Kiobel redux: Universal jurisdiction gets ever less universal

February 13

The Spanish legislature just passed a measure that would almost entirely eliminate universal jurisdiction (UJ) prosecutions in that country. Spain has been known as one of the standard-bearers for UJ – the notion that any country in the world can prosecute certain serious offenses. Spain had already cut back on UJ a few years ago, and the new legislation only allows prosecution for foreign conduct when the defendant has taken up residence in the Spain.

The new move puts Spain in good and broad company. Last year, the Supreme Court in Kiobel v. Royal Dutch Petroleum put an end to a practice adopted by lower courts of allowing civil universal jurisdiction suits in federal courts – that is, suits alleging violations of international law involving only foreigners with no connection to the United States.

In a forthcoming article, “Kiobel Surprise: Unexpected by Scholars but Consistent with International Trends,” I explain that Kiobel should be viewed against the broader background of a global retreat from universal jurisdiction (and there was very little actual UJ activity to retreat from in the first place). The new Spanish law reaffirms this point. It is hard to assume the Congress in the Alien Tort Act, by referring generally to “law of nations” cases, authorized federal courts to go to the absolute furthest reaches of theoretical international law. Or to put it differently, actions like Spain’s show that at most UJ is a highly discretionary part of international law, and not one that courts could assume to exercise with only implicit authorization.

The background behind Spain’s legislative move also highlights the folly of UJ. A Spanish judge had decided to indict senior Chinese leaders for crimes against Tibetans. Beijing was predictably both angry and amused. The judge’s action was obviously futile and symbolic – a PR stunt – that will not help Tibetans but could hurt Spain. With unemployment at 25 percent, Spaniards would be right to wonder why their officials were using taxpayer resources for other peoples’ problems and simultaneously risking even more Iberian jobs.

Still, Spanish judges and lawyers who want to enforce international justice can still keep themselves busy after the new reform. They might consider, for a change, pursuing Spanish violations of international law – even war crimes cases. War crimes? Certainly. The theory that doing business in occupied territory is a war crime – while entirely contrived and against broad and general state practice – underlines the EU’s approach to financial involvement with Israel.

How does Spain fit in? Spanish companies are at the forefront of working alongside Morocco to exploit the natural resources of occupied Western Sahara. Indeed, it was Spain that campaigned heavily for the EU to sign a treaty this summer actually recognizing Morocco’s control of Western Sahara, and paying for the privilege of having EU companies operate there.

Crusading Spanish judges are going after Moroccan officials involved in the occupation, but now that is off the table. Grandstanding judges will need a new hobby. Can we soon expect to see war crimes prosecutions of Spanish fishing and mining companies? Certainly this would be a wonderful opportunity for Spanish international lawyers to prove that European criticisms of Israel are not contrived and inconsistent with the rest of their practice.

Of course, it won’t happen anyway. And that is probably the best sign of the absurdity of the legal theory – that it won’t even be adopted by the crowd that, in no attempt at a “Saturday Night Live” parody, sought charges against the still-deceased Generalissimo Franco.

Eugene Kontorovich is a professor at Northwestern University School of Law, and an expert on constitutional and international law. He also writes and lectures frequently about the Arab-Israel conflict. His academic work has been published in top law reviews, and relied on in historic judicial opinions in the U.S. and abroad. He has also advised the U.S. and Israel governments on international legal challenges. He has been honored with a fellowship at the Institute for Advanced Studies and the Bator Award from the Federalist Society, for leading professors under 40. After law school at the University of Chicago, he clerked for Judge Richard Posner on the U.S. Court of Appeals.
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