Universal jurisdiction
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Universal jurisdiction or universality principle is a controversial principle in international law whereby states claim criminal jurisdiction over persons whose alleged crimes were committed outside the boundaries of the prosecuting state, regardless of nationality, country of residence, or any other relation with the prosecuting country. The state backs its claim on the grounds that the crime committed is considered a crime against all, which any state is authorized to punish. The concept of universal jurisdiction is therefore closely linked to the idea that certain 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.
This controversial 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 Arrest Warrant of 11 April 2000. The creation of the International Criminal Court (ICC) in 2002 reduced the perceived need to create universal jurisdiction laws, although critics of the ICC observe that it is not entitled to judge crimes committed before 2002.
According to the proponents of universal jurisdiction, certain crimes pose so serious a threat to the international community as a whole, that any state ought to be able to prosecute an individual responsible for it; no place should be a safe haven for war criminals (including criminals involved in genocides) and human rights violators. Amnesty International also includes torture, "disappearances" and extrajudicial executions in this list.
Opponents 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, no state has standing to try a crime, no matter how heinous, in another state's jurisdiction, if they have no sovereign interest in the matter. 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 States, People's Republic of China, and Russia are strong opponents of any kind whatsoever of international jurisdiction.
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[edit] Debate over universal jurisdiction & progress of international law
War crimes, crimes against humanity, genocide and torture may be subjected to universal jurisdiction. However, it remains a controversial matter.
The controversy has two aspects: a legal aspect (Is the exercise of universal jurisdiction for these crimes permitted, at the present stage of its development, by customary international law?), and a political aspect (Is the application of universal jurisdiction to these crimes a good idea? Will it actually be effective at preventing them? Is it an unwarranted interference in the sovereignty of other states? Is it open to abuse for political purposes? Will its widespread use lead to instability in international relations?).
A separate but related issue is whether heads of state, ministers of government and diplomatic representatives of a state possess immunity in relation to these crimes. It is generally recognized by governments that it would be very difficult to accommodate a law allowing judgement of actual heads of state.
[edit] Extraterritorial jurisdiction and international courts throughout the 20th century
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. E.g., see Age of consent. Alternatively, a "double criminality requirement" means that the act has to be forbidden in both countries.
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. There are three bases on which a state can exercise jurisdiction in this way. The least controversial is that under which a state can exercise jurisdiction over acts which affect the fundamental interests of the state, such as spying, even if the act was committed by foreign nationals on foreign territory. The Information Technology Act 2000 of India largely supports the exterritoriality 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.
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 citzen 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 concerns". Argentinian Alfredo Astiz's sentence is part of this juridical frame.
Universal jurisdiction asserted by a state must also be distinguished from the jurisdiction of an international tribunal, such as the International Criminal Court, established in 2002 (the US is not signatory to the treaty), the International Criminal Tribunal for Rwanda (1994) and International Criminal Tribunal for the Former Yugoslavia (1993), or the Nuremberg Trials (1945-49). In these cases criminal jurisdiction is exercised by an international organization, not by a state. The legal jurisdiction of an international tribunal is dependent on powers granted to it by the states which established it. In the case of the Nuremberg Trials, the legal basis for the tribunal was that the Allied powers were exercising German sovereign powers which had been transferred to it by the German Instrument of Surrender.
Established in The Hague (Netherlands) 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 (consent).
However, Amnesty International argues that since the end of the Second World War more than a dozen 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, France, Germany, Israel, Mexico, Netherlands, Senegal, Spain, Switzerland, the United Kingdom and the United States [1]. Indeed, answering to the legal aspect of the controversy, Amnesty International claims that universal jurisdiction for these above-mentioned crimes, including torture, is not only permitted, but encouraged, at the present stage of its development, by customary international law.
