Universal jurisdiction

Universal jurisdiction or universality principle allows states or international organizations to claim criminal jurisdiction over an accused person regardless of where the alleged crime was committed, and regardless of the accused's nationality, country of residence, or any other relation with the prosecuting entity. Crimes prosecuted under universal jurisdiction are considered crimes against all, too serious to tolerate jurisdictional arbitrage.

The concept of universal jurisdiction is therefore closely linked to the idea that some international norms are erga omnes, or owed to the entire world community, as well as the concept of jus cogens – that certain international law obligations are binding on all states and cannot be modified by treaty. ^[1]

According to critics, the principle justifies a unilateral act of wanton disregard of the sovereignty of a nation or the freedom of an individual concomitant to the pursuit of a vendetta or other ulterior motives, with the obvious assumption that the person or state thus disenfranchised is not in a position to bring retaliation to the state applying this principle.^{[citation needed]}

The concept received a great deal of prominence with Belgium's 1993 law of universal jurisdiction, which was amended in 2003 in order to reduce its scope following a case before the International Court of Justice regarding an arrest warrant issued under the law, entitled Case Concerning the Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v. Belgium).^[2] The creation of the International Criminal Court (ICC) in 2002 reduced the perceived need to create universal jurisdiction laws, although the ICC is not entitled to judge crimes committed before 2002.

According to Amnesty International, a proponent of universal jurisdiction, certain crimes pose so serious a threat to the international community as a whole, that states have a logical and moral duty to prosecute an individual responsible for it; no place should be a safe haven for those who have committed genocide,^[3] crimes against humanity, extrajudicial executions, war crimes, torture and forced disappearances.^[4]

Opponents, such as Henry Kissinger, argue that universal jurisdiction is a breach on each state's sovereignty: all states being equal in sovereignty, as affirmed by the United Nations Charter, "Widespread agreement that human rights violations and crimes against humanity must be prosecuted has hindered active consideration of the proper role of international courts. Universal jurisdiction risks creating universal tyranny – that of judges."^[5][6] According to Kissinger, as a practical matter, since any number of states could set up such universal jurisdiction tribunals, the process could quickly degenerate into politically driven show trials to attempt to place a quasi-judicial stamp on a state's enemies or opponents.

The United Nations Security Council Resolution 1674, adopted by the United Nations Security Council on 28 April 2006, "Reaffirm[ed] the provisions of paragraphs 138 and 139 of the 2005 World Summit Outcome Document regarding the responsibility to protect populations from genocide, war crimes, ethnic cleansing and crimes against humanity" and commits the Security Council to action to protect civilians in armed conflict.^[7][8]

History

"All nations," says the Institutional Treatise published under the authority of Roman Emperor Justinian (c. 482-565) " . . .are governed partly by their own particular laws, and partly by those laws which are common to all, [those that] natural Reason appoints for all mankind."^[9] Expanding on the classical understanding of universal law accessible by reason, in the Seventeenth Century the Dutch jurist Grotius laid the foundations for Universal Jurisdiction in modern international law, promulgating in his De Jure Pradae (Of Captures) and later De jure belli ac pacis (Of the Law of War and Peace) the Enlightenment view that there are universal principles of right and wrong.^[10]

At about the same time, international law came to recognize the analogous concept of hostes humani generis ('enemies of the human race'): pirates, hijackers, and similar outlaws whose crimes were typically committed outside the territory of any state. The notion that heads of state and senior public officials should be treated like pirates as outlaws before the global bar of justice is, according to Henry Kissinger, a new gloss on this old concept.^[5] From these premises, representing the Enlightenment belief in trans-territorial, trans-cultural standards of right and wrong, derives Universal Jurisdiction.^[11]

