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Universal jurisdiction or universality principle is a 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, as it is too serious to tolerate jurisdictional arbitrage. 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. According to critics, the 'principle' justifies a unilateral act of wanton disregard of the sovereignty of a nation or the freedom of an individual concomitant to the pursuit of a vendetta or other ulterior motives, with the obvious assumption that the person or state thus disenfranchised is not in a position to bring swift (possibly violent and massive) retaliation to the state applying this 'principle'.

The 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 Case Concerning the Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v. Belgium) ("ICJ Arrest Warrant Case").[1] The creation of the International Criminal Court (ICC) in 2002 reduced the perceived need to create universal jurisdiction laws, although the ICC is not entitled to judge crimes committed before 2002.

According to Amnesty International, a proponent of universal jurisdiction, certain crimes pose so serious a threat to the international community as a whole, that states have a logical and moral duty to prosecute an individual responsible for it; no place should be a safe haven for those who have committed genocide[2], crimes against humanity, extrajudicial executions, war crimes, torture and forced disappearances.[3]

Opponents, such as Henry Kissinger, 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, "Widespread agreement that human rights violations and crimes against humanity must be prosecuted has hindered active consideration of the proper role of international courts. Universal jurisdiction risks creating universal tyranny — that of judges."[4][5] According to Kissinger, 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 Nations Security Council Resolution 1674, adopted by the United Nations Security Council on April 28, 2006, "Reaffirm[ed] the provisions of paragraphs 138 and 139 of the 2005 World Summit Outcome Document regarding the responsibility to protect populations from genocide, war crimes, ethnic cleansing and crimes against humanity" and commits the Security Council to action to protect civilians in armed conflict.[6][7]

Contents

Novelty

There is disagreement over whether universal jurisdiction is an old or new concept. Kenneth Roth, the executive director of Human Rights Watch, argues that universal jurisdiction has been around for a long time and gives examples that include American municipal legislation on aircraft hijacking dating from 1970, and that the concept of universal jurisdiction allowed Israel to try Adolf Eichmann in Jerusalem in 1961. Roth also argues that given the wide acceptance of clauses in treaties such as the Geneva Conventions of 1949 and the United Nations Convention Against Torture of 1984, which requires signatory states to pass municipal laws that are based on the concept of universal jurisdiction, it follows that such concepts are more than fifty years old.[5] Henry Kissinger argues that it is a new one, citing the absence of the term universal jurisdiction from the sixth edition of Black's Law Dictionary, published in 1990. Furthermore,

The closest analogous concept listed is hostes humani generis ('enemies of the human race'). Until recently, the latter term has been applied to pirates, hijackers, and similar outlaws whose crimes were typically committed outside the territory of any state. The notion that heads of state and senior public officials should have the same standing as outlaws before the bar of justice is quite new.[4]

Immunity for state officials

On 14 February 2002 the International Court of Justice in the ICJ Arrest Warrant Case concluded that State officials did have immunity under international law while serving in office. The court also concluded that immunity was not granted to State officials for their own benefit, but instead to ensure the effective performance of their functions on behalf of their respective States. The court stated that when abroad, State officials enjoy full immunity from arrest in another State on criminal charges, including charges of war crimes or crimes against humanity.[8] The ICJ did qualify its conclusions, stating that State officers "may be subject to criminal proceedings before certain international criminal courts, where they have jurisdiction. Examples include the International Criminal Tribunal for the former Yugoslavia, and the International Criminal Tribunal for Rwanda . . . , and the future International Criminal Court."[9]

