Domestic treatment of universal jurisdiction.

Position:International Law in a Multipolar World - Discussion

This panel was convened at 10:45 am, Friday, April 5, by its moderator, Maximo Langer of the University of California at Los Angeles, who introduced the panelists: Richard Dicker of Human Rights Watch; Charles Jalloh of the University of Pittsburgh; Beth Van Schaack of the U.S. Department of State; and Sienho Yee of Wuhan University. *

* Professor Jalloh did not contribute remarks to the Proceedings. The basis for his remarks was his article, Universal Jurisdiction, Universal Prescription ? A Preliminary Assessment of the African Union Perspective on Universal Jurisdiction, 21 Crim. L. Forum 1 (2010).

INTRODUCTORY REMARKS BY MAXIMO LANGER ([dagger])

This panel examined emerging regional attitudes and national trends in the application of universal jurisdiction. In recent years, many states have called for a reassessment of universal jurisdiction, and some have modified their legislation in response to pressures both legal and political. Panelists discussed the future of the concept of universal jurisdiction and assessed proposals for resolving the tensions between the need to prevent impunity and the obligation to respect national sovereignty.

The panel was arranged to reflect diverse regional and institutional perspectives on universal jurisdiction. The panel included as speakers Richard Dicker from Human Rights Watch, Charles Jalloh from the University of Pittsburgh, Beth Van Schaack from the U.S. Department of State, and Sienho Yee from Wuhan University, in Wuhan, Hubei, China.

([dagger]) Professor of Law, University of California at Los Angeles School of Law.

A FEW REFLECTIONS ON THE CURRENT STATUS AND FUTURE DIRECTION OF UNIVERSAL JURISDICTION PRACTICE

By Richard Dicker ([double dagger])

THE ROLE OF UNIVERSAL JURISDICTION AND PRACTICAL OBSTACLES

From the perspective of Human Rights Watch, the expanding use of universal jurisdiction by national courts over the crimes of torture, war crimes, crimes against humanity, and genocide is an important component of the fledging system of international justice. While, of course, it is preferable for victims of these crimes to gain redress in the courts of the states where the crimes were committed, universal jurisdiction has an important specific function: it is a "safety net" when cases are not tried either by territorial courts or by international courts. This practice is rooted in the longstanding principle that certain crimes are so heinous that they are of concern to every state, wherever they occur.

However, in practice courts face formidable challenges in conducting UJ investigations and prosecutions. From the initial complaint to the conclusion of trial and appeal, universal jurisdiction cases present special demands on police, investigative judges, prosecutors, and defense counsel. The alleged crimes occurred in another country and often many years earlier. Furthermore, investigators and prosecutors may lack familiarity with the historical and political context of the alleged crimes. The state in which the crime was committed may decline to cooperate. Witnesses may be dispersed across several countries and difficult to access. Finally, universal jurisdiction cases can also create intense diplomatic controversy.

IS UNIVERSAL JURISDICTION BEING "ABUSED"?

This segues to the relevant history of the perceived risks of the "abuse" of universal jurisdiction. Claims of "abuse" have arisen in two distinct phases from two very different sources.

The first phase came in the years immediately after the Pinochet litigation in London when victims, human rights activists, and practitioners were enthused about universal jurisdiction as a new tool in the fight against impunity. Based on its broad 1999 law, complaints were filed in Belgium against Ariel Sharon, Jiang Zemin, George H.W. Bush, and then-Secretary of Defense Dick Cheney. These complaints gave rise to a storm of criticism and pressure. Powerful figures, including Henry Kissinger, denounced universal jurisdiction as a means of advancing a political agenda against the United States. This backlash led to significant amendments of the Belgian law in 2003. It was at this point that some asserted that universal jurisdiction was dead in the water. This conventional wisdom proved to be premature.

The second phase of intense opposition came in 2008 in the wake of arrest warrants against leading members of the Rwandan Patriotic Front (RPF). Kigali, deeply angered, took its fury to the African Union (AU). The AU contended that universal jurisdiction was being used as a tool against African leaders. The criticisms were similar to Dr. Kissinger's arguments, but what was particularly stinging was the charge that universal jurisdiction was simply a new tool in the hands of former colonial powers.

