[T]he tenuous interest of the United States in the issues raised by these cases is also reflected in the fact that, under customary international law, we could not exercise subject matter jurisdiction over a cause of action against the primary tortfeasor – the officials of the Union of South Africa –or the foreign corporate defendants. This is so, because apartheid, however abhorrent it may have been, has not been regarded as an offense subject to the exercise of universal jurisdiction. This concept, as its name implies, “recognize[s] that international law permits any state to apply its laws to punish certain offenses although the state has no links of territory with the offense, or of nationality with the offender (or even the victim).” Restatement (Third) of Foreign Relations Law ß 404 cmt. a (1987); see also Matter of Extradition of Demjanjuk, 612 F. Supp. 544, 555–58 (N.D. Ohio 1985). Universal jurisdiction is dependent not only on “substantive agreement as to certain universally condemned behavior,” which transforms the behavior into a violation of customary international law, but also “procedural agreement that universal jurisdiction exists to prosecute a subset of that behavior.” Sosa, 542 U.S. at 762 (Breyer, J., concurring in part and concurring in the judgment).

There is no agreement with respect to the latter issue. Although the Restatement (Third) of Foreign Relations Law cites racial discrimination, “when practiced systematically as a matter of state policy, e.g., apartheid,” as a violation of customary international law, id. ß 702 cmt. i (emphasis deleted), it omits apartheid from the list of offenses subject to universal jurisdiction. Instead, the Restatement states that universal jurisdiction exists only for “certain offenses recognized by the community of nations as of universal concern, such as piracy, slave trade, attacks on or hijacking of aircraft, genocide, war crimes, and perhaps certain acts of terrorism.” Id. ß 404. Indeed, while the Reporters of the Restatement observed that the International Convention on the Suppression and Punishment of the Crime of Apartheid, adopted Nov. 30, 1973, 1015 U.N.T.S. 243 (the “Apartheid Convention”), provided for universal jurisdiction, they stated that it did so only “[a]mong [the] parties to the Convention.” Restatement (Third) of Foreign Relations Law ß 702 reporters’ note 7. See also Antonio Cassese, Crimes Against Humanity, in 1 The Rome Statute of the International Criminal Court: A Commentary 353, 376 (Antonio Cassese et al., eds., 2002) (observing that the Rome Statute, enacted in 1998, is broader than customary international law and “expands general international law” insofar as it, inter alia, “broadens the classes of conduct amounting to crimes against humanity” to include “the crime of apartheid”). Likewise, the European Commission, the executive body of the European Union, has stated explicitly that, while “apartheid is widely condemned by states … at least at present, it does not give rise to universal jurisdiction because, among other reasons, the [Apartheid Convention] … has not been widely ratified.” Br. for the European Commission as Amicus Curiae Supporting Neither Party, Sosa v. Alvarez-Machain, 542 U.S. 692, 124 S. Ct. 2739, 159 L. Ed. 2d 718 (No. 03-339), 2004 WL 177036, at 16 n.35. Another reason is that jurisdiction is limited to certain universally condemned crimes which “by their nature occur either outside of a State or where there is no State capable of punishing, or competent to punish, the crime (as in a time of war).” United States v. Yousef, 327 F.3d 56, 105 (2d Cir. 2003).