In 2003 Charles Taylor, the former president of Liberia, was served with an arrest warrant by the Special Court for Sierra Leone (SCSL) that was set up under the auspices of a treaty that binds only the United Nations and the Government of Sierra Leone.[10] This is different from the International Criminal Tribunal for the former Yugoslavia and the International Criminal Tribunal for Rwanda (that were specifically mentioned in the ICJ Arrest Warrant Case), that were set up under the UN Security Council, acting under Chapter VII of the United Nations Charter that grant powers to the Security Council that are binding on all UN member states.[10] In this respect the SCSL is more like the International Criminal Court that although it denies immunity to Heads of State, States that are parties to the Rome Statute would be in violation of the ICJ ruling if they handed over a visiting head of state of a non-party State to the ICC.[10] In examining the status of the SCSL Cesare Romano and André Nollkaemper argue that:

If one considers the SCSL as an international legal person (like some treaty-based international organizations), it would arguably be bound by customary law, including international law on immunities. As to Sierra Leone, it might be argued that what Sierra Leone could not have done unilaterally, it cannot do by participating in the creation of an international court. However, there is one relevant difference between the facts of the Arrest Warrant case and the indictment of Mr. Taylor. The Security Council's support for the Court and its express call to Liberia to cooperate (even if not under Chapter VII) give indictments by the SCSL a degree of legitimacy that unilateral state action lacks.
The questions of the international legal status of the SCSL, its obligations under international law and any remaining obligations of the founding entities are complicated by the hybrid nature of the Court. The SCSL is one of a new brand of internationalized criminal bodies, composed of both international and national judges and applying international as well as national law. It shares these features with the Serious Crimes Panels in the District Court of Dili (East-Timor), the Panels in the Courts of Kosovo, and the Extraordinary Chambers in the Courts of Cambodia. Each of these courts is located between the international and national legal order and principles of international law that were developed for an interstate context may not apply automatically in regard of them.
... The retention of the immunity of former heads of states for acts committed in their official capacity has been one of the most critiqued parts of the ICJ judgment. The judgment also leaves open some room for doubt as to what exactly are acts committed in an official capacity. ... [and] the practice of States and courts in this area remains fluid and clear standards have not yet emerged, but the immunity of high States' officials is gradually being reduced.

Cesare P.R. Romano and André Nollkaemper. The Arrest Warrant Against The Liberian President, Charles Taylor[10]

Extraterritorial jurisdiction

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. As an example, the American PROTECT Act of 2003 asserts jurisdiction over American citizens traveling abroad.

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. 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 extraterritoriality 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.[citation needed]
  • 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 citizen 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. Argentinian Alfredo Astiz's sentence is part of this juridical frame.[citation needed]

International tribunals

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 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 them by the German Instrument of Surrender.[citation needed]

Member states of the International Criminal Court.

Established in The Hague 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.[citation needed]

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.[3]

"All states parties to the Convention against Torture and the Inter-American Convention 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."[11]

Universal jurisdiction laws around the world

France

The article 689 of the code de procédure pénale states the infractions that can be judged in France when they were committed outside French territory either by French citizens or foreigners. The following infractions may be prosecuted :

  • Torture
  • Terrorism
  • Nuclear smuggling
  • Naval piracy
  • Airplanes hijacking

Belgium

In 1993, Belgium's Parliament voted a "law of universal jurisdiction" (sometimes referred to as "Belgium's genocide law"), allowing it to judge people accused of war crimes, crimes against humanity or genocide. In 2001, four Rwandan citizens were convicted and given sentences from 12 to 20 years' imprisonment for their involvement in 1994 Rwandan genocide[12]. There was quickly an explosion of suits:

Confronted with this sharp increase in deposed suits, Belgium established the condition that the accused person must be Belgian or present in Belgium. An arrest warrant was 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 ICJ Arrest Warrant Case. The ICJ's decision issued on 14 February 2002 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.[13] However, the matter was addressed in separate and dissenting opinions,[14] such as the separate opinion of President Guillaume who concluded that universal jurisdiction exists only in relation to piracy;[15] and the dissenting opinion of Judge Oda who recognised piracy, hijacking, terrorism and genocide as crimes subject to universal jurisdiction.[16]

On 1 August 2003, Belgium repealed the law on universal jurisdiction, and introduced a new law on extraterritorial jurisdiction similar to or more restrictive than that of most other European countries. However, some cases which had already started continued. These included those concerning the Rwandan genocide, and complaints filed against the Chadian ex-President Hissène Habré (dubbed the "African Pinochet").[17] In September 2005, Habré was indicted for crimes against humanity, torture, war crimes and other human rights violations by a Belgian court. Arrested in Senegal following requests from Senegalese courts, he is now under house arrest and waiting for (an improbable) extradition to Belgium[18].

