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    HUMAN RIGHTS QUARTERLY

    Imagining the Internatinal Cmmunity:The Cnstitutive Dimensin UniversalJurisdictin

    Adeno Addis*

    AbSTRACT

    The assertion o prescriptive and adjudicative universal jurisdictions bysome countries in relation to a handul o oenses that are classied asinternational or universal crimes (e.g. genocide) has led to a great deal ocontroversy. Those who avor universal jurisdiction argue that certain acts

    (oten crimes) aect all o us, not just the specic individual or group ovictims or the country o which the victims are nationals. It is thereorelegitimate, they argue, or any state to punish or suppress such acts regard-less o any traditional jurisdictional connection between the alleged actsand the state asserting jurisdiction. The availability o universal jurisdictionis premised on the presumed eect o certain crimes on humanity as awhole. Those who commit these oenses are reerred to as hostis humanigenerisenemies o human kind. Skeptics argue that the idea o universaljurisdiction is conceptually incoherent, inconsistent with the principle opolitical sel-determination, and has great potential to be an instrument o

    political mischie. While they disagree on the conceptual coherence andutility o the notion o universal jurisdiction, both proponents and opponentsview its unction in purely instrumental terms, to provide the condition orpunishing or suppressing certain oenses that aect all o us. This articleargues that universal jurisdiction also serves another, less articulated pur-pose. It has a constitutive unction as well. It is partly a process throughwhich the identity o the international community is imagined and enacted.It is an expression o a sense o ourselves (a community o humankind) at

    * Adeno Addisis the William Ray Forrester Proessor o Public and Constitutional Law at TulaneUniversity Law School. He received his B.A. and LL.B (Hons) rom Macquarie University(Australia) and an LL M and a J S D rom Yale

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    Vl. 31130 HUMAN RIGHTS QUARTERLY

    given moments o time. This article argues that neglect o this constitutivedimension leads to an incomplete analysis o universal jurisdiction.

    I. INTRoDUCTIoN

    A great deal o controversy surrounds the concept o universal jurisdiction.Those who avor it argue that certain acts (oten crimes)1 aect all o us, not

    just the specic individual, group o victims, or country o which the victimsare nationals. As such, any state may legitimately prescribe to sanction anyonewho allegedly committed any o those acts regardless o any jurisdictionalconnection between the alleged acts and the state asserting jurisdiction. The

    availability o universal jurisdiction is, thereore, premised on the presumedeect o those crimes on humanity as a whole. Those who commit these o-enses are, we are told, hostis humani generisenemies o all mankind.2Yet apart rom the simple assertion that the international community sharesan interest in suppressing or punishing those crimes, the precise connectionbetween those crimes and humanity has never been clearly articulated.

    Those who are skeptical o the notion o universal jurisdiction contendthat the idea is conceptually incoherent, inconsistent with the principle opolitical sel-determination, and has the potential to be an instrument o

    political mischie. It is incoherent, they say, because the idea o a crimeagainst humankind is a metaphysical absurdity. Crimes are committedagainst individuals by individuals, not against an abstract entity known ashumanity, humankind, or the international community.3 The victims andthe perpetrators are nationals o a country, not citizens o an internationalcommunity. As Benjamin Barber notes in his skeptical observation aboutcosmopolitanism, No one actually lives in the world o which the cos-

    1. Although universal jurisdiction has generally been exercised in the orm o criminal

    law, international law does not preclude the application o non-criminal law as parto universal jurisdiction. One, or example, could think o civil remedies or victims opiracy. For the view that the concept o universal jurisdiction is increasingly ndingexpression in the civil context, see Beth Van Schaack,Justice Without Borders: UniversalCivil Jurisdiction, 99 Am. Socy Intl l. Proc. 120, 120 (2005).

    2. For a very early use o the term, see 4 WIllIAm BlAckStone, commentArIeS 71 (quoting SirEdward Coke).

    3. The position here is analogous to what I have reerred to as methodological indi-vidualism in an earlier article. The methodological individualist, who is hostile to theidea o group rights, contends that only the individual is the ultimate agent o actionand thereore the only agent to which a moral right could attach. Groups are merelycollections o individual agents and thus the idea o a group right is a metaphysical

    absurdity. SeeAdeno Addis, Individualism, Communitarianism, and the Rights o EthnicMinorities, 67 notre DAme l. rev. 615, 63031 (1991). The analogy here is clear. States(territorial communities) are viewed as analogous to individuals and thus as the only

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    mopolitan wishes us to be good citizens.4 That is, to the extent that rightscould attach to communities, no such communities or attachments exist atthe international level. I the idea o national communities is an abstraction,

    then the concept o an international community is even more so.5

    Universal jurisdiction is also inconsistent with the notion o political

    sel- determination, the critics assert, because it allows the institutions o onepolitical community to revise decisions and arrangements made by anotherpolitical community.6 A claim o universal jurisdiction may allow one state tointimidate and harass another state (likely a small and politically vulnerablestate7)or its ocials. International politics are then played out in the courts oindividual states8 and critics observe that this is detrimental to internationalpolitics, international relations, and the judicial process.9

    4. Benjamin Barber, Constitutional Faith, inFor loveoF country: DeBAtIngthe lImItSoF PAtrIotISm30, 34 (Joshua Cohen ed., 1996). See alsoMichael Walzer, Spheres o Aection, inForloveoF country, supra, at 125, 125 (I am not even aware that there is a world suchthat one could be a citizen o it. No one has ever oered me citizenship, or describedthe naturalization process, or enlisted me in the worlds institutional structures, or givenme an account o its decision procedures (I hope they are democratic), or providedme with a list o the benets and obligations o citizenship, or shown me the worldscalendar and the common celebrations and commemorations o its citizens.).

    5. For an early observation that the international community is a ction, see Nicolas-SocratePolitis, Le Problme des limitations de la souveraint et de la thorie de labus des droits

    dans les rapports internationaux, 6 R.C.A.D.I. 1, 6 (1925), quoted in Nathaniel Berman,But the Alternative Is Despair: European Nationalism and the Modern Renewal oInternational Law, 106 hArv. l. rev. 1792, 1807 (1993) (Behold the vain ction o theState, there is only one real personality; that is the individual. . . . I the State is a pureabstraction, the international community, as it has been conceived hitherto . . . is aneven greater abstraction: an immense sum o ctions.).

    6. By arrangements I mean to include all kinds o settlements that members o the politi-cal community have reached to put their turbulent history behind by either decliningto prosecute alleged perpetrators o crimes or by granting amnesty. A good example isthe Pinochet situation. See also Jerey Gettleman, Uganda Peace Hinges on Amnestyor Brutality, n.y. tImeS, 15 Sep. 2006, at A7.

    7. See Michael Kirby, Universal Jurisdiction and Judicial Reluctance: A New Fourteen

    Points, inunIverSAl JurISDIctIon: nAtIonAl courtSAnDthe ProSecutIonoF SerIouS crImeS un-Der InternAtIonAl lAW 240, 252 (Stephen Macedo ed., 2004) (Justice Kirby notes Some

    judges, concerned about . . . issues o comity, will point out that the assertions ouniversal jurisdiction beore courts have, so ar, generally involved the courts o devel-oped countries. . . . However, such judges might question whether this situation wouldremain the case i judicial assertions o universal jurisdiction became common.). SeealsokIngSley chIeDu moghAlu, gloBAl JuStIce: the PolItIcSoF WAr crImeS trIAlS100 (2006)(There is a justied concern that [universal jurisdiction] can only be exercised againstcitizens o weaker nations by the courts o powerul states.).

    8. Henry Kissinger, who opposes the idea o universal jurisdiction warns against judicialtyranny. Henry Kissinger, The Pitalls o Universal Jurisdiction: Risking Judicial Tyranny,ForeIgn AFF., JulyAug. 2001, at 86 (The danger [o universal jurisdiction] lies in pushing

    the eort to extremes that risk substituting the tyranny o judges or that o governments:historically, the dictatorship o the virtuous has oten led to inquisitions and even witch-hunts.). One might, o course, think that given his role as the United States Secretary o

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    While they disagree on the conceptual coherence and utility o the ideao universal jurisdiction, both proponents and opponents view its unctiononly in instrumental termsto provide the condition or punishing (and

    suppressing) certain oenses that are regarded as oenses against all o us.This article argues that universal jurisdiction serves another, less articulatedpurpose; it has a constitutive unction as well. It is partly a process throughwhich the international community imagines its identity.10 This article arguesthat neglect o the constitutive dimension o universal jurisdiction has led toan incomplete analysis o the notion o universal jurisdiction.11

    The idea that jurisdictional issues are partly about constituting and a-rming political communities and identities is not new.12 Jurisdiction, just likethe rule o law itsel, is not just about getting the substantive or procedural

    question right, but it is also an expression o a sense o ourselves as a single,historical community.13 As this article shows, the crimes that give rise touniversal jurisdiction properly so called14 are simultaneously constitutive andexpressive o the international community at given historical moments.

    potentially dramatic extension o judicial power and a corresponding threat to judiciallegitimacy.).

    10. As I shall show later, the idea o imagined communities is that o Benedict Andersons.BeneDIct AnDerSon, ImAgIneD communItIeS: reFlectIonSonthe orIgInAnD SPreADoF nAtIonAlISm(2d. ed. 1991). The role o international norms as means o imagining an internationalcommunity was expressed by Hedley Bull thirty years ago. SeeheDley Bull, the AnArchIcSocIety: A StuDyoF orDerIn WorlD PolItIcS 80 (1977) ([Norms o cosmopolitan justice]are ideas which seek to spell out what is right or good or the world as a whole, or animagined civitasmaxima or cosmopolitan society to which all individuals belong andto which their interests should be subordinate.).

