Universal Jurisdiction:
The Need to Reverse the
Retreat
Lucy Wright
Professor Harmen van der Wilt 08/01/2018
Contents Chapter 1 1.1 Abstract
1.2 Contextual Background 1.3 Definition and Rationalisation Chapter 2
2.1 The Permissible Parameters of Universal Jurisdiction 2.2 The Lotus Case
2.3 The Arrest Warrant Case 2.4 Scholarly Opinion
2.5 Customary International Law- 2.5.1 Opinio Juris
2.5.2 State Practice 2.6 Is the Bell Tolling? Chapter 3
3.1 Politics and the Separation of Powers 3.2 Practicality
Chapter 4
4.1 The Need to Move from a Reactive to a Proactive Approach towards International Law Enforcement
4.2 The Illogicality of the Presence Requirement 4.3 The Changing Parameters of Interest
4.4 The Changing Concept of Sovereignty Chapter 5
5.1 Fears over Activist Intervention
5.1.2 Agents of the International Community
5.2 The Decentralisation and Domestication of International Law Enforcement 5.3 Fears over Selective Application
5.3.1 Accusations are Overstated 5.3.2 Subsidiarity
Chapter 6
6.1 The Insufficiency of Conditional Universal Jurisdiction 6.2 Benefits of Absolute Universal Jurisdiction
6.3 Conclusion 6.4 Bibliography
Abstract
Universal jurisdiction is thought to involve a balancing act between two core objectives of international law, broadly categorised as comity and justice. I will first attempt to define the permissible parameters of universal jurisdiction, concluding that there exists no customary law prohibiting the prescriptive exercise of universal jurisdiction in absentia and therefore, under the Lotus principle, states are permitted to do so. I will then explore how and why states have failed to utilise the potential of universal jurisdiction by retreating their legislation and attaching pre-conditions to its exercise, I will determine that this is due to a concern over politics and practicality.
To this state practice, I will apply by analogy the model put forward by Maximo Langer and conclude that the retreat he envisaged in 2015 has been realised.1 By acting purely to uphold
comity and sovereignty states are now merely avoiding being “safe havens”. This is
expressed by attaching presence or residency conditions requiring that a national interest is threatened in order to justify jurisdiction. I will conclude that attaching such pre-conditions completely undermines the rationale of universal jurisdiction which is premised solely on the abhorrent nature of the crimes and their impact upon the international community. Domestic legislation must be re-formulated to reflect the fact that universal jurisdiction is a principle designed to ensure universal enforcement over universal crimes with universal victims. By adopting a conditional approach states are adhering to an outdated and overly strict notion of sovereignty under which the preservation of political harmony has been prioritised over justice. The balance has tipped too far in favour of preserving state sovereignty consequently harming the fight against impunity. This defensive approach is no longer sustainable if an end to impunity is to be realised, states must return to being “global enforcers” acting solely for the interest of the international community. I will argue that reversing the retreat is made possible, and in fact necessitated by; an evolved conception of sovereignty,
deterritorialisation, widened parameters of interest and a strengthened international community.
The hierarchy of values has changed and the evolution of the above four factors must now be reflected in the practice of states. I will attempt to establish that sovereign considerations are now expected to yield in pursuance of the fundamental interests of a strengthened
1 Maximo Langer, ‘Universal Jurisdiction is Not Disappearing: The Shift from ‘Global Enforcer’ to ‘No Safe
international community. I will then go further in arguing that within this international community, which exists in relation to the core crimes, justice and interest are essentially borderless concepts not constrained by territorial frontiers and therefore the exercise of pure universal jurisdiction cannot possibly infringe upon another state’s sovereignty.
I will address and attempt to refute some of the key concerns over such an absolute
conception. I will ultimately conclude that pure universal jurisdiction is not only permitted but moreover necessary. Only by adhering to an absolute conception can the scales of comity and justice be rebalanced in a manner consistent with the rationale of universal jurisdiction and conducive to the international commitment to fight impunity, an increasingly pressing pursuit.
