By: Jeremy A. Rabkin and Craig S. Lerner
A German court recently convicted a minor Syrian official of abuses committed in Syria’s civil war. The case was announced with fanfare but has since stirred no interest. Nor should this be surprising. The world has been here before. There was intense excitement in 1998, when British authorities arrested Augusto Pinochet, the former president of Chile, for human rights abuses committed in Chile. It was taken at the time as vindicating the doctrine that the worst human rights abuses fall under “universal jurisdiction,” allowing any state to prosecute, even for crimes against foreign nationals on foreign territory. As generally acknowledged today, this “watershed” produced barely a trickle of consequences. Notably, no former head of state has been prosecuted by another state under this rubric. Commentators have remarked upon the disappointing results but not offered much to account for them. This Article is the first to address this puzzle by situating “universal jurisdiction,” as a technical doctrine, in the context of its broader impulse, sometimes called “transnational justice”––or previously, “cosmopolitan justice.” The underlying claim is that otherwise rivalrous nation-states can and should affirm a broader commonality in prosecuting offenses universally acknowledged to be crimes against humanity. Although the idea has inspired human rights activists, it has failed to engage prosecutors. In analyzing the resulting pattern, this Article makes two central claims. First, the recurring failures of transnational justice cannot be explained by the project’s novelty. Centuries ago, the most prominent Enlightenment thinkers endorsed a version of cosmopolitan justice. It was later advocated as a doctrine that might justify interstate prosecutions within the United States. Such doctrines have never been embraced, however, by courts or even by prosecutors.