Exercise of Universal Jurisdiction Critique

This Research will critically discuss the problems associated with the exercise of Universal Jurisdiction with regard to Internal Crimes by National courts

The bases upon which Jurisdiction can be assumed under International Law are:

1. Territorial Principle

2. Protective or Security Principle

3. Nationality Principle

4. Passive Personality Principle

5. Universality Principle.

UNIVERSAL JURISDICTION

Unlike the territorial principle where jurisdiction is assumed based on the place where the crime is committed, the protective principle which permits jurisdiction to be assumed when the interest of the state is threatened, Nationality principle which looks to the nationality of the offender and the passive personality principle which looks to the nationality of the victim of the crime, Universal jurisdiction looks solely to the crime and jurisdiction is assumed on this basis.

King-Irani stated that ‘Universal jurisdiction is based on customary law as well as an international consensus, that some crimes are so heinous that they threaten the entire ‘human race.[1] Perpetrators of such crimes are considered to be enemies of all mankind and in that lies the right and authority of all states to prosecute perpetrators of such crimes. This really is the foundation of the Universal Jurisdiction principle.

The International Council on Human Rights Policy in its booklet on Universal Jurisdiction explained Universal Jurisdiction to mean

a system of international justice that gives the courts of any country jurisdiction over crimes against humanity, genocide and war crimes, regardless of where or when the crime was committed, and the nationality of the victims or perpetrators. It allows the prosecution of certain crimes before the courts of any country even if the accused, the victim, or the crime, has no link to that country.[2]

Universal Jurisdiction is usually invoked over International Crimes.

Problems associated with the exercise of Universal Jurisdiction frustrate prosecution of international crimes on the basis of Universal jurisdiction; they threaten the continued prosecution of international crimes by states and can undermine the effective administration of justice at the international level.

Some of these problems are:

UNCERTAINTY AS TO THE SCOPE OF UNIVERSAL JURISIDCTION

Uncertainty of the scope of Universal Jurisdiction takes different forms; uncertainty as to its true meaning, mode of its application and the crimes over which it applies are issues that have made the scope of Universal Jurisdiction uncertain.

Luc Reydams in a paper written for the European Parliament’s Subcommittee on Human Rights (DROI) stated that ‘Most..agree that Universal Jurisdiction exists but everyone has a different understanding of what it means’[3] Reydams further states that the problem with Universal Jurisdiction starts with its definition; its definition is too broad, and it leaves so much undefined thus failing to satisfy the legal requirement of certainty.

There is no consensus on the offences in respect of which Universal Jurisdiction can be exercised and there also exists differing views on the true meaning of Universal Jurisdiction.

Universal jurisdiction arose in the context of piracy, and it remains the most longstanding and uncontroversial Universal Jurisdiction crime.[4]

David Stewart in identifying one of the challenges of Universal Jurisdiction stated that

Difficulty lies in knowing exactly which crimes qualify for unilateral prosecution by any and all states. Even if one accepts that, as a matter of international law, jurisdiction must be limited to crimes of “universal concern,” there is no means for determining exactly which offenses fall into that category.[5]

The Princeton Principles on Universal Jurisdiction states the fundamentals of Universal Jurisdiction as its first principle; under this it states that Universal Jurisdiction should be asserted with reference to the crime only; such crimes should be serious crimes.  In its second principle, it states that the serious crimes over which Universal Jurisdiction should be asserted are piracy, slavery, war crimes, crimes against peace, crimes against humanity genocide and torture. The Princeton principles further states that the exercise of jurisdiction in respect to the above listed crimes is without prejudice to other International Crimes under International Law. This raises a fundamental question; what are the parameters for determining the crimes over which Universal Jurisdiction may be asserted?

It is generally agreed that while Universal Jurisdiction may be asserted over International crimes, it is not every International crime that can be subject to Universal Jurisdiction?

Dr. Oner states that some International crimes are subject to Universal Jurisdiction as a matter of Customary International Law and some others as a result of treaty.[6] He opines that those are the two ways of ascertaining what crimes are subject to Universal Jurisdiction.[7]

He traces the history of how different crimes came to be recognised as International crimes over which Universal jurisdiction could be asserted, his work would be relied on in tracing the history of those crimes.

Piracy is the oldest recognised crimes over which Universal Jurisdiction can be assumed, the basis of asserting Universal Jurisdiction over this crime lies in the fact that it is committed in a place which cannot be categorised as the territory of any state; the High Seas. It was an offence that affected every state; hence all states had the authority to combat it. This is the only crime over which it is generally accepted that Universal Jurisdiction can be asserted over. Jurisdiction over this crime arose under customary law and it was later recognised by treaties. Jurisdiction was later extended to Hijacking by virtue of Article 4 of 1970 Hague Convention for the Suppression of Unlawful Seizure of Aircraft and the 1982 Convention of the Law of the Sea.