    11. In this regard I take Joseph Razs side in his dispute with Ronald Dworkin in relationto whether law is to be understood exclusively as a means o doing (instrumentally) orwhether it should also partly be seen as a means o being (as a means o constitutingwho we are). Dworkin accuses Raz o misunderstanding the nature o law when thelatter claims that [i]n large measure what we study when we study the nature o lawis the nature o our own sel-understanding. See Joseph Raz, Can There Be a Theoryo Law, inBlAckWell guIDetothe PhIloSoPhyoF lAWAnD legAl theory 324, 331 (Martin P.

    Golding & William A. Edmundson eds., 2005). Dworkin asserts, somewhat too quickly,that law has no such role. [I] we want to study our own sel-consciousness we woulddo much better to turn to ction, politics, biography, depth psychology , and social sci-ences. We refect on the character o law to know what we must do, not what we are.ronAlD DWorkIn, JuStIceIn roBeS 229 (2006). It is somewhat puzzling that Dworkin whohas always viewed law as an interpretive enterprise, deeply linked to a particular cultureand history, would make the claim that there is a sharp distinction between who weare and what we are supposed to do. What we are to do is to a great extent suggestedby who we are. In any case, I shall argue that jurisdiction (and by implication law) isconstitutive o who we are as it is a guide o what we are meant to do.

    12. Anthony DAmato, The Concept o Human Rights in International Law, 82 colum. l.rev. 1110, 1113 (1982).

    13. Paul W. Kahn, Speaking Law to Power: Popular Sovereignty, Human Rights, and the NewInternational Order,1 chI. J. Intl l. 1, 4 (2000). For the proposition that jurisdiction isabout communities and the ability o people to speak as communities see Robert Cover

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    Scholars rom various elds have recognized two dierent types or cat-egories o norms: regulative and constitutive.15 While the ormer order andconstrain behavior, the latter create new actors, interests, or categories o

    actions. Universal jurisdiction norms serve both o these purposes by creatingan international community o interest while also regulating the behavior ocertain actors within that community. The norm o universal jurisdiction isthereore simultaneously regulative and constitutive.

    II. UNIVERSAL JURISDICTIoN: A bRIEf oUTLINE

    It is conventional wisdom among international legal scholars and legal

    practitioners that international law places a limit on the authority o statesto apply their laws extraterritorially.16 That extraterritorial limitation has,however, been relaxed over the years. States are now allowed to assertprescriptive jurisdiction17 over acts and issues that have some connectionto, or eect on, them even i those acts and issues occurred and arose out-side their territories. Thus, a state may regulate not only conduct within itsterritory but also oreign acts that have substantial or intended eect on itsterritory.18 A state may also regulate the conduct o its citizens anywhere inthe world.19 It may pass laws to regulate oreign conduct that threatens its

    regulated and the regulating state are oten listed as genocide, slavery, crimes againsthumanity, war crimes, piracy, and torture.

    15. SeeMartha Finnemore & Kathryn Sikkink, International Norm Dynamics and PoliticalChange, 52 Intl org. 887, 891 (1998).

    16. See, e.g., reStAtement (thIrD) oF ForeIgn relAtIonS lAW oF the unIteD StAteS 402404(1987); Kenneth C. Randal, Universal Jurisdiction Under International Law, 66 tex. l.rev. 785, 78588 (1988); reStAtement (thIrD) oF ForeIgn relAtIonS lAWoFthe unIteD StAteS 402 (1987) ([A] state has jurisdiction to prescribe law with respect to conduct that,wholly or in substantial part, takes place within its territory.); IvAn A. SheArer, StArkSInternAtIonAl lAW184 (1994) (The exercise o jurisdiction by state over property, persons,

    acts or events occurring within its territory is clearly conceded by international law toall members o the society o states.); IAn BroWnlIe, PrIncIPleSoF PuBlIc InternAtIonAl lAW300303 (4th ed. 1990). The principle that the courts o the place where the crimeis committed may exercise jurisdiction has received universal recognition . . . . Id. at300.

    17. Prescriptive jurisdiction is the authority o a state to make its law applicable to per-sons or activities. reStAtement (thIrD) oF ForeIgn relAtIonS lAWoFthe unIteD StAteS pt. IV,introductory note (1987).

    18. SeereStAtement (thIrD) oF ForeIgn relAtIonS lAWoFthe unIteD StAteS 402 (1987) ([A] statehas jurisdiction to prescribe law with respect to . . . conduct outside its territory thathas or is intended to have substantial eect within its territory.).

    19. This is reerred to as the nationality principleo prescriptive jurisdiction. SeereStAtement

    (thIrD) oF ForeIgn relAtIonS lAWoFthe unIteD StAteS 402 (1987). A state may, or example,prohibit its citizens rom ghting in other peoples wars or rom traveling to other countriesor the purpose o having sex with minors The United States prohibits both o these In rela

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    national security or the operation o its government.20 And, although it isless accepted than the bases o extraterritorial jurisdiction outlined above,a state may also assert extraterritorial jurisdiction over certain oreign acts

    that harm or are intended to harm its nationals.21

    Put simply, under international law a state is allowed to regulate acts or

    activities that have some connection with it, although such extraterritorialapplication o a states laws is generally said to be subject to a reasonable-ness limitation.22 These prescriptive jurisdictions are thought to be justiedby the existence o what Ronald Dworkin reers to, in another context, asassociative or communal obligations.23 For there to be valid prescriptive

    jurisdiction, the regulated person or act must be connected, however thicklyor thinly, to the political community we call the state. This is what might

    be reerred to as the political conception o jurisdiction, or the authority ispremised on some notion o membership to a political community.24

    20. Protective principleis the name given to this basis o jurisdiction. SeereStAtement (thIrD)oF ForeIgn relAtIonS lAWoFthe unIteD StAteS 402 cmt. (1987). See alsoSheArer, supranote 16, at 211 (International law recognizes that each state may exercise jurisdictionover crimes against its security and integrity or its vital economic interests.); BroWnlIe,supra note 16, at 304 (Nearly all states assume jurisdiction over aliens or acts doneabroad which aect the security o the state, a concept which takes in a variety o po-litical oences, but is not necessarily conned to political acts.). There has been some

    controversy both about the existence and scope o the protective principle, or withoutmore specication the idea o harm could encompass a wide variety o conduct. Theresistance may be lessened i the prescriptive authority is limited to how it is describedin the text o the essay accompanying this note.

    21. This is reerred to as the passive personalityprinciple.

    The passive personality principle asserts that a state may apply lawparticularly criminal lawtoan act committed outside its territory by a person not its national where the victim o the act wasits national. The principle has not been generally accepted or ordinary torts or crimes, but it isincreasingly accepted as applied to terrorists and other organized attacks on a states nationalsby reason o their nationality, or to assassination o a states diplomatic representatives or otherocials.

    reStAtement (thIrD) oF ForeIgn relAtIonS lAWoFthe unIteD StAteS 402 cmt. g (1987). See

    alsoBroWnlIe, supra note 16, at 303 (This is the least justiable, as a general principle,o the various bases o jurisdiction . . . .).

    22. SeereStAtement (thIrD) oF ForeIgn relAtIonS lAW 403 (1987). Whether international lawactually requires this limitation is a subject o some controversy. For the negative posi-tion, see Phillip R. Trimble, The Supreme Court and International Law: The Demise oRestatement 403, 89 Am. J. Intl l. 53 (1995). For the armative side, see AnDreAS F.loWenFelD, InternAtIonAl lItIgAtIonAnDthe QueStFor reASonABleneSS (1996).

    23. ronAlD DWorkIn, lAWS emPIre 196 (1986).24. Noah Feldman uses the phrase political conception o law to reer to a theory

    o law that makes either consent or some weaker orm o communal associationa condition o law. Noah Feldman, Cosmopolitan Law, 116 yAle l. J. 1023, 1050(2007). This is what Aristotle reerred to as particular law. ArIStotle, rhetorIc bk. 1,

    ch. 13, line 49 (W. rhys Roberts trans., Dover Publg 2004) (Particular law is thatwhich each community lays down and applies to its own members: this is partlywritten and partly unwritten Universal law is the law o nature For there really is

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    Another category o jurisdiction requires no connection at all betweenthe state asserting jurisdiction and the oense or conduct regulated. When astate asserts authority to prescribe under these circumstances,25 and without

    the limitation o the reasonableness requirement, it has asserted universaljurisdiction.26 This is what might be called a cosmopolitan notion o jurisdic-tion. Unlike the political notion o jurisdiction that inorms other bases oprescriptive jurisdiction, the jurisdictional authority in universal jurisdictiondoes not stem rom any connection with the political community we callthe state. Political membership, thin or thick, is not a prerequisite.

    Some ot-cited examples o the exercise o universal jurisdiction, whichsometimes are reerred to as universal jurisdiction plus,27 can, however,be explained on the bases o other traditional orms o jurisdiction.28 These

    orms o jurisdiction will not be considered universal jurisdiction in thisarticle because they display some basis o political membership, howeverthin it may be. I something plus is present, then the plus should be, onits own, a sucient ground or the assertion o jurisdiction. I, however, theplus is insucient on its own, then there is no traditional jurisdictionalconnection and universal jurisdiction may apply. The notion o universal

    jurisdiction plus conuses more than it enlightens.Under international law, states are permitted29 to assert universal jurisdic-

    tion in relation to a handul o oenses. The list o oenses that are subject

    Aristotle reers to as universal law is what Feldman would call cosmopolitan law, althoughFeldman (unlike Aristotle) does not rely on natural law or its justication.