Perhaps the most notable and influential precedent for Universal Jurisdiction were the mid-20th century Nuremberg Trials. U.S. Justice Robert H. Jackson then chief prosecutor, famously stated that the International Military Tribunal could prosecute Nazi "crimes against the peace of the world" even though the acts might have been perfectly legal at the time in Fascist Germany (indeed one charge was the Nazis distorted the law itself into an instrument of oppression.)^[12] Kenneth Roth, the executive director of Human Rights Watch, argues that universal jurisdiction allowed Israel to try Adolf Eichmann in Jerusalem in 1961. Roth also argues that clauses in treaties such as the Geneva Conventions of 1949 and the United Nations Convention Against Torture of 1984, which requires signatory states to pass municipal laws that are based on the concept of universal jurisdiction, indicate widespread international acceptance of the concept.^[6]

Extraterritorial jurisdiction

International jurisdiction differs from "territorial jurisdiction", where justice is exercised by a state in relation to crimes committed on its territory (territorial jurisdiction). States can also exercise jurisdiction on crimes committed by their nationals abroad (extraterritorial jurisdiction), even if the act the national committed was not illegal under the law of the territory in which an act has been committed. As an example, the American law the Protect America Act of 2007 asserts jurisdiction over terror-suspects on a worldwide basis.^{[citation needed]}

States can also in certain circumstances exercise jurisdiction over acts committed by foreign nationals on foreign territory. This form of jurisdiction tends to be much more controversial. Bases on which a state can exercise jurisdiction in this way:

• The least controversial basis is that under which a state can exercise jurisdiction over acts that affect the fundamental interests of the state, such as spying, even if the act was committed by foreign nationals on foreign territory. The Indian Information Technology Act 2000 largely supports the extraterritoriality of the said Act. The law states that a contravention of the Act that affects any computer or computer network situated in India will be punishable by India – irrespective of the culprits location and nationality.^{[citation needed]}

• Also relatively non-controversial is the ability of a state to try its own nationals from crimes committed abroad. Some nations such as France as a matter of law will refuse to extradite its own citizens, but will instead try them for crimes committed abroad.

• More controversial is the exercise of jurisdiction where the victim of the crime is a national of the state exercising jurisdiction. In the past some states have claimed this jurisdiction (e.g., Mexico^{[citation needed]}), while others have been strongly opposed to it (e.g., the United States, except in cases in which an American citizen is a victim^{[citation needed]}). In more recent years however, a broad global consensus has emerged in permitting its use in the case of torture, "forced disappearances" or terrorist offences (due in part to it being permitted by the various United Nations conventions on terrorism); but its application in other areas is still highly controversial. For example, former dictator of Chile Augusto Pinochet was arrested in London in 1998, on Spanish judge Baltazar Garzon's demand, on charges of human rights abuses, not on the grounds of universal jurisdiction but rather on the grounds that some of the victims of the abuses committed in Chile were Spanish citizens. Spain then sought his extradition from Britain, again, not on the grounds of universal jurisdiction, but by invoking the law of the European Union regarding extradition; and he was finally released on grounds of health. Argentinian Alfredo Astiz's sentence is part of this juridical frame.^{[citation needed]}

International tribunals

Universal jurisdiction asserted by a particular nation is analogous to the jurisdiction of an international tribunal, such as the International Criminal Court, established in 2002, the International Criminal Tribunal for Rwanda (1994) and International Criminal Tribunal for the Former Yugoslavia (1993), or the Nuremberg Trials (1945–49). Whether criminal jurisdiction is exercised by an international organization or by a state, the result is the same: individuals become answerable for crimes defined and prosecuted outside of their home jurisdiction, and regardless of where the conduct occurred.

States parties to the Statute of the International Criminal Court (light green means ratification or accession deposited but not yet in force, brown means signed but not yet ratified).