Canada

To implement the Rome Statute, Canada passed the Crimes Against Humanity and War Crimes Act. Michael Byers, a University of British Columbia law professor, has argued that these laws go further than the Rome Statute, providing Canadian courts with jurisdiction over acts pre-dating the ICC and occurring in territories outside of ICC member-states; “as a result, anyone who is present in Canada and alleged to have committed genocide, torture [...] anywhere, at any time, can be prosecuted [in Canada].”[19]

Germany

Israel

The moral philosopher Peter Singer, along with Kenneth Roth[5], has cited Israel's prosecution of Adolf Eichmann in 1961 as an assertion of universal jurisdiction. He claims that while Israel did invoke a statute specific to Nazi crimes against Jews, its Supreme Court claimed universal jurisdiction over crimes against humanity.[20]

Spain

Spanish law recognizes the principle of the universal jurisdiction. Article 23.4 of the Judicial Power Organization Act (LOPJ), enacted on 1 July 1985, establishes that Spanish courts shall have jurisdiction over crimes committed by Spaniards or foreign citizens outside Spain when such crimes can be typified, according to Spanish criminal law, as genocide and terrorism, among others, as well as any other crime which according to international treaties or conventions must be prosecuted in Spain. On 25 July 2009 the Spanish Congress passed a law that limits the competence of the Audiencia Nacional under Article 23.4 to cases in which Spaniards are victims, there is a relevant link to Spain or the alleged perpetrators are in Spain.[21] The law still has to pass the Senate, the high chamber, but passage is expected because it is supported by both major parties.[22]

In 1999, Nobel peace prize winner Rigoberta Menchú brought a case against the Guatemalan military leadership in a Spanish Court. Six officials, among them Efraín Ríos Montt and Óscar Humberto Mejía, were formally charged on 7 July 2006 to appear in the Spanish National Court after Spain's Constitutional Court ruled in September 2005, the Spanish Constitutional Court declaration that the "principle of universal jurisdiction prevails over the existence of national interests", following the Menchu suit brought against the officials for atrocities committed in the Guatemalan Civil War[23][24]

In June 2003, Spanish judge Baltasar Garzón jailed Ricardo Miguel Cavallo, a former Argentine naval officer, who was extradited from Mexico to Spain pending his trial on charges of genocide and terrorism relating to the years of Argentina's military dictatorship.[25][26]

On 11 January 2006 it was reported that the Spanish High Court will investigate whether seven former Chinese officials, including the former President of China Jiang Zemin and former Prime Minister Li Peng participated in a genocide in Tibet. This investigation follows a Spanish Constitutional Court (26 September 2005) ruling that Spanish courts could try genocide cases even if they did not involve Spanish nationals.[27] [28] The court proceedings in the case brought by the Madrid-based Committee to Support Tibet against several former Chinese officials was opened by the Judge on 6 June 2006, and on the same day China denounced the Spanish court's investigation into claims of genocide in Tibet as an interference in its internal affairs and dismissed the allegations as "sheer fabrication".[29][30]

