Benjamin Bestgen

Among the most notable (publicly known) achievements of the Israeli secret service Mossad was the capture of high-ranking Nazi Adolf Eichmann and his transfer from Argentina to Israel. Despite the undisputed illegality of his kidnapping, upon arrival in Israel, Eichmann was afforded all rights of due process and a fair, internationally observed trial. He was sentenced to death and after an unsuccessful appeal and petitions for clemency ultimately executed for his role in the Holocaust and other war crimes. 

The kidnapping, however, caused a diplomatic incident: Israel hadn’t asked for Argentinian judicial assistance in the Eichmann case due to Argentina’s tendency at the time to delay, ignore or decline extradition requests regarding Nazi criminals hiding there. Argentina complained to the United Nations Security Council that Israel’s decision to send secret operatives and kidnap Eichmann was illegal and violated Argentina’s sovereignty. The UN Security Council agreed and issued Resolution 138, stating that Israel’s actions were in violation of international law and a danger to international peace and security. Israel admitted the violation of Argentina’s sovereignty and the two states subsequently issued a joint declaration that the dispute had been negotiated and resolved.

Universal jurisdiction

While Argentina’s protests about the violation of its sovereignty were legally and politically justified, moral condemnation of Israel for Eichmann’s kidnapping was harder to muster. Given the enormity of the Nazis’ crimes, Eichmann’s prominent position in that regime and Argentina’s record of sheltering fugitive Nazis instead of bringing them to justice, a kidnapping was the lesser evil for achieving the greater good, namely bringing a Nazi bureaucrat accused of the killing of millions of people to trial. However, such a consequentialist, utilitarian position is not unproblematic and not a legal response to Israel’s dilemma: they knew where Eichmann was but also knew that Israel had no jurisdiction over him in Argentina and that Argentina was unlikely to provide judicial assistance.

Eichmann, like many other people in both criminal and civil cases throughout the ages, exercised jurisdictional arbitrage: he took himself to a jurisdiction that would be favourable or at least not hostile to his particular situation. However, it seems morally and legally perverse that people accused of exceptionally serious crimes, such as Eichmann, should be able to hide anywhere.

Therefore, to provide legitimacy to the prosecution of accused persons or known fugitive criminals beyond your own country’s borders, many states and international organisations acknowledge the concept of universal jurisdiction – that certain crimes should be prosecuted and accused persons should be tried regardless of their nationality, citizenship, residence, location of the crime or indeed whether the prosecuting authority has any relation to the accused.

Enemies of mankind

International law is founded on the languages of old Western diplomacy, with many Latin concepts being key to its foundations. Ius cogens (“compelling law”) is the principle that certain norms are fundamental to the international order and humanity and no state or country may depart from them. 

There is no globally agreed list of what exactly falls under ius cogens but commonly included are:

• Genocide
• Various war crimes (including the use of child soldiers or most recently in 2008 rape as a weapon of war under UN Security Council Resolution 1820)
• Apartheid and slavery in all forms
• Torture
• Wars of aggression
• Maritime piracy
• Certain other crimes against humanity, e.g. forced sterilisation; forced disappearances; forced uprooting and resettling of populations; religious, political or racial persecutions; refoulement of asylum seekers and war refugees.

People accused of participating in such crimes are considered hostis humani generis (“enemies of mankind”), the prosecution of such offences being an obligation every state owes erga omnes (“towards everyone”).

The future of universal jurisdiction

It is important to distinguish universal jurisdiction from extraterritorial effect. Many countries pass domestic laws whose effects extend beyond their own borders, such as US tax laws or the UK’s Bribery Act 2010 (s.12) or Sexual Offences Act 2003 (s.72). Universal jurisdiction, in contrast, is more akin to jurisdiction by virtue of being part of humanity and the international community. It derives its legitimacy and obligatory force by international acknowledgement rather than domestic laws.

Critics argue that universal jurisdiction violates the principle of sovereign equality in Article 2 of the Charter of the United Nations. As any country can set up a tribunal claiming to act under universal jurisdiction, the risk of political and judicial abuse of such tribunals is obvious. Notably, US diplomats used such reasoning to justify the US’ refusal to acknowledge the jurisdiction of the International Criminal Court while bristling at the accusation that the US’ position was motivated by ensuring their own politicians and military could not be prosecuted for a variety of alleged war crimes.

Overall, universal jurisdiction is a widely accepted principle in international law and unlikely to lose importance: countries as diverse as Germany, Israel, France, Spain, Australia, Belgium, Senegal, the UK or Canada accepted, lodged, conducted, investigated or concluded legal proceedings under universal jurisdiction rules.

Further, debates about environmental protection are likely to gain even more prominence and may come under universal jurisdiction. Relying on national sovereignty and national laws as solutions to a transnational, global problem has led us nowhere. Hazardous drilling, mining, land grabbing, deforestation and environmental pollution are arguably offences against our planet and humanity. It will be interesting to see if humankind can drop petty nationalism and truly pull together on this one.

Benjamin Bestgen is a solicitor and notary public (qualified in Scotland). He also holds a Master of Arts degree in philosophy and tutored in practical philosophy and jurisprudence at the Goethe Universität Frankfurt am Main and the University of Edinburgh.