Universal jurisdiction: it's back!(includes discussion) (Proceedings of the One Hundred Second Annual Meeting of the American Society of International Law: The Politics of International Law)

Author:Keith, Christopher
 
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The panel was convened at 9:00 a.m., Saturday, April 12, by its moderator, Ved Nanda of the University of Denver Sturm College of Law, who introduced the panelists: Christopher Keith Hall of Amnesty International; Wolfgang Kaleck of the European Center for Constitutional and Human Rights; Diane Orentlicher of the Open Society Institute; David Stewart of the U.S. Department of State; and Peter Weiss of the Center for Constitutional Rights.

This panel discussed the rationale behind universal jurisdiction, its scope, and its limits, including state practice and selected case studies. Panelists assessed the current state of the law and analyzed the extent to which several states have enacted laws authorizing their courts and law enforcement authorities to exercise universal jurisdiction--that is, jurisdiction to investigate and prosecute an individual for crimes alleged to have been committed anywhere in the world, even though there is no consensus on the scope and operation of universal jurisdiction.

INTRODUCTORY REMARKS BY VED P. NANDA *

I will provide a broad overview and then request my distinguished panel members to make their presentations. Under universal jurisdiction a national court is authorized to investigate and prosecute a person suspected of committing international crimes in any place, regardless of his or her nationality or the nationality of the victim, and without the necessity of any links to the forum state.

Currently a general consensus exists that effective institutional mechanisms are needed to combat impunity for grave human rights violations and to hold accountable those who commit international crimes--genocide, crimes against humanity, torture, and war crimes. Also, it is widely acknowledged that several recent developments have furthered that objective. These include the establishment of the International Criminal Court (ICC) and of hybrid and special national tribunals to try these crimes, such as the Cambodia and Sierra Leone tribunals, which were preceded by ad hoc war crimes tribunals for Bosnia in The Hague, and for Rwanda in Arusha, Tanzania.

Notwithstanding these developments, the need is apparent for national courts to try cases of such grave crimes as well even if these crimes are not committed within their national territory and regardless of the nationality of the accused and of the victim, and even if the crimes are committed by government officials in another state.

It should be recalled that the Convention against Torture and the Geneva Conventions provisions regarding grave breaches mandate the exercise of universal jurisdiction over persons accused of committing these crimes or to extradite them to a country that will prosecute them. Also, the Rome Statute of the International Criminal Court in its preamble recalls that it is the duty of national courts to exercise criminal jurisdiction over those responsible for international crimes. Nevertheless, for several decades following the trial of Nazi criminals by the Nuremberg Tribunal and adoption of the Nuremberg Principles by the UN General Assembly, states have declined to enact legislation empowering their national courts to exercise universal jurisdiction and have instead relied on territorial jurisdiction or some other valid basis for the exercise of jurisdiction under international law.

A significant change in the international legal environment took place following the Pinochet precedent: pursuant to a Spanish magistrate's request for extradition on charges of torture during Pinochet's regime in Chile, the former president was arrested and detained in London in 1998. Although he was never extradited, the case spurred considerable activity regarding universal jurisdiction. Several states have now enacted legislation under which national courts can exercise universal jurisdiction. In its 2001 study, Universal Jurisdiction: The Duty of States to enact and implement legislation, Amnesty International reported that more than 125 countries had authorized their courts to exercise universal jurisdiction over one or more of the following international crimes: genocide, crimes against humanity, war crimes, torture, extrajudicial executions, and "disappearances." (1)

Courts in several European countries apply universal jurisdiction to try those who have allegedly perpetrated grave international crimes. In a 2006 report, Universal Jurisdiction in Europe The State of the Art, Human Rights Watch studied eight countries to examine universal jurisdiction in practice. (2) The study was conducted primarily through interviews of judges, government officials, lawyers, and investigators.

A common feature found in most European countries is the legislative authorization for domestic courts to use universal jurisdiction over crimes which the country is under a treaty obligation to prosecute. Another common feature is the precondition of physical presence or likely presence of the suspect in the territory of the state for the domestic court to initiate the prosecution.