    25. SeereStAtement (thIrD) oF ForeIgn relAtIonS lAWoFthe unIteD StAteS 404 (1987).26. A good example o a state law asserting universal jurisdiction is ound in the German

    Code o Crimes Against International Law. The Code provides: This act shall applyto all criminal oences against international law designated under this Act, to seriouscriminal oences designated therein even when the oence was committed abroadand bears no relation to Germany. Vlkerstragesetzbuch [VStGB] [Code o Crimesagainst International Law] 26 June 2002, Bundesgesetzblatt [BGBl. 1] 2002 at 2254, 1, translated ingerhArD Werle, PrIncIPleSoF InternAtIonAl crImInAl lAW428 (2005).

    27. Slaughter, supra note 9, at 170.

    28. Those who prosecuted Eichmann and Demjanjuk in Israel, or example, cited protec-tive and passive personality principles. SeeCrimC (Jer) 20/61 Israel v. Eichmann [1961]45 IsrDC 3, translated in 36 Intl L. Rep. 18, 26 (1968) (From the point o view ointernational law, the power o the State o Israel to enact the Law in question [Nazisand Nazi Collaborators (Punishment) Law] . . . is based . . . on a dual oundation: theuniversal character o the crimes in question and their specic character intended toexterminate the Jewish people.). To the extent that Israel could be said to have properlyasserted those bases o jurisdiction, then one would not even worry about the ques-tion o universal jurisdiction which was also the basis or the claim o prescriptive andadjudicative jurisdiction. The same law was applied to John Demjanjuk, though he wasultimately acquitted on grounds o mistaken identity, CrimA 347/88 Demjanjuk v. Israel[1993] IsrSC 47(4) 221.

    29. Some say that states are obligated to assert jurisdiction. See, e.g., geoFFrey roBertSon,crImeS AgAInSt humAnIty: the StruggleFor gloBAl JuStIce 291, 311 (3d ed. 2006) ([T]hereis in international law a duty on states to punish crimes against humanity even i

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    to universal jurisdiction may develop as a matter o customary internationallaw or by virtue o a treaty regime.30 This article is mostly concerned withuniversal jurisdiction that is permitted under customary international law.31

    Currently, states are allowed to assert universal jurisdiction over a handulo crimes as a matter o customary international law: piracy, slave trade,genocide, crimes against humanity, war crimes, and torture. Although thereis general agreement that these oenses give rise to universal jurisdiction, itis oten not clear why these and not other oenses are on the list. Why, orexample, is orced disappearance, the preerred method o Latin Americandictators or dealing with opponents in the 1970s and 1980s, not a goodcandidate or inclusion?32 What about terrorist oenses?33 Put simply, whatare the criteria by which certain conducts are selected as appropriate or

    universal jurisdiction? To answer this question, this article will attempt togive a plausible explanation or the existing list and provide or a theory ochange that can allow us to add or subtract rom it. This task will have adescriptive (positive) and normative dimension to it.

    Current accounts o both universal jurisdiction and the list o crimes thatare said to give rise to such jurisdiction are unsatisactory. The next sectionexplores briefy the various justications that have been or can be suggestedor the existence o universal jurisdiction and or the list o international crimesthat lead to its assertion. This is ollowed by the advance o an alternative

    account that explains more ully both the idea o universal jurisdiction andthe oenses that are said to lead to such jurisdiction.

    30. Customary international law is the law that emerges rom customary practices andbelies o nations. It arises rom a general and consistent practice o states ollowedby them rom a sense o legal obligation reerred to as opino juris. reStAtement (thIrD)oFthe ForeIgn relAtIonS lAWoFthe unIteD StAteS 102(2) (1987); Statute o InternationalCourt o Justice, art. 38(1)(b), annexed toU.N. chArter, signed26 June 1945, 59 Stat.

    1055, 1060, T.S. No. 993 (entered into orce 24 Oct. 1945) (noting that sources ointernational law applied by the Court include international custom, as evidence o ageneral practice accepted as law).

    31. The international law o jurisdiction is generally a customary law. As a conceptual matteruniversal jurisdiction properly so called can only be a matter o customary internationallaw, or a treaty-based jurisdiction can only bind those states which have signed andratied the treaty. SeeUnited States v. Youse, 327 F.3d 56, 96 n.29 (2d. Cir. 2003).

    32. Universal Declaration on the Protection o All Persons rom Enorced Disappearance,G.A. Res. 47/133, U.N. GAOR, 47th Sess., Agenda Item 97(b), U.N. Doc. A/Res/47/133(1993) (a non-legally binding document, provides or the exercise o universal jurisdictionor acts o orced disappearance). SeeMary Robinson, Preace, inunIverSAl JurISDIctIon,supra note 7, at 15, 16. Amnesty International, or example, includes both orced disap-

    pearance and extrajudicial killings as conducts subject to universal jurisdiction.33. SeereStAtement (thIrD) oF ForeIgn relAtIonS lAW 404 (1987) (reerring to certain acts

    o terrorism as crimes that would perhaps lead to universal jurisdiction) See also

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    III. WHAT MAkES AN offENSE ELIGIbLE foR UNIVERSALJURISDICTIoN? ExISTING ACCoUNTS

    A. The Pwer Practice

    One straightorward answer to the question as to why certain oenses areregarded as eligible to universal jurisdiction might be simply because theinternational community has indicated, either through custom or throughconventional law, that these are oenses that deserve such treatment. Theauthority here is the supposed consensus among member states; the job othe scholar (publicist, as she is oten reerred to by international scholars,

    other legal actors, and international documents)34

    is descriptive and empiricalrather than normative. The answer to the question why this list? is becausethat is what state practice shows. The validity o the practice derives romnothing more than the practice itsel. In this sense, Joseph Razs observationthat practice-based law is sel-vindicating seems to apply.35

    However, this response is unsatisactory. Even i one were to assumeconsensus on the list o oenseswhich some doubt, at least in relationto actual practice36it would still be important to explain why there isconsensus on this rather than another list. The mere existence o a practice

    does not tell us much about what inorms it or how it may develop overtime. While it is true that practice can be sel-validating, to the extent thatit occurs within permissible moral parameters, we must be careul to notethat the reasons or ollowing practice are not entirely derivable rom the

    34. SeeStatute o the International Court o Justice, art. 38(1)(d), annexed toU.N. Charter,signed26 June 1945, 59 Stat. 1055, T.S. No. 993 (entered into orce24 Oct. 1945).

    35. Joseph Raz, On the Authority and Interpretation o Constitutions: Some Preliminaries,inconStItutIonAlISm: PhIloSoPhIcAl FounDAtIonS 152, 173 (Larry Alexander ed., 1998).

    36. Seeluc reyDAmS, unIverSAl JurISDIctIon: InternAtIonAlAnD munIcIPAl legAl PerSPectIveS (2003)

    (gives a detailed survey o cases in many nations and ound only twenty cases in thepast ten years). See alsoM. Cheri Bassiouni, The History o Universal Jurisdiction and ItsPlace in International Law, inunIverSAl JurISDIctIon, supra note 7, at 39, 5054. Reerringto three o the most commonly ound oenses on customary international law universaljurisdiction listwar crimes, crimes against humanity and genocideBassiouni claimsthat there is no sucient state practice. In relation to war crimes there are [so] ew[national prosecutions o such cases] that it would be incorrect to conclude that theyconstitute customary law practice. Idat 51. Some have argued that the relevant practiceis the act that almost two-thirds o all states have some legislation permitting theircourts to exercise universal jurisdiction over conduct amounting to genocide, crimesagainst humanity, war crimes, torture, and other crimes under international law. SeeLorna McGregor, Addressing the Relationship Between State Immunity and Jus Cogens

    Norms: A Comparative Assessment, in InternAtIonAl ProSecutIon oF humAn rIghtS crImeS69, 86 (Wolgang Kaleck et al. eds., 2007) (citing AmneSty Intl, unIverSAl JurISDIctIon: theDuty oF StAteS to enAct AnD ImPlement legISlAtIon (2001)) For a response to that contention

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    Vl. 31138 HUMAN RIGHTS QUARTERLY

    act that [such practice exists]. [Practices] evolve . . . in order to solve apre-existing social problem.37 There must be something valuable in thepractice . . . or it to give rise to reasons or action, beyond the act that [it]

    is there and just happens to be ollowed.38

    Put simply, the notion o practice as a source o authority, even i thepractice exists as an empirical matter, does not answer two basic questions:what justies universal jurisdiction as a conceptual and normative matter,and why do we have this rather than another list o oenses? Perhaps anadequate answer to the rst question will help us answer the second.

    b. The Heinusness39 the Crimes

    Another response to the question o what makes an oense eligible or universaljurisdiction is oenses that are so heinous that they oend or diminish all ous to such an extent that every state is entitled to punish or suppress them. 40Reliance on heinousness as a source o explanation, however, suers rom three

    37. SeeAndrei Marmor, Are Constitutions Legitimate?, 20 cAn. J. l. & JurIS. 69, 81 (2007).38. Id. One couldargue that customary international law (CIL) o which all o the norms

    that are said to be subject to universal jurisdiction are a part is not thought to need anyexplanation or its validity other than the act that the practice exists. That is true, butthe nature o the norms that concern us here (jus cogensnorms) are a special kind oCIL requiring urther explanation and unctional justication. Ater all, unlike other CILnorms, these norms cannot be changed as easily by subsequent practice or even by asubsequent treaty. Only a peremptory norm o similar importance or signicance willreplace a jus cogensnorm. Also, to the extent that we are concerned with a radicaldeparture rom the normal process o jurisdiction, a unctional justication seems tobe in order. In any case, it seems to me that all norms, including CIL norms, assumesomething valuable in the practice and it seems important to inquire into the socialproblem which it is adopted to solve.