Contextual background
The first noteworthy theorisation of universal jurisdiction was made by Hugo Grotius in the 17thcentury.2 Grotius pioneered the principle aut dedere aut punire and the idea that states, as
a key feature of their sovereign power, have the right to punish acts which not only directly affect their nation or nationals but also acts that harm the law of nations as a whole. The first act to which this theory was applied was piracy, a crime considered to be the hostis humani generis and by this reasoning all states were determined to have an interest in its prosecution. Analogies to the same affect were later applied to slave trading. The principle has since been codified in international treaties such as the Geneva Conventions of 1949 through the method of aut dedere aut judicare. This is further articulated in the preamble of the ICC Statute which states that “it is the duty of every State to exercise its criminal jurisdiction over those
responsible for international crimes.”3 However the main source of authority for universal
jurisdiction is customary international law.
An evolutionary period in the development of the principle came in response to the atrocities committed during the Second World War where the principle was used as the foundational underpinning of the Nuremberg Tribunals. In 1962 the case against Adolf Eichmann, for crimes of genocide committed during WWII, can be seen as the most explicit endorsement of the universality principle, with jurisdiction being based upon “the universal character of the crimes in question which vests in every state the power to try those who participated in the perpetration of such crimes.”4 Israel, as the principal Jewish nation could have potentially
invoked passive personality jurisdiction. The Supreme Court recognised this but focussed
2 Hugo Grotius, The Rights of War and Peace, including the Law of Nature and of Nations (A.C. Campbell trans, M. Walter Dunne, 1901)
3 Rome Statute of the International Criminal Court (2002), 6th recital
predominantly on universal jurisdiction being the appropriate base of jurisdiction on the reasoning that the effects of the crimes were so severe they were said to “shake the stability of the international community to its very foundations.”5 The Eichmann case thus resolutely
established that “The jurisdiction to try crimes under international law is universal.”6 This
strong assertion has since served as a precedent for subsequent cases and can be heralded for taking the scope of the principle firmly beyond the crime of piracy.
Following the end of the political division of the Cold War, universal jurisdiction cases underwent another spike in the 1990s, climaxing in the ground-breaking Pinochet case of 1998.7 Here, the infamous Judge Baltasar Garzon invoked the principle of universal
jurisdiction to issue an arrest warrant and a request that Augusto Pinochet be extradited from the United Kingdom to stand trial in Spain for the breach of multiple international
conventions. The Pinochet case was a monumental step forward in the development of universal jurisdiction which “created a universal judicial consciousness, an understanding that crimes against humanity can be prosecuted anywhere in the world.”8 The recently
concluded trial of Hissene Habre was the first case in African courts to be based on universal jurisdiction.9 In May 2016 Habre was sentenced by the Senegalese Court to life imprisonment
for crimes against humanity, war crimes and torture committed in Chad. The case sends a strong message to victims of human rights offences that, through the utilisation of universal jurisdiction, no-one is beyond the reach of justice.
Definition and Rationalisation
The controversial nature of the universal jurisdiction principle stems primarily from the complete lack of consensus upon its content or scope, as was noted in Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v. Belgium) (hereinafter, ‘the Arrest Warrant case’) where it was held that “there is no generally accepted definition of universal
jurisdiction in conventional or customary international law.”10 This has led to the principle
5 Ibid, (f)
6 Attorney General of the State of Israel v Adolf Eichmann, District Court of Jerusalem (1961) at 12
7 Regina v Bartle and the Commissioner of Police for the Metropolis and Others Ex Parte Pinochet; Regina v. Evans and Another and the Commissioner of Police for the Metropolis and Others Ex Parte Pinochet (On Appeal from a Divisional Court of the Queen's Bench Division) HOL (1999)
8 Monica Gutierrez, “Encuentro de abogados que actuan en casos de derechos humanos” (Buenos Aires 2001) 12 cited in Naomi Roht-Arriaz, The Pinochet Effect: Transnational Justice in the Age of Human Rights (University of Pennsylvania Press 2005) 107
9 Ministere Public v Hissein Habre, Chambre Africaine Extraordinaire D’Assises (2016). Available at: http://www.chambresafricaines.org/pdf/Jugement_complet.pdf
10 Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v. Belgium) ICJ 14th February 2002 (Dissenting Opinion of Judge ad hoc Van den Wyngaert, 44). Available at: http://www.icj-cij.org/files/case-related/121/121-20020214-JUD-01-09-EN.pdf
being implemented by states in varying degrees. Due to the problematic lack of a coherent definition we must attempt to unearth the underlying rationale of the principle in order to determine whether its modern application is in line with its conceptual underpinning and intended purpose. In scholarly opinion there are two co-existing dominant rationales, both of which can be conceptually linked to the foundations of universal jurisdiction: piracy.
