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Universal jurisdiction in international law
The last few decades have witnessed the development of a shared understanding of the fact that there should be no impunity for serious crimes. This has been noted by jurists and writers alike, as one of the key achievements in international law. The establishment of the International Criminal Court lies testimony to the fact that there needs to be an international legal regime to hold accountable the individuals who have committed such serious crimes. All states subscribe to this standard and are entitled, if not required, to bring proceedings against the perpetrators, irrespective of the location of the crimes and nationality of the perpetrator or victims.
There are five recognized bases for jurisdiction under international criminal law. The most significant ones are the principles of territoriality and nationality, according to which states have jurisdiction over crimes committed in their territory or by their nationals. Among the other bases of jurisdictions is the passive personality jurisdiction wherein the state has legal jurisdiction to judge crimes committed against their nationals and Compétence réelle, which is the protective principle by which the State has legal jurisdiction to judge crimes deemed to constitute a threat to some of fundamental interests of the nation. The fifth and final jurisdictional basis is the universality principle which refers to jurisdictional claims based only upon the nature of the crime. The term ‘universal jurisdiction' refers to the state's ability to undertake criminal proceedings against a foreign national, for any alleged crime committed outside the country. This is unlike the traditional practice wherein the domestic courts prosecuted only those people who were accused of crime in their territory (territorial jurisdiction). Under international law, States can enact national laws which allow their national courts to investigate, and if there exists sufficient admissible evidence for the same, the state can prosecute any person who enters their territory and is suspected of certain crimes, regardless of where the crime was committed or the nationality of the accused and the victim. Genocide, crimes against humanity, torture, apartheid and slavery are among the crimes which are generally considered in the scope of the universal jurisdiction of national courts. Over 125 countries have enacted universal jurisdiction laws.
The concept of Universal jurisdiction set out as a modest and narrow doctrine applicable only to the crime of piracy, but over the years, the concept has grown with the international legal order. As has been discussed earlier, universal jurisdiction applies only to the most serious of crimes defined by international law, but there are a lot of uncertainties associated with the question of as to exactly which crimes qualify under it. As the fundamental values and norms of the international system have evolved, so have the number of crimes recognized by international law. Some of these new international crimes have become subject to universal jurisdiction. Multinational negotiations that have led to the adoption of the International Criminal Court (ICC) Statute were characterised by disputes over whether the ICC's three core crimes are truly subject to universal jurisdiction. Many contemporary writers are of the opinion that the list of crimes as recognised by the ICC is not an exhaustive list of the crimes that are covered under universal jurisdiction. While others are of the opinion that universal jurisdiction should be limited in its application to piracy, genocide and torture.
The Geneva Conventions and the Convention against Torture place a legally binding obligation on states that have ratified them to exercise universal jurisdiction over persons accused of grave breaches of the Geneva Conventions and torture or to extradite them to a country that will. The Inter-American Convention on Forced. Disappearance of Persons, requires Organization of American States members who have ratified the Convention to exercise universal jurisdiction over persons suspected of the crime of ''disappearances'' or to extradite them. Although there are no treaties requiring states to exercise universal jurisdiction over genocide, crimes against humanity and extrajudicial executions, taking into account the serious nature of the crimes, which along with disappearances'', war crimes and torture, are the gravest crimes under international law. Organizations such as Amnesty International believe that states should exercise universal jurisdiction over these crimes as well.
The principle of jurisdiction was first famously utilized in the 1998 arrest of former Chilean dictator Augusto Pinochet on torture charges in London at the request of a Spanish court. Earlier, the nineties had seen a new interest for the prosecution and the punishment of serious violations of human rights, as shown by the creation of two international criminal tribunals.
It is to be noted that in the Pinochet case in the House of Lords, the issues of jurisdictions were glossed over by specific requirements of the European Convention on Extradition (1957), the Extradition Act (1989) and the date at which the Torture Convention became a part of English law. However, Lord Millett in his dissent analysed the jurisdictional and historical background, including the question of universal jurisdiction:
“In my opinion, crimes prohibited by international law attract universal jurisdiction under customary international law if two criteria are satisfied. First they must be contrary to a peremptory norm of international law so as to infringe a jus cogems. Secondly, they must be so serious and on such a scale that they can justly be regarded as an attack on the international legal order. Isolated offences, even if committed by public officials, would not satisfy these criteria...
Every state has jurisdiction under customary international law to exercise extraterritorial jurisdiction in respect of international crimes which satisfy the relevant criteria. Whether its courts have extraterritorial jurisdiction under its internal domestic law depends, of course, on its constitutional arrangements and the relationship between customary international law and the jurisdiction of its criminal courts. The jurisdiction of the English criminal courts is usually statutory, but it is supplemented by the common law. Customary international law is part of the common law, and accordingly I consider that the English courts have and always have had extraterritorial criminal jurisdiction in respect of crimes of universal jurisdiction under customary international law...
