Maximo Langer, UCLA School of Law

The Diplomacy of Universal Jurisdiction: The Regulating Role of the Political Branches in the Transnational Prosecution of International Crimes

Mon, 09/27/2010
4:30-6:00 PM, Library Lounge, Bendheim Center for Finance
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We hope you will join us for the first LAPA Seminar of 2010-2011, with Máximo  Langer, Professor of Law at the University of California, Los Angeles, and Visiting Professor of Law, NYU School of Law (2010-2011).  The title of his talk is "The Diplomacy of Universal Jurisdiction: The Regulating Role of the Political Branches in the Transnational Prosecution of International Crimes."  His commentator will be Robert Keohane Professor of Public and International Affairs, Woodrow Wilson School.

Professor Langer writes: "Defenders of universal jurisdiction claim that it is a crucial tool to bring justice to victims, to deter State or quasi-state officials from committing international crimes, and to establish a minimum international rule of law by substantially closing the "impunity gap" regarding international crimes. Critics of the regime argue that universal jurisdiction disrupts international relations, provokes judicial chaos, and interferes with political solutions to mass atrocities. One of the issues missing in this debate is the role of the political branches, specifically the executive and the legislature. By identifying the main incentives for political branches in universal jurisdiction cases and explaining the relationship among these incentives, this article articulates a theoretical framework that (1) accounts for the current state of universal jurisdiction, (2) predicts how universal jurisdiction is likely to evolve in the future, and (3) provides what should be a starting point for any non-ideal-world normative assessment of universal jurisdiction as well as for the institutional design of the universal jurisdiction regime.  This article shows two ways in which political branches of individual States have acted consistently with the incentive structure this article identifies. First, relying on the results of a first-of-its-kind survey carried out for this project that aims at covering all universal jurisdiction cases brought since Eichmann, this article will show that universal jurisdiction defendants who have gone to trial are the type of defendants that the international community has most clearly agreed should be prosecuted and punished and that their own States of nationality have not defended - actors that make more likely that the political benefits of universal jurisdiction trials outweigh the costs. Second, relying on statutes, judicial decisions, and other materials in their original language, this article will show how these incentives explain State behavior through analysis of case-studies from five States - Germany, England, France, Belgium, and Spain.  This article also explores some of the more significant normative and institutional design implications of its theoretical framework and empirical findings. Key among these is the fact that universal jurisdiction will never establish a minimum international rule of law - that is, it will never substantially close the "impunity gap" regarding international crimes - given that high-cost, most mid-cost, and many low-cost defendants are beyond the reach of the universal jurisdiction enforcement regime. This article's findings also suggest that a number of common criticisms of universal jurisdiction are unfounded, given that States have incentives to concentrate on defendants against whom there is broad agreement in the international community and whose own States of nationality are not willing to defend. For these reasons, universal jurisdiction is unlikely to lead to unmanageable international tensions, to judicial chaos, or to interference with political solutions to mass atrocities."

Máximo Langer is Professor of Law at the University of California, Los Angeles; is currently a Visiting Professor of Law at NYU School of Law; and has been the Louis D. Brandeis Visiting Professor of Law at Harvard Law School and Visiting Professor of Law at Di Tella University School of Law in Argentina.  He writes and teaches on domestic, comparative and international criminal law and procedure. Professor Langer received his LL.B. from the University of Buenos Aires Law School (1995), where he was editor of the University of Buenos Aires Law Review, was awarded the Fundación Universitaria del Rio de la Plata Fellowship and graduated in the top 1% of his class. He received his S.J.D. from Harvard Law School (2006). At Harvard, he was awarded several fellowships, including the Edmond J. Safra Graduate Fellowship in Ethics from the Harvard University Center for Ethics and a Fellowship of the Center for Studies and Research in International Law and International Relations from The Hague Academy of International Law.  Professor Langer has published articles and book chapters in English and Spanish on criminal law and procedure, and his work has been translated to Chinese and Spanish. His article "The Rise of Managerial Judging in International Criminal Law" was selected for the 2006 Stanford/Yale Junior Faculty Forum in the Public International Law Category, and won the 2007 Hessel Yntema Prize by the American Society of Comparative Law for "Most Outstanding Article Published by a Scholar under 40" in a recent volume of the American Journal of Comparative Law. His article "Revolution in Latin American Criminal Procedure: Diffusion of Legal Ideas from the Periphery" was awarded the 2007 Margaret Popkin Award by the Latin American Studies Association (LASA) for "Best Paper on the Law" presented at the XXVII LASA International Congress.  In addition to the paper presented here, Professor Langer is currently working on a book entitled "Global Perspectives on Criminal Procedure" (with Carol S. Steiker) (Oxford University Press, forthcoming 2012).

Robert O. Keohane is Professor of International Affairs, Princeton University. He is the author of After Hegemony: Cooperation and Discord in the World Political Economy (1984) and Power and Governance in a Partially Globalized World (2002). He is co-author (with Joseph S. Nye, Jr.) of Power and Interdependence (third edition 2001), and (with Gary King and Sidney Verba) of Designing Social Inquiry (1994). He has served as the editor of the journal International Organization and as president of the International Studies Association and the American Political Science Association. He won the Grawemeyer Award for Ideas Improving World Order, 1989, and the Johan Skytte Prize in Political Science, 2005. He is a member of the American Academy of Arts and Sciences, the American Philosophical Society, and the National Academy of Sciences. He has received honorary degrees from the University of Aarhus, Denmark, and Science Po in Paris, and is the Harold Lasswell Fellow (2007-08) of the American Academy of Political and Social Science.