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Reconsidering Universal Jurisdiction

February 12, 2010

Ryan Harding in Diplomatic Courier:

In mid-December 2009, the moment news surfaced that a warrant had been issued in Britain for the arrest of former Israeli foreign minister Tzipi Livni, fault lines began to appear around the idea of universal jurisdiction—the idea that states have the ability to prosecute perpetrators of war crimes and human rights violations regardless of whether connections exist between the state and those crimes in question.

Like Spain earlier in 2009, British leaders recanted, promising to revise the law which allows the courts the ability to make use of this peculiar legal tool.  The warrant forced Britain’s political leaders into a rather compromising position, as it put minor strain on, and drove Israel to question the sincerity of Britain’s commitment to UK-Israel relations.  However, Britain’s knee-jerk political response to this diplomatically-challenging situation is but a subtext to what is a far more critical story relating to the future of universal jurisdiction and legal cosmopolitanism.

While many human rights groups, for the most part, defended (and still defend) the manner in which this legal instrument has been applied, others—like former Permanent Representative to the UN John Bolton—brazenly questioned not only how universal jurisdiction was used in this one circumstance, but the principle’s merits as well as its underlying justification. And although some, particularly proponents of the idea of universal jurisdiction, might find Bolton’s analysis of universal jurisdiction, which he committed to the pages of The Wall Street Journal, unpalatable, it did raise some interesting issues about universal jurisdiction—issues that have troubled the minds of legal scholars and politicians alike.

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