Universal jurisdiction in U.S. law

Our domestic law claims jurisdiction over torture committed anywhere in the world.

A follow-up to James Wimberley’s point: While the U.S. may oppose universal jurisdiction in some fora, it’s no stranger to U.S. law. Consider, for example, the torture statute:

(a) Offense.— Whoever outside the United States commits or attempts to commit torture shall be fined under this title or imprisoned not more than 20 years, or both, and if death results to any person from conduct prohibited by this subsection, shall be punished by death or imprisoned for any term of years or for life.

(b) Jurisdiction.— There is jurisdiction over the activity prohibited in subsection (a) if—

(1) the alleged offender is a national of the United States; or

(2) the alleged offender is present in the United States, irrespective of the nationality of the victim or alleged offender.

Note that its scope is restricted to actions that do *not* take place on U.S. soil. (Though the conspiracy section of the law presumably would cover someone in Washington who ordered someone to commit torture at, let’s say, Guantanamo or Abu Ghraib or a camp in Afghanistan or a secret prison somewhere in Eastern Europe.) All that’s required for jursisdiction over non-U.S. nationals is that the perp be physically present in the United States. No other nexus is necessary; neither the victims nor the perpetrators need be U.S. nationals.

We have thereby defined torturers, like priates and slavers, as hostes humani generis. Seems right to me.

Therefore, a former French defense minister who had ordered torture could be tried under U.S. law if he were imprudent enough to come to the U.S. without diplomatic immunity. Conversely, if French law were identical to U.S. law, and if Rumsfeld set foot in France without diplomatic immunity, French courts could try him for conspiracy to commit torture.

In France, unlike in the U.S., Rumsfeld wouldn’t face the death penalty. Quel dommage!

Author: Mark Kleiman

Professor of Public Policy at the NYU Marron Institute for Urban Management and editor of the Journal of Drug Policy Analysis. Teaches about the methods of policy analysis about drug abuse control and crime control policy, working out the implications of two principles: that swift and certain sanctions don't have to be severe to be effective, and that well-designed threats usually don't have to be carried out. Books: Drugs and Drug Policy: What Everyone Needs to Know (with Jonathan Caulkins and Angela Hawken) When Brute Force Fails: How to Have Less Crime and Less Punishment (Princeton, 2009; named one of the "books of the year" by The Economist Against Excess: Drug Policy for Results (Basic, 1993) Marijuana: Costs of Abuse, Costs of Control (Greenwood, 1989) UCLA Homepage Curriculum Vitae Contact: Markarkleiman-at-gmail.com