Established in The Hague in 2002, the International Criminal Court (ICC) is an international tribunal empowered with the right to prosecute state-members' citizens for genocide, crimes against humanity, and war crimes, as defined by several international agreements, most prominently the Rome Statute of the International Criminal Court signed in 1998. It provides for ICC jurisdiction over-state party or on the territory of a non-state party where that non-state party has entered into an agreement with the court providing for it to have such jurisdiction in a particular case.^{[citation needed]}

However, Amnesty International argues that since the end of the Second World War over 15 states have conducted investigations, commenced prosecutions and completed trials based on universal jurisdiction for the crimes or arrested people with a view to extraditing the persons to a state seeking to prosecute them. These states include: Australia, Austria, Belgium, Canada, Denmark, Finland, France, Germany, Israel, Mexico, Netherlands, Senegal, Spain, Switzerland, the United Kingdom and the United States.^[4]

All states parties to the Convention against Torture and the Inter-American Convention are obliged whenever a person suspected of torture is found in their territory to submit the case to their prosecuting authorities for the purposes of prosecution, or to extradite that person. In addition, it is now widely recognized that states, even those that are not states parties to these treaties, may exercise universal jurisdiction over torture under customary international law.^[13]

Immunity for state officials

On 14 February 2002 the International Court of Justice in the ICJ Arrest Warrant Case concluded that State officials may have immunity under international law while serving in office. The court stated that immunity was not granted to State officials for their own benefit, but instead to ensure the effective performance of their functions on behalf of their respective States. The court also stated that when abroad, State officials may enjoy immunity from arrest in another State on criminal charges, including charges of war crimes or crimes against humanity.^[14] But the ICJ qualified its conclusions, saying that State officers "may be subject to criminal proceedings before certain international criminal courts, where they have jurisdiction. Examples include the International Criminal Tribunal for the former Yugoslavia, and the International Criminal Tribunal for Rwanda . . . , and the future International Criminal Court."^[15]

In 2003 Charles Taylor, the former president of Liberia, was served with an arrest warrant by the Special Court for Sierra Leone (SCSL) that was set up under the auspices of a treaty that binds only the United Nations and the Government of Sierra Leone.^[16] Taylor contested the Special Court's jurisdiction, claiming immunity, but the Special Court for Sierra Leone concluded in 2004 that "the sovereign equality of states does not prevent a Head of State from being prosecuted before an international criminal tribunal or court."^[17] The Special Court convicted Taylor in 2012 and sentenced him to fifty years' imprisonment, making him the first head of state since the Nuremberg Trials in World War II to be tried and convicted by an international court.^[18] In sum, the question whether a former Head of State might have immunity depends on which international court or tribunal endeavors to try him, how the court is constituted, and how it interprets its own mandate.

Universal jurisdiction laws around the world

Australia

The High Court of Australia confirmed the authority of the Australian Parliament, under the Australian Constitution, to exercise universal jurisdiction over War Crimes in the Polyukhovich v Commonwealth case of 1991.

Belgium

In 1993, Belgium's Parliament passed a "law of universal jurisdiction" (sometimes referred to as "Belgium's genocide law"), allowing it to judge people accused of war crimes, crimes against humanity or genocide. In 2001, four Rwandan citizens were convicted and given sentences from 12 to 20 years' imprisonment for their involvement in 1994 Rwandan genocide.^[19] There was a rapid succession of cases:

• Prime Minister Ariel Sharon was accused of involvement in the 1982 Sabra and Shatila massacre in Lebanon, conducted by a Christian militia;
• Israelis filed a case against Yasser Arafat on grounds of responsibility for terrorist activity;
• in 2003, Iraqi victims of a 1991 Bagdad bombing pressed charges against George H.W. Bush, Colin Powell and Dick Cheney.

Confronted with this sharp increase in cases, Belgium established the condition that the accused person must be Belgian or present in Belgium. An arrest warrant issued in 2000 under this law, against the then Minister of Foreign Affairs of the Democratic Republic of the Congo, was challenged before the International Court of Justice in the case entitled ICJ Arrest Warrant Case. The ICJ's decision issued on 14 February 2002 found that it did not have jurisdiction to consider the question of universal jurisdiction, instead deciding the question on the basis of immunity of high-ranking state officials.^[20] However, the matter was addressed in separate and dissenting opinions,^[21] such as that of President Guillaume who concluded that universal jurisdiction exists only in relation to piracy;^[22] and the dissenting opinion of Judge Oda who recognised piracy, hijacking, terrorism and genocide as crimes subject to universal jurisdiction.^[23]

