Universal tort jurisdiction over gross human rights violations

Abstract

Some states, the United States in particular, have allowed their courts to exercise universal tort jurisdiction over gross human rights violations, i.e., to hear complaints for damages by victims of such violations committed abroad. It is argued that, from a policy perspective, universal tort jurisdiction has some distinctive advantages over universal criminal jurisdiction; in particular, it may take victims more seriously. On the downside, it may possibly serve the function of morally condemning gross human rights violations less well. From a legal perspective, concerns have been raised over the legality of exercising universal tort jurisdiction under international law. It is submitted nevertheless that the fact that only a limited number of states allow the exercise of universal tort jurisdiction is not fatal to the lawfulness of such jurisdiction under international law. These states may not provide for universal tort jurisdiction because they prefer criminal justice solutions, rather than because they consider such jurisdiction to be internationally unlawful. There is, in addition, no evidence of substantial international protest against assertions of universal tort jurisdiction. As a result, there is as of yet insufficient evidence of a customary international law norm outlawing universal tort jurisdiction having crystallized.