of universality, conduct that "constitutes a violation against mankind") ("Any state, if it captures the offender, may prosecute and punish that person on behalf of the world community. . . . [Universal jurisdiction] allows states to protect universal values and the interests of mankind."); IAN BROWNLIE, PRINCIPLES OF PUBLIC INTERNATIONAL LAW 304 (4th ed. 1990) (describing universality-based jurisdiction as "jurisdiction over acts of non-nationals where the circumstances, including the nature of the crime, justify the repression of some types of crime as a matter of international public policy" (emphasis added)); HIGGINS, supra note 19, at 58 (noting that States apply universality to conduct which they treat as criminal and which "they perceive also as an attack upon international order"); Christopher C. Joyner, Arresting Impunity: The Case for Universal Jurisdiction in Bringing War Criminals to Accountability, 59 LAW & CONTEMP. PROBS. 153, 165 (1996) ("This principle is grounded in the assumption that the prosecuting state is acting on behalf of all states."); F. A. Mann, The Doctrine of Jurisdiction in International Law, 111 RECUEIL DES COURS 1, 95 (I/1964) (stating that the exercise of universal jurisdiction "is founded upon the accused's attack upon the international order as a whole").
33. See, e.g., RESTATEMENT (THIRD), supra note 8, § 404 (listing piracy among offenses subject to universal jurisdiction); BASSIOUNI, supra note 25, at 298-300; HIGGINS, supra note 19, at 58; SCHACHTER, supra note 12, at 267; Michael Akehurst, Jurisdiction in International Law, 1972-73 BRIT. Y.B. INT'L L. 145, 160; D. W. Bowett, Jurisdiction: Changing Patterns of Authority over Activities and Resources, 1982 BRIT Y.B. INT'L L. 1, 11; Harvard Law School Research in International Law, Draft Convention on Jurisdiction with Respect to Crime, 29 AM. J. INT'L L. 439, 563 (Supp. 1935) ("A State has jurisdiction with respect to any crime committed outside its territory by an alien which constitutes piracy by international law."); Mann, supra note 25, at 95; Randall, supra note 21, at 791; Hari M. Osofsky, Note, Domesticating International Criminal Law: Bringing Human Rights Violators to Justice, 107 YALE L.J. 191, 194 (1997).
34. See, e.g., RESTATEMENT (THIRD), supra note 8, § 404 (listing piracy among offenses subject to universal jurisdiction); BASSIOUNI, supra note 25, at 298-300; HIGGINS, supra note 19, at 58; SCHACHTER, supra note 12, at 267; Michael Akehurst, Jurisdiction in International Law, 1972-73 BRIT. Y.B. INT'L L. 145, 160; D. W. Bowett, Jurisdiction: Changing Patterns of Authority over Activities and Resources, 1982 BRIT Y.B. INT'L L. 1, 11; Harvard Law School Research in International Law, Draft Convention on Jurisdiction with Respect to Crime, 29 AM. J. INT'L L. 439, 563 (Supp. 1935) ("A State has jurisdiction with respect to any crime committed outside its territory by an alien which constitutes piracy by international law."); Mann, supra note 25, at 95; Randall, supra note 21, at 791; Hari M. Osofsky, Note, Domesticating International Criminal Law: Bringing Human Rights Violators to Justice, 107 YALE L.J. 191, 194 (1997).
35. See, e.g., RESTATEMENT (THIRD), supra note 8, § 404 (listing piracy among offenses subject to universal jurisdiction); BASSIOUNI, supra note 25, at 298-300; HIGGINS, supra note 19, at 58; SCHACHTER, supra note 12, at 267; Michael Akehurst, Jurisdiction in International Law, 1972-73 BRIT. Y.B. INT'L L. 145, 160; D. W. Bowett, Jurisdiction: Changing Patterns of Authority over Activities and Resources, 1982 BRIT Y.B. INT'L L. 1, 11; Harvard Law School Research in International Law, Draft Convention on Jurisdiction with Respect to Crime, 29 AM. J. INT'L L. 439, 563 (Supp. 1935) ("A State has jurisdiction with respect to any crime committed outside its territory by an alien which constitutes piracy by international law."); Mann, supra note 25, at 95; Randall, supra note 21, at 791; Hari M. Osofsky, Note, Domesticating International Criminal Law: Bringing Human Rights Violators to Justice, 107 YALE L.J. 191, 194 (1997).
36. See, e.g., RESTATEMENT (THIRD), supra note 8, § 404 (listing piracy among offenses subject to universal jurisdiction); BASSIOUNI, supra note 25, at 298-300; HIGGINS, supra note 19, at 58; SCHACHTER, supra note 12, at 267; Michael Akehurst, Jurisdiction in International Law, 1972-73 BRIT. Y.B. INT'L L. 145, 160; D. W. Bowett, Jurisdiction: Changing Patterns of Authority over Activities and Resources, 1982 BRIT Y.B. INT'L L. 1, 11; Harvard Law School Research in International Law, Draft Convention on Jurisdiction with Respect to Crime, 29 AM. J. INT'L L. 439, 563 (Supp. 1935) ("A State has jurisdiction with respect to any crime committed outside its territory by an alien which constitutes piracy by international law."); Mann, supra note 25, at 95; Randall, supra note 21, at 791; Hari M. Osofsky, Note, Domesticating International Criminal Law: Bringing Human Rights Violators to Justice, 107 YALE L.J. 191, 194 (1997).
37. See, e.g., RESTATEMENT (THIRD), supra note 8, § 404 (listing slave trade among offenses subject to universal jurisdiction); BASSIOUNI, supra note 25, at 301; HIGGINS, supra note 19, at 58; RATNER & ABRAMS, supra note 22, at 141, 144; SCHACHTER, supra note 12, at 267; Randall, supra note 21, at 798-800.
38. Randall, supra note 21, at 794 (footnotes omitted).
39. See id. at 795.
40. See id.
41. Id. at 800.
42. War crimes refer to grave breaches of the Geneva Conventions and like custom. See, e.g., RESTATEMENT (THIRD), supra note 8, § 404 (listing war crimes among offenses subject to universal jurisdiction); GEOFFREY BEST, WAR AND LAW SINCE 1945 165-66 (1994); HIGGINS, supra note 19, at 59; RATNER & ABRAMS, supra note 22, at 143; SCHACHTER, supra note 12, at 268; Willard B. Cowles, Universality of Jurisdiction Over War Crimes, 33 CAL. L. REV. 177, 216-18 (1945) ("In the light of practice . . ., every independent State has jurisdiction to punish war criminals in its custody regardless of the nationality of the victim, the time it entered the war, or the place where the offense was committed."); Lori Fisler Damrosch, Enforcing International Law Through Non-Forcible Measures, 269 RECUEIL DES COURS 9, 218 (1997); Joyner, supra note 25, at 170 ("Every state under international law thus retains permissible jurisdiction to punish war criminals, regardless of the nationality of the victim or the offender, or the place where the offense was committed."); Orentlicher, supra note 3, at 705; Randall, supra note 21, at 800. But see Bowett, supra note 26, at 12. Derek Bowett argues: The view that the 1949 Geneva Conventions provide for universal jurisdiction, though sometimes asserted, is probably incorrect. For the obligation imposed on all contracting Parties to enact municipal legislation so as to make grave breaches of the Conventions punishable is not the assertion of a universal jurisdiction but merely the provision of the legislative basis for jurisdiction in the event that the contracting Party is involved in hostilities as a belligerent. Bowett, supra note 26, at 12 (footnote omitted).