The first determinative factor for the exercise of universal jurisdiction is the existence of a crime so heinous that it offends every nation and thus prosecution engages the interest of every state. The most notable example of this approach is contained in the 2001 Princeton Principles which define universal jurisdiction as;
“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, nationality of
the victim, or any other connection to the state exercising such jurisdiction”11
However, many critics argue that this heinousness rationale does not withstand reality as piracy was simply not considered to be so offensive.12 They instead claim that the principle is
a product of necessity, a pragmatic safety net stemming from a need to exert jurisdiction over a crime that was committed terra nullius in order to ensure pirates would not escape justice. Universal jurisdiction is thus commonly negatively defined as the absence of any link; “It was [the] absence of link between the crime and the prosecuting State that captured the essence of universal jurisdiction.”13
Regardless of which rationale one adheres to, both fundamentally regard universal jurisdiction as being justified by the fact that these crimes constitute an affront to the international community as a whole and that it is in the interest of every state to prosecute, whether this be because the crimes are so heinous that they offend the whole of mankind or because no other basis of jurisdiction exists and such crimes should not go unpunished in order for the rule of law to be upheld. Ultimately; “the offenders are common enemies of all mankind and all nations have an equal interest in their apprehension and prosecution.”14As
such universal jurisdiction is premised upon a strong community of states acting under a common endeavour to uphold common interests.
11 Stephen Macedo, ‘The Princeton Principles on Universal Jurisdiction’ (Princeton University: Program in Law and Public Affairs 2001) Principle 1(1)
12 Eugene Kontorovich, ‘The Piracy Analogy: Modern Universal Jurisdiction’s Hollow Foundation’ 45 HarvIntlLJ (2004)
13 Christian Tomuschat, ‘Universal criminal jurisdiction with regard to the crime of genocide, crimes against
humanity and war crimes’ 71-II Yearbook of the Institut of International Law (2005) 257
However state practice suggests that an injury to the international community is not
considered sufficiently threatening to persuade states to prosecute. States have instead made the exercise of universal jurisdiction contingent upon there being a direct link between the crime and the prosecuting state. This is wholly inconsistent with both rationales and seriously undermines the very foundations upon which universal jurisdiction is built. States should remove such constraints in order to bring the principle in line with its intended purpose of operating in the absence of any link and purely as a response to heinousness.
The Permissible Parameters of Universal Jurisdiction
As a principle rule of jurisdiction, and in order to uphold respect for the territorial integrity and sovereign equality of states as enshrined in Article 2(1) of the UN Charter, it is
unanimously accepted that in the absence of consent, one state cannot enforce its laws in the territory of another state.15 In addition trials in absentia are prohibited in most common law
countries and by Article 63 of the Rome Statute and are largely considered to be inconsistent with human rights.16 It is for these reasons that I shall focus instead on the much more
debatable parameters of the prescriptive exercise of universal jurisdiction.
As previously articulated universality is a well-established form of jurisdiction, however the permissible scope of its exercise under international law is highly contested. Prescriptive jurisdiction over international crimes is permissive in that states are free to determine the reach of their domestic legislation and are “not required to legislate up to the full scope of the jurisdiction allowed by international law.”17 Therefore I am not arguing that states currently
adhering to a conditional conception are in violation of international law, but rather
establishing that current lex lata permits the exercise of universal jurisdiction in absentia and advocating that states utilise this jurisdictional capacity. In order to make the argument that states should implement universal jurisdiction in its pure form, namely by not requiring a territorial nexus, I must first establish that this pure form is permitted under international law. The governing rule remains that advanced in the Lotus case.