In my opinion, the systemic use of torture on a large scale and as an instrument of state policy had joined piracy, war crimes and crimes against peace as an international crime of universal jurisdiction well before 1984. I consider that it had done so by 1973. For my own part, therefore, I would hold that the courts of this country already possessed extraterritorial jurisdiction in respect of torture and conspiracy to torture on the scale of the charges in the present case and did not require the authority of statute to exercise it. I understand, however, that your Lordships take a different view, and consider that statutory authority is required before our courts can exercise extraterritorial criminal jurisdiction even in respect of crimes of universal jurisdiction. Such authority was conferred for the first time by section 134 of the Criminal Justice Act 1988, but the section was not retrospective. I shall accordingly proceed to consider the case on the footing that Senator Pinochet cannot be extradited for any acts of torture committed prior to the coming into force of the section”
In Attorney General of the government of Israel v. Eichmann, the Supreme Court of Israel had the opportunity to consider the scope of the Universal jurisdiction principle with regard to war criminals. None of the other jurisdictional principles spoken about earlier were applicable in Israel. The territorial principle could not apply because Israel did not even become a state until the year 1948. The nationality principle, too, was inapplicable as Germany would have to prosecute for the principle to apply. The passive personality did not apply as no victim could possibly be a citizen of Israel before it became a state. The protective principle, too, could not be invoked to protect the interests of a nation that did not exist.
Thus, the principle of universal jurisdiction was relied in part by the Supreme Court to uphold Eichmann's conviction for war crimes and crimes against humanity committed by him as the Head of Gestapo, whose actions led to the demise of millions of Jews during the Second World War. Eichmann was abducted to Israel from Argentina where he took refuge under an assumed name of Ricardi Klement. In Israel he was tried under the Israeli Nazi and Nazi Collaborators (Punishment) Law of 1951. The Court overruled the objection of the defendant that his actions occurred in Europe before the State of Israel was founded and offences were committed against people who were not its citizens. The District Court of Jerusalem found that it did have jurisdiction stating that
“The abhorrent crimes defined in the [Israeli Nazi and Nazi Collaborators ( Punishment ) Law 1951] are not crimes under Israeli law alone. These crimes, which struck at the hole of mankind and shocked the conscience of nations, are grave offences against the law of nations itself (delicta juris gentum). Therefore, so far from international law negating or limiting the jurisdiction of countries with respect to such crimes, international law is, in the absence of an international criminal court, in need of the judicial and legislative organs of every country to give criminal interdictions and to bring the criminals to trial. The jurisdiction to try crimes under international law is universal.
In addition, the Court said that:
“The State of Israel's ‘right to punish' the accused derives...from two cumulative sources: a universal source...which vests the right to prosecute and punish crimes of this order in every State within the family of nations; and a specific or national source, which gives the victim nation the right to try any who assault its existence”
Brownlie argues, correctly it is submitted that a distinction needs to be drawn between such cases where what is being punished is the breach of international law (delicta juris gentum) and the true application of the universality principle where international law merely provides that states have a liberty to assert jurisdiction over certain specific acts which are not themselves necessarily breaches of international law. The distinction may be important since the strict application of the universal principle would seem to depend upon the municipal law of the state asserting jurisdiction whereas jurisdiction over international crimes involves interpretation of the provisions of international law.
Belgium also has important legislation in relation to universal jurisdiction. In 1999, Belgium amended its penal code to provide for universal jurisdiction in respect of genocide and crimes against humanity, without the need for a link between the State and the crime. On June 8, 2001, four defendants were convicted of international crimes arising from the Rwandan genocide. Issues relating to alleged war crimes amounting to grave breaches of the 1949 Geneva Convention and Crimes Against Humanity were raised in Congo v Belgium. These were allegedly committed by a national of the Democratic Republic of Congo (DRC) who made a speech inciting racial hatred, leading to riots and violence. The international arrest warrant was made in absentia in pursuance of Belgium Penal Code, 1993. The DRC asserted that the individual concerned enjoyed diplomatic immunity as a Minister for Foreign Affairs. In their Separate Opinion, the Judges concluded in the affirmative that a State may claim jurisdiction over an alleged offender who is not on their territory and who has no other link with it, as such jurisdiction is not prohibited by international law. An opposing stance was, however, adopted by the President of the International Court of Justice in which he observed:
“States primarily exercise a criminal jurisdiction on their own territory. In classic international law, they normally have jurisdiction is respect of an offence committed abroad only if the offender, or at least the victim, is of their nationality, or if the crime threatens their internal or external security. Additionally, they may exercise jurisdiction in cases of piracy and the situations of subsidiary universal jurisdiction provided for by various Conventions if the offender is present on their territory. But apart from these cases, international law does not accept universal jurisdiction; still less does it accept the universal jurisdiction in absentia.”
The law of 1999 was however amended however in April 2003, to limit the extent of the exercise of universal jurisdiction by Belgian courts, after tension developed between the US and Belgium following attempts to have former members of the US Administration investigated in relation to the 2003 invasion of Iraq.
