Labeling a person according to her gender highlights difference—really, ongoing hierarchies of power.  Two recent incidents, both referencing sub-Saharan Africa, insert ‘women’ (as social category) into the world of universal jurisdiction.

In South Africa, sexualized violence in Zimbabwe is under investigation thanks to the logic of universal jurisdiction: mass rape, defined as a crime against humanity, can be tried anywhere.  Members of Robert Mugabe’s ZANU-PF allegedly committed the election-based violence in 2008. And the case, according to the director of Women under Siege, is nothing short of “groundbreaking.”

Further afield, the Netherlands has sentenced a Rwandan woman, now Dutch citizen, to over six years in prison for inciting genocide in her home country.  This case is the first post-WWII genocide conviction in a Dutch court, far removed from the scene of the crimes.  It also involves a woman; and very few women have been subject to universal jurisdiction.

There’s another noteworthy detail to the Dutch story.  Yvonne Besabya, who was found guilty, is described as “the wealthy Hutu wife of a Rwandan lawmaker, who used her influence” to provoke violence.  In troubling irony, Besabya’s own power—linked to her subsumed status as wife—may have kept her from perpetrating, not just inciting, genocide.

Women as objects of abuse and perpetrators of violence; as international jurists and human rights scholars, activists and mothers, peacemakers and troublemakers.  The stories we tell of universal jurisdiction are no less gendered than the violence we commit and oppose.

If two wrongs don’t make a right, one right isn’t always enough.  The UK’s recent use of universal jurisdiction against a Nepali colonel, for torture committed during his country’s civil war in 2005,  has received a great deal of attention.  Kumar Lama, who was serving on a peacekeeping mission in southern Sudan, was on holiday with his family at their home in East Sussex when he was arrested.  Almost two months after the unexpected arrest, a British court on March 1st agreed to release Lama on bail. 

Human rights activists, inside and outside Nepal, point to the incidence as a sign of hope and progress—transitional justice, at long last.  Nepal’s government, in contrast, opposed the arrest, labeling it an incursion into its internal affairs.  Despite the loud resistance, the government promptly agreed to resume implementing the peace process, including steps towards a truth and reconciliation commission.

For advocates of universal jurisdiction, these are all noteworthy developments; and they should be.  But what of the British government’s refusal to prosecute other rights violators?  Let’s not forget that states use universal jurisdiction selectively, reflecting the primacy of foreign policy in international law.

Human rights advocates must celebrate a progress without illusions.  As Seyla Benhabib says of cosmopolitanism more generally, the human rights field is one of “unresolved contrasts”:

between particularistic attachments and universalist aspirations; between the multiplicity of human laws and the ideal of a rational order that would be common to all human cities…  Cosmopolitans become dead souls only if they forget these tensions and contrasts and embrace instead a Pollyannaish, ceaseless affirmation of global oneness and unity. (Dignity in Adversity: Human Rights in Troubled Times, 2011), 2.

In the world of complex motives, Lama’s arrest sends an important signal about the power (and politics) of universal jurisdiction.  So too does the Nepali government’s choice of legal team: the same lawyers who defended Augusto Pinochet are now representing Lama.     

Last month, Amnesty International issued the latest set of reports as part of its “No Safe Haven” series on universal jurisdiction.  The human rights organization began the multi-year project in 2008, with the goal of reviewing each country in the world.  Ten lengthy reports have been produced so far, with the most recent ones focusing on Ghana, Sierra Leone, and Vanuatu; Germany, Venezuela, Spain, Solomon Islands, Burkina Faso, Sweden, and Bulgaria have also been covered. 

The “No Safe Haven” series has multiple audiences—lawyers, victims and their families, police, prosecutors, judges, and scholars—and it’s intended as a hands-on tool to facilitate accountability via prosecution for “the worst imaginable crimes.”

It’s a clever campaign, equating failure to prosecute with harboring of criminals.  It’s also an unapologetic assertion—claiming an obligation in international customary law to prosecute or extradite egregious rights violators found within a state’s borders.  And the notion of a safe haven conjures up other images, often out of view, glimpses of the accused running from their past.

