Universal Jurisdiction on the Decline?

Universal jurisdiction is a principle of international law under which a state can exercise jurisdiction over alleged crimes that were committed outside of the state's national boundaries. According to proponents of universal jurisdiction, like Amnesty International, some crimes under international law, like genocide, crimes against humanity, war crimes, torture, extrajudicial executions and enforced disappearances are so serious that "the national criminal and civil justice systems of all countries [should] step in to prosecute the crimes on behalf of the international community and award reparations to victims."

Universal jurisdiction is controversial, especially when international comity and political considerations make its exercise less attractive.

Spanish law recognizes universal jurisdiction and it is under this principle that a Spanish investigating magistrate, Baltasar Garzon, ordered an investigation into whether six senior Bush administration officials, including his Attorney General Alberto Gonzales, were responsible for "an authorized and systematic plan for torture."

However, on Tuesday, the Spanish legislature voted overwhelmingly in favor of a resolution that would limit the application of universal jurisdiction to cases in which Spain has a substantial link.

While only one person has ever been convicted in Spain in a case brought under universal jurisdiction, proponents point out that simply investigating conduct draws attention to it and those who engage in it. This certainly seems to be the case in the US as Judge Garzon's investigation has sparked extensive national debate and dialogue about the role of torture in national security policy and the appropriate means of investigating its use thus far.

Gonzalo Boye is a human rights lawyer who brought the initial case against the Bush administration officials. He thinks his actions helped move the U.S. debate over harsh interrogation techniques at Guantanamo.

"Well, I think in America this was something that was on the agenda, and people were talking about that but until they saw really that there is a problem and that they may face charges outside the U.S., then they took it seriously," he says.

Americans should embrace universal jurisdiction, he says, because America was once one of the early proponents of the idea — at the Nuremberg trials of Nazi leaders after World War II.