Principle Of Universal Jurisdiction In Present Context
The existence of crimes of universal jurisdiction is inextricably connected with the historical absence of international judicial bodies which have jurisdiction over people. While the Nuremberg and Tokyo War Crimes tribunals were early examples of such bodies, they were unique and limited only to the alleged misdeeds of nationals of those states that had lost the war. Their significance lies mostly in the impetus they gave to the development of general principles of humanitarian law.
More recently, the Security Council established the Yugoslavian and Rwandan War Crimes Tribunals and a similar court exists for Sierra Leone. These courts have tried their first cases, and while their value should not be given diminished importance, it cannot be denied that they are ‘single issue' bodies. The establishment of the International Criminal Court (ICC) that has a general jurisdiction over individuals in respect of ‘the most serious crimes of concern to the international community' has received widespread importance. It remains to be seen, however, how active the court will be in the exercise of its jurisdiction since it is not intended to supplant a state's existing rights of jurisdiction over persons as currently provided by international law.
It remains speculation that the existence of a general and effective international jurisdiction over person exercised by the ICC will precipitate the collapse of the principle of universal jurisdiction. The ICC, as an international tribunal, is expected to be free of bias and may be able to escape the bonds of political expediency that usually accompanies the exercise of jurisdiction by local courts. More than anything else, this concern may encourage states to voluntarily surrender jurisdiction to the ICC as it establishes its reputation as an effective and impartial judicial body.
Proponents of universal jurisdiction, who are usually found among international human rights lawyers and activists, argue that the principle is well established in international law and that a wide range of human rights offenses are subject to universal jurisdiction. One such prominent group recently drafted the "Princeton Principles on Universal Jurisdiction," which hold that the following offenses can be tried by any court in the world without regard to where the crime occurred or who committed it: piracy, slavery, war crimes, crimes against peace, crimes against humanity, genocide, and torture. In stark contrast, universal jurisdiction sceptics, including scholars and policymakers in the realist international relations tradition and ideologically conservative analysts, dismiss universal jurisdiction as dangerous legal activism. In his article “The Pitfalls of Universal Jurisdiction”, Henry Kissinger suggested that the concept is a recent invention of activists and ill-advised foreign judges, and the Heritage Foundation suggests that it applies only to crimes committed outside the territorial jurisdiction of any state, such as piracy on the high seas.
Recent developments with regard to universal jurisdiction have been positive, but the concept can only go so far in terms of imposing obligations upon states. The lack of political will of the States and the difficulty to prosecute and try cases which took place on foreign territory and were committed by nationals of another State remain barriers to effective and widespread implementation of this doctrine. The role of universal jurisdiction is to compensate for the lack of a centralised international legal order, not to create one. Despite its limitations, the effective application of universal jurisdiction has grown dramatically. Further progress seems inevitable as the fundamental humanitarian values driving the evolution of universal jurisdiction gain broader acceptance by the international community as a whole. Through this process, the duty to prosecute jurisdictional crimes, and perhaps even the duty to prevent them, could eventually gain recognition as compelling jus cogens norms from which no derogation is permitted.
The case of John Demjanjuk or Ivan the Terrible as he was imfamously known, illustrates the application of universality to establish the jurisdiction of the court, and reveals the difficulties of effectively prosecuting war criminals with the doctrine. Demjanjuk was a retired Ohio automobile worker, who had immigrated in 1952 from the Ukraine. In 1955, he became a U.S. citizen. Subsequent investigation into his background created the suspicion that he might have been a guard at a concentration camp during the latter part of World War II, and the government of Israel sought to extradite him and try him as a war criminal. The U.S. Department of Justice revoked his citizenship in 1981, and four years later he was extradited to Israel. Although an Israeli trial court sentenced him to death, the verdict was appealed and in 1993, the Supreme Court of Israel vacated the sentence. Demjanjuk returned to the United States. Appellant tribunals in Israel and the United States reviewed the record and concluded that the evidence was insufficient to sustain the extradition and conviction. Thus, an expensive and time consuming process occupying more than seventeen years involving two friendly countries both known to be seriously disposed to prosecute Nazi war criminals, in the end led to no conviction.
The Demjanjuk case teaches us that the principle of universality, while a valid one, must be applied with relevant caution. In the aftermath of internal and international wars, following the end of the Cold War in 1989, the international community has sought to develop the means of bringing war criminals to justice. One approach involves the creation of tribunals first for Yugoslavia and later for Rwanda, and requires that national courts prosecute the offenders under their municipal codes. The goal of equal protection favours the former approach, for a single court operating on the basis of international consensus is better able to protect itself from the pressures that often accompany the trials of those accused of war crimes.
The most interesting application of universal jurisdiction in the present context would be the trial of Osama Bin Laden if the United States of America were to incarcerate him and decline turning him over for trial by a specially constituted international tribunal.
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Jorgensen N.H.B.,”The Responsibility of States for International Crimes”, Oxford University Press 2005
Kissinger, Henry The Pitfalls of Universal Jurisdiction, Foreign Affairs, July/August 2001. Available online at http://www.thirdworldtraveler.com/Kissinger/Pitfalls_Univ_Juris_Kis.html
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