After the Second World War and the application of Universal Jurisdiction to the prosecution of War crimes, Genocide and Crimes against Humanity, they gained acceptance as International Crimes over which Universal Jurisdiction could be asserted both under Customary International Law and treaties which created an obligation on states to either prosecute or extradite.[8] With time more Conventions on certain other offences also placed an obligation on states to either prosecute or extradite persons who have committed certain crimes; Universal Jurisdiction was therefore extended to certain other offences such as Torture.[9]

Another arm of this problem is national legislation of states on Universal Jurisdiction. The scope of such legislation determines the extent of Jurisdiction that can be assumed over International Crimes, and crimes over which Universal jurisdiction may be asserted. Some states have expanded the scope of crimes over which Universal Jurisdiction may be assumed under their laws, some others have tried to maintain the scope as  has been ascertained by them Under International Law, while some others have conferred jurisdiction on their national courts in a very limited manner.

States have delimited the scope of Universal Jurisdiction in their respective jurisdictions by their respective laws. Mark Ellis stated that ‘As much of the international community promotes universal jurisdiction, state practice is limiting the scope and use of it. AND this is being done without much notice.’ [10]

Ellis further opined that

The propensity of states retaining a more expansive view of jurisdictional reach is ending. The discernible trend is moving towards a more restrictive interpretation and application of universal jurisdiction.[11]

The absence of uniformity in the legislation of states conferring jurisdiction on their respective courts to assert Universal Jurisdiction poses a problem to the exercise of Universal Jurisdiction because the exercise of jurisdiction by one state may be opposed by another, especially when its nationals are involved.

One factor which is closely related to the uncertain scope of Universal Jurisdiction is uncertainty as to the factors which must exist before a state can assume jurisdiction. One of such factors is whether the Accused or the person over whom jurisdiction is sought to be asserted is within the territory of the prosecuting state; this is referred to as Jurisdiction in Absentia.

Zemach in defining Jurisdiction in Absentia adopted the definition of Colangelo thus:

Universal jurisdiction in absentia can be roughly defined as the conducting of an investigation, the issuing of an arrest warrant, and/or the bringing of criminal charges based on the principle of universal jurisdiction when the defendant is not present in the territory of the acting state. This definition does not include adjudication of the case.^[12]

Many states are reluctant to assert Jurisdiction unless the accused is within their territory. This is consistent with the extradite or prosecute obligation imposed on states by quite a number of Conventions which permit the exercise of Universal Jurisdiction; the obligation to prosecute or extradite only arises when the offender is within the territory of the state. It could therefore be argued that the implication of this is that the Conventions which place an obligation on states to prosecute or extradite do not envisage the exercise of Jurisdiction in absentia.

This problem is further compounded by the absence of consensus on whether Jurisdiction in absentia is permitted under International Law.  Judges Higgins, Kooijmans, and Buergenthal observed, in their Joint Separate Opinion as follows:

is it a precondition of the assertion of universal jurisdiction that the accused be within the territory?  Considerable confusion surrounds this topic, not helped by the fact that legislators, courts and writers alike frequently fail to specify the precise temporal moment at which any such requirement is said to be in play. Is the presence of the accused within the jurisdiction said to be required at the time the offence was committed? At the time the arrest warrant is issued? Or at the time of the trial itself? .. This incoherent practice cannot be said to evidence a precondition to any exercise of universal criminal jurisdiction. [13]

Rabinovitch, echoes the position of proponents of Universal Jurisdiction in Absentia when he stated that “State practice in recent years has increasingly supported the view that States may exercise universal jurisdiction in absentia if they so desire,”[14] provided there are safeguards to prevent an abuse of the accused rights. Judge Ranjeva in his Declaration held a contrary view; he stated that developments in International Law ‘did not result in the recognition of Jurisdiction in absentia.’[15]

All of these uncertainties surrounding the principle and practice of Universal Jurisdiction pose a problem to the exercise of Universal Jurisdiction.

THE CONFLICT BETWEEN UNIVERSAL JURISDICTION AND THE SOVEREIGNTY OF STATES

One major problem which affects the exercise of Universal Jurisdiction is the perceived and actual breach of the sovereignty of a state. I use the word “perceived” to mean this; most times the exercise of Universal Jurisdiction by a state may be looked upon by the state whose national or official is tried as an affront or threat to its sovereignty. This might not necessarily be the case. While in a case of actual breach of a nation’s sovereignty, it is the case that exercise of jurisdiction may actually amount to a breach of a nation’s sovereignty.