43. War crimes refer to grave breaches of the Geneva Conventions and like custom. See, e.g., RESTATEMENT (THIRD), supra note 8, § 404 (listing war crimes among offenses subject to universal jurisdiction); GEOFFREY BEST, WAR AND LAW SINCE 1945 165-66 (1994); HIGGINS, supra note 19, at 59; RATNER & ABRAMS, supra note 22, at 143; SCHACHTER, supra note 12, at 268; Willard B. Cowles, Universality of Jurisdiction Over War Crimes, 33 CAL. L. REV. 177, 216-18 (1945) ("In the light of practice . . ., every independent State has jurisdiction to punish war criminals in its custody regardless of the nationality of the victim, the time it entered the war, or the place where the offense was committed."); Lori Fisler Damrosch, Enforcing International Law Through Non-Forcible Measures, 269 RECUEIL DES COURS 9, 218 (1997); Joyner, supra note 25, at 170 ("Every state under international law thus retains permissible jurisdiction to punish war criminals, regardless of the nationality of the victim or the offender, or the place where the offense was committed."); Orentlicher, supra note 3, at 705; Randall, supra note 21, at 800. But see Bowett, supra note 26, at 12. Derek Bowett argues: The view that the 1949 Geneva Conventions provide for universal jurisdiction, though sometimes asserted, is probably incorrect. For the obligation imposed on all contracting Parties to enact municipal legislation so as to make grave breaches of the Conventions punishable is not the assertion of a universal jurisdiction but merely the provision of the legislative basis for jurisdiction in the event that the contracting Party is involved in hostilities as a belligerent. Bowett, supra note 26, at 12 (footnote omitted).
44. War crimes refer to grave breaches of the Geneva Conventions and like custom. See, e.g., RESTATEMENT (THIRD), supra note 8, § 404 (listing war crimes among offenses subject to universal jurisdiction); GEOFFREY BEST, WAR AND LAW SINCE 1945 165-66 (1994); HIGGINS, supra note 19, at 59; RATNER & ABRAMS, supra note 22, at 143; SCHACHTER, supra note 12, at 268; Willard B. Cowles, Universality of Jurisdiction Over War Crimes, 33 CAL. L. REV. 177, 216-18 (1945) ("In the light of practice . . ., every independent State has jurisdiction to punish war criminals in its custody regardless of the nationality of the victim, the time it entered the war, or the place where the offense was committed."); Lori Fisler Damrosch, Enforcing International Law Through Non-Forcible Measures, 269 RECUEIL DES COURS 9, 218 (1997); Joyner, supra note 25, at 170 ("Every state under international law thus retains permissible jurisdiction to punish war criminals, regardless of the nationality of the victim or the offender, or the place where the offense was committed."); Orentlicher, supra note 3, at 705; Randall, supra note 21, at 800. But see Bowett, supra note 26, at 12. Derek Bowett argues: The view that the 1949 Geneva Conventions provide for universal jurisdiction, though sometimes asserted, is probably incorrect. For the obligation imposed on all contracting Parties to enact municipal legislation so as to make grave breaches of the Conventions punishable is not the assertion of a universal jurisdiction but merely the provision of the legislative basis for jurisdiction in the event that the contracting Party is involved in hostilities as a belligerent. Bowett, supra note 26, at 12 (footnote omitted).
45. See RATNER & ABRAMS, supra note 22, at 145 (noting that the International Convention on the Suppression of and Punishment of the Crime of Apartheid created permissive universal jurisdiction for States parties to it, but that universality is not yet an established basis of jurisdiction in custom with respect to apartheid); see also RESTATEMENT (THIRD), supra note 8, § 404 reporters' note 1. But see Bowett, supra note 26, at 12-13 (arguing that the Convention on the Suppression and Punishment of the Crime of Apartheid under which States parties are to prosecute and punish "in accordance with their jurisdiction" does not create universal jurisdiction over the crime of apartheid).
46. Rome Statute of the International Criminal Court, U.N. GAOR, 53d Sess., U.N. Doc. A/CONF.183/9 (1998), reprinted in 39 I.L.M. 999 (1998) [hereinafter ICC Statute].
47. Rome Statute of the International Criminal Court, U.N. GAOR, 53d Sess., U.N. Doc. A/CONF.183/9 (1998), reprinted in 39 I.L.M. 999 (1998) [hereinafter ICC Statute].
48. Id. art. 7(1).
49. See Statute of the International Tribunal, Report of the Secretary-General Pursuant to Paragraph 2 of Security Council Resolution 808, art. 5, para. 47, at 13, U.N. Doc. S/ 25704 (1993) [hereinafter ICTY Report] ("Crimes against humanity were first recognized in the Charter and Judgement of the Nürnberg Tribunal, as well as Law No. 10 of the Control Council for Germany."); see also M. Cherif Bassiouni, "Crimes Against Humanity": The Need for a Specialized Convention, 31 COLUM. J. TRANSNAT'L L. 457, 463 (1994). But see Amnesty International, supra note 5, sec. I.A (identifying earlier instances recognizing the concept of crimes against humanity). See generally MICHAEL R. MARRUS, THE NUREMBERG WAR CRIMES TRIAL 1945-46: A DOCUMENTARY HISTORY 185-88 (1997) (charting how crimes against humanity came to be included in the Nuremberg Charter).
50. See Statute of the International Tribunal, Report of the Secretary-General Pursuant to Paragraph 2 of Security Council Resolution 808, art. 5, para. 47, at 13, U.N. Doc. S/ 25704 (1993) [hereinafter ICTY Report] ("Crimes against humanity were first recognized in the Charter and Judgement of the Nürnberg Tribunal, as well as Law No. 10 of the Control Council for Germany."); see also M. Cherif Bassiouni, "Crimes Against Humanity": The Need for a Specialized Convention, 31 COLUM. J. TRANSNAT'L L. 457, 463 (1994). But see Amnesty International, supra note 5, sec. I.A (identifying earlier instances recognizing the concept of crimes against humanity). See generally MICHAEL R. MARRUS, THE NUREMBERG WAR CRIMES TRIAL 1945-46: A DOCUMENTARY HISTORY 185-88 (1997) (charting how crimes against humanity came to be included in the Nuremberg Charter).
51. See Statute of the International Tribunal, Report of the Secretary-General Pursuant to Paragraph 2 of Security Council Resolution 808, art. 5, para. 47, at 13, U.N. Doc. S/ 25704 (1993) [hereinafter ICTY Report] ("Crimes against humanity were first recognized in the Charter and Judgement of the Nürnberg Tribunal, as well as Law No. 10 of the Control Council for Germany."); see also M. Cherif Bassiouni, "Crimes Against Humanity": The Need for a Specialized Convention, 31 COLUM. J. TRANSNAT'L L. 457, 463 (1994). But see Amnesty International, supra note 5, sec. I.A (identifying earlier instances recognizing the concept of crimes against humanity). See generally MICHAEL R. MARRUS, THE NUREMBERG WAR CRIMES TRIAL 1945-46: A DOCUMENTARY HISTORY 185-88 (1997) (charting how crimes against humanity came to be included in the Nuremberg Charter).