On 29 January 2009, Fernando Andreu, a judge of the Audiencia Nacional, opened preliminary investigations into claims that a bomb attack on Gaza in 2002 warranted the prosecution of the former Israeli defence minister Binyamin Ben-Eliezer, the former defence chief-of-staff Moshe Ya'alon, the former air force chief Dan Halutz, and four others, for crimes against humanity. Israeli Prime Minister Benjamin Netanyahu strongly criticized this decision, and Israeli officials refused to provide information requested by the Spanish court.[31] The attack killed a suspected leader of the Islamic paramilitary organisation Hamas, Salah Shehade, along with 14 civilians, mainly children, and wounded some 150 Palestinians, according to the complaint.[32] The investigation in this case was halted on 30 June 2009 by a decision of a panel of 18 judges of the Audiencia Nacional. The reasoning for the decision has not yet been published.[22]

Australia

The High Court of Australia confirmed the authority of the Australian Parliament, under the Australian Constitution, to exercise universal jurisdiction over War Crimes in the Polyukhovich v Commonwealth case of 1991.

United Kingdom

See also:Augusto Pinochet's arrest and trial

In December 2009 a court in London issued an arrest warrant for Tzipi Livni in connection with accusations of war crimes in the Gaza Strip during Operation Cast Lead (2008–2009).[33] The warrant was issued on 12 December and revoked on 14 December, 2009 after it was revealed that Livni had not entered British territory. [34] The warrant was later denounced as "cynical" by the Israeli foreign ministry, while Livni's office said she was "proud of all her decisions in Operation Cast Lead".[35] Livni herself called the arrest warrant "an abuse of the British legal system". [36]. Similarly a January visit to Britain by a team of Israel Defense Force (IDF) was cancelled over fears that arrest warrants would be issued in connection with accusations of war crimes under laws of universal jurisdiction. [37]