    39. Heinous is dened by the Oxord English Dictionary as highly criminal or wicked,utterly odious or atrocious. The Israeli prosecutor o Adol Eichmann reerred to thecrime o which the deendant was accused as heinous. hAnnAh ArenDt, eIchmAnn InJeruSAlem: A rePort on the BAnAlIty oF evIl 260 (Penguin Books 2006) (1963). See alsomoghAlu, supra note 7, at 77.

    40. Stephen Macedo, Introduction, inunIverSAl JurISDIctIon, supra note 7, at 1, 4 (Universaljurisdiction is the principle that certain crimes are so heinous . . . that a state is entitledor even obliged to undertake legal proceedings without regard to where the crime wascommitted or the nationality o the perpetrators or the victims.); Peter Weiss, The Futureo Universal Jurisdiction, inInternAtIonAl ProSecutIonoF humAn rIghtS crImeS, supra note36, at 29, 30 ([E]very act o torture, every violation o what we have come to call abasic human right, diminishes each one o us, no matter by whom or where commit-ted. Universal jurisdiction is [an] expression o this yearning . . . .); Leila Nadya Sadat,Redening Universal Jurisdiction, 35 neW eng. l. rev. 241, 244 (2001) (Application othe theory o universal jurisdiction . . . is predicated largely on the notion that some

    crimes are so heinous that they oend the interest o all humanityindeed, imperil civi-lization itsel.); Donald Francis Donovan & Anthea Roberts, The Emerging Recognitiono Universal Civil Jurisdiction 100 Am J Intl l 142 143 (2006) (In modern times

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    serious shortcomings. First, as a descriptive enterprise it is both under-inclusiveand over-inclusive. It is not, or example, clear why piracy, the paradigmaticinternational crime subject to universal jurisdiction, could be considered hei-

    nous on par with slavery and genocide.41

    Indeed, the history o piracywheregovernment sponsored piracies were toleratedseems to suggest that it was notthe nature o the act but the nature o the actor that mattered.42 It would stretchany sense o logic to say that heinousness should depend on who engages ina particular act rather than the act itsel. It is also under-inclusive to the extentthat many crimes that devalue and even destroy human lie itsel are not parto the list o crimes that are heinous and diminish all o us. Extra-judicial kill-ing, terrorist acts, and orced disappearance are examples.

    Second, and perhaps more important, there appear to be no principles

    by which one could decide as a normative matter which crimes are heinous.Some have used another phrase to describe heinousnessthat it shocks theconscience.43 But that simply gives us another phrase to worry about. Whydo these crimes shock the conscience, at least more so than others? Withoutmore guidance it would be hard to deend the existing list and to advocatean addition or subtraction to it. Both or descriptive and transormative44purposes, one would need a normative theory.

    41. C. Christopher C. Joyner, Arresting Impunity: The Case or Universal Jurisdiction in Bring-ing War Criminals to Accountability, 59 lAW & contemP. ProBS. 153, 165 n.48 (1996).Joyner claims that piracy was considered a particularly heinous and wicked act[] . . . . Itis not quite clear why it would have been thought as such an act in an era when statesengaged in ar more destructive acts. Even i piracies were properly viewed as heinousin the nineteenth and early twentieth centuries, I am not sure that they could or shouldbe viewed more shocking than many other oenses that are committed now which arenot subject to universal jurisdiction.

    42. SeeGerry Simpson, Piracyand the Origins o Enmity, intIme, hIStoryAnD InternAtIonAllAW 219, 228 (Matthew Craven, Malgosia Fitzmaurice & Maria Vogiatzi eds., 2007) ([I]tis not the quality o the act that is decisive but rather the personality o the actor.). Seealso id. at 226 (The pirate, then, is not marked by his or her plundering psychologybut rather by the absence o public authority.); Eugene Kontorovich, ImplementingSosav. Alvarez-Machain: What Piracy Reveals About the Limits o the Alien Tort Statute, 80notre DAme l. rev. 111, 13645 (2004).

    43. moghAlu, supra note 7, at 77 (Universal jurisdiction is a doctrine that asserts that somecrimes are so shocking in the aront they represent to all nations that the national courts oany country can and should bring the perpetrators to justice.). See alsoCrimC (Jer) 20/61Israel v. Eichmann [1961] 45 IsrDC 3, translated in 36 Intl L. Rep. 18, 26 (1968) (Thesecrimes, which struck at the whole o mankind and shocked the conscience o nations, aregrave oences against the law o nations itsel (delicta juris gentium).). Sumner B. Twiss,Torture, Justication, and Human Rights: Toward an Absolute Proscription, 29 hum. rtS. Q.346, 353 (2007) (reerring to the debate within the Third Committee during the drating othe Universal Declaration o Human Rights where participants reerred to such Nazi actsas medical experimentation and other maltreatments in the context o Article 4 (torture)as shocking the conscience o humanity). M. Cheri Bassiouni, International Crimes:

    Jus Cogens and Obligation Erga Omnes, 59 lAW & contemP. ProBS. 63, 69 (1996) (Theonly way to make sense ojus cogensnorms is to understand that certain crimes aectthe interests o the world community as a whole because they threaten the peace and

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    Third, even i one were able to identiy which crimes are heinous enoughto include on the list, it would not be the end o the problem. One wouldstill need to show a connection between heinousness and the oense to the

    interest o all humanity.45

    Ater all, the suggestion is that these heinous crimesaect all o humanity and are thus o universal concern. What interests dothey aect and how precisely do they aect them? In a world where the deaultrule is that a connection to a political community is the legitimate source oprescriptive jurisdictional authority, universal jurisdictiona radical departurerom the deault rulemust be deended with good reasons. Yet, those whoinvoke heinousness as a source o justication do not attempt to explainhow precisely the notion o heinousness justies this radical departure.

    C. The Praility that the Particular Crime Wuld G Unpunished(The Desire r a N Law-free Zne)46

    Perhaps another rationale or designating a crime as appropriate or universaljurisdiction is the assumption that certain crimes, by their very nature, arelikely to go unpunished i some orm o universal jurisdiction is not available.47This argument possesses some merit. To the extent that international law isprogressively ushering in a world with no legal ree zone48 it makes sense

    to impose universal jurisdiction or crimes that are likely to go unpunishedin the absence o universal jurisdiction.This may explain why some crimes are included on the list. One may, or

    example, be able to explain piracy on this ground, given that the crime takesplace on the high seas and supposedly beyond the jurisdiction o any state.49

    45. Sadat, supra note 40, at 244.46. No place on earth would be treated as a law-ree zone. Feldman, supra note 24, at

    1067.47. [T]he rationale o universal jurisdiction is the need to end impunity or heinous conduct.

    Donald Francis Donovan & Anthea Roberts, The Emerging Recognition o UniversalCivil Jurisdiction, 100 Am. J. Intl l. 142, 159 (2006). Historically, universal jurisdic-tion was exercised over serious crimes, such as piracy, that were dicult to prosecuteusing traditional bases o jurisdiction because they occurred beyond state borders, suchas on the high seas. Id. at 143; Joyner, supra note 41, at 153 (Since war criminalsoten operate with the knowledge and assistance o local political and legal authorities,domestic law does little to deter these actors. Prevention and punishment o war crimesthus become legal concerns and moral obligations, not just or those governments inwhose territory crimes occurred, but or all states.). See also id. at 166.

    48. Feldman, supra note 24, at 1067.49. It is, however, reasonable to argue that pirates would always be subject to the jurisdiction

    o a nation under the traditional bases o prescriptive jurisdiction to the extent that the

    attack will be on a ship registered in a particular country, or on individuals who are citizenso a particular nation or property that belongs to citizens (or government) o a particularcountry See Kontorovich supra note 42 at 151 (The faw [o the beyond jurisdictional

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    Genocide may be another oense that is likely to escape ull punishmentwithin the political community in which it occurred. Under the circumstanceso genocide, local political and legal systems are under serious stress, oten

    totally dysunctional, and unable to dispense justice.50

    Alternatively, govern-ments and/or their supports are so implicated in the genocidal acts that itwould be oolhardy to expect that national legal institutions would bringthe perpetrators to justice. The complicity o the Sudanese government inthe Darur situation is a very good example. Perhaps one could also thinko serious war crimes as likely to go unpunished by the legal system o thepolitical communities whose armed orces are alleged to have committedthem, especially when those crimes target internal enemies, those perceivedas threats to the established order. The same might go or ocial torture,

    another orm o waging war on those viewed as a threat to the interest othe political community.51On refection, however, the lling the legal gap rationale does not

    take us much urther than the justications we explored earlier. First, whileit may explain some o the oenses on the universal jurisdiction list, it doesnot explain why others are let out. For example, it does not seem to bethe case that extrajudicial killings or orced disappearances are any morelikely to be prosecuted by states o which the accused is a national than arepiracy, genocide, torture, crimes against humanity, or serious war crimes.

