Universal jurisdiction: chronicle of a death foretold?

• Author: Ben-Ari, Rephael

1. INTRODUCTION

   At the turn of the century, the doctrine of universal jurisdiction--together with the newly established International Criminal Court ("ICC")--was supposed to have become the bedrock of a multilateral endeavor to create a global system of criminal justice. In the eyes of many, this project was one of the pinnacles of the post-Cold War era, a milestone achievement of modern international law, denoting the Kantian vision of a borderless world unified by neo-liberal ideas of humanism and the rule of law. (1) However, a few commentators were skeptical. These few regarded the possibility of national jurisdictions prosecuting foreign perpetrators for the extraterritorial commission of international crimes to be premature and unrealistic, politically as well as jurisprudentially, (2) Despite the expression of such skepticism being unpopular at the time, it was nevertheless plainly heard by several prominent jurists.

   Among these skeptics were then-President of the International Court of Justice ("ICJ") Judge Gilbert Guillaume and Law Lord Nicolas Browne-Wilkinson, who presided over the bench (3) of the House of Lords in the Pinochet case. (4) The latter was the only scholar not to have joined in the adoption of the 2001 Princeton Principles on Universal Jurisdiction (5)--the most significant academic attempt to date--to propose model principles on universal jurisdiction. Explaining his reasons for dissenting from the project, Lord Browne-Wilkinson stated:

   I am strongly in favor of universal jurisdiction ... if, by those words, one means the exercise by an international court or by the courts of one state of jurisdiction over the nationals of another state with the prior consent of that latter state.... But the Princeton Principles propose that individual national courts should exercise such jurisdiction against nationals of a state which has not agreed to such jurisdiction. Moreover the principles do not recognize any form of sovereign immunity.... If the law were to be so established, states antipathetic to Western powers would be likely to seize both active and retired officials and military personnel of such Western powers and stage a show trial for alleged international crimes. Conversely, zealots in Western States might launch prosecutions against, for example, Islamic extremists for their terrorist activities. It is naive to think that, in such cases, the national state of the accused would stand by and watch the trail proceed: resort to force would be more probable. In any event the fear of such legal actions would inhibit ... the free interchange of diplomatic personnel. (6) Judge Guillaume, in his Separate Opinion in the Arrest Warrant case, (7) also noted:

   International criminal law has ... undergone considerable development and constitutes today an impressive legal corpus.... But at no time has it been envisaged that jurisdiction should be conferred upon the courts of every State in the world to prosecute such crimes, whoever their authors and victims and irrespective of the place where the offender is to be found. To do this would, moreover, risk creating total judicial chaos. It would also be to encourage the arbitrary for the benefit of the powerful, purportedly acting as agent for an ill-defined "international community." Contrary to what is advocated by certain publicists, such a development would present not an advance in the law but a step backward. (8) These dark prophecies were set aside easily, due to the intellectual atmosphere that ruled at the time. Nevertheless, a decade later, they have essentially foretold the course of developments. Interest groups have consistently manipulated universal jurisdiction, as demonstrated in this paper within the context of the ongoing Middle-East conflict and the "war on terror." (9) Consequently, leading jurisdictions that had initially adopted ambitious versions of universal jurisdiction-based proceedings were compelled to pass far-reaching modifications to their laws.

   This paper traces the way in which the concept of universal jurisdiction has been abused since the late 1990s as part of the so-called "lawfare" against Israel. (10) The following section, Part II, will review briefly the significance of the universal jurisdiction doctrine, and the main complexities involved in its application within the framework of the multilateral endeavor to establish an overall system of international criminal justice. More specifically, Part III will discuss the inherent potential for manipulation and abuse involved in the exercise of universal jurisdiction by national courts. Parts IV-VI will review the various universal jurisdiction-based proceedings initiated against Israeli officials in the legal systems of Belgium, Spain, and the United Kingdom respectively, pointing to the dangers of unrestrained application of the doctrine, as well as the lack of consensus surrounding its implementation. The last part will demonstrate how the intensive manipulation of universal jurisdiction has resulted in a counter-reaction that has, in fact, set back the cause of international global justice, while revealing the risks involved in the application of a largely unsettled legal doctrine. Altogether, this has been a historical milestone that will undoubtedly change the way universal jurisdiction is viewed and dealt with by jurists and politicians alike.

