University of Amsterdam
Amsterdam Law School
Universal Jurisdiction at the Extraordinary African Chambers:
First Steps towards Universal Enforcement?
26 June 2019
L.F. van Dord
Abstract
In light of increased criticism of the International Criminal Court (ICC), universal jurisdiction has been heralded as an alternative way of achieving international criminal justice. This paper investigates to what extent universal jurisdiction can aid in legitimately ending the impunity gap in order to add to the scholarship on the legitimacy of applying universal jurisdiction in practice and help in forming a solid ground for states to decide upon the future of international criminal justice. To that end, it investigates the source of legitimacy in the case of Hissène Habré before the Extraordinary African Chambers (EAC). Through a thorough analysis of the foundations of universal jurisdiction and a contextualized assessment of its application at the EAC, this paper will argue that the legitimacy of universal jurisdiction derives from multilateral support and regional involvement, rather than in the normative foundation of universal jurisdiction. The Hissène Habré case highlights the potential of universal jurisdiction to ending the impunity gap, as a fluid tool in international criminal justice. Yet, truly universal enforcement of international criminal law will remain elusive until universal jurisdiction will be allowed to be exercised without being curtailed by international politics. While the fluidity of universal jurisdiction allows for the pursuit of international criminal justice where other methods are unavailable, its paradoxical source of legitimacy prevents a truly universal reach of the principle.
Table of Contents
ABSTRACT ... II
INTRODUCTION ... 1
LEGAL FRAMEWORK: THE EXISTENCE OF UNIVERSAL JURISDICTION AS A NORM OF INTERNATIONAL LAW .... 6
CUSTOMARY UNIVERSAL JURISDICTION ... 10
TREATY-BASED UNIVERSAL JURISDICTION ... 13
ASSERTING UNIVERSAL JURISDICTION IN PRACTICE: THE SIGNIFICANCE OF POLITICS ... 19
LEGITIMIZING PRACTICE THROUGH IMPOSING LIMITATIONS ... 19
THE IMPORTANCE OF POLITICS FOR LEGITIMACY ... 23
THE EXERCISE OF UNIVERSAL JURISDICTION IN AFRICA: THE AFRICAN UNION & UNIVERSAL JURISDICTION . 27 THE AU’S CRITICISM OF UNIVERSAL JURISDICTION ... 28
ALLEGATIONS OF NEO-COLONIALISM IN INTERNATIONAL CRIMINAL LAW ... 31
UNIVERSAL JURISDICTION: REGAINING GROUND? ... 34
THE EAC: LEGITIMACY IN REGIONAL EXERCISES OF UNIVERSAL JURISDICTION?... 35
THE BACKGROUND TO THE HABRÉ CASE ... 35
THE NATURE OF THE EAC AND ITS JURISDICTIONAL BASIS ... 39
THE FOUNDATION OF EXERCISING UNIVERSAL JURISDICTION AT THE EAC ... 43
LEGITIMACY OF EAC’S EXERCISE OF UNIVERSAL JURISDICTION ... 44
CONCLUSION ... 47
REFERENCES ... 49
BIBLIOGRAPHY ... 49
JUDICIAL DECISIONS ... 53
INTERNATIONAL INSTRUMENTS ... 54
Introduction
Universal jurisdiction has been a highly contentious tool in the fight against impunity and is one of the most hotly debated topics in international criminal law. The current dominant justification of universal jurisdiction is rooted in the assumption that certain crimes affect the international legal order as a whole.1 As a result of the universal wrongfulness of these crimes and the harm done to the whole of the international legal order, the perpetrators of such crimes can be tried by any country – even in case of absence of any links to their territory or national interests.2 After the Second World War, universal jurisdiction was welcomed warmly to try perpetrators of international crimes and gave rise to the well-known cases of Eichmann and Demjanjuk in Israel for crimes committed during World War II, amongst others. However, subsequent universal jurisdiction cases – mostly initiated by Western European and developed Commonwealth states – have been more contentious.3 The African Union (AU) has been especially critical of universal jurisdiction, arguing that the principle has been abused by European states in a practice reminiscent of neocolonialism.4 Arguably, through exercising universal jurisdiction, EU countries have interfered in the sovereignty of African countries by indicting African leaders, thereby undermining the stability of African countries and affecting their possibilities for economic, political and social development.5 These criticisms have led to discussions on the universality principle in the United Nations General Assembly, yet have yielded little result in resolving questions around the exercise of universal jurisdiction regarding the balance between the necessity of accountability for international crimes and the fundamental principles of state sovereignty and territorial integrity.6
1 Alejandro Chehtman, “Extraterritorial Jurisdiction for International Crimes,” in The Philosophical Foundations of Extraterritorial Punishment, vol. 2, 2011, 116,
https://doi.org/10.1093/acprof:oso/9780199603404.003.0006.
2 Robert Cryer et al., An Introduction to International Criminal Law and Procedure, 3rd ed. (Cambridge:
Cambridge University Press, 2014), 57.
3 Máximo Langer, “The Diplomacy of Universal Jurisdiction: The Political Branches and the Transnational
Prosecution of International Crimes,” The American Journal of International Law 105, no. 1 (2011): 43, https://doi.org/10.5305/amerjintelaw.105.1.0001.
4 Martin Mennecke, “The African Union and Universal Jurisdiction,” in The International Criminal Court and Africa, vol. 8, 2017, 10, https://doi.org/10.1093/oso/9780198810568.003.0002.
5 African Union, “Decision on the Report of the Commission on the Abuse of the Principle of Universal
Jurisdiction,” Doc. Assembly/AU/ 14 (XI) (July 2008).
Recently, universal jurisdiction has regained international attention and is heralded by some scholars as an alternative way of achieving international criminal justice, especially in light of the failures of the International Criminal Court (ICC) to pursue solid investigations and hold successful trials.7 As the ICC seems unable to fulfill its goal of ending impunity, universal jurisdiction is perceived as an alternative way to achieve this goal. Yet, to what extent can universal jurisdiction legitimately end the impunity gap?
Despite this renewed interest in universal jurisdiction, cases initiated on this basis remain scarce and the source of legitimacy of exercising universal jurisdiction remains contested. The case of Hissène Habré before the Extraordinary African Chambers (EAC) in Senegal seems to be a singular example of the legitimate use of universal jurisdiction in recent years. Yet, studies focusing on the EAC mainly investigate the nature of this new internationalized mechanism8 and the replicability of an internationalized chambers based on the principle of universality.9 However, the Hissène Habré case may offer insight into the possible sources of legitimacy of universal jurisdiction generally, especially against the backdrop of the African aversion of previous exercises of universal jurisdiction. Then, what were the sources of legitimacy of exercising universal jurisdiction in the case of Hissène Habré?