    The point is that as a descriptive matter, the likelihood o non-prosecutionas a rationale or the kind o crimes we consider as properly subject touniversal jurisdiction is under-inclusive. Many crimes may go unpunishedin a particular country, but that alone can never be the basis or assertinguniversal jurisdiction. I the purpose is to ensure against legal gaps (no law-ree zones),52 then one would have to show that dealing with these andnot other oenses is the proper way to ll the gaps.

    Second, even i it were true that universal jurisdiction in relation to theseoenses is the appropriate way o dealing with legal gaps, it will still be im-

    portant to explain why a world where legal gaps are lled by the institutionso individual states is in the interest o the international community.The idea o a blanket o law, without a hole, over our globe cannot ully

    explain either the idea o universal jurisdiction or the particular list o oensesthat give rise to it. Something more than the possibility o non-prosecutionis needed, and perhaps the heinousness o the crime is that something

    50. The Rwandan situation may be an example.51. Oten, it is the interests o the ruling elite that are elevated to the interest o the na-

    tion.52. SeeFeldman, supra note 24, at 106667 (The set o global legal systems would be

    morally illegitimate i it allowed law ree zones in which the accident o place or status

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    more. Conceivably, one could assert that those heinous crimes must notgo unpunished when states can punish them via universal jurisdiction at areasonably acceptable cost, but then we are back to the problem o what

    constitutes heinousness. Furthermore, when is the cost reasonable or ac-ceptable? Ater all, critics such as Henry Kissinger base their objection touniversal jurisdiction on the ground that the cost is unacceptably high.53

    D. The fundamental Nature the Nrm that Is Threatened y TheseCrimes

    Here, the concepts o universal jurisdiction,jus cogens, and erga omnescome

    together.54

    What makes an oense subject to universal jurisdiction is not neces-sarily its heinous status, or because the possibility o it going unpunished withoutuniversal jurisdiction is low, but rather because the oense is a violation o aundamental norm (jus cogens)55 giving rise to obligations (erga omnes)56 that

    53. SeeKissinger, supra note 8. See alsoEugene Kontorovich, The Ineciency o UniversalJurisdiction, 2008 U. Ill. l. rev. 389, 392 (2008) (arguing that universal jurisdictiongreatly increases transaction costs and can thereore prevent the socially optimal useo prosecutorial entitlements by allowing a ew states to block amnesties and similararrangements even when the states supporting them value such a negotiated outcomemore than the dissenting states value prosecution.).

    54. lArry mAy, crImeS AgAInSt humAnIty: A normAtIve Account 25 (2005) ([J]us cogensnormsare universal norms that ground universal jurisdiction in international law . . . . [They]give rise to obligations erga omnes, obligations that extend to all people.). See alsoRosanne van Alebeek, The Pinochet Case: International Human Rights Law on Trial,2000 BrIt. y.B. Intl l. 29, 34 ([T]he principle [o universal jurisdiction] should nowbe seen as having its theoretical basis in the concept o erga omnesobligations.). Itcan thereore be argued that all violations o jus cogensnorms give rise to universal jurisdiction under customary international law. The only dispute may be in relation totorture, but the ICTY got it right when it declared: [I]t would seem that one o the

    consequences o the jus cogenscharacter bestowed by the international communityupon the prohibition o torture is that every State is entitled to investigate, prosecute andpunish or extradite individuals accused o torture, who are present in a territory underits jurisdiction. Prosecutor v. Furundzija, Case No. IT-95-17/1-T, Judgment, 156 (10Dec. 1998). See alsoBassiouni, International Crimes, supra note 43, at 63, 65.

    55. Jus cogensis dened by the Vienna Convention on the Law o Treaties as a norm ac-cepted and recognized by the international community o States as a whole as a normrom which no derogation is permitted and which can be modied only by a subsequentnorm o general international law having the same character. Vienna Convention on theLaw o Treaties art. 53, U.N. Doc. A/CONF.39/27 (1969), 1155 U.N.T.S. 331 (enteredinto orce27 Jan. 1980), reprinted in 8 I.L.M. 679 (1969).

    56. The concept oerga omnesappeared rst in Barcelona Traction, Light and Power Co.

    Ltd. (Belg. v. Spain), 1970 I.C.J. 3, 32 (5 Feb.). The concept was dened as a situationwhere a state owes an obligation to the international community as a whole. The Courtgave genocide slavery and acts o aggression as circumstances in which all States have

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    extend to all people.57 The obligation is toward the international communityas a whole and is derived rom general international law.58

    Beore we explore the issue as to what makes a norm undamental, let

    us address the argument, most prominently made by Lori Damrosch, that weought not to see universal jurisdiction as coterminous withjus cogens.59 Theargument is that even though violations ojus cogensnorms may be subjectto universal jurisdiction, universal jurisdiction is not limited to the violationo such norms. It could be, and is, asserted in relation to other oenses. Theemergence o universal jurisdiction should thus not be tied to jus cogensnorms. As a general matter, universal jurisdiction should be delinked romperemptory norms. Some treaties have provided or universal jurisdictionor non-peremptory norms. For the purposes o this article though, universal

    jurisdiction andjus cogensnorms are linked in that under customary inter-national law the only oenses that can be subject to universal jurisdictionare violations o peremptory norms. At least that seems to be the consensus,and the separate joint opinion o Judges Higgins, Kooijmans, and Buergenthalin Congo v. Belgium makes the point explicitly.60 It is universal jurisdictionunder customary international law that is the ocus o this article. As it shallbe argued later, it is also important, as a normative matter, that we limitthe reach o universal jurisdiction (at least under customary international

    57. Although the ull phrase obligatio erga omnesseems to suggest that states are obligatedrather than simply permitted to prosecute violators ojus cogensnorms, there is no con-sensus on whether there is a duty or a right. SeeBassiouni, International Crimes, supranote 43, at 63, 65. I agree with Bassiouni that i we take the notion o ajus cogensnormseriously (their non-derogability), then we must ensure that perpetrators are punishedone way or another and that would suggest the imposition o a duty. However, even ithere is no consensus on the existence o a duty, it is undeniably the case that there isa right to invoke universal jurisdiction to prosecute such crimes. For my purpose it issucient that there is such a right.

    58. Arming the decision o the sentencing judge o the Dsseldor Court o Appeals(Oberlandesgericht), which convicted a Bosnian Serb to lie imprisonment or the crime

    o genocide under the universal jurisdiction o the German Criminal Code, the Ger-man Constitutional Court observed: As [one o] the most serious violations o humanrights, . . . genocide is the classic case or application o universal jurisdiction, . . . theunction o which is to make possible the most complete possible prosecution o crimesagainst particularly important legal values o the international community. Decision o12 December 2000, Juristen-Zeitung 2001, at 975 (emphasis added), cited in WolgangKaleck, German International Law in Practice: From Leipzig to Karlsruhe, inInternAtIonAlProSecutIonoF humAn rIghtS crImeS, supra note 36, at 93, 99100.

    59. Lori F. Damrosch, Comment: Connecting the Threads in the Fabric o InternationalLaw, inunIverSAl JurISDIctIon, supra note 7, at 91. The process or adding crimes to thecategory o universal jurisdiction oenses is not the same as the process or adding tothe set ojus cogensnorms. Id. at 95.

    60. SeeArrest Warrant o 11 Apr. 2000 (Dem. Rep. Congo v. Belg.), 2002 I.c.J. 3, 81 (14Feb.) (separate joint opinion o Judges Higgins, Kooijmans & Buergenthal) (It is equallynecessary that universal criminal jurisdiction be exercised only over those crimes regarded

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    law) to peremptory norms, over which a wide consensus reigns. Universaljurisdiction is more likely to be utilized i it is limited to oenses regardedas undamental to the constitution and sustenance o a decent international

    community.Now, what makes a norm undamental? A norm may be so in one o

    two ways. A norm can be constitutive o our very humanity or identity ashuman beings (what David Luban calls humanness).61 Alternatively, it canbe an essential element, or constitutive, o the international community, acore element o the international order that we seek to cultivate and project.On this account, oenses that are considered to be oenses against all ous are violations o identity constituting normswhether it is the humanidentity or the identity o the international community. In some ways the

    two identities may be linked. The international community is dened bythose norms that tie us together because we share them as humans. Weshall return to that issue in the next section.

    Universal jurisdiction is cosmopolitan in two senses. It seeks to captureaspects o the individual that transcend the particular community withinwhich that individual is located and by which he is dened (humanness).62We may want to reer to this as individualist cosmopolitanism, meaning thatthe universalism here seeks to capture the essence o the individual acrosscultures and social locations. Universal jurisdiction also seeks to imagine

    and cultivate connections and aliations among individuals and groupsthat transcend the traditional political communities known to and denedby traditional international lawstates. In this sense, universal jurisdictionis about cultivating an international community. We shall reer to this ascommunitarian cosmopolitanism. As it shall be clear in the course o thearguments in this article, the two cosmopolitanisms assume one another. Ineither version, cosmopolitanism suggests that or some purposes and mea-sures, human beings orm a single moral community. Further, it suggeststhat in virtue o this moral community, members o the various territorial

    (political) communities owe one another certain obligations.63

    61. David Luban, A Theory o Crimes Against Humanity, 29 yAle l. J. 85, 8687 (2004)(Humanity [in crimes against humanity] means both the quality o being humanhumannessand the aggregation o all human beingshumankind.). Humanness,thereore, reers to the idea o what it existentially means to be a human being.