52. Article 6(c) of the IMT Charter defined crimes against humanity as: murder, extermination, enslavement, deportation, and other inhumane acts committed against any civilian population, before or during the war, or persecutions on political, racial, or religious grounds in execution of or in connection with any crime within the jurisdiction of the Tribunal, whether or not in violation of the domestic law of the country where perpetrated. Agreement for the Prosecution and Punishment of the Major War Criminals of the European Axis Powers and Charter of the International Military Tribunal, Aug. 8, 1945, 59 Stat. 1544, 82 U.N.T.S. 279, reprinted in MARRUS, supra note 36, at 52 (footnote omitted).
53. Compare supra note 37 (containing the 1945 definition) with supra text accompanying note 35 (1998 definition). The 1993 Statute of the International Criminal Tribunal for the Former Yugoslavia (ICTY) defines crimes against humanity in article 5 as: the following crimes when committed in armed conflict, whether international or internal in character, and directed against any civilian population: (a) murder; (b) extermination; (c) enslavement; (d) deportation; (e) imprisonment; (f) torture; (g) rape; (h) persecutions on political, racial and religious grounds; (i) other inhumane acts. ICTY Report, supra note 36, Annex. The 1994 Statute of the International Criminal Tribunal for Rwanda (ICTR) contains the same definition. See International Criminal Tribunal for Rwanda, S.C. Res. 955, U.N. SCOR, 49th Sess., 3453d mtg., U.N. Doc. S/RES/ 955 (1994), art. 3, reprinted in 33 I.L.M. 1598 (1994) [hereinafter ICTR Statute].
54. See ICTY Report, supra note 36, ¶. 47, at 13; see also ICC Statute, supra note 34, art. 7(2); L. C. Green, Low-Intensity Conflict and the Law, 3 ILSA J. INT'L & COMP. L. 493, 516 (1997) ("Even if we ignore the existence of the two specially created tribunals [ICTY and ICTR], it may probably be said that it is now well established that crimes committed during a low-intensity or non-international armed conflict which amount to crimes against humanity are . . . subject to universal jurisdiction . . . ." (emphasis added)).
55. As for doctrine, the following authorities, among others, indicate that States have universal jurisdiction over crimes against humanity: RESTATEMENT (THIRD), supra note 8, § 404 reporters' note 1; HIGGINS, supra note 19, at 61, RATNER & ABRAMS, supra note 22, at 143 ("[C]rimes against humanity today are subject to universal jurisdiction."); Bassiouni, supra note 36, at 481 ("The duty to prosecute or extradite for 'Crimes Against Humanity' is founded upon the concept that such offenses are international crimes over which there exists universal jurisdiction."); Damrosch, supra note 32, at 218 ("Crimes against humanity assuredly entail universal jurisdiction . . . ."); Green, supra note 39, at 516, 519 ("Since virtually all the breaches committed during [non-international conflicts] amount to crimes against humanity . . ., there is sufficient evidence to support the contention that all such offenses are subject to universal jurisdiction, so that offenders may be tried by any country in which they may be found."); Theodor Meron, International Criminalization of Internal Atrocities, 89 AM. J. INT'L L. 554, 569 (1995) ("It is now widely accepted that crimes against humanity are subject to universal jurisdiction." (citation omitted)); Orentlicher, supra note 3, at 705; Randall, supra note 21, at 800; Steven R. Ratner, The Schizophrenias of International Criminal Law, 33 TEX. INT'L L.J. 237, 255 (1998).
56. As for doctrine, the following authorities, among others, indicate that States have universal jurisdiction over crimes against humanity: RESTATEMENT (THIRD), supra note 8, § 404 reporters' note 1; HIGGINS, supra note 19, at 61, RATNER & ABRAMS, supra note 22, at 143 ("[C]rimes against humanity today are subject to universal jurisdiction."); Bassiouni, supra note 36, at 481 ("The duty to prosecute or extradite for 'Crimes Against Humanity' is founded upon the concept that such offenses are international crimes over which there exists universal jurisdiction."); Damrosch, supra note 32, at 218 ("Crimes against humanity assuredly entail universal jurisdiction . . . ."); Green, supra note 39, at 516, 519 ("Since virtually all the breaches committed during [non-international conflicts] amount to crimes against humanity . . ., there is sufficient evidence to support the contention that all such offenses are subject to universal jurisdiction, so that offenders may be tried by any country in which they may be found."); Theodor Meron, International Criminalization of Internal Atrocities, 89 AM. J. INT'L L. 554, 569 (1995) ("It is now widely accepted that crimes against humanity are subject to universal jurisdiction." (citation omitted)); Orentlicher, supra note 3, at 705; Randall, supra note 21, at 800; Steven R. Ratner, The Schizophrenias of International Criminal Law, 33 TEX. INT'L L.J. 237, 255 (1998).
57. See Amnesty International, supra note 5, sec. II.B (citing the relevant domestic legal provisions).
58. See id.
59. See Attorney Gen. of Isr. v. Eichmann, 36 I.L.R. 277 (Isr. 1962). For a description of the trial, see HANNAH ARENDT, EICHMANN IN JERUSALEM: A REPORT ON THE BANALITY OF EVIL (1963).
60. See generally A. Munkman, Eichmann Case: Summary, 36 I.L.R. 5, 5-7 (1968); ARENDT, supra note 43 (describing Eichmann's war-time activities).
61. See Munkman, supra note 44, at 5-6 (describing the 1960 abduction).
62. See id. at 7-8 (reproducing the relevant parts of the law); Randall, supra note 21, at 811 (noting the charges). The indictment against Eichmann contained fifteen counts, including that he . . . caused the killing of millions of Jews in his capacity as head of the Gestapo Department . . . in Berlin responsible for the physical extermination of the Jews . . . . . . . placed many millions of Jews in living conditions calculated to bring about their physical destruction-in forced labour camps, ghettos, transit camps, and transportation under cruel and inhumane conditions. . . . . . . caus[ed] serious physical and mental harm to millions of Jews by enslavement, starvation, deportation and persecution and by detention in ghettos, transit camps and concentration camps in conditions designed to cause their degradation, deprivation of their rights as human beings, and to suppress them and cause them inhumane sufferings and torture . . . . . . . devis[ed] . . . measures to prevent childbearing among Jews in Germany and occupied territories . . . and devis[ed] measures for the sterilization of the offspring of mixed marriages. . . . [caused] the murder, extermination, enslavement, starvation and deportation of civilian Jewish populations in Germany, the Axis countries and the occupied areas . . . . . . . [caused] persecution of Jews on national, racial, religious and political grounds. . . . [caused] spoliation of the property of Jews in Germany and in Axis and occupied and de facto controlled territories . . . . . . . caus[ed] the ill-treatment, deportation and murder of Jewish inhabitants of States occupied by Germany and other Axis States. . . . [committed] crimes against humanity in [his] capacity as officer in charge of the 'evacuation' of civilians: deporting more than half a million Polish civilians during the period from 1940 to 1942; deporting more than 14,000 Slovenes in 1941; deporting tens of thousands of gypsies to extermination camps in German-occupied regions in Eastern Europe, deporting 100 children of the village of Lidice, in Czechoslovakia, to Poland and their murder there. Munkman, supra note 44, at 8-9.