Safe havens represent secure spaces, where those burdened with guilt can escape punishment while taking on new identities and living private, ordinary lives.  Is it possible to destroy others’ lives and still regain one’s own, without accounting publicly for wrongdoing?  For all the talk of laws and policies, international (in)justice so often reduces to human intimacies, entangled in acts of violence and the search for solace. 

Amnesty International’s “No Safe Haven” series ultimately unsettles the idea of impunity for human rights crimes:  the perverse notion that people can torture and kill, then simply relocate and carry on with their mundane lives as if nothing had happened.

No one seems to have much of a problem applying universal jurisdiction to piracy.  Last month’s ruling by Kenya’s Court of Appeals confirmed this, effectively reversing a 2010 judgment by the country’s High Court.  Whereas the earlier decision emphasized crimes occurring in the national territory, the appellate court championed the principle of universal jurisdiction.  Most significant was the economic rationale:

the offence of piracy… is of great concern to the international community as it has affected the economic activities and thus the economic well-being of many countries including Kenya. All States, not necessarily those affected by it, have therefore a right to exercise universal jurisdiction to punish the offence.

Piracy, of course, is historically linked to universal jurisdiction, which itself broadened under twentieth-century notions of human rights.  The locus of universal jurisdiction gradually shifted, over the course of centuries, from crimes occurring in a common physical space “owned” by none —the high seas—to a metaphorical and moral space transcending the attachment to territory:  egregious human rights abuses.

The evolving view now retains the transnational dimension but makes it all about economics.  Those accused of piracy on the open seas can be tried by any country’s courts, not because of where the crime occurs or the analogy to grave human rights violations.  Since piracy hurts transnational economic interests, the argument goes, universal jurisdiction is a real option.

In a changing world, it may well make sense to broaden the scope of universal jurisdiction.  But this must be debated carefully, attentive to the implications for human rights accountability.  How far, if at all, should the term be stretched conceptually?  Once an economic rationale for universal jurisdiction is accepted, appeals to our shared humanity are likely to lose out.

Earlier this month the United Nations Office of the High Commissioner for Human Rights released a 233-page report, Nepal Conflict Report, detailing violations of international human rights and humanitarian law between 1996 and 2006.

As a follow-up to the report, the International Commission of Jurists (ICJ) issued a hard-hitting brief, calling on Nepal’s government to prosecute state actors and then-insurgents responsible for abuses.  Not a single person has been brought to trial in the six years since the peace accords; nor have promised steps to truth-telling been taken.

The twist is that the ICJ followed up the call for accountability with a threat of sorts:  if Nepal’s government doesn’t pursue accountability, other states shouldn’t hesitate doing so on the basis of universal jurisdiction.  In a press release just after the U.N. report was made public, ICJ’s Asia Director Sam Jarifi reminded:

Nepal’s international supporters should press the government to meet its commitments and its obligations under international law….Meanwhile, all countries have an obligation to cooperate in investigation and prosecution of any individual facing credible allegations of serious violations of international human rights law and humanitarian law, including prosecution of suspected perpetrators under the doctrine of universal jurisdiction.

This new (secondary) appeal to universal jurisdiction in post-conflict situations is noteworthy.  Will it advance or challenge sustainable forms of accountability?  Nepal offers the latest but not last testing ground for debating the politics and ethics of linking universal jurisdiction to post-atrocity justice.

For the fourth year in a row, the Legal (Sixth) Committee of the U.N. General Assembly took up the issue of universal jurisdiction this month, debating its scope and application.  One of the central themes to emerge was the idea that universal jurisdiction should be exceptional and supplementary.  These criteria apply to both the traditional bases of jurisdiction and the choice of legal forum—in a debate where national sovereignty and political immunity were bandied about as obvious priorities.

In terms of the bases of jurisdiction, the consensus among states is that jurisdiction in international law should be tied, first and foremost, to territoriality and nationality.  Only when states fail to invoke these bases of jurisdiction is the door open to claims of universal jurisdiction.  But exactly how long does one wait for traditional jurisdiction to play out its course?  And how do we know when traditional avenues of jurisdiction are effectively exhausted?