    62. For the proposition that torture, a violation o ajus cogensnorm and subject to universaljurisdiction, could be viewed as a process o destroying what it means to be human, seeLouis Michael Seidman, Tortures Truth, 72 Yale L. J. 881, 907 (2005) (The problem withtorture is not just that the victims will is commandeered but that it is commandeeredby the dehumanizing realization that all that we associate with being human is an illu-

    sion.). What is it that torture takes that is the very essence o humanness, the essenceo being human? Seidman claims that it is the individuals choosing capacity. Id. at901

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    IV. IMAGINING CoMMUNITIES AND IDENTITIES: THECoNSTITUTIVE DIMENSIoN of UNIVERSAL JURISDICTIoN

    Jurisdictional norms, perhaps more than other norms, play an important rolein dening communities. They dene what a nation, a state, or a city is.64 Toprescribe jurisdictional rules is, thereore, to constitute an identityto assertthat or certain purposes we deem the particular territorial entity as beinga community o interests. Traditional international prescriptive jurisdictionsdene the authority o every state vis--vis other states, and consequently theydene the very nature o the territorial community we call the state. Universal

    jurisdiction, on the other hand, can be seen as one process through whichwe imagine the international community as a community o interest.

    It is important to note that the phrase imagined communities is notused to suggest that the international community, as constituted by universaljurisdiction, is alse or abricated. Benedict Anderson, who coined the phraseimagined community to describe the nation, observes that all communitieslarger than primordial villages o ace-to-ace contact (and perhaps even these)are imagined.65 They are imaginedbecause members o those communitieswill never know their ellow-members, meet them, or even hear o them, yetin the minds o each lives the image o their communion.66 Communities areimagined or constituted in several ways. As Anderson notes, Communities

    are to be distinguished, not by their alsity/genuineness, but by the style inwhich they are imagined.67 Universal jurisdiction is one way through whichthe international community is imagined. The process o imagining here iso two kinds: universal jurisdiction assumes the existence o a communityas it simultaneously constitutes that community.68 What is the nature o theinternational community that is imagined (assumed and constituted) throughthe provision and exercise o universal jurisdictions?

    64. DAmato, supra note 12, at 1113 (Jurisdiction comprises the set o external rules that

    have dened [the nation] as a nation.). One could say the same thing about citiesand ederal states.

    65. AnDerSon, supra note 10, at 6.66. Id.67. Id.68. This ambiguity is captured by one author when he observes: The doctrine [universal

    jurisdiction] assumes the existence oor at least proposesa community or a worldsociety. moghAlu, supra note 7, at 77. This simultaneous action o declaration andconstitution was reerred to as perormative by the late, great French social theoristPierre Bourdieu. SeePIerre BourDIeu, lAnguAgeAnD SymBolIc PoWer 223 (1991) (Perormativediscourse attempts to bring about what it asserts in the very act o asserting it.). For thepopular entry o the notion o perormative discourse, seeJ.l. AuStIn, hoWto Do thIngSWIth WorDS 94 (Harvard Univ. Press 1st ed. 1962) (amously arguing that language can-not only describe things but actually dothings). Thus, or example, when the presidentswings a bottle o champagne at a ship and says I christen this ship the USS New

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    A. Diverse Cmmunity

    Hannah Arendt argued that the salient characteristic o the human condition

    is the potential or and the reality o diversity.69

    For Arendt, what made theNazi crime an attack on the human condition was that it was an attack uponhuman diversity as such, that is, upon a characteristic o the human statuswithout which the very words mankind or humanity would be devoido meaning.70 Genocide is a good example o an attack on diversity, onedesigned to cure humanity o its salient characteristic, its innite plurality.71Genocide is an attack on the very nature o what makes an internationalcommunity, a community o diverse peoples. How is an attack on humandiversity an attack on the international community? The attempt to cure

    this or that community o diversity deprives all o us o various possibilitieso being. It diminishes us in the literal as well as in the metaphoric sense.Genocide and crimes against humanity transgress more than the Kantian

    categorical imperative o treating humans as ends rather than as means toends.72 Rather than merely robbing them o their dignity, these crimes makehumans superfuous qua humans, to use an Arendtian description.73 In

    69. ArenDt, supra note 39.70. Id. at 268269. Michael Ignatie makes a similar argument:

    What it means to be a human being, what denes the very identity we share as a species, is theact that we are dierentiated by race, religion, ethnicity, and individual dierence. These dier-entiations dene our identities both as individuals and as species. No other species dierentiatesitsel in this individualized abundance. A sense o otherness, o distinctness, is the very basis othe consciousness o our individuality, and this consciousness, based in dierence, is a constitutiveelement o what it to be a human being. To attack any o these dierencesto round up womenbecause they are women, Jews because they are Jews, whites because they are whites, blacksbecause they are blacks, gays because they are gayis to attack the shared element that makesus what we are as a species.

    Michael Ignatie, Lemkins Word, neW rePuBlIc, 26 Feb. 2001, at 2728.71. hAnnAh ArenDt, vIeS PolItIQueS1 (Paris: Tel/Gallimard 1986). See alsoArenDt, eIchmAnnIn

    JeruSAlem, supra note 39, at 26869. See alsohAnnAh ArenDt, men In DArk tImeS 8194

    (1968).72. Kants categorical imperative teaches us that we should act in such a way that [we]

    always treat humanity, whether in [our] own person or in the person o any other, neversimply as a means, but always at the same time as an end. ImmAnuel kAnt, the morAllAW: grounDWorkForthe metAPhySIcoF morAlS 10607 (h.J. Paton trans., Routledge 2ded. 2005) (1785). Kant makes a similar point on another page: Now I say that man,and in general every rational being, exists as an end in himsel, not merely as a meansor arbitrary use by this or that will; he must always be viewed at the same time as anend. Id. at 105 (emphasis omitted).

    73. In a letter to Jaspers, Arendt wrote this about radical evil:

    What radical evil really is I dont know, but it seems to me it somehow has to do with the ollow-ing phenomenon: making human beings as human beings superfuous (not using them as means

    to an end, which leaves their essence as humans untouched and impinges only on their humandignity; rather making them superfuous.

    See Richard Berstein Are Arendts Refections on Evil Still Relevant? 70 rev Pol 64

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    some sense, slavery, another crime subject to universal jurisdiction, ts thiscategory. Slavery does not simply use humans as means, but it denies theslaves very humanity. Slavery is social death,74 not simply an inringement

    on human dignity.75

    Thus, to some extent slavery is also about curing us odiversity by denominating a class o people as not ully human and thus notpart o us. While genocide is physical extermination o a group, slavery issocial extermination o a group on the basis o some characteristics that aretaken as indicators o the less than human nature o the particular group.Eachphysical and social decimationstries to dene humanity in a waythat excludes a portion o humankind. It is in that sense that one couldargue that crimes such as genocide, slavery, and crimes against humanitydiminish all o us.76

    In the current global condition, the threat o physical extermination ogroups and orms o being, because they are dierent or look dierent, israther high. Likewise, the concern o the international community to preventor minimize that risk is proper. This is both because most nation-states aremultiethnic and multinational and because weapons o mass destruction arebecoming more widely available. Consequently, crimes such as genocideand crimes against humanity have emerged as serious threats to the diverseinternational community we call humankind.77

    So, one aspect o the international community that is imagined through

    the provision o universal jurisdiction is a community o diverse peoples anddiverse ways o being. This diversity denes not only the international com-munity (the community o communities) but the constituent communities(nation-states) as well. An act that attempts to diminish that diversity dimin-ishes all o us, both literally and metaphorically. Consequently, oenses thatare intended to cure us o diversitysuch as genocide and crimes againsthumanityare the concern o all o us.

    74. orlAnDo PAtterSon, FreeDom: volume I: FreeDomInthe mAkIngoF WeStern culture 10 (1991) (In

    all societies the three constitutive eatures o the slave condition [personal domination,natal alienation, perpetual condition o dishonor] add up to a generalized conception oslavery as a state o social death.). See alsoorlAnDo PAtterSon, SlAveryAnD SocIAl DeAth(1982).

    75. Almost all extreme oenses deny human dignity but not all deny the humanity (human-ness) o the individuals.

    76. Apartheid and other institutionalized orms o racism, such as what went on in the UnitedStates or a long period o time, are similar to slavery to the extent that they are basedon the notion that members o a particular group are, by virtue o their skin color, lessthan human.

