Erga Omnes

It’s no secret that universal jurisdiction is selectively applied, often politically driven.  In a provocative article last month in the Texas International Law Journal, Ariel Zemach takes this argument a step further, pitting universal jurisdiction against the well-entrenched principle of equality before the law.

While inequality before the law always presents a challenge to the legitimacy of a criminal justice system, it has an especially devastating effect on universal jurisdiction’s claim to legitimacy.

It’s an important contention, potentially more damaging than usual critiques—linking itself to powerful discourses of equality and legalism.

Yet the argument misses a subtle distinction:  universal jurisdiction is a problem of authority; equality before the law is a principle of consistency.  Universal jurisdiction centrally engages who has the authority (and responsibility) to prosecute certain political crimes.  Equality before the law is about who is to be prosecuted (and how they are to be treated).

What’s more, equality before the law is always a partial myth, and therefore ultimately weak grounds for limiting universal jurisdiction.  In the end, we still need to weigh alternatives carefully, to consider the value of universal jurisdiction as political aspiration and legal imperfection—a tool for real-world struggles—versus legalism’s idealized promises of order and authority.