Averting Abuse of Universal Jurisdiction

1. Averting Abuse of Universal Jurisdiction

Professor Gregory S. Gordon University of North Dakota School of Law

2. Overview

Definition Conceptual Parameters History Varieties of Universal Jurisdiction The Benefits of Universal Jurisdiction The Potential for Abuse Proposed Solution

3. Definition

Jurisdiction established over certain crimes (such as piracy and war crimes) without reference to the place of perpetration, the nationality of the suspect or the victim or any other recognized linking point between the crime and the prosecuting State.

4. Conceptual Framework

Territorial Jurisdiction Nationality Jurisdiction Passive Personality Jurisdiction Protective Jurisdiction Universal Jurisdiction

5. Origins of Universal Jurisdiction:Piracy in Customary Law

Universal jurisdiction over piracy established as part of customary law in 17th century Based on reciprocity -- joint concern of all States given that it occurred on the High Seas

6. Origins of Universal Jurisdiction: Jus Cogens Crimes in Treaties

Geneva Conventions of 1949 Article 129 of G.C. III: “Each High Contracting Party shall be under the obligation to search for persons alleged to have committed, or to have ordered to be committed, such grave breaches, and shall bring such persons, regardless of their nationality, before its own courts. “ Convention against Torture (1984) Article 5(2): “Each State Party shall likewise take such measures as may be necessary to establish its jurisdiction over such offences in cases where the alleged offender is present in any territory under its jurisdiction . . .” Various Terrorism Conventions (arguably jus cogens)

7. Rationale

Certain criminal conduct is so inherently odious that it must be treated differently from ordinary delicts. It is against the universal interest, offends universal conceptions of public policy and must be universally condemned. The perpetrators are viewed as hostis humani generis, enemies of humankind, and any state which obtains custody over them has a legitimate ground to prosecute in the interest of all states, even if the state itself has no direct connection with the actual crime

8. The Eichmann Trial

During WWII, managed logistics of mass deportation of Jews to ghettos and extermination camps in Nazi-occupied Eastern Europe Captured in 1960 by Israeli Mossad agents in Argentina, indicted by an Israeli court under 1950 Law for crimes against the Jewish people, crimes against humanity and war crimes The Jerusalem District Court upheld Israel’s jurisdiction to try Eichmann: “The abhorrent crimes defined in this Law are not crimes under Israeli law alone. These crimes, which struck at the whole of mankind and shocked the conscience of nations, are grave offences against the law of nations itself . . .Therefore, so far from international law negating or limiting the jurisdiction of countries with respect to such crimes, international law is . . .in need of the judicial and legislative organs of every country to give effect to its criminal interdictions and to bring the criminals to trial. The jurisdiction to try crimes under international is universal.”

9. The Augusto Pinochet Case

Came to power in violent 1973 coup establishing dictatorship responsible over the next 17 years for the disappearance, torture, and murder of thousands of political opponents In October 1998, while visiting the UK for medical treatment, was arrested on Spanish provisional warrants charging him with human rights crimes After a hard-fought 16-month legal battle, the House of Lords ruled that certain jus cogens crimes, such as torture, were not protected by former head-of-state immunity and that extradition could proceed Despite eventual release due to ill health, this vindication of universal jurisdiction is a watershed event in international law (with some scholars considering it one of the most important events in judicial history since the Nuremberg trials of Nazi war criminals)

10. Types of Universal Jurisdiction

Narrow (U.S., Switzerland) Only the State where the accused is in custody may prosecute him (forum deprehensionis) In certain States, there must be a link between the forum state and nationality of the perpetrator or victim Only the State may initiate prosecutions Broad (Spain, Belgium -- Old) Accused may be prosecuted regardless of whether he’s present in the forum state No connection necessary with territory, perpetrator, or victim Proceedings may be brought by private parties

11. UJ Positive Developments

Since 1999, Spain has indicted (and in one instance convicted -- Adolfo Scilingo) a number of ex-members of military juntas from Latin America who might have otherwise gone unpunished Rwandan and Yugoslav mass murderers have been prosecuted in various jurisdictions such as Germany, Switzerland, Belgium and currently in Canada (Desire Munyaneza) easing the international community’s resources burden and sending the message that these countries will not provide safe haven for atrocity perpetrators UJ has assisted the ICTR and ICTY in implementing their respective completion strategies by transferring cases to jurisdictions such as the Netherlands

12. UJ Troubling Developments

UJ being used to settle political scores 1993 Belgian Law used to indict everyone from Colin Powell to Fidel Castro to Ariel Sharon Expensive, time-consuming, and inefficient Canadian Munyaneza trial has taken nearly two years and cost millions (13 witnesses flown in from Rwanda and trial had to move to France, Rwanda and Tanzania) Lack of uniformity in procedure and punishment

13. Case Study: France & Rwanda

France implicated in 1994 Rwandan genocide (armed extremist Hutus and helped them escape after the genocide) France has had hostile relations with the RPF since the early 1990s – enemies against the preservation of the African Francophonie

14. France & Rwanda Part 2

In the meantime, France has been harboring a number of accused genocidaires: Wenceslas Munyeshyaka, Laurent Bucyibaruta, Claver Kamana, Marcel Bivugabagabo, and Isaac Kamali – all subjects of international arrest warrants. UJ should be used by France but it is not.