    77. The term crimes against humanity was apparently coined by an Arican American,George Washington Williams, to describe Belgian atrocities against the natives o Congo

    in the last two decades o the nineteenth century while genocide was coined by theJewish-American Raphael Lemkin in 1944 to describe Nazi German atrocities againstthe Jews Ramesh Thakur Dealing with Guilt Beyond Crime: The Strained Quality o

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    The protection o the constitutive norms could come in one o twowaysby recognizing the particular norm as custom or by codiying it ina treaty. Nothing prevents the international community rom codiying a

    customary norm in a treaty and requiring that member states prosecute orextradite while at the same time recognizing the right o all members o theinternational community to exercise universal jurisdiction over those oensesunder customary international law. As noted earlier, in a strict sense, universal

    jurisdiction is customary in nature, or only then can it be available to allconstituent units o the international community. A treaty binds those andonly those who become parties to it.

    b. A Vulnerale Cmmunity

    Another dening eature o the current international community is its vul-nerability. One could say that the international community consists o com-munities o equal vulnerability. Globalization and new technologies haveincreasingly given substance to the body o an international communitywhile at the same time making that community much more vulnerable todestructive threats. The very processes that have made the world a com-munity o communication have also made it an easier target o destructive

    attacks. Some o the jus cogensnorms could be understood as directed atprotecting the community rom these vulnerabilities.Clearly many threats endanger the well-being and survival o the interna-

    tional community as a whole, but the most immediate source o vulnerabilityis the threat rom terrorism. Every nationrom India to Ethiopia, rom SriLanka to Russia, rom Pakistan to the United Statesis vulnerable to terror-ist attacks.78 Although terrorism has been with us or a very long time,79 thewide-scale threat it poses and the magnitude o the damage it is capableo inficting are qualitatively dierent now. It would make sense, then, to

    recognize universal jurisdiction over oensessuch as terrorismthat areviewed as potential threats to all. Indeed, in some ways the idea o equalvulnerability could explain the recognition o piracy in an earlier era as aninternational crime subject to universal jurisdiction. One could reasonablyargue that piracy only threatened the seaaring powers and their citizens, ratherthan the international community as a whole, as terrorism appears to do.

    78. SeePAul kenneDy, the PArlIAmentoF mAn: the PASt, PreSent, AnD FutureoFthe unIteD nAtIonS246 (2006) (no society on the planet is ree rom random and beastly attack). Kennedy

    goes on to make the point that dealing with terrorism cannot be done by one countryalone, however powerul. Id.

    79 The term terrorism was introduced only in late eighteenth centuryFrance when the young

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    Two lessons may be drawn rom the comparison between piracy andterrorism. First, i the common vulnerability posed to the international com-munity (the community o commerce and navigation) was the main justi-

    cation or subjecting piracy to universal jurisdiction, then clearly terrorismshould also be subject to universal jurisdiction. The challenge rom terrorismis more global than the historical challenge o piracy. Second, the comparisonbetween terrorism and piracy suggests that a sel-dened international com-munity perceives its vulnerabilities as a matter o specic historical conditions.During the seventeenth, eighteenth, nineteenth, and early twentieth centuries,or all practical purposes the sea powers saw themselves as the internationalcommunity. Thus, vulnerability to their commerce and navigation was seenas vulnerability to the entire community. To the extent that communities are

    constructed o social meanings and that [s]ocial meanings are historicalin character,80 it ollows that communities are historical in character. Theinternational community, like any other community, is a creature o specichistorical conditions. In that sense, universal jurisdiction is a marker o theinternational community at a given historical time.

    Although terrorism is a candidate or universal jurisdiction because itthreatens all nations in the same way that piracy did (and in some sense stilldoes), there is good reason or national courts to continue to be suspiciousabout treating terrorism as a universal crime under customary international

    law; there is no agreed upon international denition o terrorism.81

    To besure, there are movements toward such a denition. The Terrorism FinancingConvention o 1999,82 Security Council Resolution 1566,83 and the Report

    80. mIchAel WAlzer, SPhereSoF JuStIce: A DeFenSeoF PlurAlISmAnD eQuAlIty 9 (1983).81. See, e.g., United States v. Youse, 327 F.3d 56 (2d. Cir. 2003).

    Unlike those oenses supporting universal jurisdiction under customary international lawthat is,piracy, war crimes, and crimes against humanitythat now have airly precise denitions and thathave achieved universal condemnations, terrorism is a term as loosely deployed as it is powerully

    charged. . . . [No] consensus has developed on how to properly dene terrorism generally.

    . . . .

    . . . [Such] strenuous disagreement among States about what actions do or do not constitute ter-rorism . . . [means that] terrorismunlike piracy, war crimes, and crimes against humanitydoesnot provide a basis or universal jurisdiction.

    Id. at 10608 (quoting Tel-Oren v. Libyan Arab Rep., 726 F.2d 774, 807 (D.C. Cir 1984)(Bork, J., concurring).

    82. Here is how the Convention denes terrorism:

    [An] act intended to cause death or serious bodily injury to a civilian, or to any other personnot taking an active part in the hostilities in a situation o armed confict, when the purpose osuch act, by its nature or context, is to intimidate a population, or to compel a government or an

    international organization to do or to abstain rom doing any act.International Convention or the Suppression o the Financing o Terrorism, adopted9 Dec 1999 G A Res 54/109 U N GAOR 54th Sess art 2(1)(b) U N Doc A/

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    o the High-Level Panel84 suggest denitions that are more or less similarand could provide the basis or an agreeable account o what constitutesterrorism or the purpose o universal jurisdiction.85 Despite these challenges,

    there are specic actssuch as airplane hijacking and bombingthat areregarded as terrorist acts and to which most states are vulnerable. Terrorismo this nature can truly be said to lead to an international community oequal vulnerability. Not surprisingly, states have acted as a community toprotect themselves rom the common threats posed by these acts.86

    To summarize, the vulnerability thesis suggests three things. First, thethreat o particular crimes or oenses is one to which the overwhelmingnumber o member states o the international community are vulnerable.Crimes such as terrorism threaten most members o the international com-

    munity to the extent that most political communities contain groups thatare dissatised with aspects o political or civic lie and who may viewcoercive, political violence as an eective means o advancing their ends.Second, given technological developments and globalization generally, thethreat o some crimes is increasingly global (trans-border) in nature. Again,terrorism is a good example. Third, some perpetrators o some crimes, suchas terrorism, are no longer localized groups but global entities as well. Aglobal network challenges the global community. A global challenge re-quires a global response. Cheri Bassiouni has correctly observed that the

    only way to make sense o jus cogensnorms is that certain crimes aectthe interest o the world community as a whole because they threaten thepeace and security o humankind.87 This can happen in one o two ways:all constituent members o the international community are vulnerable to

    Convention or the Suppression o the Financing o Terrorism considers as necessary ordenominating an act as terrorist. First, that primary targets are governments, the generalpopulation, or international institutions. Second, the intent o the act is to pressure orintimidate primary targets either to do or to abstain rom doing a particular act. Third,

    the pressure or intimidation is accomplished through secondary targets (civilians or oth-ers not involved in hostilities) by causing or intending to cause death or serious bodilyinjury to thee secondary targets. Fourth, the objectives or which the terrorist acts areengaged in are ideological or political rather than personal or private gains. S.C. Res.1566, U.N. SCOR, 5053th mtg., 4, U.N. Doc. S/RES/1566 (2004).

    84. Report o the High-Level Panel on Threats, Challenges and Change, G.A. Res. 59/565,U.N. GAOR, 59th Sess., Agenda Item 55, 15764, U.N. Doc. A/59/565 (2004).

    85. Id.86. See Convention on Oenses and Certain Other Acts Committed on Board Aircrat,

    adopted14 Sep. 1963, 704 U.N.T.S. 220 (entered into orce4 Dec. 1969); Conventionor the Suppression o Unlawul Seizure o Aircrat, adopted16 Dec. 1970, 860 U.N.T.S.105 (entered into orce14 Oct. 1971); Convention or the Suppression o Unlawul Acts

    Against the Saety o Civil Aviation, adopted23 Sep. 1971, 974 U.N.T.S. 178 (enteredinto orce26 Jan. 1973).

    87 Bassiouni International Crimes supra note 43 at 63 69 See also Quincy Wright War

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    certain crimes such as terrorism or, alternatively, given the globalized natureo our world, an attack on one side o the globe may (and oten does) haveserious consequences or the rest o it. In this sense, the world has become

    like a drumi hit on one end, the whole thing will vibrate.

    C. Diversity and Vulneraility: A Recap

    The international communitys interest in preventing and punishing oensesagainstjus cogensnorms rests on the proposition that we live in a world odiversityo ethnicity, race, and religionand many o the oenses against

    jus cogensnorms specically target that diversity. Because almost all nations

    are patchworks o ethnic, racial, religious, and cultural groups88

    as a resulto globalization and colonialism, an oense that targets people preciselybecause they belong to any o these groups threatens the very nature othe international community. The magnitude o the threat has increased asa result o new technologies o communication and mass destruction. Thetechnical advances that have made large-scale, coordinated attacks oncivilians possible89 have made the international community increasingly acommunity o equal vulnerability.90

    V. CoNSTITUTING THE CoMMUNITY fRoM AboVE AND fRoMbELoW

    I this account o what constitutes an international crime subject to universaljurisdiction is accurate, then those oenses that undermine the internationalcommunity could be punished in at least three ways. First, they could besubject to the jurisdiction o an international tribunal, such as the InternationalCriminal Court (ICC). Indeed, the ICC statute gives the Court jurisdiction or

    violation o most o thejus cogensnorms.91

    88. Luban, supra note 61, at 138.89. Id. at 139. Refecting on this issue Luban observes that the Rwandan genocide could

    hardly have occurred beore the twentieth century. Id.90. In some sense, the two principles that are meant to respond to the acts o diversity

    and vulnerabilityguaranteeing undamental rights and ensuring basic securityarecodied in the UN Charter as the two most important aspirations and purposes o theUnited Nations. Seeu.n. chArter art. 1, signed26 June 1945, 59 Stat. 1031, T.S. No.993 (entered into orce24 Oct. 1945). See alsoAdeno Addis, Economic Sanctions andthe Problem o Evil, 25 hum. rtS. Q. 573, 592 (2003); Larry May, The International Com-munity, Solidarity and the Duty to Aid, 38 J. Soc. PhIl. 185, 18990 (2007) Because

    o the shared interests in peace and basic human rights protection, o all humans in allpolitical communities, we can speak non-metaphorically about the human or interna-tional community )

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    Second, a convention could require states to either prosecute or extraditethose accused o such crimes i they are ound in their territory. A number oconventions contain such provisions.92 Third, those oenses could be subject

    to the jurisdiction o any country that wishes to assert jurisdiction, even i itlacks traditional jurisdictioni.e., proper universal jurisdiction. This is whatwe have reerred to as universal jurisdiction properly so called.