The Lotus Case18
In the Lotus case the issue the Court faced was; must the assertion of jurisdiction be “justified by a positive rule of international law, or is it sufficient merely to establish that the action in
15 See S/RES/138 (1960) condemning Israel’s kidnapping of Adolf Eichmann in Argentina
16 International Covenant on Civil and Political Rights (adopted 16 December 1966, entered into force 23 March 1976) 999 UNTS 171 (ICCPR) Art 14; Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention on Human Rights, as amended) (ECHR) Art 6
17 Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v. Belgium) ICJ 14th February 2002
(Separate Opinion of Judges Higgins, Kooijmans and Buergenthal 45)
question is not actually contrary to international law?”19 Despite the case being ultimately
resolved on the basis of territorial jurisdiction, the Court concluded that states are afforded “a wide measure of discretion which is only limited in certain cases by prohibitive rules.”20 This
allows us to conclude that states are free to determine the parameters of their jurisdiction and such jurisdiction shall be lawful unless expressly prohibited by law.
Some critics claim21 however that the idea that states can do all that they are not prohibited
from doing is an outdated and overly liberal view of law. In the Arrest Warrant case the continued relevance of Lotus was questioned, with President Guillaume claiming the presumption must be reviewed in light of the strengthened principles of sovereign equality and territoriality since 1927.22 In the course of this essay I will argue that whilst the sovereign
equality of states has no doubt strengthened since 1927 so too have human rights norms and their ability to permeate state borders. However, irrespective of this, to reverse the Lotus presumption and hold that states are allowed to do only what is expressly permitted would be wholly unrealistic. Furthermore jus cogens norms have developed to place general constraints upon state behaviour relating to the most cardinal norms. Ultimately however the fact
remains that no case has come before the Court to override the relevancy of Lotus. Therefore, the presumption of lawfulness laid down in the Lotus case means that the exercise of
prescriptive universal jurisdiction in absentia is permitted unless it can be shown that there exists a prohibitive rule in conventional or customary law. I will now examine whether, as a result of states increasingly conditioning the exercise of universal jurisdiction on the presence of the accused on their territory, a customary international rule has developed to this effect. I will conclude that no such rule has crystallised and the exercise of universal jurisdiction in absentia is therefore permitted by international law.
The Arrest Warrant case 23
The Arrest Warrant case, despite being predominantly concerned with immunities, contains significant obiter dicta on the ICJs position regarding the scope of universal jurisdiction. The Court considered whether an arrest warrant issued under liberal Belgian legislation
constituted a violation of the DRCs sovereignty. The warrant was issued in absentia for
19 Gerald Gray Fitzmaurice The Law and Procedure of the International Court of Justice (Cambridge: Grotius 1986) 9
20 The Case of the S.S. Lotus (France v. Turkey) (1927) P.C.I.J., Ser. A No. 10 at 19. Available at: http://www.icj-cij.org/files/permanent-court-of-international-justice/serie_A/A_10/30_Lotus_Arret.pdf 21 C. Kress, ‘Universal Jurisdiction over International Crimes and the Institut de Droit International’ 4 JICJ (2006) 572
22 Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v. Belgium) ICJ 14th February 2002
(Separate Opinion of President Guillaume 15)
crimes committed outside of Belgian territory and with no nationality link; the permissibility of this pure form of universal jurisdiction divided the judges. On the one hand President Guillaume was of the opinion that universal jurisdiction, regardless of whether it was exercised in absentia or not, entailed insufficient respect for international relations and the sovereign equality of states.24 On the other Judge Van den Wyngaert in her dissenting opinion
held that “There is no rule of conventional international law to the effect that universal jurisdiction in absentia is prohibited”25 and on the same reasoning, Judges Higgins, kooijmans
and Buergenthal concluded that “a State may choose to exercise a universal criminal jurisdiction in absentia.”26 Unfortunately the Court failed to conclusively define where the
permissible parameters of the principle lie and the contradicting dictum has left the scope of the principle even more unclear.