7 Kenneth Roth, “The Case for Universal Jurisdiction,” Foreign Affairs, 2001; Theodor Meron, “Closing the
Accountability Gap: Concrete Steps Toward Ending Impunity for Atrocity Crimes,” American Journal of
International Law 112, no. 3 (2018): 433–51, https://doi.org/10.1017/ajil.2018.53; Laura Burens, “Universal
Jurisdiction Meets Complementarity: An Approach towards a Desirable Future Codification of Horizontal Complementarity between the Member States of the International Criminal Court,” Criminal Law Forum 27, no. 1 (2016): 75–97, https://doi.org/10.1007/s10609-016-9272-9; Maragaret M. DeGuzman, “Choosing to Prosecute: Expressive Selection at the International Criminal Court,” Michigan Journal of International Law 33, no. 265 (2012): 265–320, https://doi.org/10.1525/sp.2007.54.1.23.; Owen Bowcott, Oliver Holmes, and Erin Durkin, “John Bolton Threatens War Crimes Court with Sanctions in Virulent Attack,” The Guardian, September 10, 2018.
8 Sarah Williams, “The Extraordinary African Chambers in the Senegalese Courts: An African Solution to an
African Problem?,” Journal of International Criminal Justice 11, no. 5 (2013): 1139–60, https://doi.org/10.1093/jicj/mqt060; Emanuele Cimiotta, “The First Steps of the Extraordinary African Chambers: A New Mixed Criminal Tribunal?,” Journal of International Criminal Justice 13, no. 1 (2015): 177–97, https://doi.org/10.1093/jicj/mqu085.
9 Bernard Ntahiraja, “The Present and Future of Universal Jurisdiction in Africa: Lessons from the Hissène
Habré Case,” in International Criminal Justice in Africa, 2016, ed. HJ van der Merwe and Gerhard Kemp (Strathmore University Press, 2017), 1–37; Reed Brody, “Bringing a Dictator to Justice: The Case of Hissène Habré,” Journal of International Criminal Justice 13, no. 2 (2015): 2090–2217, https://doi.org/10.1093/jicj/mqv005; Christoph Sperfeldt, “The Trial against Hissène Habré: Networked Justice and Reparations at the Extraordinary African Chambers,” International Journal of Human Rights 21, no. 9 (2017): 1243–60, https://doi.org/10.1080/13642987.2017.1360018; Sofie A E Høgestøl, “The Habré Judgment at the Extraordinary African Chambers: A Singular Victory in the Fight Against Impunity,” Nordic Journal of
Crucially, there are many distinct issues related to exercising universal jurisdiction – most of which also have bearing on the legitimacy of universal jurisdiction. Scholars have pointed to the practical difficulties of holding large-scale criminal trials for heinous crimes far away from the place these occurred, with regards to difficulty in accessing evidence and obtaining cooperation of the states in which the crimes were committed.10 Moreover, due to the lack of a nexus to the prosecuting state, jurisdictional conflicts may arise between states and issues of double jeopardy come into play.11 Despite the validity of these criticisms and their possible effects on the legitimacy of the universality principle in the pursuit of international criminal justice, it is beyond the scope of this paper to focus on these practical issues. Instead, this paper will focus on the underlying rationale and justification for exercising universal jurisdiction in specific cases. Thus, this paper will shed light on the question whether universal jurisdiction (even without regard for the practical application) may serve as a legitimate basis to holding perpetrators accountable for heinous crimes within the current international legal order. As such, this paper offers insight into the possibilities presented by universal jurisdiction generally to close the impunity gap. This paper thus aims to add to the scholarship on the legitimacy of applying universal jurisdiction in practice, and help in forming a solid ground for states to decide upon the future of the pursuit of international criminal justice.
This debate on the legitimacy of universal jurisdiction often becomes convoluted by the conflation of different distinct legal issues. Many criticisms of universal jurisdiction cases relate to a lack of respect for immunities by the country seeking prosecution, resulting in unfounded criticisms on the legitimacy of universal jurisdiction. Moreover, the endeavors of the International Criminal Court (ICC) are sometimes viewed as an expression of the principle of universality. Yet, in most cases, the ICC does not operate on the basis of universal jurisdiction but rather on the basis of territoriality or the nationality principle.12
10 See generally Ingrid Massagé and Mandira Sharma, “Regina v. Lama: Lessons Learned in Preparing a
Universal Jurisdiction Case,” Journal of Human Rights Practice 10, no. 2 (2018): 327–45, https://doi.org/10.1093/jhuman/huy020.
11 George P. Fletcher, “Against Universal Jurisdiction,” Journal of International Criminal Justice 1 (2003): 580–
81.
12 See UN General Assembly, Rome Statute of the International Criminal Court (last amended 2010), 17 July
1998, Article 12; Diane F. Orentlicher, “The Future of Universal Jurisdiction in the New Architecture of Transitional Justice,” in Universal Jurisdiction: National Courts and the Prosecution of Serious Crimes Under International Law, ed. Stephen Macedo (University of Pennsylvania Press, 2006), 214–39; M. Cherif Bassiouni, “Universal Jurisdiction for International Crimes: Historical Perspectives,” Virginia Journal Of International Law
Contrarily, in cases referred by the Security Council under Chapter VII of the UN Charter “transcend the territoriality of a state party”, and are thus based on universality.13 However, due to involvement of the Security Council, the nature of universality cases at the ICC is significantly different from domestic cases based on universal jurisdiction. As such, most criticisms on the endeavors of the Court do not have bearing on the legitimacy of the universality principle as exercised by individual nations in the international legal system.
Thus, this paper focuses on the exercise of universal jurisdiction as a distinct legal issue. With reference to the prosecution of Hissène Habré before the EAC, this paper will argue that the current source of legitimacy of exercising universal jurisdiction lies in widespread political support, rather than in the normative foundations of universal jurisdiction. Yet, while the fluidity of universal jurisdiction allows for the pursuit of international criminal justice where other methods are unavailable, its paradoxical source of legitimacy prevents a truly universal reach of the principle.
To shed light on the complexities in applying universal jurisdiction in the inter-state system, this paper will first set out the contours of universal jurisdiction and its basis in international law. With reference to perceived different types of universal jurisdiction, this paper will make an argument for the existence of universal jurisdiction as a norm of customary international law. Subsequently, this paper will trace the practice of universal jurisdiction by states and assess the significance of limitations imposed on universal jurisdiction with a view to the source of legitimacy of the principle. As the political difficulties of applying the universality principle in practice have a large influence on the legitimacy of universal jurisdiction, the African Union critiques of universal jurisdiction will be analyzed. Then, in order to distill the sources of legitimacy of universal jurisdiction in contemporary practice, the case of Hissène Habré will be discussed. This paper will argue that the legitimacy of using universal jurisdiction in the Habré trial was strengthened by broad multilateral support as evidenced by the backing of the African Union and the judgment of the International Court of Justice (ICJ), and the strong regional approval of the trial. On the basis of this case study, this paper will draw conclusions regarding the political
42, no. 1 (2001): 92; Eric K. Leonard, “Global Governance and the State: Domestic Enforcement of Universal Jurisdiction,” Human Rights Review 16, no. 2 (2015): 150, https://doi.org/10.1007/s12142-015-0354-6.