2. THE COMPLEX VISION OF INTERNATIONAL CRIMINAL JUSTICE

   The last two decades witnessed an unprecedented and rapid development in the field of international criminal law. (11) With the end of the stagnancy and pessimism that characterized the Cold War era, the path opened for a new "post-modern" era, underlined by the notions of globalization, dc-tcrritorialization, and interconnectedness, as well as the upholding of the human interest, which supposedly supersedes national interests. (12) Against this background, the quest for the establishment of a global system of international justice was enthusiastically heard within the diplomatic, academic, and civil-society circles. (13) This intellectual and political atmosphere facilitated the establishment of several ad hoc international criminal tribunals, (14) as well as the adoption of the Rome Statute and the formation of the ICC-a long-awaited major achievement. (15) This atmosphere also encouraged renewed interest in the concept of universal jurisdiction, expected to become a cornerstone of a multilateral endeavor motivated by the vision to create a comprehensive system to ensure that perpetrators of the "most serious crimes of international concern" (16) would not find a safe haven, and to deter potential perpetrators-mostly leaders, high-ranking officials, and commanders--from materializing their atrocious schemes. (17)

   Universal jurisdiction is by no means a new concept. (18) Nevertheless, despite recurring attempts by various forums to outline the doctrine,19 it is still difficult to find a broadly accepted definition that describes the legal notion of the principle of universal jurisdiction. (20) Clearly, this is one of the main reasons for the substantial confusion surrounding this usage. The 2009 African Union-European Union ("AU-EU") Joint Expert Report on the Principle of Universal Jurisdiction suggests that:

   [U]niversal criminal jurisdiction is the assertion by one state of its jurisdiction over crimes allegedly committed in the territory of another state, by nationals of another state, against nationals of another state, where the crime alleged poses no direct threat to the vital interests of the state asserting jurisdiction. (21) In other words, universal jurisdiction amounts to an exceptional extraterritorial claim by a state to prosecute crimes in circumstances where none of the traditional criminal jurisdictional links that rely on a territorial or national nexus (22) exists at the time of the commission of the alleged offence. (23) It is the heinousness and gravity of the alleged offence-indeed an international crime (24)--that theoretically justifies the assertion of jurisdiction by national judges, supposedly acting on behalf of the interests of the "international community as a whole." (25)

   Universal jurisdiction is not the only international legal doctrine that enables states to assert jurisdiction over foreign nationals with regard to crimes that have not been committed on their soil. Numerous international treaties oblige signatory states to exercise their criminal jurisdiction over crimes defined in those treaties (26) or to extradite the alleged offender to states that will prosecute them; this obligation materializes when the suspect is present in the territory of the forum state. (27) Unlike this form of treaty-based extraterritorial jurisdiction, universal jurisdiction is regulated by customary international law. States thus largely accept that customary law permits (28) them to exercise their criminal jurisdiction over certain categories of international crimes (such as genocide, crimes against humanity, certain war crimes, piracy, etc.). (29) However, national legislation, jurisprudence, and practice are far from being conclusive regarding the definition of categories of international crimes justifying the assertion of universal jurisdiction. (30) Furthermore, it is unclear whether a state can exercise universal jurisdiction in absentia, without the accused being in the custody of the forum state. (31) Another controversial question, which remains open, is the scope of universal jurisdiction vis-a-vis the immunity recognized for certain high-ranking officials under international law. (32)

3. THE INHERENT PORTENTIAL FOR MANIPULATION AND ABUSE

   The ICC and ad hoc criminal tribunals are international institutions that act on the basis of broad consensus reflected in constituent international treaties and binding resolutions of the U.N. Security Council. (33) These documents outline a rather comprehensive scheme of jurisdictional...