Erga Omnes

Human Rights Watch issued this month a scathing 108-page report, Getting Away with Torture: The Bush Administration and Mistreatment of Detainees, amasssing evidence and calling on the United States to investigate torture under the Bush administration.  The report’s message should come as no surprise, but some of the arguments used to promote accountability interestingly invoke the notion of universal jurisdiction.

In trying to persuade multiple audiences, Human Rights Watch uses a carrot-and-stick approach.  First, it appeals to notions of self-interest:  accountability would prove beneficial, enhancing the country’s reputation and reducing “the likelihood of foreign investigations and prosecutions of US officials—which have already begun in Spain [as well as Germany and France]—based on the principle of universal jurisdiction, since those prosecutions are generally predicated on the responsible government’s failure to act.” (6)  Then, it explicitly calls on foreign governments to exercise universal jurisdiction, absent investigation and accountability.  The practice, the report says, is:

a crucial tool by which victims of grave international crimes can obtain redress. It acts as a ‘safety net’ when the state with the most direct jurisdiction over the crimes is unable or unwilling to conduct an effective investigation and trial, and when international courts, including the International Criminal Court, either do not have jurisdiction or would not take up a specific case.  (92)

Arguments like those advanced by the Human Rights Watch report reveal the centrality of the “extradite or prosecute” principle (aut dedere aut judicare).  If a state does not extradite those accused of egregious human rights abuses, it must move forward itself with prosecution.  Jurists have debated in recent years whether the two terms are interchangeable; does an ‘obligation to prosecute’ actually exist in international law?  Defenders of universal jurisdiction typically claim that it does.  Regardless of whether the traditional focus on extradition has evolved normatively into a state’s obligation to prosecute, the intended outcome in international law is the same: violators must be held accountable.  “Extradite or prosecute” is a debate over means and mechanisms, not objectives and purpose.