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94 Notre Dame L. Rev. 1417 (2018-2019)
The Parochial Uses of Universal Jurisdiction

handle is hein.journals/tndl94 and id is 1455 raw text is: THE PAROCHIAL USES OF UNIVERSAL JURISDICTION Eugene Kontorovich * This Article presents a new account of the function served by universal jurisdiction (UJ). This doctrine-one of the most diplomatically controversial in modern international law- allows states to prosecute certain grave international crimes, even committed abroad, and with no connection to the prosecuting state. This Article shows that, far from being used as a tool of global policing the UJ doctrine is, in practice, used to protect the parochial domestic interests of the prosecuting state. In showing this, this Article reconciles several paradoxes related to UJ-its broad and longstanding norma- tive acceptance by states contrasted with its extremely rare application; and its tension with a rational model of state action contrasted with its apparent embrace by states. Unlike the numer- ous normative or aspirational theories of (, this account builds up from a comprehensive review of almost all UJ cases over the past two hundred years. It finds a surprising common element among them. In the overwhelming majority of UJ cases, both over piracy and human rights offenses, the forum state actually has a direct, differen- tiable, parochial connection with the offense. While the nominal purpose of U is to allow states to prosecute crimes without any nexus to the offense-to enforce a global legal order-in practice it is almost exclusively used by states in precisely the cases where such a nexus exists. Universal jurisdiction is useful in cases where, despite a concrete link between the forum state and the defendant, prosecution under traditional jurisdictional theories would be impossible due to other legal or practical impediments. In short, (J is, in practice, a kind of catchall or safety net that facilitates dealing with extraterritorial crimes with a strong domestic nexus, when the standard legal tools for such prosecutions prove inadequate. It is not, however, used by states to enforce broad notions of global justice and the prevention of impunity. The specific parochial uses of Uf have changed over time. For piracy, UJ was a shortcut designed to facilitate the proof of traditional territorial or national jurisdiction in cases where such a nexus with the forum state probably existed but would be difficult to prove. Such problems of jurisdictional proof were commonplace in piracy, where a variety of ruses adapted by pirates, and other circumstances, often made establishing the nationality of vessels or victims difficult. In the recent boom in universal piracy prosecutions, the doctrine again served parochial state interests by allowingfor prosecutions in cases with a clear domestic nexus that would not be covered by other jurisdictional grounds. The rise offlags of convenience severed the formal juris- dictional links between nations with shipping companies and the vessels they own and operate. UJ allowed maritime nations to prosecute attacks on vessels owned by their nationals, but flagged © 2019 Eugene Kontorovich. Individuals and nonprofit institutions may reproduce and distribute copies of this Article in any format at or below cost, for educational purposes, so long as each copy identifies the author, provides a citation to the Notre Dame Law Review, and includes this provision in the copyright notice. * Professor, George Mason University Antonin Scalia Law School.

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