Notes

  1. ^ Hans Köchler, "The judgment of the International Court of Justice (2002) and its implications for the exercise of universal jurisdiction by national courts: the case of Belgium," in: Global Justice or Global Revenge? International Criminal Justice at the Crossroads. Vienna and New York: Springer, 2003, pp. 85-101. ISBN 3-211-00795-4
  2. ^ The Program for Humanitarian Policy and Conflict Research, "Brief Primer on Genocide" Accessed at http://ihl.ihlresearch.org/index.cfm?fuseaction=page.viewpage&pageid=1638
  3. ^ a b "UNIVERSAL JURISDICTION: Questions and answers". http://web.amnesty.org/library/index/engIOR530202001. 
  4. ^ a b Kissinger, Henry (July/August 2001). "The Pitfalls of Universal Jurisdiction". Foreign Affairs. http://www.foreignaffairs.org/20010701faessay4996/henry-a-kissinger/the-pitfalls-of-universal-jurisdiction.html. 
  5. ^ a b c Roth, Kenneth (September/October 2001). "The Case For Universal Jurisdiction". Foreign Affairs. http://www.foreignaffairs.org/20010901faresponse5577/kenneth-roth/the-case-for-universal-jurisdiction.html. 
  6. ^ Resolution 1674 (2006)
  7. ^ Security Council passes landmark resolution – world has responsibility to protect people from genocide Oxfam Press Release - 28 April 2006
  8. ^ "ICJ rejects Belgian arrest warrant for foreign ministers of Democratic Republic of Congo". United Nations Information Service. 2002-09-14. http://www.unis.unvienna.org/unis/pressrels/2002/afr379.html. 
  9. ^ Cesare P.R. Romano and André Nollkaemper. The Arrest Warrant Against The Liberian President, Charles Taylor, on the website of the American Society of Internation law, June 2003. Cites in footnote 6: Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v. Belgium), Judgment, Merits, para. 61.
  10. ^ a b c d Cesare P.R. Romano and André Nollkaemper. The Arrest Warrant Against The Liberian President, Charles Taylor, on the website of the American Society of Internation law, June 2003.
  11. ^ [http://web.amnesty.org/library/index/engior530122001?OpenDocument Universal Jurisdiction: The duty of states to enact and implement legislation - Chapter Nine (Torture: The legal basis for universal jurisdiction), Amnesty International 1 September 2001. Section II. Universal Jurisdiction over torture
  12. ^ Belgique : Questions et Réponses sur la loi de Compétence Universelle
  13. ^ ICJ's decision See paragraph 43
  14. ^ separate and dissenting opinions
  15. ^ separate opinion of President Guillaume at paragraph 12
  16. ^ dissenting opinion of Judge Oda, paragraph 12
  17. ^ "Belgium: Universal Jurisdiction Law Repealed". Human Rights Watch. 2003-08-01. http://www.hrw.org/press/2003/08/belgium080103.htm. 
  18. ^ Trial Watch : Hissène Habré
  19. ^ Byers, Michael (2007). Intent for a Nation. Vancouver: Douglas & McIntyre. p. 111. ISBN 978-1-55365-250-2. 
  20. ^ Singer, Peter (2002). One World. Yale University Press. pp. 114. ISBN 0-300-09686-0. 
  21. ^ "Spain reins in crusading judges". BBC News. 25 June 2009. http://news.bbc.co.uk/2/hi/europe/8119920.stm. 
  22. ^ a b "Spanish court ends Israel bombing probe". The Associated Press. 30 June 2009. http://www.google.com/hostednews/ap/article/ALeqM5g7nVX6JkK9c3ofnkBpgD_5eFF84AD9950VPO0. 
  23. ^ "Spain judge charges ex-generals in Guatemala genocide case". Jurist. 2006-07-08. http://jurist.law.pitt.edu/paperchase/2006/07/spain-judge-charges-ex-generals-in.php. 
  24. ^ "Spanish Supreme Court: Guatemala Genocide Case". Nizkor Project. February 25, 2003. http://www.derechos.org/nizkor/guatemala/doc/stsgtm.html. 
  25. ^ Daly, Emma (2003-06-30). "Spanish Judge Sends Argentine to Prison on Genocide Charge". New York Times. http://select.nytimes.com/gst/abstract.html?res=F20A13FD3F5E0C738FDDAF0894DB404482. 
  26. ^ "Profile: Judge Baltasar Garzon". BBC. 2005-09-36. http://news.bbc.co.uk/1/hi/world/europe/3085482.stm. 
  27. ^ "Spain to investigate 'genocide' in Tibet". The Independentdate=2006-01-11. p. 19. 
  28. ^ Reuters (2006-01-12). "Spanish court to investigate Tibet massacre case". New Zealand Herald. http://www.nzherald.co.nz/section/story.cfm?c_id=2&ObjectID=10363286. 
  29. ^ "World in Brief: Lawyers take China to court". The Times. 2006-06-07. http://www.timesonline.co.uk/article/0,,3-2212271.html. 
  30. ^ Olesen, Alexa (2006-06-07). "China rejects Spain's 'genocide' claim". The Independent. http://news.independent.co.uk/world/asia/article656410.ece. 
  31. ^ Spain investigates claims of Israeli crimes against humanity in Gaza, The Guardian, 29 January 2009
  32. ^ Spanish judge to go ahead with Gaza raid probe, Middle East Online, 4 May 2009
  33. ^ . http://www.guardian.co.uk/world/2009/dec/14/tzipi-livni-israel-gaza-arrest. 
  34. ^ "Foreign Ministry outraged over U.K. arrest warrant against Livni". Haaretz. 14 December 2009. http://www.haaretz.com/hasen/spages/1134978.html. Retrieved 2009-12-14. 
  35. ^ "Israel condemns attempt in a UK court to arrest Livni". BBC News. 15 December 2009. http://news.bbc.co.uk/2/hi/middle_east/8413234.stm. Retrieved 2009-12-15. 
  36. ^ "Tzipi Livni: UK warrant a legal 'abuse'". BBC News. 2009-12-14. http://news.bbc.co.uk/1/hi/world/middle_east/8415123.stm. Retrieved 2009-12-14. 
  37. ^ "Israeli military cancels UK visit over arrest fears". http://www.guardian.co.uk/world/2009/dec/14/tzipi-livni-israel-gaza-arrest. 

Further reading

See also

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