63. See Attorney Gen. of Isr. v. Eichmann, 36 I.L.R. 18, 273-76 (Isr. D.C. Jm. 1961).
64. See Eichmann, 36 I.L.R. at 342 (Isr. 1962).
65. Id. at 299.
66. Id. at 304. While commentators generally view Israel's exercise of universal jurisdiction in this case as justified, see, e.g., Mann, supra note 25, at 95 n.188, Bowett opined that "the exercise of jurisdiction by Israel in the Eichmann case stands out as highly unusual, and probably unfounded." Bowett, supra note 26, at 12 (footnote omitted).
67. See Randall, supra note 21, at 807-10 (discussing In re List, 11 Trials War Crim. 757 (U.S. Mil. Trib.-Nuremberg 1948); Almelo Trial, 1 L. Rep. Trials War Crim. 35 (Brit. Mil. Ct.-Almelo 1945); Zyklon B Case, 1 L. Rep. Trials War Crim. 93 (Brit. Mil. Ct.- Hamburg 1946); Hadamar Trial, 1 L. Rep. Trials War Crim. 46 (U.S. Mil. Comm'n- Wiesbaden 1945); In re Eisentrager, 14 L. Rep. Trial War Crim. 8 (U.S. Mil. Comm'n- Shanghai 1947)); see also RATNER & ABRAMS, supra note 22, at 143; Amnesty International, supra note 5, sec. II.B; Willard B. Cowles, Trials of War Criminals (Non-Nuremberg), 42 AM. J. INT'L L. 299, 309-13 (1948) (discussing the Hadamar case and its application of extraterritorial jurisdiction based on universality).
68. See Randall, supra note 21, at 807-10 (discussing In re List, 11 Trials War Crim. 757 (U.S. Mil. Trib.-Nuremberg 1948); Almelo Trial, 1 L. Rep. Trials War Crim. 35 (Brit. Mil. Ct.-Almelo 1945); Zyklon B Case, 1 L. Rep. Trials War Crim. 93 (Brit. Mil. Ct.-Hamburg 1946); Hadamar Trial, 1 L. Rep. Trials War Crim. 46 (U.S. Mil. Comm'n- Wiesbaden 1945); In re Eisentrager, 14 L. Rep. Trial War Crim. 8 (U.S. Mil. Comm'n- Shanghai 1947)); see also RATNER & ABRAMS, supra note 22, at 143; Amnesty International, supra note 5, sec. II.B; Willard B. Cowles, Trials of War Criminals (Non-Nuremberg), 42 AM. J. INT'L L. 299, 309-13 (1948) (discussing the Hadamar case and its application of extraterritorial jurisdiction based on universality).
69. See Randall, supra note 21, at 807-10 (discussing In re List, 11 Trials War Crim. 757 (U.S. Mil. Trib.-Nuremberg 1948); Almelo Trial, 1 L. Rep. Trials War Crim. 35 (Brit. Mil. Ct.-Almelo 1945); Zyklon B Case, 1 L. Rep. Trials War Crim. 93 (Brit. Mil. Ct.- Hamburg 1946); Hadamar Trial, 1 L. Rep. Trials War Crim. 46 (U.S. Mil. Comm'n-Wiesbaden 1945); In re Eisentrager, 14 L. Rep. Trial War Crim. 8 (U.S. Mil. Comm'n- Shanghai 1947)); see also RATNER & ABRAMS, supra note 22, at 143; Amnesty International, supra note 5, sec. II.B; Willard B. Cowles, Trials of War Criminals (Non-Nuremberg), 42 AM. J. INT'L L. 299, 309-13 (1948) (discussing the Hadamar case and its application of extraterritorial jurisdiction based on universality).
70. See Randall, supra note 21, at 807-10 (discussing In re List, 11 Trials War Crim. 757 (U.S. Mil. Trib.-Nuremberg 1948); Almelo Trial, 1 L. Rep. Trials War Crim. 35 (Brit. Mil. Ct.-Almelo 1945); Zyklon B Case, 1 L. Rep. Trials War Crim. 93 (Brit. Mil. Ct.- Hamburg 1946); Hadamar Trial, 1 L. Rep. Trials War Crim. 46 (U.S. Mil. Comm'n- Wiesbaden 1945); In re Eisentrager, 14 L. Rep. Trial War Crim. 8 (U.S. Mil. Comm'n-Shanghai 1947)); see also RATNER & ABRAMS, supra note 22, at 143; Amnesty International, supra note 5, sec. II.B; Willard B. Cowles, Trials of War Criminals (Non-Nuremberg), 42 AM. J. INT'L L. 299, 309-13 (1948) (discussing the Hadamar case and its application of extraterritorial jurisdiction based on universality).
71. See Randall, supra note 21, at 807-10 (discussing In re List, 11 Trials War Crim. 757 (U.S. Mil. Trib.-Nuremberg 1948); Almelo Trial, 1 L. Rep. Trials War Crim. 35 (Brit. Mil. Ct.-Almelo 1945); Zyklon B Case, 1 L. Rep. Trials War Crim. 93 (Brit. Mil. Ct.- Hamburg 1946); Hadamar Trial, 1 L. Rep. Trials War Crim. 46 (U.S. Mil. Comm'n- Wiesbaden 1945); In re Eisentrager, 14 L. Rep. Trial War Crim. 8 (U.S. Mil. Comm'n- Shanghai 1947)); see also RATNER & ABRAMS, supra note 22, at 143; Amnesty International, supra note 5, sec. II.B; Willard B. Cowles, Trials of War Criminals (Non-Nuremberg), 42 AM. J. INT'L L. 299, 309-13 (1948) (discussing the Hadamar case and its application of extraterritorial jurisdiction based on universality).
72. See Amnesty International, supra note 5, sec. II.B; see also Damrosch, supra note 32, at 219.
73. See Convention on the Prevention and Punishment of the Crime of Genocide, adopted Dec. 9, 1948, 78 U.N.T.S. 277 [hereinafter Genocide Convention]. Lyal Sunga noted that a Holocaust survivor, Raphael Lemkin, invented the term "genocide" and lobbied States to create and adopt a convention prohibiting conduct within its meaning. See LYAL S. SUNGA, INDIVIDUAL RESPONSIBILITY IN INTERNATIONAL LAW FOR SERIOUS HUMAN RIGHTS VIOLATIONS 65 n.2 (1992).
74. See SUNGA, supra note 53, at 65.
75. See Genocide Convention, supra note 53, art. I.
76. Id. art. II. The ICC Statute includes genocide in its catalog of crimes and uses a definition identical to the Convention's definition. See ICC Statute, supra note 34, art. 6. Also, the 1993 Statute of the International Criminal Tribunal for the Former Yugoslavia and the 1994 Statute of the International Criminal Tribunal for Rwanda contain the same listing of acts constituting genocide. See ICTY Report, supra note 36, art. 4, para. 46, at 12; ICTR Statute, supra note 38, art. 2.