13 See Rome Statute of the International Criminal Court, Article 13(b); George P. Fletcher and Jens David Ohlin,
“The ICC - Two Courts in One?,” Journal of International Criminal Justice 4, no. 3 (2006): 428–33, https://doi.org/10.1093/jicj/mql023; Bassiouni, “Universal Jurisdiction for International Crimes: Historical Perspectives,” 106.
nature of the current mechanisms of selectivity underlying any recourse to universal jurisdiction and the paradoxical nature of the current source of legitimacy.
Thus, this paper seeks to analyze the practical application of universal jurisdiction in the case of Hissène Habré before the EAC in order to elucidate the sources of legitimacy in applying the universality principle in the current inter-state system. This paper will add to the vast scholarship on universal jurisdiction by offering a contextualized account of the under-studied Habré case to highlight the importance of international power structures on the legitimacy of its practical application. As such, this paper will aim to extrapolate from this case study how universal jurisdiction can be used legitimately and thereby add to the multitude of endeavors in international criminal justice in pursuit of ending impunity.
Legal framework: the Existence of Universal Jurisdiction as a Norm of International Law
Jurisdiction refers to the authority of a state to exercise its sovereignty. As such, the traditional grounds of jurisdiction over criminal matters have a close connection to the territorial sovereignty of a state. Under international law, states are allowed to exercise jurisdiction over events occurring on their territory; over conduct of their nationals when abroad; over crimes committed against their nationals outside of the state’s territory; and over extraterritorial conduct that threatens the security of the state.14 Clearly, these bases of jurisdiction are all closely affiliated with state interests. Importantly, through some of these different grounds for jurisdiction, states are able to exercise jurisdiction extraterritorially—beyond the territoriality principle. As there is no hierarchy between different jurisdictional claims, the extraterritorial exercise of jurisdiction may result in clashing spheres of sovereignty, thus forming a possible source for conflict between different states. For this reason, exercising criminal jurisdiction has traditionally been very closely linked to territory.15
Universal jurisdiction departs from this tradition in requiring no nexus to the territory or interest of the state. Indeed, the Princeton Principles on Universal Jurisdiction define the jurisdiction ground as follows: “universal jurisdiction is criminal jurisdiction based solely on the nature of the crime, without regard to where the crime was committed, the nationality of the alleged or convicted perpetrator, the nationality of the victim, or any other connection to the state exercising such jurisdiction.”16 As this principle does not purport to be closely connected to a state’s particular interests, the exertion of sovereignty through this form of jurisdiction is more contentious.
Historically, universal jurisdiction was only applicable to cases of piracy, as these crimes took place on the high seas beyond the territory of any state. As pirates were considered a threat to all nations as hostis humani generis (enemies of all mankind), rather
14 Cryer et al., An Introduction to International Criminal Law and Procedure, 52–56.
15 M. Cherif Bassiouni, “The History of Universal Jurisdiction and Its Place in International Law,” in Universal Jurisdiction: National Courts and the Prosecution of Serious Crimes Under International Law, ed. Stephen
Macedo (University of Pennsylvania Press, 2006), 40.
16 Stephen Macedo et al., The Princeton Principles on Universal Jurisdiction, Program in Law and Public Affairs,
than any nation in particular, a different ground for exercising jurisdiction was needed.17 In order to allow states to prosecute piracy offenses without the traditional nexus to their territory or nationality, any state would be allowed to assert jurisdiction over this crime.18
States may exercise jurisdiction through making laws (prescriptive jurisdiction), deciding legal disputes (adjudicative jurisdiction) and enforcing legal decisions (executive jurisdiction).19 These different types of jurisdiction may be asserted separately, although the distinction is often artificial as a state’s adoption of rules presupposes future enforcement by that state.20 For criminal matters, the exercise of adjudicative jurisdiction and prescriptive jurisdiction often overlap, as the “application of a state’s criminal law by its criminal courts is simply the exercise or actualization of prescription.”21 Yet, it is conceivable that a state may exercise adjudicative jurisdiction over a subject with regards to norms prescribed solely by international law.22 As for criminal law, most domestic legal systems require some form of domestic prescription of international crimes to adjudicate on them.23 Thus, since the universality principle is mainly relied upon to bring alleged perpetrators of certain crimes before a state’s courts, the debate regarding the extraterritorial exercise of jurisdiction on the basis of universal jurisdiction mainly relates to the existence of the prerogative to exercise adjudicative jurisdiction, in conjunction with prescriptive
jurisdiction.24
17 Bright Bazuaye and Alero I. Fenemigho, “Universal Jurisdiction Fault Lines and the Immunity of State
Officials: A Salutary Warning Before Perdition,” African Journal of International and Comparative Law 26, no. 4 (2018): 554, https://doi.org/10.3366/ajicl.2018.0248.
18 Noora Johanna Arajärvi, “Looking Back from Nowhere: Is There a Future for Universal Jurisdiction Over
International Crimes?,” Tilburg Law Review 16 (2011): 8, https://doi.org/10.1163/221125911X590949; Eugene Kontorovich, “The Parochial Uses of Universal Jurisdiction,” Notre Dame Law Review 94, no. 3 (2019): 1431.
19 Cryer et al., An Introduction to International Criminal Law and Procedure, 49–50; Bassiouni, “The History of
Universal Jurisdiction and Its Place in International Law,” 40.
20 Luc Reydams, Universal Jurisdiction (Oxford: Oxford University Press, 2003), 25.
21 R. O’Keefe, “Universal Jurisdiction: Clarifying the Basic Concept,” Journal of International Criminal Justice 2,
no. 3 (2004): 737, https://doi.org/10.1093/jicj/2.3.735.
22 Bassiouni, “The History of Universal Jurisdiction and Its Place in International Law,” 40.
23 Jean D’Aspremont, “Multilateral Versus Unilateral Exercises of Universal Criminal Jurisdiction,” Israel Law Review 43, no. 2 (2010): 304, https://doi.org/10.1017/S0021223700000789.
24 The question of enforcement jurisdiction extraterritorially is not at issue with regards to universal
jurisdiction. As succinctly put by Judge ad hoc van den Wyngaert in her dissenting opinion in the Arrest Warrant case: “Obviously, a State has no enforcement jurisdiction outside its territory: a State may, failing permission to the contrary, not exercise its power on the territory of another State.” International Court of Justice, Case Concerning the Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v. Belgium), judgment of 14 February 2002 (Arrest Warrant Case) (Dissenting Opinion of Judge ad hoc van den Weyngaert), para 49.
