“Chucky” Taylor, son of former Liberian President (and current war crimes defendant) Charles Taylor, was convicted Friday in Florida federal court of committing torture when he was with his father in Liberia.

What makes Taylor’s conviction news (although only news overseas, apparently, since it didn’t make any of the leading U.S. newspapers) is that it is the first conviction under the 1994 Extraterritorial Torture Statute, 18 U.S.C. 2340 and 2340A, which was enacted to implement U.S. obligations under the Convention Against Torture (for an interesting profile of Chucky in Rolling Stone, see here).  This statute has a very broad scope and is one of those few U.S. criminal statutes that appears to embrace a theory of universal jurisdiction.  Typically, U.S. criminal statutes confine themselves to prescriptive jurisdiction based on territory, effects, nationality, etc.  But 18 USC 2340(A)(b) makes clear that this statute applies to acts committed in a foreign country whether or not the defendant is a U.S. national or whether or not the victim is a U.S. national.

The district court in this case rejected a number of constitutional challenges to the law, citing the treaty power and the “define and punish offences against the law of nations” power as the source of congressional authority under the act.  I haven’t examined these arguments carefully, but they sound right to me although there is, as far as I know, relatively little judicial precedent on these questions. The most difficult challenge is not presented here, but might be presented in a future case involving the prosecution of a non-U.S. national for actions he or she took outside the territory of the U.S. that did not affect any U.S. nationals or U.S. interests.  In other words, has Congress embraced a theory of universal jurisdiction in 18 USC 2340(A)(b)? It certainly seems that way.  Take a look for yourself:

(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.

Are there limits to Congress’ power to criminalize under universal jurisdiction? There might be, as Professor Eugene Kontorovich has argued cogently here and here, although maybe not for something like torture. We may have to wait for a future case to consider that issue, but it is something to keep in mind.

Julian raises an interesting question about Congress' power to establish prescriptive jurisdiction under the universality principle. A couple of quick comments.

First, it is clear that under international law states can exercize prescriptive jurisdiction under the universality principle for crimes that are recignized under customary international law as universal crimes-- such as piracy, slave trade, war crimes, genocide, torture, high jacking and certain other offenses against aircraft, and perhaps several others.

Second, it is interesting how the US deals with other universal crimes. Here are some examples. The Genocide Convention Implementation Act only asserts jurisdiction over US nationals or over persons who commit the offense in the United States. A quick examination of federal statutes dealing with slave trade (and I might have missed something) seem to indicate that there does need to be some nexus with the United States--- a national  of the US or the vessel originating from the US. for example. Similarly, federal statutes dealing with war crimes seem to require that the offense be commited by a member of the US Armed Forces or a national of the US.

But there is at least one exception to the requirement of a direct US nexus-- piracy. Title 18, § 1651  of the US Code provides:

Whoever, on the high seas, commits the crime of piracy as defined by the law of nations, and is afterwards brought into or found in the United States, shall be imprisoned for life. (emphasis added)

I cannot find any limitation to the "whoever."

I will explore some other areas in a subsequent post.