Of course, for years Rwanda had been very supportive of the exercise of universal jurisdiction by individual European judicial systems. One reason why a large number of universal jurisdiction cases are in fact against former alleged genocidaires is the extensive cooperation Rwanda provided foreign investigators coming to Kigali. Rwandan authorities never had a problem with European courts investigating and prosecuting Rwandans, provided they were suspected genocidaires and not RPF officials.

Both these phases of UJ opposition merit comment. First, the loose nexus requirement with the forum state that was codified in some of the initial domestic laws was replaced, and the amended provisions rooted authority in passive personality-based jurisdiction, together with the authority to try any crimes committed abroad that a state like Belgium had a treaty obligation to prosecute. The amendments eliminated the right of victims to initiate a universal jurisdiction prosecution and introduced immunity provisions "in accordance with international law." Moreover, the cases that triggered Rwanda's anger were not, in fact, cases of "pure" universal jurisdiction, but rather cases rooted in the passive personality principle--a traditional basis of extraterritorial jurisdiction. Crimes allegedly committed against French and Spanish citizens provided the basis for the arrest warrants issued by judicial authorities in France and Spain against RPF officials. Of course, it is impossible to categorically preclude efforts to "instrumentalize" judicial proceedings in the service of a political agenda. This happens in national judicial systems in relation to ordinary crimes, and there due process safeguards eliminate those unwarranted cases.

Second, a joint AU-EU ad hoc experts committee that was established as a result of the ensuing controversy issued a report on universal jurisdiction which showed that complaints had been filed before European courts against nationals of 27 different states, including individuals from 10 AU member states. Among the cases that have actually been brought to trial under UJ laws, the accused included individuals from the former Yugoslavia, Afghanistan, various Latin American states, and a number of cases involving Rwandan genocidaires. This "docket" does not reflect an unfair "targeting" of Africans in universal jurisdiction cases, as Rwanda had contended.

POSITIVE TRENDS

Despite the objective challenges and sharp criticism, there are important positive developments in UJ practice.

The Growing Universal Jurisdiction Docket

An increasing number of countries are willing to adopt and use their universal jurisdiction laws. In 2002, only Belgium, Spain, and Switzerland were so willing. Over the last 10 years other states have stepped forward to apply their UJ laws, including Argentina, Canada, Denmark, Finland, France, Germany, Italy, the Netherlands, Norway, Senegal, South Africa, Sweden, the United Kingdom, and the United States. There has been a modest increase in the number of cases. Approximately 30 cases have been brought to trial in the last 10 years. Most of these cases concern low- or mid-level alleged perpetrators who had found refuge in the territory of the state exercising its jurisdiction.

Given these trends, the powerful states that are concerned about universal jurisdiction being misused against their officials would do well to bolster their own domestic laws to enable them to investigate alleged crimes in their national courts. Rather than increasing prospects for misuse, this will help to deter misuse because it is a double standard--and the perception of a double standard--that fuels unwarranted cases.

The Broadening Geographic Use of Universal Jurisdiction

We've seen new trends in broadening the use of universal jurisdiction beyond Western states in the last few years.

Senegal. Senegal is preparing to try ex-Chadian head of state Hissene Habre under its universal jurisdiction laws implementing the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (Convention against Torture) and the Rome Statute of the ICC. Significantly, the African Union had urged Senegal for several years to carry out its "legal responsibility in accordance with the Convention against Torture and the decision of the Committee Against Torture."

South Africa. South Africa, through its UJ laws, is dealing with two different sets of circumstances. Both arise from Zimbabwe. One involves claims of torture and rape as crimes against humanity committed in Zimbabwe. The South African government is appealing a court decision that ordered its prosecuting authorities to investigate these alleged crimes. The second set of circumstances involves an initiative in which authorities began an unprecedented investigation into an alleged campaign of politically motivated mass rape in Zimbabwe during the 2008 election period.

Argentina. There are several different UJ cases at various stages of the judicial pipeline in Buenos Aires.

In sum. These facts indicate that universal jurisdiction is moving beyond one region's courts. This transition is extending and transforming what was a doctrine initially applied by...

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