The extraterritorial exercise of jurisdiction in international law is restricted by international norms. In the SS Lotus case, the Permanent Court of International Justice (PCIJ) articulated clear guidelines regarding the extraterritorial exercise of criminal jurisdiction. In this case, the question arose whether Turkish courts could adjudicate on the criminal liability of a French commander of a ship, after a collision between a French and Turkish ship on the high seas. In deciding the case, the Court formulated two principles regulating the exercise of jurisdiction:
“jurisdiction is certainly territorial; it cannot be exercised by a State outside its territory except by virtue of a permissive rule derived from international custom or from a convention. It does not, however, follow that international law prohibits a State from exercising jurisdiction in its own territory, in respect of any case which relates to acts which have taken place abroad, and in which it cannot rely on some permissive rule of international law (…) Far from laying down a general prohibition to the effect that States may not extend the application of their laws and the jurisdiction of their courts to persons, property and acts outside their territory, it leaves them in this respect a wide measure of discretion which is only limited in certain cases by prohibitive rules; as regards other cases, every State remains free to adopt the principles which it regards as best and most suitable.”25
According to the Court, international law prescribes that states may always exercise jurisdiction within their territories, unless a rule of international law prohibits this; whereas outside their territories, states may never exercise jurisdiction unless a rule of international law allows this.26
With regards to exercising universal jurisdiction, many scholars assume that any exercise of adjudicative jurisdiction is necessarily extraterritorial as concerning events occurring outside the territories of the sovereign exercising power. However, as Judge ad hoc van den Wyngaert has observed in her Dissenting opinion in the Arrest Warrant case,27 the exercise of prescriptive and adjudicative jurisdiction naturally takes place on the
25 Permanent Court of International Justice (PCIJ), S.S. "Lotus" (France v. Turkey), judgment of 7 September
1927, p. 19.
26 Reydams, Universal Jurisdiction, 12.
territory of the state exercising jurisdiction.28 Accordingly, the exercise of universal jurisdiction as adjudicative jurisdiction, would be permitted unless there is a rule prohibiting this.
The discussion on the nature of jurisdiction exercised is paramount to the legality of universal jurisdiction. If the exercise of universal jurisdiction is considered extraterritorial, there must be a rule of international law prescribing universal jurisdiction. On the other hand, if the exercise is interior to the state, there must simply be no rule of international law prohibiting the exercise of universal jurisdiction. The conception of the exercising of adjudicative jurisdiction is thus instrumental to the legal basis required for the lawful exercise of universal jurisdiction.
Consequently, the legal basis of universal jurisdiction is ambiguous. Within the scholarship, even the definition of universal jurisdiction is not uncontested.29 The problem of definition arises from divergent understandings of the underlying theory and justification for recourse to universal jurisdiction. Generally, two different understandings regarding a positive rule of universal jurisdiction can be observed in the scholarship, each referring to different legal sources as grounds for asserting universal jurisdiction: treaty-based universal jurisdiction and customary universal jurisdiction.30 Treaty-based universal jurisdiction is often understood as grounded in a “pragmatic policy-oriented” rationale, according to which states have combined their concurrent criminal jurisdictions to ensure an enforcement mechanism for certain crimes beyond their sphere of national sovereignty.31 Customary universal jurisdiction, however, derives from the idea that certain crimes infringe
28 “In other words, the permissive rule only applies to prescriptive jurisdiction, not to enforcement jurisdiction:
failing a prohibition, State A may, on its own territory, prosecute offences committed in State B (permissive rule); failing a permission, State A may not act on the territory of State B.” Arrest Warrant case (Dissenting Opinion of Judge ad hoc van den Weyngaert), para 49.
29 Arrest Warrant case (Dissenting Opinion of Judge ad hoc van den Weyngaert), para 44.
30 Langer, “The Diplomacy of Universal Jurisdiction: The Political Branches and the Transnational Prosecution of
International Crimes”; Claus Kreß, “Universal Jurisdiction over International Crimes and the Institut de Droit International,” Journal of International Criminal Justice 4, no. 3 (2006): 561–85, https://doi.org/10.1093/jicj/mql037; D’Aspremont, “Multilateral Versus Unilateral Exercises of Universal Criminal Jurisdiction”. This categorization is not uncontested. Many scholars contend more different forms of universal jurisdiction exist (see for example,J oshua Ruby, “An Evolutionary Theory of Universal Jurisdiction,”
UCLA Journal of International Legal & Foreign Affairs 14, no. May (2009): 573,
https://doi.org/10.3917/ridp.791.0059), whereas some believe treaty-based universal jurisdiction does not constitute a form of the universality principle (Cryer et al., An Introduction to International Criminal Law and
Procedure, 52). In this piece, both of these understandings of universal jurisdiction will be analyzed.
31 Bassiouni, “The History of Universal Jurisdiction and Its Place in International Law”; Ruby, “An Evolutionary
upon fundamental values held by the international community and warrant enforcement by any state.32 Various scholars conceptualize the relationship between these two forms of universal jurisdiction differently, and much disagreement exists over whether both actually constitute a form of the universality principle.33 These distinct legal norms will be considered here in turn.
Customary universal jurisdiction
The dominant theory of universal jurisdiction understands the jurisdictional ground as a positive norm of customary international law, providing a legal ground to exercise jurisdiction. The foundation of this customary norm lies in normativity: the heinousness of certain crimes warrants the extraterritorial exercise of jurisdiction even outside the conventional bounds of a state’s sovereignty.34 Committing these abhorrent crimes violates fundamental values shared by the international community, and thereby makes the perpetrators hostis humani generis—enemies of all mankind.35 As they encroach upon these essential norms to such an extent, every state is entitled to exercise jurisdiction to punish and deter such crimes.36 As such, universal jurisdiction forms the basis for an international response – through the domestic system of the prosecuting country. According to scholars, customary universal jurisdiction currently accrues to war crimes, crimes against humanity, genocide, and torture.37
As demonstrated, this conception of universal jurisdiction relates to the nature and gravity of the crime; yet, the gravity is not the distinguishing factor. Rather, universal jurisdiction accrues to certain crimes under customary international law because these norms are considered to be jus cogens, thus giving rise to erga omnes obligations toward the international community as a whole.38 As such, universal jurisdiction is communitarian,
32 Bassiouni, “The History of Universal Jurisdiction and Its Place in International Law,” 42. 33 Cryer et al., An Introduction to International Criminal Law and Procedure, 52.
34 Arajärvi, “Looking Back from Nowhere: Is There a Future for Universal Jurisdiction Over International
Crimes?,” 7.
35 Adeno Addis, “Imagining the International Community: The Constitutive Dimension of Universal
Jurisdiction,” Human Rights Quarterly 31, no. 1 (2009): 130, https://doi.org/10.1353/hrq.0.0067.
36 Addis, 136.
37 Cryer et al., An Introduction to International Criminal Law and Procedure, 57.
38 Arajärvi, “Looking Back from Nowhere: Is There a Future for Universal Jurisdiction Over International
Crimes?,” 8; Addis, “Imagining the International Community: The Constitutive Dimension of Universal Jurisdiction,” 142–43; This is not to say that universal jurisdiction only accrues to violations of jus cogens norms—but only violations of jus cogens norms may give rise to customary universal jurisdiction. See also: Lori
as “[i]t is about protecting or cultivating the international community rather than simply protecting individuals who happen to be citizens or residents of other countries.”39 Customary universal jurisdiction thus mainly constitutes an expression of the core values and norms held by the international community, which require protection through the universal exercise of jurisdiction.40 From this argumentation, the question arises who exactly constitutes the international community and thus shapes its customary rules.
