A Radical Rejection of Universal Jurisdiction
I want to look at the universal jurisdiction principle of Noah Feldman’s proposed minimum legal cosmopolitanism from the following hypothetical perspective. Suppose I were a voting member of an international organization considering whether to recognize this principle as binding international law, which would authorize any judge anywhere to exercise jurisdiction over every heinous crime, regardless of the defendant’s nationality. Would I vote to recognize the principle?
To consider this question, I would have to consider the following three questions: First, the judges of which countries are more likely to exercise jurisdiction over such cases? Second, what kind of crimes are more likely to be deemed “heinous” by those judges? Third, what would be the effect of those judges’ decisions on the overall balance of power in the world? We cannot answer questions like these without reference to our political convictions and our overall view of what is good and bad in the world.
I approach these questions as a radical. My political perspective understands the world as enmeshed in a struggle for various forms of power—military, political, and economic. Heinous crimes are committed by many different groups and organizations in various positions in these struggles: authoritarian regimes, nationalist ethnic cleansers, terrorists, movements of liberation, imperial powers, and states trying to control rebellious populations. In other words, heinous crimes are committed both by those unjustly exercising power over others and by those unjustly bearing the yoke of power. As a radical, I both condemn heinous crimes and support movements of resistance against power.
Feldman’s rule would enter the fray of this world of struggle, tipping the balance toward the side of the powerful. Returning to the three questions I posed above, here are the answers that I would predict if Feldman’s proposal were put into effect.
First, who would judge? The courts in countries that are more affluent and that consequently possess superior political, diplomatic, and military power. In practical terms, these countries are far more likely to be immune from outside political pressure, to be able to use force to arrest criminals, and to mobilize their electorates to support their decision to exercise jurisdiction over heinous crimes committed overseas.
Second, which crimes would be judged? The judges in rich countries are far more likely to prosecute the heinous crimes of resistance movements, for example, the “Palestinian Terrorism” of suicide bombing—which I, as a radical, agree are heinous. However, those judges are far less likely to prosecute crimes committed by rich and powerful states that only radicals such as myself consider heinous—for example, the “Israeli Terrorism” of assassinating Palestinians through air strikes. Such attacks are criminal because they are carried out with indifference to civilian deaths and because they punish so-called-militants without proof or trial.
Third, how would these judgments affect the balance of power in the world? The result would be that over time, the balance of power between Palestinians and Israelis would shift to the benefit of the Israelis. Israelis’ capacity to kill with impunity would increase. Palestinian capacity to resist the colonial power of the Israelis would decrease, as would the capacity of similar resistance movements in other colonial states.
As well-intentioned as Feldman might be, he does not adequately recognize that consensus over which crimes are “heinous” still works within a context of power in the world and still depends on one’s attitude towards that context of power. If I were asked to vote on Feldman’s proposed rule, I would vote nay. Even though it might put some bad people away, it would also, in the long run, be bad for my people.
My analysis, I realize, is open to the objection that the literature on universal jurisdiction strongly suggests that powerful countries, especially Israel and the United States, are opposed to universal jurisdiction. But while it is true that Israel is strongly opposed, my research indicates that the prospect of another country exercising jurisdiction over Israeli officials and ex-officials has thus far proven to be no more than an irritant. The two attempts to sue ex-Israeli generals in U.S. courts have been dismissed. The case against Israeli ex-prime minister Ariel Sharon in Belgium was also dismissed by the highest court in that country. In fact, in the context of the Palestinian-Israeli conflict, the only successful use of universal jurisdiction that I am aware of was at the expense of the Palestinian side of the conflict. In Almog v. Arab Bank, the Arab Bank was held liable for serving organizations considered “terrorist” under U.S. law and for providing financial services to donors to the families of dead suicide bombers. The bank was held liable in this case for aiding and abetting terrorism under the Patriot Act, Alien Torts Act, and various other U.S. laws.
Citizens of Israeli and the United States appear worried about the “rogue” leftist judge who might look with disfavor upon Israel’s or the United States’ actions. Since the European media and public is quite critical of Israeli policies and actions and is antagonistic to U.S. imperial ventures, a judge hostile to U.S. and Israeli officials is far more likely to be encountered in Europe than in the United States. And indeed, if the world were to follow Feldman’s proposals, such a judge would convict some of those whom I consider bad actors. It is my sense, however, that such judges would be scarce, because judges are in general quite attuned to their countries’ diplomatic interests. I predict that judges would not dare cause a serious diplomatic rift between their countries and Israel or the United States. And since the prevailing political sentiment in Europe at the moment is that neither Israel nor the United States should be too antagonized, the likelihood of judges prosecuting U.S. or Israeli officials seems to me quite low. The dismissal of the case against Ariel Sharon in Belgium, while of course reasoned legally by the Belgian Court of Cassation, points in that direction. What deeply worries me, therefore, is that while Israel may have the power to exert diplomatic pressure on judges in Europe, the Palestinians would be left, under Feldman’s proposal, exposed and defenseless in a very antagonistic United States.
If one had any doubt about the extent to which judges act ideologically, one should read the Almog opinion. The court adopts a version of the Palestinian-Israeli conflict that is uncannily similar to the official Israeli version. Of course, the ground for such a view was laid down in the 1990s by a series of federal laws that define “terrorism” so that the term applies squarely to the Palestinian/Arab side of the conflict. With such a background of ideology and legislation, it is no wonder that the Almog court describes Israel as defenseless, innocent, and facing extinction by violent Palestinians sworn to the destruction of the Israeli state.
I hope that my analysis has alerted the reader that we cannot consider proposals like Feldman’s without attempting messy calculations such as the ones I made above. Messy calculations about who wins and who loses, and not some abstract and general sense of what is “right,” should guide us as we consider whether to support such proposals.
Lama Abu Odeh is Professor of Law at Georgetown University Law Center. She has authored several articles on Islamic and comparative law.
Preferred Citation: Lama Abu Odeh, A Radical Rejection of Universal Jurisdiction, 116 Yale L.J. Pocket Part 393 (2007), http://yalelawjournal.org/forum/a-radical-rejection-of-universal-jurisdiction.