On 1 August 2003, Belgium repealed the law on universal jurisdiction, and introduced a new law on extraterritorial jurisdiction similar to or more restrictive than that of most other European countries. However, some cases that had already started continued. These included those concerning the Rwandan genocide, and complaints filed against the Chadian ex-President Hissène Habré (dubbed the "African Pinochet").^[24] In September 2005, Habré was indicted for crimes against humanity, torture, war crimes and other human rights violations by a Belgian court. Arrested in Senegal following requests from Senegalese courts, he is now under house arrest and waiting for (an improbable) extradition to Belgium.^[25]

Canada

To implement the Rome Statute, Canada passed the Crimes Against Humanity and War Crimes Act. Michael Byers, a University of British Columbia law professor, has argued that these laws go further than the Rome Statute, providing Canadian courts with jurisdiction over acts pre-dating the ICC and occurring in territories outside of ICC member-states; “as a result, anyone who is present in Canada and alleged to have committed genocide, torture [...] anywhere, at any time, can be prosecuted [in Canada].”^[26]

France

The article 689 of the code de procédure pénale^[27] states the infractions that can be judged in France when they were committed outside French territory either by French citizens or foreigners. The following infractions may be prosecuted :

• Torture
• Terrorism
• Nuclear smuggling
• Naval piracy
• Airplane hijacking

Germany

Ireland

Israel

The moral philosopher Peter Singer, along with Kenneth Roth,^[6] has cited Israel's prosecution of Adolf Eichmann in 1961 as an assertion of universal jurisdiction. He claims that while Israel did invoke a statute specific to Nazi crimes against Jews, its Supreme Court claimed universal jurisdiction over crimes against humanity.^[28]

Eichmann's defense lawyer argued that Israel did not have jurisdiction on account of Israel not having come into existence until 1948. The Genocide Convention also did not come into effect until 1951, and the Genocide Convention does not automatically provide for universal jurisdiction. It is also argued that Israel agents obtained Eichmann illegally, violating international law when they seized and kidnapped Eichmann, and brought him to Israel to stand trial. The Argentinian government settled the dispute diplomatically with Israel.^[29]

Israel argued universal jurisdiction based on the "universal character of the crimes in question" and that the crimes committed by Eichmann weren not only in violation of Israel law, but were considered "grave offenses against the law of nations itself.^[29] It's also asserted that the crime of genocide is covered under international customary law. As a supplemental form of jurisdiction, a further argument is made on the basis of protective jurisdiction. Protective jurisdiction is a principle that, "...provides that states may exercise jurisdiction over aliens who have committed an act abroad which is deemed prejudicial to the security of the particular state concerned."^[29]

Malaysia

In November 2011 the Kuala Lumpur War Crimes Commission purportedly exercised universal jurisdiction to try and convict in absentia former US President George W. Bush and former British Prime Minister Tony Blair for the invasion of Iraq.^[30][31] In May 2012 the tribunal again under a purported exercise of universal jurisdiction took testimony from victims of torture at Abu Ghraib and Guantanamo, and convicted in absentia former President Bush, former Vice President Dick Cheney, former Defense Secretary Donald Rumsfeld, former Deputy Assistant Attorneys General John Yoo and Jay Bybee, former Attorney General Alberto Gonzales, and former counselors David Addington and William Haynes II for conspiracy to commit war crimes.^[32] The tribunal referred their findings to the chief prosecutor at the International Court of Justice in The Hague.^[33]

While the tribunal says it follows the Nuremberg-style process and rules of evidence, critics say it follows more the Russell Tribunal. While e.g. Abbas Abid testified that his fingernails were pulled out with a pair of pliers, and according to the Tribunal, the U.S. violated the 1984 Torture Convention and the Geneva Conventions. Critics say that this conventions do not apply for suspected al-Qaeda and Taliban detainees. So no torture according to the Torture Convention occurred, and cruel, inhumane, degrading interrogation techniques are actually allowed.^[34]