Despite the fact that this theory of universal jurisdiction leaves this poignant question largely unanswered, it is supported by many scholars and has also explicitly been endorsed by prominent international judges in separate opinions attached to the Arrest
Warrant case. In this case before the International Court of Justice (ICJ), the Democratic
Republic of Congo (DRC) instituted proceedings against Belgium in response to the circulation of an international arrest warrant against incumbent Minister of Foreign Affairs of the DRC, Mr. Abdulaye Yerodia Ndombasi for incitement to genocide, crimes against humanity and grave breaches of the Geneva Conventions. The Belgian arrest warrant was issued pursuant to Belgium's law of June 16, 1993, granting Belgium universal jurisdiction over genocide, crimes against humanity and war crimes.41 The Court ultimately decided the case on the issues of immunities. The Court held that an incumbent Minister of Foreign Affairs enjoys personal immunity due to the nature of his office and role in international relations.42 As such, the indictment of Mr. Yerodia violated his immunity. Therefore, Belgium had engaged in an internationally wrongful act by issuing the arrest warrant and the Court ordered the cancellation of the warrant.43 By focusing on immunities, the ICJ avoided taking a stance on the legality of the exercise of universal jurisdiction.44 In the
F. Damrosch, “Comment: Connecting the Threads in the Fabric of International Law,” in Universal Jurisdiction:
National Courts and the Prosecution of Serious Crimes Under International Law, ed. Stephen Macedo
(University of Pennsylvania Press, 2006), 94–95.
39 Addis, “Imagining the International Community: The Constitutive Dimension of Universal Jurisdiction,” 159. 40 Anne-Marie Slaughter, “Defining the Limits: Universal Jurisdiction and National Courts,” in Universal Jurisdiction: National Courts and the Prosecution of Serious Crimes Under International Law, ed. Stephen
Macedo (University of Pennsylvania Press, 2006), 169.
41 M. Cherif Bassiouni, “Universal Jurisdiction Unrevisited: The International Court of Justice Decision in Case
Concerning the Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v. Belgium),” The Palestine
Yearbook of International Law Online 12, no. 1 (2002): 28, https://doi.org/10.1163/221161403x00046. 42 Arrest Warrant case, para 53-54.
43 Arrest Warrant case, para 74-77.
44 Bassiouni, “Universal Jurisdiction Unrevisited: The International Court of Justice Decision in Case Concerning
separate and dissenting opinions attached to the judgment, the individual judges were more willing to take a stance on the existence and scope of universal jurisdiction.
Most notably, in their Joint Separate Opinion, Judges Higgins, Koojimans and Buergenthal subscribed to the conceptualization that customary universal jurisdiction accrues to crimes considered most heinous by the international community.45 According to them, customary universal jurisdiction must only be exercised over these crimes. Thereby, the Judges contend, these states “invoke the concept of acting as "agents for the international community" when asserting universal jurisdiction.”46 In their view, the justification for exercising universal jurisdiction thus flows from the shared values of the international community, and the ensuing obligation to uphold those values towards that community. Similarly, Judge ad hoc van den Wyngaert maintains that “the ratio legis of universal jurisdiction is based on the international reprobation for certain very serious crimes such as war crimes and crimes against humanity.”47 Thus, these opinions underscore the theory of universal jurisdiction as grounded in the expression of an international standard of morality. The crimes to which universal jurisdiction accrues, then, warrant international action as they express the morality of the international community.
More fundamentally, the foundation of adjudicative universal jurisdiction derives from the customary nature of international crimes. As crimes under international law are the expression of prescriptive jurisdiction of the international community, each state must be able to exercise adjudicative jurisdiction over these prescribed rules.48
On the basis of this justification, then, advocates for universal jurisdiction argue that the universal jurisdiction has crystallized as a norm of customary international law.49 Overall, the majority of Judges in the Arrest Warrant case spoke out in favor of the existence of an international customary norm of universal jurisdiction.50 As the various judges note, an increasing number of states seem to accept universal jurisdiction for these heinous crimes
45Arrest Warrant Case (Joint separate opinion of Judges Higgins, Kooijmans and Buergenthal), para. 62.
46 Arrest Warrant Case (Joint separate opinion of Judges Higgins, Kooijmans and Buergenthal), para. 51.
47Arrest Warrant Case (Dissenting opinion of Judge ad hoc Van den Wyngaert), para. 46.
48 Anthony J. Colangelo, “The Legal Limits of Universal Jurisdiction,” Va. J. of Int’l L. 47, no. 06 (2005): 13; For a
critical view, see Kevin Jon Heller, “What Is an International Crime? (A Revisionist History),” Harvard
International Law Journal 58, no. 2 (2017): 353–420, https://doi.org/10.2139/ssrn.2836889.
49 Kontorovich, “The Parochial Uses of Universal Jurisdiction,” 1425; Arajärvi, “Looking Back from Nowhere: Is
There a Future for Universal Jurisdiction Over International Crimes?,” 13.
50 Kreß, “Universal Jurisdiction over International Crimes and the Institut de Droit International,” 570, esp.
and exercise this norm in the conviction that they are acting on a norm of international custom, thus fulfilling the stringent requirements of custom formation in the form of opinio
juris and usus.51
Of course, the validity of this argument can be called into question in light of the lack of a convincing record of widespread state practice. Yet, especially in the realm of international criminal law, there is an increasing number of scholars advocating for a modern approach to customary law, relying more heavily on opinio juris in the form of statements rather than state practice.52 This approach is generally viewed as a progressive source of law, to address moral global issues and challenges of the rapidly changing world.53 Despite the possible tensions with the traditional conception of custom, this idea is gaining ground and is affecting how different actors conceive of custom-formation.54 The increased acceptance of a modern approach to custom has undoubtedly inspired support from many actors and commentators regarding the existence of customary universal jurisdiction under international law, and must thus be taken into account in assessing the current status of the law.
Treaty-based universal jurisdiction
Treaty-based universal jurisdiction has a different underlying justification than its customary counterpart, related more closely to the procedural convenience of the
51 Customary norms, which are universally binding, materialize when there is sufficient evidence that a rule is
universally practiced and regarded as law. The requirements for custom formation are state practice and
opinio juris -- evidence of the state’s belief that the practice is required by law; Fon and Parisi, Stability and Change in International Customary Law, 17:280, 329; see also Arrest Warrant Case (Dissenting opinion of
Judge Oda).
52 Elizabeth Anthea Roberts, “Traditional and Modern Approaches To Customary International Law : A
Reconciliation,” American Journal of International Law 95, no. 4 (2011): 760; Roozbeh Rudy B Baker, “Customary International Law in the 21st Century: Old Challenges and New Debates,” European Journal of
International Law 21, no. 1 (2010): 178, https://doi.org/10.1093/ejil/chq015.