The Democratic Republic of the Congo V. Belgium[16] popularly known as the Arrest Warrant case illustrates this. In this case, Belgium issued an International Arrest warrant on 11 April 2000, for the arrest of Congo’s Minister for Foreign Affairs, Mr. Abdulaye Yerodia Ndombasi. The Democratic Republic of Congo was highly displeased with the issue of the warrant for the arrest of its minister, and accordingly instituted an action at the International Court of Justice praying the court that Belgium recalls and cancels the Arrest warrant. Belgium had issued the warrant on the grounds that Mr. Yerodia had breached the Geneva Conventions of 1949 and protocols I and II; such breach Belgium claimed was punishable under its laws. Congo prayed the International Criminal Court to order Belgium to cancel the warrant on the ground (amongst other grounds) that “[t]he universal jurisdiction that the Belgian State attributes to itself under Article 7 of the Law in question” constituted a “[v]iolation of the principle that a State may not exercise its authority on the territory of another State and of the principle of sovereign equality among all Members of the United Nations”[17]. In essence, Congo’s contention was that Belgium’s exercise of Its Universal Jurisdiction amounted to a violation of its sovereignty. The Court found that the issue of the Warrant of Arrest for Congo’s Minister for Foreign Affairs amounted to a breach of Congo’s Sovereignty.

Kontorovich has stated that the ‘New Universal Jurisdiction[18] is perhaps the most controversial development in contemporary international law, precisely because it encroaches on or qualifies nations’ jurisdictional sovereignty’[19] while  Kings-Irani opines that ‘Universal jurisdiction casesusually raise troubling questions about state sovereignty’.

Hawkins opines that ‘when states established universal jurisdiction, they created a decentralized mechanism for the erosion of sovereignty’[20]

It is not likely that the constant clash between the exercise of Universal Jurisdiction and the violation or the alleged violation of the sovereignty of a state would come to an end in the nearest future. This is attributable to the political element in the definition of the crimes over which Universal Jurisdiction can be assumed; that is the fact that most crimes against humanity and war crimes are most times not committed independent of the state and its agencies, rather they are sometimes committed by state officials with the aid of state agencies.

The principle of Universal Jurisdiction has no inherent principles which can tackle the clash between assumption of jurisdiction on this basis and the sovereignty of a state.

CLASH BETWEEN THE EXERCISE OF JURISDICTION AND IMMUNITY

It is a principle of Customary International Law that State officials are immune from the jurisdiction of foreign courts in certain instances.[21] The immunity enjoyed could be as a result of the position occupied; this is Immunity ratione personae or it could be enjoyed as a result of the official acts carried out in furtherance of the office occupied; this is immunity ratione materiae.[22]

The challenge that the issue of sovereign immunity poses is a multi-faceted one. This challenge raises quite a number of questions. What exactly is the law on the immunity of sovereigns of states, both current and past and what is the extent of the immunity in relation to the acts of the sovereign? What acts of the sovereign are covered by immunity?

This difficulty arises primarily because the position of International law on the immunity of Sovereigns of States or Heads of States remains unclear.[23] Indeed the authors of the article ‘The Future of Former Head of State Immunity after ex parte Pinochet’[24] borrowed the words of other authors to describe the position of International Law on the immunity of Heads of States as “lacking coherence”[25], “problematic and ambiguous”[26] and in Re Doe[27] the United States Court of Appeal described it as been in an ‘amorphous and Undeveloped state’.

This issue came up for consideration In the Arrest Warrant Case[28]; Congo’s contention was that

 the non-recognition, on the basis of Article 5 of the Belgian Law, of the immunity of a Minister for Foreign Affairs in office constituted a “[v]iolation of the diplomatic immunity of the Minister for Foreign Affairs of a sovereign State, as recognized by the jurisprudence of the Court and following from Article 41, paragraph 2, of the Vienna Convention of 18 April 1961 on Diplomatic Relations[29]

The court came to the decision that a Minister of Foreign Affairs enjoyed Immunity which was inviolable for as long he remained in office. I will reproduce a portion of the Court’s decision as this sheds some light on the position of International Law on the Immunity of Sovereigns;

The Court has carefully examined State practice, including national legislation and those few decisions of national higher courts such as the House of Lords or the French Court of Cassation. It has been unable to deduce from this practice that there exists under Customary International law any form of exception to the rule according immunity from criminal Jurisdiction and inviolability to incumbent Ministers for Foreign Affairs, where they are suspected of having  committed war crimes or crimes against humanity.