15. France & Rwanda Part 3

In 2006, a French judge issued arrest warrants for nine Rwandan officials, including President Paul Kagame, linking them to the killing of Rwanda's former president, whose plane was shot down in 1994 According to the Los Angeles Times: “It was an odd indictment by international standards: the judge did not consider alternative theories, did not visit Rwanda and did not conduct any investigation of his own. Yet it served the French goal of painting Kagame's government as a gang of criminals.” 

16. France & Rwanda Part 4

Rwanda broke off diplomatic relations with France after the indictments and then established a commission to investigate France's role in the genocide After months of hearings, that commission concluded that France's support for the genocide "was of a political, military, diplomatic and logistic nature" and named high-ranking French officials who should be brought before international tribunals. They include prominent military commanders and prominent politicians including former prime ministers Edouard Balladur and Dominique de Villepin, and former foreign ministers Alain Juppe and Hubert Vedrine Rwanda has officially applied to join the British Commonwealth and last month, Kagame announced that English would replace French as Rwanda's official second language

17. France & Rwanda Part 5

On November 9, 2008, Rose Kabuye, chief of protocol for Rwandan President Paul Kagame, was arrested in Frankfurt, Germany, on an international warrant issued in France. She was transferred to France on November 19th. This, along with the failure to prosecute notorious genocidaires such as Munyeshyaka, represents universal jurisdiction being abused by France to gain political leverage in its high-stakes diplomatic battle against Rwanda Earlier this year, the African Union called for a moratorium on indictments against Rwandan officials which it condemned as politically motivated

18. Solution: Treaty on Universal Jurisdiction

Incorporate “The Princeton Principles on Universal Jurisdiction” (2001) Crimes subject to universal jurisdiction include: (1) piracy; (2) slavery; (3) war crimes; (4) crimes against peace; (5) crimes against humanity; (6) genocide; and (7) torture; (Principle 2) The application of universal jurisdiction to the crimes listed above is without prejudice to the application of universal jurisdiction to other crimes under international law; (Principle 2) Once out of office, government officials -- including heads of state -- should not be immune from prosecution based on the defense that they were acting in an official capacity; (Principle 5) There should be no statute of limitations on the prosecution of these crimes; (Principle 6) Blanket amnesties generally are inconsistent with a nation's obligation to hold individuals accountable for these crimes; (Principle 7)

19. Universal Jurisdiction Treaty Part 2

Incorporate protective aspects of the Princeton Principles: A state shall exercise universal jurisdiction in good faith and in accordance with its rights and obligations under international law; (Principle 1) In exercising universal jurisdiction . . . a state and its judicial organs shall observe international due process norms including but not limited to those involving the rights of the accused and victims, the fairness of the proceedings, and the independence and impartiality of the judiciary . . . (Principle 1) In the exercise of universal jurisdiction, a state or its judicial organs shall ensure that a person who is subject to criminal proceedings shall not be exposed to multiple prosecutions or punishment for the same criminal conduct . . . . (Principle 9) A state shall refuse to entertain a request for extradition based on universal jurisdiction if the person sought is likely to face a death penalty sentence or to be subjected to torture or any other cruel, degrading, or inhuman punishment or treatment, or if it is likely that the person sought will be subjected to sham proceedings in which international due process norms will be violated. (Principle 10) 

20. Additional Protection 1: Apolitical Prosecutions

Forum states should only take cases where justice, as opposed to political leverage, is determined to be the sole reason for the process There should be special scrutiny of claims perceived to be “taking sides” in connection with an ongoing conflict, primarily of a political nature Although no precise guideline is possible, some consideration should be given to the cost of trials to public order outweighing their benefits to combating impunity

21. Additional Protection 2: Decisions to Prosecute Should Be Made by Criminal Justice System Officials, Not Private Citizens

Although private citizens should have access to prosecutors to raise potential claims and provide supporting evidence, the State alone should make the decision to prosecute This should entail the prosecutor’s obligation to seek authorization to investigate and prosecute from a pre-trial magistrate (akin to the ICC pre-trial chamber procedure)

22. Additional Protection 3: Presence of the Accused

Universal jurisdiction cases function best where the accused is already in the country. The trials under universal jurisdiction that have proceeded, such as those involving Nazi war criminals in Australia and Canada or Bosnians and Rwandans in Europe and Canada, have been cases where the accused was present during the investigation Rwandan nuns convicted of genocide in Belgium

23. Additional Protection 4: Severity of the Alleged Atrocities

Although morally any sort of impunity for atrocities is unacceptable, universal jurisdiction ought to be reserved for: particularly heinous offenses, evidenced through exceptional cruelty; or large numbers of victims

24. Additional Protection 5: Strength of the Evidence

At a very early stage in a proceeding, an investigating official (judge or public prosecutor) should have an opportunity to terminate proceedings on the basis of insufficient evidence. Prosecutions should not proceed where there is a significant likelihood of acquittal.

25. Additional Protection 6: UJ Complementarity

Priority to prosecute should belong to the State of territoriality or the State with greater links to the parties if those jurisdictions are willing and able to do so The forum state must have an independent, fair and effective judiciary

26. Conclusion

The debates regarding universal jurisdiction implicate some compelling dilemmas: Idealism vs. Pragmatism; Law vs. Power; Community-Minded State vs. Hegemon; Human Rights vs. Foreign Policy Imperatives; International Justice vs. Impunity We must strike the right balance to end the culture of impunity while establishing safeguards against the potential abuse of universal jurisdiction