53 Theodor Meron, “Customary Humanitarian Law: From the Academy to the Courtroom,” in The Making of International Criminal Justice, 2011, 41; Richard B Lillich, “The Growing Importance of Customary International
Human Rights Law,” Georgia Journal of International and Comparative Law, no. 25 (1996): 8.
54 More in-depth treatment of the formation of customary law and the changing practices in identifying
custom are beyond the scope of this paper. For more on the different conceptions of custom formation, see: Lillich, “The Growing Importance of Customary International Human Rights Law”; Christian Dahlman, “The Function of Opinio Juris in Customary International Law,” Nordic Journal of International Law 81, no. 3 (2012): 327–39, https://doi.org/10.1163/15718107-08103002; A A D’Amato, “The Concept of Custom in International Law,” The Role of Law in International Politics Essays in International Relations and International Law 211, no. 1 (1971): 69–90; Baker, “Customary International Law in the 21st Century: Old Challenges and New Debates”; Guénaël Mettraux, “Identifying Customary International Law and the Role of Judges in the Customary Process,” International Crimes and the Ad Hoc Tribunals, 2005; Roberts, “Traditional and Modern Approaches To Customary International Law : A Reconciliation.”
universality principle as espoused in the historical piracy cases.55 Treaty-based universal jurisdiction does not derive from the severity of the crime or prescriptive authority exercised by the international community, but rather from the international agreement on the undesirability of this conduct and the necessity of prosecution internationally in order to combat these practices successfully. As such, universal jurisdiction is conceptualized as a procedural construct used to guarantee jurisdiction over acts that are criminalized in different domestic systems. Importantly, “the justification for worldwide jurisdiction is derived from the combination of traditional sovereignty-based jurisdiction and is not based on the severity of the crime.”56
The treaty-based form of universal jurisdiction grew out of the 1949 Geneva Convention I, which is often considered the paradigmatic case of treaty-based universal jurisdiction.57 Article 49 provides:
“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 [or hand them over to another High Contracting Party].”58
This article produced a regime of universal jurisdiction to suppress grave breaches of the Conventions, although it does not explicitly refer to a legal ground to exercise universal jurisdiction.59 The universality envisaged lies in the ability of courts to try those who allegedly committed grave breaches of the Conventions regardless of the nexus to the prosecuting state, yet only when present on their territory. Importantly, the Geneva
55 Slaughter, “Defining the Limits: Universal Jurisdiction and National Courts”; Eugene Kontorovich, “A Positive
Theory of Universal Jurisdiction,” Notre Dame Law Review 80 (2004): 1–67.
56 Ruby, “An Evolutionary Theory of Universal Jurisdiction,” 573.
57 Cryer et al., An Introduction to International Criminal Law and Procedure, 59.
58 International Committee of the Red Cross (ICRC), Geneva Convention for the Amelioration of the Condition
of the Wounded and Sick in Armed Forces in the Field (First Geneva Convention), 12 August 1949, 75 UN Treaty
Series 31; Article 50 of the Second Geneva Convention, Article 129 of the Third Geneva Convention and Article 146 of the Fourth Geneva Convention, all of 12 August 1949, contain the same text.
Conventions only have inter partes effect, thus limiting the applicable scope of this alleged universal jurisdiction clause.60
After the enactment of the Geneva Conventions in 1949, universal jurisdiction was introduced in more treaties, albeit in a different manner. In these later treaties, the exercise of jurisdiction is closely related to the obligation to extradite or prosecute (or aut dedere,
aut judicare). According to this rule, states must either prosecute an alleged perpetrator
before their own courts, or extradite the suspect to another state party that is willing and able to prosecute.61 Jurisdiction clauses, then, require state parties to establish jurisdiction over the offense in case the state concerned decides not to extradite. The new model of treaty-based universal jurisdiction clauses was first promulgated in Hague Convention for the Suppression of Unlawful Seizure of Aircraft of 16 December 1970. Article 4(2) of the Convention, now dubbed the Hague model of universal jurisdiction, provided:
"Each Contracting State shall . . . take such measures as may be necessary to establish its jurisdiction over the offense in the case where the alleged offender is present in its territory and it does not extradite him pursuant to [the Convention]."62
This model clause arguably implicitly requires states to amend their laws to establish jurisdiction over offenses in the Convention – even in cases where there is no nexus to the accused or offense. As such, this clause resembles the functioning of universal jurisdiction, as it requires a state to prosecute the suspect, even without a nexus, if said state is not willing to extradite. Scholars thus contend that this is a clearer form of providing for treaty-based universal jurisdiction, in requiring states to amend their laws to establish jurisdiction over offenses in the Convention through the universality principle.63 As such, this clause is widely understood to engender treaty-based universal jurisdiction.
60 D’Aspremont, “Multilateral Versus Unilateral Exercises of Universal Criminal Jurisdiction,” 307; Cryer et al., An Introduction to International Criminal Law and Procedure, 59.
61 See generally Matthew Garrod, “Unraveling the Confused Relationship between Treaty Obligations to
Extradite or Prosecute and ‘Universal Jurisdiction’ in the Light of the Habré Case,” Harvard International Law
Journal 59, no. 1 (2018): 125–96.
62 United Nations, Convention for the Suppression of Unlawful Seizure of Aircraft, 16 December 1970, UN
Treaty Series 1973.
The ICJ confirmed that these Hague-model clauses indeed provide for universal jurisdiction in the Belgium v. Senegal case of 2012. In this case, the ICJ found that Article 5(2) of the Convention against Torture, which follows the Hague model, requires a state to enact laws that enable its authorities to prosecute alleged perpetrators, especially noting that the article “requires [the state] to adopt adequate legislation to enable it to criminalize torture, give its courts universal jurisdiction in the matter and make an inquiry into the facts.”64 Judges Higgens, Koojimans and Buergenthal also seem to acknowledge this formulation as enshrining treaty-based universal jurisdiction, in noting:
“The underlying idea of universal jurisdiction properly so-called (…) as well as the aut
dedere aut prosequi variation, is a common endeavor in the face of atrocities. The
series of multilateral treaties with their special jurisdictional provisions reflect a determination by the international community that those engaged in war crimes, hijacking, hostage taking, torture should not go unpunished.”65
This view highlights the rationale of a joint endeavor on the side of the international community to suppress certain crimes, on basis of their separate sovereign jurisdictions. As such, the treaty-based notion of universal jurisdiction relates more closely to the rationale of procedural convenience.
Yet, these clauses only implicitly allow states to enact universal jurisdiction legislation.66 As such, certain scholars maintain that these clauses have inaccurately been termed universal jurisdiction, and instead represent that “parties (…) agree that other states may exercise their jurisdiction on their behalf.”67 In this view, the mechanism of aut dedere,
aut judicare clauses is mainly focused on ensuring an inter-state regime of enforcement of
the treaty, preventing safe havens. The accompanying obligation regarding the establishment of jurisdiction, however, does not authorize states to implement universal
64 Arrest Warrant Case (Joint separate opinion of Judges Higgins, Kooijmans and Buergenthal), para. 91. 65 Arrest Warrant Case (Joint separate opinion of Judges Higgins, Kooijmans and Buergenthal), para. 51. 66 D’Aspremont, “Multilateral Versus Unilateral Exercises of Universal Criminal Jurisdiction,” 307; Garrod,
“Unraveling the Confused Relationship between Treaty Obligations to Extradite or Prosecute and ‘Universal Jurisdiction’ in the Light of the Habré Case.”
jurisdiction into their national legislation.68 This view is further strengthened by the limited nature of treaty obligations to extradite or prosecute, as treaties are only binding on consenting states. As such, the exercise of jurisdiction is limited to state parties and true universality cannot be guaranteed.