Among the countries studied in this report, Belgium, The Netherlands, and Spain have led the movement to pursue cases under universal jurisdiction. In 1999, Belgium took the lead by amending its applicable universal jurisdiction legislation to include crimes against humanity and genocide along with war crimes. Victims were also authorized to initiate a criminal case under universal jurisdiction; however, Belgium amended the act under international pressure, removing this capacity of victims to bring private prosecutions. Subsequently, in August 2003, it repealed that act, which was the specific Belgian legislation on international crimes and amended its criminal code to incorporate international crimes. Belgian courts can now exercise jurisdiction over any international crime committed outside Belgium that Belgium is obligated under a treaty to prosecute. Belgian courts also exercise jurisdiction over war crimes, crimes against humanity and genocide pursuant to the nationality and passive personality principles, as provided under their amended code of criminal procedure.

Dutch legislation authorizes courts to exercise universal jurisdiction over genocide, war crimes, crimes against humanity, and torture, based upon the perpetrator's presence in The Netherlands and commission of the crimes, after the act entered into force on October 1, 2003. International crimes committed prior to that date can be tried under the pre-existing laws on genocide, war crimes, and torture. Spanish legislation of 1985 authorizes national courts to exercise universal jurisdiction over genocide and any other offense Spain is obligated to prosecute under international treaties. These include the Convention against Torture, the Geneva Conventions, and Additional Protocol I. The Spanish Criminal Code has also criminalized crimes against humanity since 2004. The landmark investigation against Pinochet was initiated under universal jurisdiction: this was the beginning of Spain's assuming a leading role in the prosecution of cases under universal jurisdiction.

Some European countries have failed to enact implementing legislation and several of them consider themselves bound by domestic amnesty laws in the territorial state, which prevents them from prosecuting these crimes. Several states have followed the International Court of Justice's holding in the Arrest Warrant case that certain government officials, such as current heads of state, foreign ministers and accredited diplomats, are entitled to temporary procedural immunity from the criminal jurisdiction of foreign states. (3) Some states have even granted broader immunity than called for by the ICJ holding. For example, in 2003 a French court granted immunity from prosecution for torture against Robert Mugabe as the head of state of Zimbabwe. In 2005, visiting Chinese trade minister Bo Xilai was granted immunity from prosecution for his alleged involvement in torture and genocide of members of the Falungong spiritual movement, and in the same year former Chinese President Jiang Zemin was granted immunity from German criminal jurisdiction.

Nevertheless, European courts have heard several cases under universal jurisdiction since Pinochet. Under the new Belgian legislation, two Rwandan businessmen were tried and convicted for crimes committed in Rwanda during the 1994 genocide. Another case was brought in Belgium against the former Chadian dictator Hissene Habre, who ruled from 1982 until 1990, when he was deposed and then fled to Senegal. This case, which involves Chad, Belgium, Senegal, the African Union, and the UN Committee Against Torture, raises important issues. Hence, I will discuss it in detail.

In 1992, a Truth Commission accused Habre's regime of engaging in systematic torture and committing forty thousand political murders. In January 2000, several Chadian plaintiffs filed a criminal complaint against Habre in Senegal for torture and crimes against humanity. The Senegalese court dismissed the case on the ground that it had no competence over crimes not committed in Senegal.

While the case was still pending in Senegal, several victims, including three Belgian citizens, filed a case against Habre in Belgium with the support of some human rights groups alleging similar international crimes. After several years of investigation, in September 2005, a Belgian judge issued an international arrest warrant against Habre and Belgium sought his extradition from Senegal. The Senegalese court ruled that it had no jurisdiction to decide on an extradition request against a former head of state, following which the Senegalese authorities sought the African Union's (AU) decision on the appropriate jurisdiction to try the case. The AU, in turn, sought the advice of a Committee of Eminent African Jurists (CEAJ) that it had established.

In the meantime, the Belgian government announced that it would invoke the provisions of the UN Convention...

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