Scholarly Opinion
Opinion put forward by NGOs and human rights groups understandably favours a pure conception of universal jurisdiction. An influential example of this is the 2003 Princeton Principles which provide that “A State may rely on universal jurisdiction as a basis for seeking the extradition of a person accused or convicted of committing a serious crime under international law,”27 suggesting that presence is only required at the trial stage. The 2005
Resolution of the Institut de Droit similarly states that presence is not required for “acts of investigation and requests for extradition.”28 However such promising rhetoric is not as well
reflected in the practice and opinio juris of states, prone to place much greater emphasis on comity.
Customary International Law
Is there consistent and widespread state practice and opinio juris sufficient to form a customary international law rule prohibiting universal jurisdiction in absentia?
24 Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v. Belgium) ICJ 14th February 2002 (Separate Opinion of President Guillaume 35, 43)
25 Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v. Belgium) ICJ 14th February 2002 (Dissenting Opinion of Judge ad hoc Van den Wyngaert 53)
26 Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v. Belgium) ICJ 14th February 2002 (Separate Opinion of Judges Higgins, Kooijmans and Buergenthal 59)
27 Stephen Macedo, ‘The Princeton Principles on Universal Jurisdiction’ (Princeton University: Program in Law and Public Affairs 2001) Principle 1(3)
28 Christian Tomuschat, ‘Universal criminal jurisdiction with regard to the crime of genocide, crimes against
humanity and war crimes’, Resolution, 71-II Yearbook of the Institut of International Law (2005) Para 3(b).
Opinio Juris
The extensive proliferation and ratification of human rights treaties can be seen as explicit assertions of the international community’s intention to prevent and punish the world’s most heinous crimes. An affirmation of this international condemnation and subsequent
commitment is contained in the fourth preamble of the Rome Statute; “Affirming that the most serious crimes of concern to the international community as a whole must not go unpunished”. On a wide view of the construction of customary law such assertions may be considered to amount to opinio juris in support of as wide a jurisdiction as possible to meet this objective clearly set by the international community. However such a view is not yet fully accepted and more specific legal proclamations are required to evidence opinio juris. Statements submitted by states during the Sixth Committee debates of the General Assembly contain a mixed rhetoric with delegations professing strong support for universal jurisdiction as a means to fight impunity on the one hand but stressing the need to ensure respect for the territorial integrity of states in order to protect international relations and treating this as contradictory to absolute jurisdiction on the other.29 Another notable contribution comes from
the African Union, as a representative of the opinio juris of many African states. Article 4(a) of the Model Law originally provided that presence was required only “at the time of the commencement of the trial,"30this was omitted from the final form, however Article 4(a) on a
textual reading seems still to be only concerned with jurisdiction to “try”.31
Generally states have shown reluctance to support universal jurisdiction in the absence of a link. In the vast majority of domestic legislation presence or residency is required before an investigation can be initiated and in all of the cases reported by Trial International in 2016 the accused was present in or a resident of the prosecuting country.32 However, even where
domestic law does not provide for universal jurisdiction in its pure form this does not necessarily indicate opinio juris as to its unlawfulness. The Bouterse case illustrates this point. The Court of Appeal initially held that Bouterse could be prosecuted for torture in absentia however this was later reversed by the Dutch Supreme Court. In arriving at this
29 UNGA Report of the Sixth Committee, ‘The scope and application of the principle of universal jurisdiction’ 64th Session (2009) A/C.6/64/SR.12. Available at: http://undocs.org/A/C.6/64/SR.12; UNGA Report of the Sixth
Committee, ‘The scope and application of the principle of universal jurisdiction’ 71st Session (2016) A/71/100 Available at http://www.un.org/en/ga/sixth/71/universal_jurisdiction.shtml
30 African Union (Draft) Model National Law on Universal Jurisdiction over International Crimes (2012) EXP/MIN/Legal/VI Available at: http://www.ejiltalk.org/wp-content/uploads/2012/08/AU-draft-model-law-UJ-May-2012.pdf
31 African Union, ‘Model National Law on Universal Jurisdiction over International Crimes’ (2016) BC/OLC/22589/66.5-2/306J6 Available at:
https://www.un.org/en/ga/sixth/71/universal_jurisdiction/african_union_e.pdf
32 Trial International, ‘Make way for justice: 2016 Annual Review on Universal Jurisdiction’(2016) Available at: https://trialinternational.org/latest-post/rapport-annuel-sur-la-competence-universelle-2016/
decision the Court keenly stressed that the prohibition on the exercise of universal
jurisdiction in absentia is one contained in national law and not necessarily reflective of any such prohibition in international law.33 As examined below, there can be a multitude of
reasons why a state would enact a presence requirement. As such, I would conclude that in restricting their legislation states are not acting under the belief that such a practice is legally required but rather out of a fear of upsetting international relations and this therefore cannot be said to satisfy the requirement for opinio juris needed to form a rule of customary law prohibiting the exercise of universal jurisdiction in absentia.