77. See Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide, 1951 I.C.J. 15, 23 (May 28) ("[T]he principles underlying the Convention are principles which are recognized by civilized nations as binding on States, even without any conventional obligation."); see also ICTY Report, supra note 36, para. 45 at 12; RESTATEMENT (THIRD), supra note 8, § 702 (listing the prohibition of genocide as customary law); HANNIKAINEN, supra note 8, at 458-66; SUNGA, supra note 53, at 73 ("Evidence of opinio juris and general State practice supports the conclusion that the rule against genocide is part of international customary law, and perhaps of jus cogens."); Meron, supra note 40, at 558 ("Genocide is a crime under both customary law and a treaty.").
78. See, e.g., Bowett, supra note 26, at 12. Theodor Meron intimated uncertainty that genocide is subject to universal jurisdiction when he wrote: "[I]t is increasingly recognized by leading commentators that the crime of genocide . . . may also be cause for prosecution by any state." Meron, supra note 40, at 569 (emphasis added) (footnote omitted).
79. Genocide Convention, supra note 53, art. VI (emphasis added).
80. John Murphy wrote that "the Convention does not create a system of universal jurisdiction." John F. Murphy, International Crimes, in 2 UNITED NATIONS LEGAL ORDER 993, 1010 (Oscar Schachter & Christopher C. Joyner eds., 1995). On the other hand, article I of the Genocide Convention recognizes genocide as a crime under international law. See Genocide Convention, supra note 53, art. I. Writing about this provision's purpose, as a judge of the International Court of Justice in the Case Concerning Application of the Convention on the Prevention and Punishment of the Crime of Genocide, Elihu Lauterpacht stated: "The purpose of this . . . provision is to permit parties, within the domestic legislation that they adopt, to assume universal jurisdiction over the crime of genocide - that is to say, even when the acts have been committed outside their respective territories by persons who are not their nationals." Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosn. & Herz. v. Yugo.), 1993 I.C.J. 325, 443 (Sept. 13) (sep. op. Lauterpacht). For a discussion of article VI's drafting history, see NEHEMIAH ROBINSON, THE GENOCIDE CONVENTION: A COMMENTARY 80-86 (1960).
81. John Murphy wrote that "the Convention does not create a system of universal jurisdiction." John F. Murphy, International Crimes, in 2 UNITED NATIONS LEGAL ORDER 993, 1010 (Oscar Schachter & Christopher C. Joyner eds., 1995). On the other hand, article I of the Genocide Convention recognizes genocide as a crime under international law. See Genocide Convention, supra note 53, art. I. Writing about this provision's purpose, as a judge of the International Court of Justice in the Case Concerning Application of the Convention on the Prevention and Punishment of the Crime of Genocide, Elihu Lauterpacht stated: "The purpose of this . . . provision is to permit parties, within the domestic legislation that they adopt, to assume universal jurisdiction over the crime of genocide -that is to say, even when the acts have been committed outside their respective territories by persons who are not their nationals." Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosn. & Herz. v. Yugo.), 1993 I.C.J. 325, 443 (Sept. 13) (sep. op. Lauterpacht). For a discussion of article VI's drafting history, see NEHEMIAH ROBINSON, THE GENOCIDE CONVENTION: A COMMENTARY 80-86 (1960).
82. John Murphy wrote that "the Convention does not create a system of universal jurisdiction." John F. Murphy, International Crimes, in 2 UNITED NATIONS LEGAL ORDER 993, 1010 (Oscar Schachter & Christopher C. Joyner eds., 1995). On the other hand, article I of the Genocide Convention recognizes genocide as a crime under international law. See Genocide Convention, supra note 53, art. I. Writing about this provision's purpose, as a judge of the International Court of Justice in the Case Concerning Application of the Convention on the Prevention and Punishment of the Crime of Genocide, Elihu Lauterpacht stated: "The purpose of this . . . provision is to permit parties, within the domestic legislation that they adopt, to assume universal jurisdiction over the crime of genocide - that is to say, even when the acts have been committed outside their respective territories by persons who are not their nationals." Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosn. & Herz. v. Yugo.), 1993 I.C.J. 325, 443 (Sept. 13) (sep. op. Lauterpacht). For a discussion of article VI's drafting history, see NEHEMIAH ROBINSON, THE GENOCIDE CONVENTION: A COMMENTARY 80-86 (1960).
83. RATNER & ABRAMS, supra note 22, at 142.
84. See id.
85. See Randall, supra note 21, at 836. The District Court of Jerusalem expressed this view in the Eichmann case: It is the consensus of opinion that the absence from [the Genocide] Convention of a provision establishing the principle of universality . . . is a grave defect in the Convention, which is likely to weaken the joint effort for the prevention of the commission of this abhorrent crime and punishment therefor, but there is nothing in this defect to lead us to deduce any rule against the principle of universality of jurisdiction with respect to the crime in question. It is clear that the reference in Article 6 to territorial jurisdiction . . . is not exhaustive. Every sovereign State may exercise its existing powers within the limits of customary international law, and accession of a State to the Convention does not involve the waiving of powers which are not mentioned in Article 6. It is in conformity with this view that the [Israeli] Law for the Prevention and Punishment of Genocide provided in Section 5 that 'any person who has committed outside Israel an act which is an offence under this Law may be prosecuted and punished in Israel as if he had committed the act in Israel.' Attorney Gen. of Isr. v. Eichmann, 36 I.L.R. 18, 38-39 (Isr. D.C. Jm. 1961) (emphasis added) (citation omitted).
86. See, e.g., RESTATEMENT (THIRD), supra note 8, § 404 reporters' note 1 ("Universal jurisdiction to punish genocide is widely accepted as a principle of customary law."); RATNER & ABRAMS, supra note 22, at 142 ("[G]enocide likely carries universal jurisdiction under customary international law."); Damrosch, supra note 32, at 216 ("[T]he right approach . . . is to view genocide as having attained the status of a crime entailing universal jurisdiction."); Green, supra note 39, at 519; Orentlicher, supra note 3, at 705; Randall, supra note 21, at 836-37; Ratner, supra note 40, at 254.
87. See Damrosch, supra note 32, at 216.
88. G.A. Res. 217, U.N. Doc A/RES/217 A (III), art. 5 (1948).
89. See European Convention for the Protection of Human Rights and Fundamental Freedoms, Nov. 4, 1950, art. 3, Europ. T.S. No. 5, 213 U.N.T.S. 221, 224 [hereinafter ECHR]; International Covenant on Civil and Political Rights, adopted Dec. 19, 1966, art. 7, 999 U.N.T.S. 171, 175 [hereinafter ICCPR]; American Convention on Human Rights, Nov. 22, 1969, art. 5(2), 9 I.L.M. 673, 676 [hereinafter ACHR]; African Charter on Human and Peoples' Rights, June 26, 1981, art. 5, Organization of African Unity (OAU) Doc. CAB/LEG/67/3/Rev. 5, 21 I.L.M. 59, 60 [hereinafter ACHPR]; Inter-American Convention to Prevent and Punish Torture, Dec. 9, 1985, Organization of American States T.S. No. 67, 25 I.L.M. 519; European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment, Nov. 26, 1987 Europ. T S No 126 27 I.L.M. 1153.