Jurisdictional immunity may well bar prosecution for a certain period or for certain offences; it cannot exonerate the person to whom it applies from all criminal responsibility[30]

What this translates to is the fact that there may be times when a National Court could have jurisdiction to try a person subject to immunity, however, it might be impossible to exercise jurisdiction because of the immunity that such a person enjoys; the risk in this is that it could lead to impunity, even though this is a situation the Law seems to want to avoid or it could just lead to a situation of delayed justice.

In senator Pinochet’s case,[31] the House of Lords held that Pinochet, a former Head of State of Chile was not entitled to immunity for torture, as torture was not an official act carried out in furtherance of his official duties.

The position of International Law on the Immunity of High level officials of states remains uncertain, and there is no uniformity in state practice in recent years which can help in ascertaining the position of International law in this regard.

In November 2007, France dismissed a complaint filed against Former secretary of Defence of the United States and the reason for the dismissal was  given by the prosecutor,
Jean Claude Marin, he stated in an open letter that according to

rules of customary international law established by the International Court of Justice, immunity from criminal jurisdiction for Heads of State and Government and Ministers of Foreign Affairs continues to apply after termination of their functions, for acts carried out during their time of office and hence, as former Secretary of Defense, Mr. Rumsfeld, by extension should benefit from this same immunity for acts carried out in the exercise of his functions.[32]

There was an outcry against the position of France, particularly because the Prosecutor, Jean Claude Marin had some years earlier personally signed an order calling for General Pinochet to appear before the Paris Court of Appeal. Human Rights organisations felt he should have known better. The Human Rights Organisation also felt greatly disappointed that the dismissal of the complaint was largely due to the position taken by the French Foreign Ministry which is headed by Bernard Kouchner, a fellow who had distinguished himself in the fields of Human Rights.

This goes to illustrate the inconsistency in state practices when it comes to the issue of exercising Universal Jurisdiction and the Immunity of State officials. Perhaps one logical explanation for this inconsistency might not be unrelated to the need to preserve good relations between states.

THE ALLEGATION OF BIAS

Selective approach in the prosecution of International Crimes on the basis of Universal Jurisdiction has posed a great challenge to the Universal Jurisdiction regime. The outcry against the selective approach of some states in the prosecution of crimes using Universal Jurisdiction has been loudest in Africa, where African leaders allege that they have been the primary target of Western Countries. This allegation of bias is not without any merit, neither is it entirely true.

Ian Brownlie has been quoted by Zemach as stating that “[p]olitical considerations, power, and patronage will continue to determine who is to be tried for international crimes and

who not.”[33]

Dr. Oner captured an aspect of this problem aptly when he stated that:

Universal jurisdiction gives powerful nations a means of politically influencing less powerful ones. Indeed, thus far, weak countries with little to no political leverage have not exercised universal jurisdiction over powerful people from powerful countries through their courts.[34]

It is important that states have faith in the exercise of Universal Jurisdiction by any state that chooses to prosecute using Universal Jurisdiction. There should be transparency and good faith when arriving at the decision to prosecute; and this should as clearly as possible be seen by all to be fair.

POLITICAL PRESSURE AND INTERNATIONAL RELATIONS IMPLICATIONS

Nations usually want to maintain good relations with their allies; however, the exercise of Universal Jurisdiction could pose a threat to this. In order to maintain good relations with other states, a state may give in to political pressure which would in turn affect its exercise of Universal Jurisdiction. The case of Belgium and Spain illustrate this.

Belgium’s Universal Jurisdiction laws were so broad that anybody could be tried by Belgium courts without having any link at all to Belgium

The American society of International Law Commenting on the Belgian law stated that:

The Belgian law was widely recognized as the most far-reaching example of a state exercising “universal jurisdiction.” During the first decade of the law’s existence, some thirty legal complaints were filed against a variety of government officials worldwide, including against Rwandans for genocide, General Augusto Pinochet of Chile, Cuban President Fidel Castro, Iraqi President Saddam Hussein, Palestinian leader Yasser Arafat, and Israeli Prime Minister Ariel Sharon[35]

The United States uncomfortable with the possibility that its officials could be victims of Belgium’s law threatened and coerced Belgium until Belgium finally amended its laws in August 2003, thus finally removing the “Absoluteness” from the Universal Jurisdiction law of Belgium.