"All states parties to the Convention against Torture and the Inter-American Convention {aka Inter-American Convention to Prevent and Punish Torture} 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 which are not states parties to these treaties, may exercise universal jurisdiction over torture under customary international law." [2]
According to Amnesty International, crimes such as "genocide, crimes against humanity, war crimes, torture, extrajudicial executions and disappearances, and certain ordinary crimes of international concern" fall under international jurisdiction: "This legal memorandum is designed to serve as a self-contained, comprehensive explanation for prosecutors, judges and ministries of justice and foreign affairs of the solid basis in customary and conventional international law for universal jurisdiction over war crimes, crimes against humanity, genocide, torture, extrajudicial executions and disappearances, so that they can ensure that such jurisdiction is exercised effectively." [3]
[edit] Belgium's 1993 "law of universal jurisdiction" & Spain's 2005 court decision
In 1993, Belgium's Parliament voted "law of universal jurisdiction", allowing it to judge people accused of war crimes, crimes against humanity or genocide. In 2001, four Rwandan people were convicted of sentences from 12 to 20 years of prison for their involvement in 1994 Rwandan genocide. But there was quickly an explosion of suits deposed; Prime Minister Ariel Sharon was accused of involvement in the 1982 Sabra-Shatila massacre in Lebanon, conducted by a Christian militia ostensibily under his control, while some Israelis deposed a suit against Yasser Arafat for his presumed responsibility for terrorist actions. In 2003, Iraqi victims of a 1991 Bagdad bombing deposed a suit against George H.W. Bush, Colin Powell and Dick Cheney. Confronted with this sharp increase in deposed suits, Belgium established the condition that the accused person must be Belgian or present in Belgium. However, in September 2005, Chad's dictator Hissène Habré (dubbed the "African Pinochet") was indicted for crimes against humanity, torture, war crimes and other human rights violations by a Belgium court. Arrested in Senegal following requests from Senegalese courts, he is now under house arrest and waiting for (an improbable) extradition to Belgium. An arrest warrant issued in 2000 under this law against the then Minister of Foreign Affairs of the Democratic People's Republic of the Congo was challenged before the International Court of Justice in the case entitled Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v. Belgium). The ICJ's decision at paragraph 43 specifically 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. However, the matter was addressed in separate and dissenting opinions, such as the separate opinion of President Guillaume at paragraph 12, where he concluded that universal jurisdiction exists only in relation to piracy; and the dissenting opinion of Judge Oda who at paragraph 12 recognized piracy, hijacking, terrorism and genocide as crimes subject to universal jurisdiction.
In September 2005, the Spanish Constitutional Court declared that the "principle of universal jurisdiction prevails over the existence of national interests", following a suit deposed in 1999 against atrocities committed in Guatemala between 1978 and 1986 [4]
While Spain and Belgium for some time were the only countries providing expressly for universal jurisdiction over a number of serious international crimes, today several, particularly European countries- including Germany, the Netherlands, the United Kingdom -have universal jurisdiction provisions in their respective legislations. Consequently, it is particularly in Europe, where universal jurisdiction is applied in practice. In 2005, 7 perpetrators of crimes such as genocide, crimes against humanity, war crimes and torture have been brought to justice based on universal jurisdiction provisions in France, Spain, the Netherlands, the United Kingdom and Belgium.
[edit] A new concept?
There is disagreement over whether universal jurisdiction is an old or new concept. Kissinger argues that it is a new one, citing the absence of the term universal jurisdiction from an authoritative law dictionary.[citation needed] Beside, the principle of universal jurisdiction itself applies to genocide and crimes against humanity, modern notions invented during the Nuremberg trials.
Others contend that the concept itself is quite an old one, giving the example of piracy. Since at least the nineteenth century, pirates have been recognized as hostes humani generis ("enemies of the human race"), a juridical status close to Giorgio Agamben's homo sacer [1]. The exercise of jurisdiction over pirates by any state which may capture them is well settled practice.[citation needed]
However, supporters of the idea that universal jurisdiction is a new concept respond by arguing that pirates were subject to the jurisdiction of any state because they were outlaws, deprived of any citizenship, and not under the jurisdiction of any state.[citation needed] Thus, they argue, a state's exercise of jurisdiction over these outlaws could not breach the sovereignty of any other state. They point to the distinction between pirates (who rob ships for themselves) and privateers (employed by states to rob the ships of their enemies): the exercise of jurisdiction over a privateer could impinge the soverignity of the state of the privateer, and rather than being outlaws they were considered prisoners of war. The distinction is based on two questions: Was the act committed by agents of the military/government of a state, or by non-state actors such as rebels, guerillas, terrorist groups? Was the act committed on the territory of a state, or outside of the territorial jurisdiction of any state (unclaimed land, international waters, outer space, etc.)? In the case of piracy, the answer to these questions is No, and thus the exercise of jurisdiction does not threaten the soverignity of any state; in the case of many more modern proposed exercise of jurisdiciton, the answer is Yes. Thus, they propose to distinguish these two jurisdictional concepts.