90. Dec. 10, 1984, 23 I.L.M. 1027 [hereinafter Convention against Torture],
91. See id. preamble, at 1027.
92. Id. art. 1(1), at 1027.
93. Manfred Nowak suggested that this definition can help give content to the prohibition of torture prescribed in Article 7 of the ICCPR. See MANFRED NOWAK, U.N. COVENANT ON CIVIL AND POLITICAL RIGHTS: CCPR COMMENTARY 129 (1993).
94. See RESTATEMENT (THIRD), supra note 8, § 702 (listing torture as part of generally accepted customary law). Judicial opinions of U.S. courts adhere to this view. For example, the Ninth Circuit said: "There is no doubt that the prohibition against official torture is a norm of customary international law . . . ." Siderman de Blake v. Republic of Argentina, 965 F.2d 699, 716 (9th Cir. 1992); see also, e.g., In re Estate of Marcos, Human Rights Litigation (Hilao v. Marcos), 25 F.3d 1467, 1475 (9th Cir. 1994); In re Estate of Marcos, Human Rights Litigation (Trajano v. Marcos), 978 F.2d 493, 499 (9th Cir. 1992); Linder v. Portocarrero, 963 F.2d 332, 336 (11th Cir. 1992); Filartiga v. PenaIrala, 630 F.2d 876, 885 (2d Cir. 1980). The Restatement (Third) notes that the prohibition of official torture is enshrined in the constitutions and laws of many States and thus may also constitute "a general principle [of law] common to major legal systems." RESTATEMENT (THIRD), supra note 8, § 702 reporters' note 5.
95. See RESTATEMENT (THIRD), supra note 8, § 702 reporters' note 5 (linking prohibition of torture to state policy).
96. See, e.g., RESTATEMENT (THIRD), supra note 8, § 404 reporters' note 1 ("The Convention . . . in effect provides for universal jurisdiction."); RATNER & ABRAMS, supra note 22, at 144-45; Osofsky, supra note 26, at 197.
97. See Convention against Torture, supra note 68, arts. 5(2), 7(1).
98. See HIGGINS, supra note 19, at 64-65.
99. See SCHACHTER, supra note 12, at 268.
100. Id.
101. See id.
102. Id.
103. For example, the U.S. implementing legislation for the Convention provides for extraterritorial jurisdiction where "(1) the alleged offender is a national of the United States; or (2) the alleged effender is present in the United States, irrespective of the nationality of the victim or the alleged offender." 18 U.S.C. 2340A (1999) (emphasis added). While this discussion focused on the Convention against Torture, any binding aut dedere aut judicare provision of a treaty prohibiting torture would produce the same result. Without identifying all treaties that may authorize the exercise of universal jurisdiction over torture, it suffices for present purposes to establish the effects of the aut dedere aut judicare provision of one relevant treaty and note that the same analysis would apply to any identical provision.
104. RESTATEMENT (THIRD), supra note 8, § 404 reporters' note 1.
105. See id. § 404 & cmt. a.
106. Although, some commentators suggest that customary law permits all States to exercise universal jurisdiction over torture. See RATNER & ABRAMS, supra note 22, at 145; Randall, supra note 21, at 790-91; Ratner, supra note 40, at 255.
107. See supra Part II.B.1.
108. See supra Part II.B.2.
109. See supra Part II.B.3.
110. See Diane F. Orentlicher, Settling Accounts: The Duty to Prosecute Human Rights Violations of a Prior Regime, 100 YALE L.J. 2537, 2553 (1991) (noting that "an amnesty law or an exercise of prosecutorial discretion that is valid under domestic law may nonetheless breach a state's international obligations").
111. See Christopher C. Joyner, Redressing Impunity for Human Rights Violations: The Universal Declaration and the Search for Accountability, 26 DENV. J. INT'L L. & POL'Y 591, 613 (1998) (noting that "[t]he duty to prosecute certain grave human rights violations, derived from international criminal law, clearly implies that criminal acts subject to such a duty cannot at least in principle be amnestied"); see also Michael P. Scharf, Swapping Amnesty for Peace: Was There a Duty to Prosecute International Crimes in Haiti?, 31 TEX. INT'L L.J. 1, 19 (1996) ("The prerogative of a state to issue an amnesty for an offense can be circumscribed by treaties to which the state is a party.").
112. See Christopher C. Joyner, Redressing Impunity for Human Rights Violations: The Universal Declaration and the Search for Accountability, 26 DENV. J. INT'L L. & POL'Y 591, 613 (1998) (noting that "[t]he duty to prosecute certain grave human rights violations, derived from international criminal law, clearly implies that criminal acts subject to such a duty cannot at least in principle be amnestied"); see also Michael P. Scharf, Swapping Amnesty for Peace: Was There a Duty to Prosecute International Crimes in Haiti?, 31 TEX. INT'L L.J. 1, 19 (1996) ("The prerogative of a state to issue an amnesty for an offense can be circumscribed by treaties to which the state is a party.").
113. See generally Bassiouni, supra note 36.
114. See id. at 480-81; Orentlicher, supra note 88, at 2593-94; see also Carla Edelenbos, Human Rights Violations: A Duty to Prosecute?, 7 LEIDEN J. INT'L L. NO. 2, Autumn 1994, at 5, 15-16.
115. See Michael Scharf, The Letter of the Law: The Scope of the International Legal Obligation to Prosecute Human Rights Crimes, 59 LAW & CONTEMP. PROBS. NO. 4, Autumn 1996, at 41, 59; Scharf, supra note 89, at 38-39.
116. See, e.g., Bassiouni, supra note 36, at 480-81; Orentlicher, supra note 88, at 2593-94.
117. See Scharf, supra note 92, at 52-59; Scharf, supra note 89, at 35-39.
118. See Orentlicher, supra note 88, at 2593 n.248.
119. U.N. GAOR, 5th Sess., Supp. No. 12, at 11, U.N. Doc. A/1316 (1950).
120. See id. at 14.
121. While Orentlicher seems to have acknowledged as much, she pointed out that Ferencz understood these Principles to '"confirm[] that international law required international crimes to be punished.'" Orentlicher, supra note 88, at 2593 n.248 (quoting 2 B. FERENCZ, AN INTERNATIONAL CRIMINAL COURT 22 (1980)).
122. Id. at 2593.
123. For example, instead of reading the Nuremberg Principles as saying that there is universal jurisdiction over crimes against humanity and the State where the offense took place has a duty to prosecute, they may be read (more faithfully, it seems) to say only that there is universal jurisdiction over such crimes.
124. G.A. Res. 2840, U.N. GAOR, 26th Sess., Supp. No. 29, at 88, U.N. Doc. A/8429 (1971).
125. G.A. Res. 3074, U.N. GAOR, 28th Sess., Supp. No. 30, at 78, U.N. Doc. A/9030 (1973).
126. G.A. Res. 2840, supra note 101, para. 1.
127. G.A. Res. 3074, supra note 102, para. 1.
128. The provision can be read to say that alleged offenders shall be subject to prosecution and any State may prosecute them, rather than saying that States must prosecute them. When the Resolution's drafters wished to suggest a State obligation (albeit a non-binding one, since General Assembly resolutions are not binding), they clearly said "States shall . . . ." E.g., G.A. Res. 3074, supra note 102, paras. 3 ("States shall co-operate . . . ."), 4 ("States shall assist . . . ."), 6 ("States shall co-operate . . . ."), 7 ("States shall not . . . ."), 8 ("States shall not . . . ."). 9 ("States shall act . . . .").