State Practice
In Demjanjuk34 Israel issued an arrest warrant and request for extradition of a US resident
responsible for committing war crimes in Poland during WWII. There was a potential passive personality link between Israel and the Jewish victims however the US Court of Appeal instead considered Israel’s claim on the basis of universal jurisdiction. Demjanjuk and Eichmann appear to provide strong support for the exertion of universal jurisdiction in absentia. However the uneven and selective nature of state practice is highlighted by the subsequent conduct of Israel and the US, two states which on the one hand are at the heart of two of the most renowned displays of absolute universal jurisdiction but on the other have seriously tempered the strength of these cases by declaring that no such jurisdiction will be applied to their own nationals, as seen in the retreats of Spain and Belgium below.
The majority of states now require that the accused be present on state territory before universal jurisdiction can be exercised. Article 68 of the United Kingdom’s International Criminal Court Act (2001) constricts jurisdiction even further by requiring that the accused be a UK resident during or after committing the offence, as is now also the case in Belgium. Recent practice involves states repealing previously liberal domestic legislation under fear of political repercussions and replacing it with a much more constricted notion of universal jurisdiction. Because of the stark change in their approach, the two examples of this retreat that I shall focus on are Belgium and Spain.
33 Bouterse, Netherlands Supreme Court (2001), Judgement on Appeal, Decision No LJN: AB1471 (Decision No)
Case No HR 00749/01 CW 2323. Available at: http://deeplink.rechtspraak.nl/uitspraak? id=ECLI:NL:PHR:2001:AB1471
Spain
The original formulation of Article 23(4) of the Organic Law35 was absolute in that it required
no nexus with Spain and did not require the suspect to be present in order for an investigation to be initiated. The peak of Spanish legislative liberalism can be seen in the Guatemala Genocide case of 200536 where the Constitutional Court rejected the Supreme Court’s
restrictive interpretation of Article 23(4) and held that the nature of the crimes alone justifies absolute universal jurisdiction. Such crimes are so severe that they “transcend the harm to the specific victims and affect the international community as a whole. Therefore, prosecution and punishment are not only a shared commitment, but a shared interest of all states."37 The
Court then concluded that “it is highly debateable that the requirement of a link is to be found in customary international law”38 on the basis that to require presence would deprive
universal jurisdiction of any real normative content and undermine the intention of the drafters. In line with this, in 2005 the Constitutional Court went on to reverse the decision of the Supreme Court in the Scilingo case and held that by requiring a nexus the Court had “practically de facto abrogated” Article 23(4).39
The permissive scope of the Spanish legislation led to the admission of cases in 2005 against Chinese officials in relation to crimes committed in Tibet. This provoked outrage from Chinese officials who threatened to reassess vital trade and tourism links claiming that such action constituted interference in Chinese domestic affairs. Such criticism also ensued in response to a number of cases levied against high ranking US and Israeli officials. These controversial cases led to the legislation being amended in 2009 to require a nexus between the crime and Spain.40
In spite of this legislative retreat, in relation to the Tibetan genocide, arrest warrants were issued in 2013 against the former Prime Minister and former President of China on the basis that one of the victims was a Spanish citizen and that the case predates the legislative change of 2009. This predictably invoked a similar reaction from China.41Additional legislative
35 Organic Act No. 6/1985 of 1 July (Official Gazette No. 157 of 2 July 1985)
36 Guatemala Genocide case (Spanish Constitutional Court 26 Sept 2005) STC 237/2005 Available at: http://hj.tribunalconstitucional.es/en/Resolucion/Show/5497
37 Naomi Roht-Arriaza, ‘International Decisions- Guatemala Genocide Case. Judgement no STC 237/2005’ 100 Am. J. Int'l L 207 (2006) 211
38 Naomi Roht-Arriaza, ‘International Decisions- Guatemala Genocide Case. Judgement no STC 237/2005’ 100 Am. J. Int'l L 207 (2006) 210