Similarly, President Guillaume of the ICJ maintains that “none of these texts has contemplated establishing jurisdiction over offences committed abroad by foreigners against foreigners when the perpetrator is not present in the territory of the state in question.”69 In his view, the try-or-extradite regime guarantees that states are obliged to arrest and prosecute on the basis of conventional jurisdiction grounds, or extradite in case the state is unable to establish jurisdiction.70 Accordingly, this configuration of obligations cannot form a solid basis for exercising universal jurisdiction.
Although this view is not without merit, as none of these clauses explicitly provide a positive norm or legal basis to exercise universal jurisdiction, it is undeniable that these clauses implicitly invite recourse to universal jurisdiction. Yet, as treaty-based universal jurisdiction does not offer an explicit authorization to implement the universality principle into national laws, it would be more correct to find the legal foundation to exercise universal jurisdiction in customary law.
Pure universal jurisdiction as a positive norm of customary international law
The legal grounds for asserting universal jurisdiction are thus not uncontested. However, in my view, the foundation of adjudicative universal jurisdiction must derive from the customary nature of international crimes. As a result of the exercise of prescriptive jurisdiction through the formation of customary law by the international community, each country is justified in exercising adjudicative jurisdiction. This positive rule in international law would authorize the exercise of universal jurisdiction, regardless of whether one postulates the exercise of adjudicative as territorial or extraterritorial. However, irrespective of the foundations of universal jurisdiction in international law, the legitimacy of its exercise cannot be assessed in a vacuum. The application of universal jurisdiction in practice, and the
68 Garrod, “Unraveling the Confused Relationship between Treaty Obligations to Extradite or Prosecute and
‘Universal Jurisdiction’ in the Light of the Habré Case”; Cryer et al., An Introduction to International Criminal
Law and Procedure.
69 Arrest Warrant Case (Separate opinion of President Guillaume), para. 9.
responses thereto, demonstrates the political sensitivity of employing this customary norm. As such, state practice must be analyzed in order to draw conclusions about the source of legitimacy of universal jurisdiction.
Asserting Universal Jurisdiction in Practice: the Significance of Politics
The customary version of the universality principle seems to be the least controversial ground for exercising universal jurisdiction; yet, the existence of this customary norm does not yield worldwide support. For example, in discussions on the universality principle in the UN General Assembly, different countries argued that there was no sufficient basis in customary law to exercise universal jurisdiction over crimes other than piracy. For example, China argued that “other than piracy, there is clear disagreement and dispute among states over the question of whether or not universal jurisdiction exists . . . and the corresponding statutes of customary international law have yet to be formulated”.71 Other states echoed this skepticism over the existence of a legal ground in international law to exercise universal jurisdiction. In light of this continuing discussion amongst states regarding this customary norm, the state practice of universal jurisdiction may be illustrative for the possible source of legitimacy in asserting universal jurisdiction.
Legitimizing practice through imposing limitations
As Slaughter notes, universal jurisdiction is a unique concept in the pursuit of international criminal justice, as “it ultimately depends on domestic courts for its application”.72 Domestic judges, in the end, are responsible for the scope of this norm of customary law, and for its final contours in practice by providing for state practice.
From the actual application of universal jurisdiction in practice, it appears that judges have imposed stringent limits on the application of universal jurisdiction in practice. When asserting jurisdiction on this basis, judges prefer to apply “universal jurisdiction plus”, that is, requiring an additional link between the conduct of the alleged perpetrator and the state exercising universal jurisdiction.73 Judges have thus proven to be very sensitive to the internal and external difficulties of exercising jurisdiction on the basis of universality. That is, regarding the employment of state power against an individual defendant without any previous connection on which this interference on his individual liberties may be justified
71 Mennecke, “The African Union and Universal Jurisdiction,” 24.
72 Slaughter, “Defining the Limits: Universal Jurisdiction and National Courts,” 168.
73 Stephen A. Oxman, “Comment: The Quest for Clarity,” in Universal Jurisdiction: National Courts and the Prosecution of Serious Crimes Under International Law, ed. Stephen Macedo (University of Pennsylvania Press,
(internal) and regarding the possibility of interference in the affairs of other sovereign states (external).74
Especially as a result of diplomatic difficulties in applying universal jurisdiction, Bassiouni notes that “the tendency of states has been to not apply [universal jurisdiction].”75 When states do assert universal jurisdiction, then, they do not do so lightly and often act on extraterritorial cases that are strongly linked to their sphere of influence.76 Indeed, there exists a “trend that states do not purport to rely on absolute universal jurisdiction, but instead they acknowledge that further links between the crime and the state may be required – or at the minimum, they believe that such links will certainly strengthen the claim for jurisdiction.”77 As such, “universal jurisdiction plus” acts as a two-edged sword: it ensures a strong state link to the extraterritorial crime in the form of state interest, and it thereby guarantees a higher degree of legitimacy.
This self-imposed limitation on the application of universal jurisdiction is perceived necessary in navigating the possible international political tensions arising from the exercise of this jurisdictional ground. As Bassiouni noted back in 2006: “universal jurisdiction must not be allowed to become a wildfire, uncontrolled in its application and destructive of orderly legal processes”.78 However, despite state caution in applying the universality principle, there is no existing law regulating the conditions of its practical application.79 Two possible limitations on the practice of universal jurisdiction have arisen in state practice and scholarly discussion: the principle of subsidiarity and access to the accused.80
In the practice of universal jurisdiction, the principle of subsidiarity denotes the limitation to exercising universal jurisdiction in case no state with closer links to the accused, by way of territoriality, nationality, or the protective principle, is willing or able to
74 Slaughter, “Defining the Limits: Universal Jurisdiction and National Courts,” 172. 75 Bassiouni, “The History of Universal Jurisdiction and Its Place in International Law,” 62. 76 Kontorovich, “The Parochial Uses of Universal Jurisdiction.”
77 Arajärvi, “Looking Back from Nowhere: Is There a Future for Universal Jurisdiction Over International
Crimes?,” 24.
78 Bassiouni, “The History of Universal Jurisdiction and Its Place in International Law,” 63.
79 Bassiouni, “Universal Jurisdiction Unrevisited: The International Court of Justice Decision in Case Concerning
the Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v. Belgium),” 47.