129. See supra text accompanying note 103.
130. Adopted Nov. 26, 1968, 754 U.N.T.S. 73.
131. Opened for signature Jan. 25, 1974, Europ. T.S. No. 82, 13 I.L.M. 540.
132. See id. art. 1 at 540; Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes against Humanity, supra note 107, arts. I(b), IV, at 75, 76.
133. See Orentlicher, supra note 88, at 2594.
134. As of December 31, 1997, the Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes against Humanity had 43 States parties. See UNITED NATIONS, MULTILATERAL TREATIES DEPOSITED WITH THE SECRETARY-GENERAL 165 (1998).
135. This treaty requires three ratifications before taking effect; as of April 9, 2000, it had only two ratifications (the Netherlands and Romania) and two other signatories (France and Belgium). See Council of Europe, Chart of Signatures and Ratifications of a Treaty (visited Sept. 4, 2000) 〈http://conventions.coe.int/treaty/EN/cadreprincipal. htm〈.
136. See ICC Statute, supra note 34, art. 7.
137. ICC Statute, supra note 34, preamble, para. 6. Of course, the ICC Statute only has three out of the 60 ratifications necessary to become effective, and, in any event, it does not create an obligation for States to prosecute alleged offenders of any crimes included in it. Nevertheless, it is another, more recent, demonstration of the importance that the international community attaches to prosecuting crimes against humanity.
138. See, e.g., BROWNLIE, supra note 25, at 4-11.
139. Scharf, supra note 92, at 57; see Scharf, supra note 89, at 36.
140. Edelenbos, supra note 91, at 16.
141. Id. at 15.
142. See supra notes 2-3 and accompanying text (noting situations where amnesties were granted); see also Joyner, supra note 89, at 593 (noting that despite the fact that at least 220 non-international conflicts generating about 86 million deaths have taken place since World War II, "there have been relatively few prosecutions and only scarce accountability"); Scharf, supra note 92, at 57-59; Scharf, supra note 89, at 36-37 (noting several instances where amnesties rather than indictments were issued, including cases with the support of the United Nations, for example Cambodia, South Africa, and Haiti).
143. See, e.g., ICCPR, supra note 67, arts. 2(1) (duty to respect and to ensure recognized rights), 6 (right to life), 7 (freedom from torture), 9 (freedom from arbitrary arrest or detention); ACHPR, supra note 67, arts. 25 (duty to promote, respect, and ensure recognized rights), 4 (right to life), 5 (freedom from torture), 6 (freedom from arbitrary arrest or detention); ACHR, supra note 67, arts. 1 (duty to respect and to ensure recognized rights), 4 (right to life), 5(2) (freedom from torture), 7(3) (freedom from arbitrary arrest or detention); ECHR, supra note 67, arts. 1 (duty to secure human rights), 2 (right to life), 3 (prohibition of torture), 5 (right to liberty and security).
144. Juan E. Méndez, Accountability for Past Abuses, 19 HUM. RTS. Q. 255, 259 (1997); see Naomi Roht-Arriaza, State Responsibility to Investigate and Prosecute Grave Human Rights Violations in International Law, 78 CAL. L. REV. 451, 467-83 (1990).
145. Juan E. Méndez, Accountability for Past Abuses, 19 HUM. RTS. Q. 255, 259 (1997); see Naomi Roht-Arriaza, State Responsibility to Investigate and Prosecute Grave Human Rights Violations in International Law, 78 CAL. L. REV. 451, 467-83 (1990).
146. See Edelenbos, supra note 91, at 8 (referring to statements of these bodies in cases involving torture and disappearance); Méndez, supra note 121, at 259 n.11 (referring to Comments of the Human Rights Committee, in 1995 and 1996, on periodic reports submitted by Argentina and Peru, respectively); Orentlicher, supra note 88, at 2561 ("[B]odies that monitor compliance with several human rights treaties that are textually silent about punishment have made clear that investigation and prosecution play a necessary part in States Parties' fulfillment of certain duties under the conventions."); Scharf, supra note 92, at 51 (noting that the Inter-American Commission on Human Rights determined that amnesties were incompatible with the obligations of States parties to ensure protection of ACHR rights); Robert O. Weiner, Trying to Make Ends Meet: Reconciling the Law and Practice of Human Rights Amnesties, 26 ST. MARY'S L.J. 857, 867 (1995) (same).
147. Orentlicher noted that the proposal to include in the ICCPR the duty to prosecute violators of the rights contained in that Covenant "was rejected without significant discussion" during the drafting of the instrument. Orentlicher, supra note 88, at 2569-70; see also Scharf, supra note 89, at 25 (noting that the ICCPR and the ACHR "are silent about a duty to punish violations of the rights they were designed to protect"). However, Orentlicher observed that while the duty to prosecute was not provided for in the text of the Covenant, "nothing in the drafting history is inconsistent with such a duty." Orentlicher, supra note 88, at 2571.
148. See, e.g., Naomi Roht-Arriaza, Combating Impunity: Some Thoughts on the Way Forward, 59 LAW & CONTEMP. PROBS. No. 4, Autumn 1996, at 93. In addition to a growing domestic court practice, international bodies continue to clarify the extent of a state's international law obligations to investigate, prosecute, and compensate victims of international crimes and serious human rights violations. The general tenor has been to reaffirm and expand on duties to investigate, prosecute, and compensate, and to be critical of amnesties that preclude any of these things. Id. at 95; see also Scharf, supra note 92, at 48-52. In 1997, Juan Méndez identified the following as "emerging principles": "1. to investigate, prosecute, and punish the perpetrators; 2. to disclose to the victims, their families, and society all that can be reliably established about those events; 3. to offer the victims adequate reparations; and 4. to separate known perpetrators from law enforcement bodies and other positions of authority." Méndez, supra note 121, at 261. Méndez noted that referring to these principles as "'emerging principles' and not as binding international law obligations signifies their present status: only in part do they find justification in existing norms of universal applicability." Id. 125. Genocide Convention, supra note 53, art. IV, at 280.
149. Id. art. V, at 280.
150. Id. art. VI, at 280-82.
151. This conclusion is the universally accepted view among commentators. See, e.g., ROBINSON, supra note 60, at 84; Joyner, supra note 89, at 603-04; Orentlicher, supra note 88, at 2564-65.
152. See UNITED NATIONS, supra note 111, at 84 (information current as of December 31, 1997).
153. Murphy, supra note 60, at 1011.
154. RESTATEMENT (THIRD), supra note 8, § 702 cmt. d (emphasis added).
155. Orentlicher, supra note 88, at 2565. But see Ratner, supra note 40, at 254 ("[C]ustomary international law clearly recognizes the right (though not the duty) of a state to prosecute for genocide committed anywhere." (emphasis added)).
156. 1951 I.C.J. 15 (May 28).