39 Craig Peters, ‘The Impasse of Tibetan Justice: Spain’s Exercise of Universal Jurisdiction in Prosecuting
Chinese Genocide’ 39 Seattle Law Review 180
40 Organic Act No. 1/2009 of 3 November (Official Gazette No. 266 of 4 November).
41 Financial Times, ‘Court ruling on Tibet raises concerns over Spain-China relations’ (2013) Available at: https://www.ft.com/content/1f498926-5503-11e3-86bc-00144feabdc0
changes were therefore made in 201442 to quell this rising political tension and economic risk,
further advancing Spain’s retreat away from absolute universal jurisdiction. Article 23(4) of the Organic Law now only permits Spanish courts to exercise jurisdiction when the
perpetrator is present on Spanish territory or the victims have Spanish nationality. Belgium
Similarly, Belgium traditionally endorsed a pure conception of universal jurisdiction not requiring presence or any connecting nexus.43 Article 5(3) of the 1999 amendment excluded
personal immunities and permitted the courts to initiate a series of investigations against high ranking officials including the 2001 complaint against Ariel Sharon and Amos Yaron.44 The
Sharon case provoked outrage from Israel who claimed that Belgium lacked jurisdiction and retaliated by withdrawing their ambassador from Brussels for three months.
A 2003 case against George Bush Senior and other notable US figures for acts committed during the Gulf and Iraq Wars garnered a comparable reaction from the USA, epitomised by the Universal Jurisdiction Rejection Act 2003 introduced to Congress.45 The US Secretary of
Defence labelled the investigations “absurd” and threatened that if such legislative practice were to continue the US would consider withdrawing NATO headquarters from Brussels.46
The risk of losing a close political ally and a great deal of revenue led to Belgium retreating from this permissive stance and enacting the Law on the Prosecution of Serious Breaches of Humanitarian Law in 2003 requiring that the accused or the victim be a Belgian national or a resident for at least three years. Following the Arrest Warrant case, Article 5(3) was also amended to respect immunities in line with international law.47 These two controversial cases
were consequently closed. However, much of the controversy stemming from Belgium’s use of universal jurisdiction was centred on its blatant disregard for personal immunities and the ability of private parties to initiate cases and there is strong reason to suggest that, were it not for these factors, the legislation, and particularly the lack of requirement for a nexus, would not have come under such criticism.
42 Organic Act No. 1/2014 of 13 March (Official Gazette No. 63 of 14 March 2014)
43 The Law of 16th June 1993 concerning the Punishment of Grave Breaches of the International Geneva
Conventions of 12 August 1949
44 H.S.A. v. S.A (Decision related to the indictment of defendant Ariel Sharon, Amos Yaron and others) No. P. 02.1139.F/2, 42, 3 I.L.M. 596 (2003)
45 Universal Jurisdiction Rejection Act, 108th Congress (2003-2004) Available at:
https://www.congress.gov/bill/108th-congress/house-bill/2050/text 46 Donald Rumsfeld, Press Conference (12 June 2003). Available at: https://www.nato.int/docu/speech/2003/s030612g.htm
Germany
Prima facie German legislation provides for absolute universal jurisdiction and under the Code for Crimes against International Law investigations can be initiated even when the crime “bears no relation to Germany.”48 However, these substantive provisions are seriously
tempered by Article 153(f) of the German Code of Criminal Procedure which grants a large degree of discretion to the prosecutor not to open an investigation where the case does not have a sufficient domestic link. A cost-benefit analysis is therefore still undertaken. Eminent German scholars have criticised the Prosecutors “broad interpretation” of Article 153(f) as “a de facto derogation of the principle of universal jurisdiction through the procedural
backdoor.”49 This discretion has proved devastating for the use of the principle and the
promising language of Article 1(1)(1) is not matched by subsequent practice, or lack of. As a result the absence of the suspect will not ipso facto prevent jurisdiction being exercised but it has proved to be seriously detrimental in practice to the prospect of an investigation being opened.50
Is the Bell Tolling?