Regarding the choice of legal forum, the assumption is that universal jurisdiction should be secondary to international and regional mechanisms (and to domestic courts invoking traditional jurisdiction).  This is akin to the idea of complementarity, which makes the International Criminal Court a forum of last resort.  Yet what happens when individual survivors’ access to these higher-level mechanisms proves limited or blocked, impeded by onerous institutional hurdles and bureaucratic red-tape?

The “exceptional and supplementary” requirement seems reasonable at first glance:  but is it always?  Universal jurisdiction is a seemingly radical departure from the traditional.  This feeds into the view that its abuse and manipulation can be curtailed only by defining it as exceptional and supplementary.  It’s a misguided logic.

Perhaps the debate shouldn’t be about how to limit universal jurisdiction.  If the heinousness of presumed crimes is what makes universal jurisdiction (and therefore accountability) possible, then the approach seems backwards.  The more productive, though admittedly difficult, question is how to strengthen the pursuit of accountability across the board, in domestic and international contexts—to provide meaningful forums for voicing, investigating, and addressing accusations of abuse.

Until domestic and regional accountability mechanisms offer viable alternatives for those who have suffered horrific abuse, the debate over the scope and application of universal jurisdiction will seem disingenuous:  an occasion for states to define universal jurisdiction narrowly, controlling and subverting the very likelihood that this weapon of the weak will be used against them.

I asked for the extradition of Pinochet, who had been investigated and charged with… genocide, torture, serious breaches of human rights… Assange is having a fundamental right breached too — freedom of expression — and that is why he has been granted political asylum.  (Judge Baltasar Garzón)

The paths of Julian Assange and Baltasar Garzón have become curiously intertwined.  Two global personages, rebuked for accusing powerful actors of egregious rights violations, abandoned by their home governments and up against a mountain of politicized charges.  Both men, intriguing personalities, stand at the middle of controversies much larger than themselves, but also deeply personal, speaking truth to power while struggling with their own derailed lives.  Somehow, their alliance—with Garzón now leading Assange’s defense—seems to reflect its own conspiracy of justice.

Those suspicious of the association have assailed Garzón for taking an untenable contradictory position:  resisting Assange’s extradition from the UK to Sweden while pushing for Pinochet’s extradition from the UK to Spain.  Garzón has countered that Pinochet was wanted for human rights crimes; Assange has been the victim of human rights crimes (i.e., of the right to free expression and potentially political asylum).

The debate’s emphasis reveals how much universal jurisdiction is mistakenly conflated with extradition.  Requests for extradition are based on claims for jurisdiction, firmly ensconced in international law.  Universal jurisdiction is one of those claims, linked to well-founded accusations of grave human rights abuses.  The nature of the abuse is the starting point, followed by a claim for universal jurisdiction, and only then extradition.  Most of the time, extradition has nothing to do with universal jurisdiction.

Garzón and others opposed to extraditing the WikiLeaks founder fear that Assange may be extradited to a third country (the United States) for a new set of political charges (espionage) after he has already been granted asylum (by Ecuador).  It’s an altogether different dynamic…when those daring to expose human rights crimes themselves become the targets of politically motivated abuse.

Late last spring a group of East African magistrates met in Kigali to discuss the question of universal jurisdiction in Africa.  The May meeting of the East African Magistrates and Judges Association (EAMJA) was a sounding board for critical perspectives, with universal jurisdiction linked closely to Western imperialism.

The International Criminal Court’s first sentencing in July seemed to play into the view.  After ten years in existence, the court had tried one case and sentenced a single person:  a Congolese rebel leader.  To be sure, Thomas Lubanga Dyilo committed indefensible acts.  But, still, for critics, the ICC’s overwhelming focus on African states—given a world of abuse, far beyond the continent’s borders—has always seemed morally lopsided.  So too has universal jurisdiction, permitting former colonial powers to sit in distant judgment.

The summer did bring more positive signs.  First there was the appointment of Gambian Fatou Bensouda as the ICC’s second chief prosecutor, an African woman replacing the “charismatic but controversial” Luis Moreno-Ocampo.  Next, there was the highly anticipated ICJ decision on July 20, calling on Senegal to try or prosecute Hissène Habré.  Four days later, in consultation with the African Union, Senegal’s government (itself headed by a new president) announced it would create a special tribunal for the former Chadian dictator.  The “potentially groundbreaking” court now awaits donor funding.