80 Harmen van der Wilt, “Universal Jurisdiction under Attack: An Assessment of African Misgivings towards
International Criminal Justice as Administered by Western States,” Journal of International Criminal Justice 9, no. 5 (2011): 1050, https://doi.org/10.1093/jicj/mqr045.
prosecute.81 As such, states would only take recourse to the universality principle if there is no other way to bring an alleged perpetrator to justice in a country better suited to investigate and prosecute. Yet, this principle is not considered to be a norm of customary law due to the lack of supporting state practice in scarce universal jurisdiction cases.82 Still, most authorities agree that this is a helpful limitation on the practice of universal jurisdiction, especially with regards to foregoing jurisdictional conflicts between states and preventing allegations of interventionism in the sovereignty of other nations.83
There seems to be more evidence for the existence of an international norm for the prohibition on the exercise of universal jurisdiction in absentia. There is an emerging difference between the practices of absolute and conditional universal jurisdiction. Absolute universal jurisdiction is understood as the practice of universal jurisdiction without any link whatsoever, whereas conditional universal jurisdiction refers to a more limited practice of jurisdiction where the accused is a citizen or a resident, or is otherwise present on the territory.84 As such, conditional universal jurisdiction can be understood as a more stringent version of “universal jurisdiction plus”, which is only concerned with the location of the alleged perpetrator within the state but indifferent to the (non-)existence of other links. Moreover, the exercise of absolute universal jurisdiction, without access to the accused, may go against universal human rights norms of fair trial.85 Exactly for this reason, trials in
absentia are not allowed before most international tribunals.86 The prohibition on the exercise of universal jurisdiction in absentia would seem to be in line with established international human rights standards.
This limitation on the exercise of universal jurisdiction has also been extensively discussed in the opinions supplementing the Arrest Warrant case. President Guillaume
81 Kreß, “Universal Jurisdiction over International Crimes and the Institut de Droit International,” 579; Burens,
“Universal Jurisdiction Meets Complementarity: An Approach towards a Desirable Future Codification of Horizontal Complementarity between the Member States of the International Criminal Court,” 88.
82 Kreß, “Universal Jurisdiction over International Crimes and the Institut de Droit International,” 580.
83 van der Wilt, “Universal Jurisdiction under Attack: An Assessment of African Misgivings towards
International Criminal Justice as Administered by Western States,” 1050.
84 Arajärvi, “Looking Back from Nowhere: Is There a Future for Universal Jurisdiction Over International
Crimes?,” 18.
85 Kreß, “Universal Jurisdiction over International Crimes and the Institut de Droit International,” 582.
86 However, note that trials in absentia are allowed at the Special Tribunal for Lebanon under strict conditions,
see United Nations Security Council, Statute of the Special Tribunal for Lebanon, 10th June 2007 (UN Doc S/Res/1757(2007), Annex), Article 22.
argues that piracy is the only universal jurisdiction offense under international law.87 He thus rejects the argument that new universal jurisdiction offenses beyond piracy have crystallized as custom or has been laid down in treaty law.88 According to Guillaume, “[u]niversal jurisdiction in absentia as applied in the present case is unknown to international law.”89 Similarly, Judges Rezek and Ranjeva argue that there is no customary or conventional international rule permitting the exercise of universal jurisdiction in absentia. In his separate opinion, Judge Rezek clearly condemns Belgium’s exercise of universal jurisdiction in this manner:
“No "nascent customary law" derives from the isolated action of one State; there is no embryonic customary rule in the making, notwithstanding that the Court, in addressing the issue of jurisdiction, acceded to the Respondent's request not to impose any restraint on the formative process of the law.”90
Despite these strong opinions condemning the practice of universal jurisdiction in absentia, other judges conceptualized this exercise of jurisdiction differently. Judges Higgens, Kooijmans and Buergenthal maintained that States may seek to assert such measures to secure the presence of an alleged perpetrator of universal jurisdiction offenses on their territory, especially in light of the purpose of the norm to combat impunity.91 Similarly, Judge ad hoc Van den Wyngaert concudes that there is “ no conventional or customary international law or legal doctrine in support of the proposition that (universal) jurisdiction for war crimes and crimes against humanity can only be exercised if the defendant is present on the territory of the prosecuting state.”92
Apparently, in face of the contested existence of customary universal jurisdiction, states have decided to limit their recourse to universal jurisdiction and impose limits through the principles of subsidiarity and prohibitions on trials in absentia. Clearly, these measures aim to legitimize these cases and preclude political disapproval from other
87 Arrest Warrant Case (Separate opinion of President Guillaume), para. 5, 12. 88 Arrest Warrant Case (Separate opinion of President Guillaume), para. 9, 12. 89 Arrest Warrant Case (Separate opinion of President Guillaume), para. 12.
90 Arrest Warrant Case (Separate opinion of Judge Rezek), para. 6.
91 Arrest Warrant Case (Joint separate opinion of Judges Higgins, Kooijmans and Buergenthal), para. 58, 59. 92 Arrest Warrant Case (Dissenting opinion of Judge ad hoc Van den Wyngaert), para. 58.
nations. Nevertheless, these curtailments of pure universal jurisdiction seem at odds with the underlying idea of universal jurisdiction, as allowing for grounds to prosecute alleged offenders of certain crimes regardless of the existence of a connection between the state and the perpetrator. As Arajarvi notes, “[t]he very distinctive feature of universal jurisdiction is that it arises solely from the gravity of the crime and the harmfulness of that act for the international community as a whole.”93 Can universal jurisdiction properly so-called exist with the limitation of subsidiarity and prohibition on the exercise in absentia? Clearly, these constraints in applying universal jurisdiction arise from political considerations rather than from legal norms.
The importance of politics for legitimacy
State practice shows sensitivity to the political implications of unbridled exercises of the universality principle, especially with the view of legitimacy of these trials. Generally, the exercise of universal jurisdiction after the Second World War was limited, and was restricted mainly to prosecution of Nazis and, in the 1990s, of Rwandans and Yugoslavs.94 The exercise of universal jurisdiction in these cases was fairly uncontroversial, as the international community had expressed clear condemnation of these conflicts and supported their prosecution, as was made visible by the Nuremberg trials and the establishment of the International Criminal Tribunal for the Former Yugoslavia (ICTY) and International Criminal Tribunal for Rwanda (ICTR).95 After the Pinochet litigation at the end of the century, however, investigations and prosecution on basis of the absolute universality principle became more pervasive.96 Spain and Belgium had both enacted absolute universal jurisdiction laws, and used these laws to indict foreign leaders in efforts to hold them accountable for crimes against humanity, war crimes and genocide. As discussed, Belgium issued an indictment for Mr. Yerodia, but also issued criminal complaints against former US President George H. W. Bush, Vice-President Dick Cheney and Secretary of State Colin Powell for war crimes during the Gulf War of 1991, and officials of other states including
93 Arajärvi, “Looking Back from Nowhere: Is There a Future for Universal Jurisdiction Over International
Crimes?,” 26.
94 Cryer et al., An Introduction to International Criminal Law and Procedure, 60.
95 Langer, “The Diplomacy of Universal Jurisdiction: The Political Branches and the Transnational Prosecution of
International Crimes,” 10.