    As a general matter, there is no reason why a particular oense that issaid to undermine the international community could not potentially besubject to all three procedures, even though, prosecution can occur onlyin one orum. In act, that is the case now; currently the crimes subject toICC jurisdiction are also subject (with some modication) to the jurisdictiono every state under customary international law. As a conceptual matter,

    would it be better to subject crimes that are said to be inconsistent withthe very notion o an international community to an international tribunal?That would seem more ecient than to simply authorize each state to assert

    jurisdiction i it so wishes, or to provide in a convention when a state mayassert jurisdiction in relation to a particular crime.

    Hannah Arendt thought that truly international crimes, such as crimesagainst humanity and genocide, should be tried by duly constituted interna-tional tribunals. She approvingly quotes Karl Jaspers regarding the Eichmanntrial: the crime against the Jews was also a crime against mankind, and that

    consequently the verdict can be handed down only by a court o justicerepresenting all mankind.93 Arendt then asserts that insoar as the crime[against Jews] was a crime against humanity, it needed an international tri-bunal to do justice to it.94 Why is it essential that such crimes be prosecutedbeore an international tribunal rather than let to the legal systems o the

    92. See, e.g., Convention or the Suppression o Unlawul Seizure o Aircrat, supra note86, art. 7:

    The Contracting State in the territory o which the alleged oender is ound shall, i it does not

    extradite him, be obliged, without exception whatsoever and whether or not the oence was com-mitted in its territory, to submit the case to its competent authorities or the purpose o prosecu-tion. Those authorities shall take their decision in the same manner as in the case o any ordinaryoence o a serious nature under the law o that State.

    Similar provisions are ound in other conventions such as the Convention againstTorture and Other Cruel, Inhuman, or Degrading Treatment or Punishment, adopted10Dec. 1984, art. 7, 1465 U.N.T.S. 85 (entered into orce26 June 1987); Convention onthe Prevention and Punishment o the Crime o Genocide, adopted9 Dec. 1948, art.4, 78 U.N.T.S. 277 (entered into orce12 Jan. 1951).

    93. ArenDt, eIchmAnnIn JeruSAlem, supra note 39, at 269 (quoting Karl Jaspers, radio interviewlater published in Der Monat) (internal quotes omitted). Jaspers not only saw crimes suchas those committed by the Nazis as crimes against all o us, but interestingly he also

    saw solidarity among men as human beings that makes each co-responsible or everywrong and every injustice in the world, especially or crimes committed in his presenceor with his knowledge kArl JASPerS the QueStIon oF germAn guIlt 32 (E B Ashton trans

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    constituent parts o the international community? The argument here is that,since the attack is on all o us, only all o us, constituting ourselves in aorm o international tribunal, can render a proper verdict. A trial beore a

    state court would minimize the monstrousness o the event95

    and limit theuniversality o the injury.

    One may also add to Arendts observation a practical concern. The in-ternational community (an international tribunal) will more likely ensure notonly punishment but just punishment. It will eliminate the real danger thatstates will misuse the jurisdictional authority or purely partisan and politi-cal purposes96 and consequently undermine the cause o the internationalcommunity. Rather than contributing to the emergence o an internationalcommunity, this will do exactly the opposite. It will sow discord and divi-

    sion rather than consensus and solidarity.Let us rst deal with the issue o misuse. This is a serious concern andit has been aired and explored at various ora.97 Inappropriate assertion ouniversal jurisdiction could occur in two ways. First, every country may de-ne the particular international crime (e.g., genocide) in its domestic law ina way that is dierent rom the way the crime is understood internationally,thus leading to the prosecution and punishment o deendants or crimesthat would not have met international standards. Second, even i the ormalstandard is consistent with international requirements, the prosecution itsel

    could be politically driven. In relation to the rst concern, Anthony Colangeloargues persuasively that i the adjudicative availability o universal jurisdic-tion is a matter o international law, then the prescriptive substance o thecrime that gives rise to such adjudicative competence must also be a mattero international law.98 In other words, states are not allowed to manipulatethe substance o those international crimes. They are instead required toadopt the international denition o crimes that are matters o customaryinternational law.99 To the extent that the granting o universal jurisdiction

    95. The very monstrousness o the events is minimized beore a tribunal that representsone nation only. Id. at 270.

    96. SeeKissinger, supra note 8, at 86, 92.97. See id. at 80, 92; moghAlu, supra note 7, at 98101.98. Anthony J. Colangelo, The Legal Limits o Universal Jurisdiction, 47vA. J. Intl l. 149, 150

    (2006) (I national courts prosecute on grounds o universal jurisdiction, they must use theinternational legal denitionscontained in customary international lawo the universalcrimes they adjudicate; otherwise, their exercise o universal jurisdiction contradicts thevery international law upon which it purports to rely.). See alsoUnited States v. Youse,327 F.3d 56, 8789 (2d. Cir. 2003) (rejecting terrorism as a universal crime on the accountthat there is no agreed international denition o the crime. Unlike those oenses sup-

    porting universal jurisdiction under customary international law . . . that now have precisedenitions . . . terrorism is a term as loosely deployed as it is powerully charged.).

    99 A good example o an erroneous denition o international crimes is the Ethiopian Penal

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    presupposes application o a standardized denition under customary in-ternational law, the possibility o misuse will decrease.

    As to the second concern, it is true that there are likely to be attempts

    by one or another segment o a political community to use universal jurisdiction or political purposes. The worry that it would be utilizedmainly against citizens and ocials o weak and vulnerable states isnot an unreasonable concern,100 but the ear may be exaggerated. Tobegin, the vulnerability o weak states may not be signicantly dierentrom their vulnerability to improper imperial intererence using other,seemingly more traditional, bases o jurisdiction. Territorial, protective,and nationality jurisdictions could be, and have been, utilized or politi-cal purposes as well. Also, there are sucient political,101 legal,102 and

    genocide and crimes against humanity into one oense and applies the internationaldenition o genocide to that combined oense. The oense o crimes against humanityis essentially deemed to be a orm o genocide. In act, not only does the Penal Codeattempt to apply the denition o genocide to crimes against humanity, but its descriptiono what constitutes genocide is contradictory to the accepted international denition ogenocide, because the Codes denition o genocide includes political groups as parto the list o groups whose attack may lead to a charge o genocide. Indeed, recentlythe government convicted members o the opposition or genocide or activities thateven i the allegation were true (and it was not) would have not given rise to a chargeo genocide under international law. To some extent, the Spanish courts denition ogenocide in the Pinochet case was also inconsistent with the international denition tothe extent that it included political groups in the category o national groups. Sincethe 1948 Genocide Convention, supra note 92, genocide has been dened to have asvictims the ollowing groups only: national, ethnic, racial or religious groups. Forthe proposition that the Spanish court mischaracterized the oense o genocide in thePinochet case, seethe PInochet PAPerS: the cASeoF AuguSto PInochet In SPAInAnD BrItAIn103104 (Reed Brody & Michael Ratner eds., 2000).

    100. Edward Kwakwa, The Cairo-Arusha Principles on Universal Jurisdiction in Respect oGross Human Rights Oenses: Developing the Frontiers o the Principle o UniversalJurisdiction, 2002 AFr. y.B. Intl l. 407, 415. See alsoArrest Warrant o 11 Apr. 2000(Dem. Rep. Congo v. Belg.), 2002 I.c.J. 3, 43 (14 Feb.) (separate opinion o PresidentGuillaume) (arguing that universal jurisdiction would create judicial chaos and that

    condition would only benet the powerul). One academic has pithily observed, Whatwould happen i an Arican state like Djibouti would prosecute let us say a national othe United States or crimes against humanity? The prosecuting state would either bebombed or will not receive aid rom the World Bank. moghAlu, supra note 7, at 100.One need not dream up a hypothetical to indicate that citizens o powerul nations areless likely to be indicted by courts o other countries. The quick death o the Belgiumuniversal jurisdiction statute as a result o US pressure or ear that ormer or currentocials could be subject to indictment under the law is a clear example.

    101. It is, or example, international political pressure that led to the repeal o the contro-versial Belgian war crimes statute that asserted universal jurisdiction or certain crimesand under which an arrest warrant against a ormer ocial o the Democratic Republico the Congo was issued. For a postmortem o the statute, see Steven Ratner, Belgiums

    War Crimes Statute: A Postmortem, 97 Am. J. Intl l. 888 (2003).102. As I have argued, the jurisdiction should only be available or criminal cases. Civil cases

    would innitely multiply the occasions because o the act that individuals initiate the

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    institutional103 constraints that will ensure that the occasions o politicaluse o universal jurisdiction are minimized.104 Indeed, the worry may bethat states will continue to be too hesitant to invoke universal jurisdic-

    tion rather than that they will be too aggressive and too political aboutit. Available evidence suggests that to be the case.105

    I the issue o political misuse is not suciently serious to dictate trialbeore international tribunals only, what about Arendts observation that onlya trial beore such a tribunal will capture the seriousness o the crime and itsinjury to the international community as a whole? A trial beore an interna-tional tribunal would indeed signal how seriously