Consistent with these developments, members of the judiciary who convened in Rwanda’s capital last May were looking to standardize the rule of law and promote greater judicial integration.  As the EAMJA president said,

East Africa is not limited to being the international law user; it has to be a producer, developer and shaper of that law.

Similar thoughts were echoed 45 years earlier in Dakar, when the first meeting ever of African judges took place.  The idea, then and now, has been to resist neo-imperialist incursions by strengthening domestic and regional systems of law.  Of course, in some circles, where people study how ideas and institutions diffuse, they might call this coercive socialization.

Regardless, discontent with the international practice and politics of universal jurisdiction is leading to deliberation and domestic legal change.  These are important advances in an otherwise imperfect and evolving system of global justice.  A more complete touchstone of success will be whether people’s access to fair accountability mechanisms actually improves and becomes regularized.

In gearing up for Kiobel v. Royal Dutch Petroleum at the U.S. Supreme Court this fall, debates are raging about the scope of the Alien Tort Statute.  Among key claims is the argument that universal jurisdiction doesn’t extend to secondary wrongdoers like corporations, charged with aiding and abetting.  (See, for example, Prof. Michael Ramsey’s thought-provoking post in a recent SCOTUS blog symposium.)

Powerful at first glance, the “aiding and abetting” defense collapses under its own weight.  First, for universal jurisdiction, the egregious nature of the violation trumps standard material connections to territory, i.e., the traditional bases of jurisdiction.  But it doesn’t work the other way around.  The wrongdoer’s standing can’t dictate (or limit) the scope of universal jurisdiction.  Complex legal arguments have been made to this effect, and it remains a fundamental starting point.

Second, and more broadly, the nature of the violation is precisely what extends legal responsibility beyond its traditional confines—trans-nationalizing who is liable and where justice can be pursued.  We’re talking about political violations—systematic, collective, and coercive.  Power differentials and governing authorities figure centrally.  This means that accountability is often restricted for survivors of abuse and their relatives.  Though rarely stated, the transnational aspect of universal jurisdiction doesn’t just reflect widespread moral disavowal of certain acts; it engenders a shared ethics of global accountability.

Put differently, universal jurisdiction is more accurately non-territorial than extra-territorial.  While tethering universal jurisdiction to territoriality is a domestic policy option, it isn’t one well supported in international law.  If states have limited universal jurisdiction, pursuing cases only where a direct link to the prosecuting state could be established, this has been a political exception more than legal necessity.

The ATS has long permitted foreigners to seek remedies in U.S. courts for violations committed abroad.  The rationale for universal jurisdiction has little to do with territory; it doesn’t really matter who committed the abuses or where they were committed.  It’s far simpler:  in an interconnected world, when powerful actors commit horrific acts, those most directly affected need a forum where they might pursue accountability.  Who will provide it?

A federal criminal court in Switzerland ruled last week that a former Algerian defense minister doesn’t have immunity for war crimes allegedly committed while in office in the early 1990s.  Two Algerian refugees residing in Switzerland, along with the Swiss Association against Impunity (TRIAL), brought the complaint against Khaled Nezzar.  The ruling is being hailed as a positive step for universal jurisdiction, compared to ongoing setbacks in places like the UK and Spain.

Interestingly, the Swiss court asserted, it would be “contradictory and futile” to fight against human rights violations and accept a broad interpretation of the rules of immunity.  The trade-off between human rights and immunity may seem obvious, but the logic is well worth pointing out to hypocritical governments:  you can’t have both–either at the level of rhetoric or practice.

That formulation, powerful in its simplicity, may be the most noteworthy precedent set by the case.  A former Algerian defense minister and a Swiss federal court take us part of the way, using universal jurisdiction to challenge official immunity.  The real test is when more powerful political interests are thrown into the mix.  Then what?

The Swiss ruling provides, at the very least, a compelling argument for activists confronting state resistance.