[edit] Applicable jurisdictions
One can conclude that to avoid prosecution by any country one may have to obey each of the following:
- laws of the country one is a national of
- laws of the country one lives in
- laws of the country one is in
- for behavior in relation to someone else:
- laws of the country the other is national of
- laws of the country the other lives in
- laws of the country the other is in
- the laws of any states whose fundamental interests may by your acts be affected
- for all countries with universal jurisdiction, laws for which the principle applies
[edit] Notable Prosecutions
The principle of universal jurisdiction has been recently applied to prosecute various state leaders accused of grave human rights abuses, war crimes, and crimes against humanity. For instance, numerous Argentinian officers have been prosecuted in Spain, Germany and other countries.[citation needed]
Most recently, in November 2006, the German prosecutor's office announced that it will prosecute outgoing US Secretary of Defense Donald Rumsfeld, Attorney General Alberto Gonzales and various other members of the Bush Administration under the principle of universal jurisdiction for alleged abused at Abu Ghraib and Guantanamo Bay. Rumsfeld and other high-ranking members of the Bush administration are immune from prosecution for these alleged human rights abuses in the United States due to a presidential pardon granted by US President George W. Bush in the controversial 2006 Torture Bill.[2][3]
[edit] Remedies/Penalties
The controversy surrounding the principle of universal jurisdiction is further aggravated by the lack of a working international mechanism or institution for the enforcement of judgments against convicted abusers. In other words, even if convicted of a "universal crime" in one country, a judgment against a given defendant may not necessarily be enforceable in another.
Thus, for example, if convicted of war crimes by a German court, Germany will have no authority over Donald Rumsfeld unless Donald Rumsfeld travels to German territory, or to a territory of a state with whom Germany has a working extradition treaty. In the case of Germany, if Rumsfeld is convicted, he could be subject to arrest in any of the EU states.
This lack of an enforcement mechanism is one of the biggest problems facing the exercise of universal jurisdiction over accused war criminals or other grave human rights violators. For instance, even if Germany and the US have an enforceable extradition treaty requiring the surrender of convicted human rights offenders (verify), the United States would not be inclined to surrender Donald Rumsfeld (or any other US Citizen convicted of a similar crime) to Germany. This fact is evident from the Bush Administration's vehement opposition to such courts as the International Criminal Court (ICC).
Thus, prosecutions under the principle of universal jurisdiction may do more harm than good, as they expose the weak reality of international legal enforcement mechanisms. Likewise, many critics observe that these types of prosecutions are little more than 'sham' proceedings. On the other hand, proponents argue that even if unenforceable, convictions under the principle of universal jurisdiction serve important symbolic, educational, and deterrent functions.
[edit] Literature
- Hans Köchler, Global Justice or Global Revenge? International Criminal Justice at the Crossroads (2003)
[edit] References
- ^ Amnesty International's report on international jurisdiction
- ^ Amnesty International on torture & international jurisdiction
- ^ Various crimes subject to universal jurisdiction according to Amnesty International
- ^ "Spanish Supreme Court: Guatemala Genocide Case", Nizkor Project, February 25, 2003.
[edit] External links
- Amnesty International's page on universal jurisdiction - with documents on each case, in various langages
- [http://www.hrw.org/english/docs/2006/06/28/eca13622.htm Human Rights Watch on universal jurisdiction exercise in practice
- REDRESS and Fédération Internationale des Ligues des droits de l’Homme on the European Union and Extraterritorial Jurisdiction
- The Case for Universal Jurisdiction - Kenneth Roth, Foreign Affairs, Septemnber/October 2001.
- The Pitfalls of Universal Jurisdiction: Risking Judicial Tyranny - Henry Kissinger, Foreign Affairs, July/August 2001.
- The Princeton Project on Universal Jurisdiction
- Joy and fury at Belgium's genocide law by Khaled Diab, February 2003
- Adieu war crimes law by Khaled Diab, July 2003
- Universal Jurisdiction - Amnesty International USA