157. See Orentlicher, supra note 88, at 2565-66.
158. Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide, 1951 I.C.J. at 23.
159. See Orentlicher, supra note 88, at 2565. Carla Edelenbos adopted Orentlicher's view on this matter. See Edelenbos, supra note 91, at 6-7.
160. See supra note 67 and accompanying text (citing the instruments).
161. See supra note 68.
162. Convention against Torture, supra note 68, art. 2(1), at 1028.
163. Id. art. 4(1)-(2), at 1028.
164. Id. art. 5(1), at 1028.
165. See id. art. 6(1), at 1029.
166. See id. art. 6(2), at 1029.
167. Id. art. 7(1), at 1029.
168. Orentlicher, supra note 88, at 2567.
169. Joyner, supra note 89, at 606.
170. See id.
171. Convention against Torture, supra note 68, art. 7(1), at 1029.
172. See Genocide Convention, supra note 53, arts. IV, VI, at 280-82.
173. Scharf, supra note 89, at 24.
174. While a blanket amnesty would seem incompatible with the States parties' obligations under the Convention, Orentlicher suggested that "a State Party might [nevertheless] be allowed to enact a statute of limitations covering prosecutions for torture, provided the torture did not constitute a crime against humanity." Orentlicher, supra note 88, at 2567 n.126.
175. See ICCPR, supra note 67, art. 7, at 175 (prohibition of torture).
176. See supra note 123 and accompanying text.
177. United Nations Human Rights Committee, General Comment 7, Torture or Cruel, Inhuman or Degrading Treatment or Punishment (Article 7) para. 1, note (written July 30, 1982) 〈http://www.unhchr.ch/tbs/doc.nsf/〈.
178. See Orentlicher, supra note 88, at 2572. However, Orentlicher acknowledged that it is not clear that the Committee's opinion that torturers must be held responsible necessarily means that they must be held criminally responsible. See id. at 2573.
179. See United Nations Human Rights Committee, General Comment 20, Replaces General Comment 7 Concerning Prohibition of Torture and Cruel Treatment or Punishment (Article 7) para. 1 (written Apr. 10, 1992) 〈http://www.unhchr.ch.ch/tbs/doc.nsf/〉.
180. Id. para. 15 (emphasis added).
181. See Scharf, supra note 89, at 27.
182. Scharf suggested that an amnesty measure with provisions for investigation, removal of the perpetrators from positions of authority, and victim compensation would be acceptable under the Committee's view. See Id.
183. See, e.g., Edelenbos, supra note 91, at 9-10 (noting cases); Scharf, supra note 89, at 28 (same).
184. See RESTATEMENT (THIRD), supra note 8, § 702 cmt. b. This view is apparent from the fact that paragraph 702(d) lists the prohibition of torture as part of customary law and comment b states that "violations of human rights cited in this section . . . are violations of customary international law only if practiced, encouraged, or condoned by the government of a state as official policy." Id. Comment b further states that "[a] government may be presumed to have encouraged or condoned acts prohibited by this section if such acts . . . have been repeated or notorious and no steps have been taken to prevent them or to punish the perpetrators." Id.
185. See, e.g., Edelenbos, supra note 91, at 8.
186. On the functions of the Committee, see Convention against Torture, supra note 68, arts. 17-24, at 1031-36.
187. Decisions of the Committee against Torture under Article 22 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, in Report of the Committee against Torture, U.N. GAOR, 45th Sess., Supp. No. 44, Annex V, para. 7.2, U.N. Doc. A/45/44 (1990) (emphasis added).
188. Scharf, supra note 89, at 25.
189. See id.
190. See supra note 161 and accompanying text.
191. Again, the practice of States in granting amnesties covering acts of torture undermines the thrust of the claim that States are under a duty to prosecute torture. See supra note 2 and accompanying text (referring to various amnesty measures).
192. See supra Parts III.A (crimes against humanity), III.B (genocide), III.C (torture).
193. See, e.g., supra notes 154-60 and accompanying text.
194. See supra notes 85-86 and accompanying text.
195. See supra note 87 and accompanying text.
196. See supra text accompanying note 6 (making this assumption); supra Part II.B (discussing universality as a basis for extraterritorial jurisdiction).
197. See supra Part II.B.2.
198. See supra notes 125-28 and accompanying text.
199. See supra notes 131-36 and accompanying text.
200. See supra note 89 and accompanying text.
201. See supra notes 40-52 and accompanying text.
202. See supra notes 92-119 and accompanying text.
203. It would be a different situation if the amnesty-granting State were also a party to a general human rights convention, like the ICCPR or the ACHR, that has been interpreted to preclude absolute impunity measures, or "blanket" amnesties, and the measure granted were a blanket amnesty. See supra notes 120-24 and accompanying text.
204. See supra note 23 and accompanying text (discussing the rule of reasonableness).
205. See RESTATEMENT (THIRD), supra note 8, § 403(1); see also supra note 23 (listing some of the factors considered in the "reasonableness" evaluation). It is not settled whether the rule of reasonableness is a rule of international law or manifestation of comity. The Restatement (Third) takes the position that it is a rule of international law. The Restatement states: This section states the principle of reasonableness as a rule of international law. The principle applies regardless of the status of relations between the state exercising jurisdiction and another state whose interests may be affected. While the term "comity" is sometimes understood to include a requirement of reciprocity, the rule of this section is not conditional on a finding that the state affected by a regulation would exercise or limit its jurisdiction in the same circumstances to the same extent. RESTATEMENT (THIRD), supra note 8, § 403 cmt. a. Commentators take a more guarded approach, though they support the rule. See, e.g., CAMERON, supra note 23, at 336 ("Obliging state organs . . . to balance interests and make only reasonable assertions of jurisdiction, even if this cannot be said to be a requirement de lege lata, is undoubtedly a good idea de lege ferenda."); HENKIN, supra note 12, at 246 ("I believe that the principle of reasonableness to adjust the traditional bases of jurisdiction to prescribe has arrived, and by some name, in some guise or guises will be recognized.").
206. See, e.g., U.N. CHARTER art. 2, para. 1 (recognizing this principle).
207. See Bowett, supra note 26, at 15-16.
208. See CAMERON, supra note 23, at 336.
209. SCHACHTER, supra note 12, at 264.
210. See supra notes 137-51 and accompanying text.
211. See supra notes 74-81 and accompanying text.
212. See supra notes 82-84 and accompanying text.
213. See supra Part II.A (discussing erga omnes obligations).
214. See supra note 72 and accompanying text.
215. See supra notes 67-68 and accompanying text (noting the relevant conventions).
216. HENKIN, supra note 12, at 216-17 (footnote omitted).
217. See supra note 161 and accompanying text.
218. See supra notes 161-68 and accompanying text.
219. See supra notes 14-16 and accompanying text.
220. For a policy-oriented discussion on amnesties, see, for example, RATNER & ABRAMS, supra note 22, at 134-38; Garro, supra note 2, at 9-10, 22-23; Orentlicher, supra note 88, at 2595-612.
221. Scharf, supra note 92, at 60 (quoting David J. Scheffer, U.S. Ambassador-at-Large for War Crime Issues)
222. See supra note 2 and accompanying text (naming recent amnesty measures).