Spain

Spanish law recognizes the principle of the universal jurisdiction. Article 23.4 of the Judicial Power Organization Act (LOPJ), enacted on 1 July 1985, establishes that Spanish courts have jurisdiction over crimes committed by Spaniards or foreign citizens outside Spain when such crimes can be described according to Spanish criminal law as genocide, terrorism, or some other, as well as any other crime that, according to international treaties or conventions, must be prosecuted in Spain. On 25 July 2009 the Spanish Congress passed a law that limits the competence of the Audiencia Nacional under Article 23.4 to cases in which Spaniards are victims, there is a relevant link to Spain, or the alleged perpetrators are in Spain.^[35] The law still has to pass the Senate, the high chamber, but passage is expected because it is supported by both major parties.^[36]

In 1999, Nobel peace prize winner Rigoberta Menchú brought a case against the Guatemalan military leadership in a Spanish Court. Six officials, among them Efraín Ríos Montt and Óscar Humberto Mejía, were formally charged on 7 July 2006 to appear in the Spanish National Court after Spain's Constitutional Court ruled in September 2005, the Spanish Constitutional Court declaration that the "principle of universal jurisdiction prevails over the existence of national interests", following the Menchu suit brought against the officials for atrocities committed in the Guatemalan Civil War^[37][38]

In June 2003, Spanish judge Baltasar Garzón jailed Ricardo Miguel Cavallo, a former Argentine naval officer, who was extradited from Mexico to Spain pending his trial on charges of genocide and terrorism relating to the years of Argentina's military dictatorship.^[39][40]

On 11 January 2006 the Spanish High Court accepted to investigate a case in which seven former Chinese officials, including the former President of China Jiang Zemin and former Prime Minister Li Peng were alleged to have participated in a genocide in Tibet. This investigation follows a Spanish Constitutional Court (26 September 2005) ruling that Spanish courts could try genocide cases even if they did not involve Spanish nationals.^[41][42] China denounced the investigation as an interference in its internal affairs and dismissed the allegations as "sheer fabrication".^[43] The case was shelved in 2010, because of a law passed in 2009 that restricted High Court investigations to those "involving Spanish victims, suspects who are in Spain, or some other obvious link with Spain".^[44]

Complaints were lodged against former Israeli Defense Forces chief of General Staff Lt.-Gen. (res.) Dan Halutz and other six other senior Israeli political and military officials by pro-Palestinian organizations, who sought to prosecute them in Spain under the principle of universal jurisdiction.^[45][46] On 29 January 2009, Fernando Andreu, a judge of the Audiencia Nacional, opened preliminary investigations into claims that a targeted killing attack in Gaza in 2002 warranted the prosecution of Halutz, the former Israeli defence minister Binyamin Ben-Eliezer, the former defence chief-of-staff Moshe Ya'alon, and four others, for crimes against humanity. Israeli Prime Minister Benjamin Netanyahu strongly criticized the decision, and Israeli officials refused to provide information requested by the Spanish court.^[47] The attack killed the founder and leader of the military wing of the Islamic terrorist organisation Hamas, Salah Shehade, who Israel said was responsible for hundreds of civilian deaths. The attack also killed 14 others (including his wife and 9 children). It had targeted the building where Shahade hid in Gaza City. It also wounded some 150 Palestinians, according to the complaint (or 50, according to other reports).^{[48][49][50][51][52]} The Israeli chief of operations and prime minister apologized officially, saying they were unaware, due to faulty intelligence, that civilians would be in the house.^{[52][53][54][55]} A regretful Ya'alon also mentioned that the army had passed up on several earlier opportunities to kill Shehade, because he was with his wife or children, and that each time Shehadeh went on to direct more suicide bombings against Israel.^[55] The investigation in the case was halted on 30 June 2009 by a decision of a panel of 18 judges of the Audiencia Nacional. The Spanish Court of Appeals rejected the lower court's decision, and on appeal in April 2010 the Supreme Court of Spain upheld the Court of Appeals decision against conducting an official inquiry into the IDF's targeted killing of Shehadeh.^[45]