 U.S. Secretary of Defence Donald Rumsfeld stated authoritatively at the time:

Belgium needs to realize that there are consequences to its actions. This law calls into serious question whether NATO can continue to hold meetings in Belgium and whether senior U.S. officials, military and civilian, will be able to continue to visit international organizations in Belgium

… Certainly until this matter is resolved we will have to oppose any further spending for construction for a new NATO headquarters here in Brussels until we know with certainty that Belgium intends to be a hospitable place for NATO to conduct its business….[36]

The new Belgian Law now requires a link with Belgium for the Belgian courts to be able to exercise jurisdiction.

All pending cases in Belgium against U.S Officials were dismissed in September 2003 because of Belgium’s new law.

When Belgium ruled that Israel’s Prime Minister Ariel Sharon could stand trial for War crimes under its Universal Jurisdiction laws, but only after he leaves office, ‘Israeli public television quoted an unnamed official as calling the court decision “scandalous” and warning that it threatened to open a serious crisis between the two countries.’[37] And Israel in protest was reported to have recalled its Ambassador to Belgium for ‘consultation’

The case of Spain is quite similar to the Belgium experience. After Spain gave in to pressure from Israel, the United States and China, Spain amended its Universal Jurisdiction law; the new law now requires a link to Spain before Spanish Courts can assume jurisdiction.[38]

Clearly political considerations and interactions between states pose a problem to the exercise of Universal jurisdiction.

DIFFCULTY OF OBTAINING EVIDENCE AND WITNESSES

Stewart is also of the opinion that ‘In some measure, the lack of actual prosecutions based on universality must result from practical difficulties in obtaining evidence and witnesses regarding crimes committed in other countries’.[39]

Most International Crimes are usually prosecuted many years after the offences have been committed. The chances of gathering quality evidence with the passage of time reduces, when that is added to the long distance and legal difficulties that it might entail, it becomes even more difficult to obtain evidence. Language barrier could also further compound this problem.

Where it is difficult or impossible to obtain evidence it might be difficult to proceed with prosecution on the basis of Universal Jurisdiction.

COMPETING JURSIDCITION

It is always the case most times, if not always that where jurisdiction is asserted on the basis of Universality, jurisdiction could also be asserted on other bases. Where more than one state decides to assert jurisdiction, whether on the basis of Universality or other principles, it might pose a problem, especially when extradition is requested by the competing states.

To reduce the conflict that this situation may create, it is usually best that in the prosecution of International crimes, exercise of jurisdiction on the basis of Universal Jurisdiction should be the last resort, states with stronger connections to the crime should first be given opportunity to prosecute the crime, where they fail to or where they are unable to do so, then a state with no connection or a weaker connection can then prosecute on the basis of Universal Jurisdiction.

COST

One of the problems associated with the exercise of Universal jurisdiction is cost. A state expends its resources in prosecuting crimes, when the prosecution of crimes serves the state’s interests, there would be no problem with it but where it serves no practical purpose that is when the difficulty arises. The argument and view held in some quarters, that a nation that prosecutes a crime that does not threaten it in any way and which it has no interest in prosecuting stands to gain nothing from it, rather, it expends its resources and the benefits of prosecuting the crime is enjoyed by other states is one problem that militates against the exercise of Universal Jurisdiction. Kontorovich stated that

 A nation exercising Universal Jurisdiction expends scarce resources to punish crimes that have not injured it; thus it bears all the costs of enforcement while the benefits are enjoyed primarily by other nations. Rational choice models of state behaviour suggest that nations will generally not undertake such activities.[40]

David Stewart also opined that

Depending on the facts, prosecutors and ministries of justice may have little enthusiasm for devoting time, money, and resources to prosecutions having little enough to do with their own countries, citizens, and direct national interests.[41]

Kontorovich’s position is actually a true reflection of what is currently going on at the international scene, nations decline to prosecute or even investigate where their interests are not affected, and this runs contrary to the principle of Universal Jurisdiction. One of the underlying principles governing Universal Jurisdiction is that crimes such as torture, genocide, crimes against humanity and war crimes are so serious that they harm not just a particular state but the international community and should therefore be prosecuted by all states.[42] Kontorovich opines more articulately that ‘many of the crimes subject to the universality principle are so heinous in scope and degree that they offend the interest of all humanity, and any state may, as humanity’s agent, punish the offender. . . ‘[43]

DOMESTIC LEGISLATION AND STATE POLICIES

It is not sufficient that International Law establishes an obligation to prosecute on the basis of Universal Jurisdiction. There must exist national legislation which authorises the courts of a state to assert jurisdiction, where this is absent, a court might not be able to assert Universal Jurisdiction. Senegal had to enact a law vesting jurisdiction in its courts before it could prosecute Hissene Habre, former Chad president.

State practice is limiting the scope and use of Universal Jurisdiction. [44] Universal Jurisdiction can only be used to the extent that a state’s mun