United Kingdom

An offence is generally only triable in the jurisdiction where the offence took place, unless a specific statute enables the UK to exercise extraterritorial jurisdiction. This is the case for:^[56]

• Sexual offences against children (s. 72 of the Sexual Offences Act 2003)
• Fraud and dishonesty (Criminal Justice Act 1993 Part 1)
• Terrorism (ss. 59, 62–63 of the Terrorism Act 2000)
• Bribery (s. 109 of the Anti-terrorism, Crime and Security Act 2001)

In December 2009 a court in London issued an arrest warrant for Tzipi Livni in connection with accusations of war crimes in the Gaza Strip during Operation Cast Lead (2008–2009).^[57] The warrant was issued on 12 December and revoked on 14 December 2009 after it was revealed that Livni had not entered British territory.^[58] The warrant was later denounced as "cynical" by the Israeli foreign ministry, while Livni's office said she was "proud of all her decisions in Operation Cast Lead".^[59] Livni herself called the arrest warrant "an abuse of the British legal system".^[60] Similarly a January visit to Britain by a team of Israel Defense Forces (IDF) was cancelled over concerns that arrest warrants would be sought by pro-Palestinian advocates in connection with allegations of war crimes under laws of universal jurisdiction.^[61]

Finland

A Finnish high court sentenced a Rwandan preacher to life in jail in 2010 for his participation in Rwanda's genocide in 1994. Francois Bazaramba, 59, moved in 2003 to Finland seeking asylum. Finland allows prosecutions for crimes against humanity wherever they are committed.^[62] At the time of the genocide, he was a pastor in the Baptist church in Nyakizu in southern Rwanda. According to Finnish newspaper Helsingin Sanomat, the court found him guilty of orchestrating deadly attacks, and organising the torching of Tutsi homes. In a statement the court said he had spread anti-Tutsi propaganda and incited "killings through fomenting anger and contempt towards Tutsis". "The court has found Bazaramba guilty of an offence which without a genocidal intent would be judged as a murder or incitement to murder," the statement said. "For those crimes, the only possible punishment is life imprisonment." He was acquitted of 10 counts of murder and of providing training and acquiring weapons, Helsingin Sanomat reports. During the trial, the court heard from 68 witnesses, travelling to Rwanda and Tanzania to hear some testimonies.

Notes

Further reading

• Köchler, Hans, Global Justice or Global Revenge? International Criminal Justice at the Crossroads (2003)
• Reydams, Luc (2004). Universal Jurisdiction: International and Municipal Legal Perspectives. Oxford University Press. ISBN 0-19-927426-6. 
• Lyal S. Sunga, The Emerging System of International Criminal Law: Developments in Codification and Implementation. Kluwer, 1997, 508 pp. ISBN 90-411-0472-0
• Lyal S. Sunga, Individual Responsibility in International Law for Serious Human Rights Violations. Nijhoff, 1992, 252 pp. ISBN 0-7923-1453-0
• Jerusalem Center for Public Affairs Diane Morrison and Justus Reid Weiner Curbing the Manipulation of Universal Jurisdiction

See also

• Actio popularis
• Jurisdiction of the International Court of Justice
• Rule of Law in Armed Conflicts Project (RULAC)
• Targeted killing

External links

• Macedo, Stephen (project chair and editor). The Princeton principles on Universal Jurisdiction, The Princeton Project on Universal Jurisdiction, Princeton University, 2001, ISBN 0-9711859-0-5
• Legal Remedies for Victims of "International Crimes": Fostering an EU Approach To Extraterritorial Jurisdiction The Redress Trust and the International Federation of Human Rights, March 2004
• Kissinger, Henry, The Pitfalls of Universal Jurisdiction: Risking Judicial Tyranny –, Foreign Affairs, July/August 2001.
• The AU-EU Expert Report on the Principle of Universal Jurisdiction, 16 April 2009.