These cases can be considered regressive steps in international criminal justice which invited Cassese to question whether the bell was tolling for universal jurisdiction.51 To which he
concluded that universal jurisdiction in absentia has had its day. However I would conclude that, despite the legislative retreat, state practice is too vague and inconsistent to conclude that a customary rule prohibiting the exercise of universal jurisdiction in absentia has
crystallised. As outlined above, the principle has been given effect in domestic legislation in varying degrees across the world and this legislation itself fluctuates within states over time; “An examination of national legislation, cases and writings reveals a wide variety of temporal linkages to the assertion of jurisdiction. This incoherent practice cannot be said to evidence a precondition to any exercise of universal criminal jurisdiction.”52 Therefore, in line with the
Lotus principle, we can conclude that a state is free to exercise prescriptive universal jurisdiction without a need for the accused to be present on its territory. I will now explore
48 Article 1(1)(1) Act to Introduce the Code of Crimes against International Law (2002) Available at: http://www.iuscomp.org/wordpress/wp-content/uploads/2014/03/voestgb.pdf; ‘Sokolovic case,’ Bundesgerichtschof 21.2.2001, 3 STR 372/00 at 20
49 Kai Ambos, Prosecuting Guantanamo in Europe: Can and Shall the Masterminds of the “Torture Memos”
be held Criminally Responsible on the Basis of Universal Jurisdiction? 42 (Case Western Reserve Journal of
International Law 2009) 429
50 Human Rights Watch, ‘Universal Jurisdiction in Europe: The State of the Art’ 2006) Available at: https://www.hrw.org/report/2006/06/27/universal-jurisdiction-europe/state-art
51 Antonio Cassese ‘Is the Bell Tolling for Universality? A Plea for a Sensible Notion of Universal Jurisdiction’, JICJ (2003)
52 Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v. Belgium) ICJ 14th February 2002 (Separate Opinion of Judges Higgins, Kooijmans and Buergenthal 54)
why universal jurisdiction in absentia is not being utilised and conclude that politics and practicality are the two key state-imposed obstacles to the full impunity ending potential of universal jurisdiction being realised.
Politics and the Separation of Powers
The retreat of Spain and Belgium illustrates how politics has been prioritised over justice and how states are more concerned with not offending the sensitivities of powerful governments than with protecting the rights of vulnerable victims and upholding the rule of law. As Judge van den Wyngaert in her dissenting opinion in the Arrest Warrant case states, whilst “It may be politically inconvenient to have such a wide jurisdiction because it is not conclusive to international relations and national relations and national public opinion may not approve of trials against foreigners for crimes committed abroad. This does not, however, make such trials illegal under international law”.53 Political inconvenience is insufficient to justify
impunity.
Prosecutions under universal jurisdiction are highly politicised due to the fact that many of the perpetrators of core crimes are high ranking officials connected to the state apparatus and therefore when acting under universal jurisdiction, one state is essentially casting judgement on the policies and activities of another state. This has obvious implications for the principle of sovereign equality and consequent potential to damage international relations. As seen above, this has led to states adopting a cautious approach, for example when enacting the International Criminal Court (Scotland) Act 2001 Parliament voiced concerns over the potential “political repercussions for Scotland” if universal jurisdiction in absentia were to be permitted.54 Essentially presence requirements have been introduced as a political measure to
restore comity when tensions have arisen during the legitimate pursuit of justice. This retreat must be reversed in order to uphold the independence of the judiciary and the rule of law. The problem of political interference is not unique to absolute universal jurisdiction and is in fact possible in any state with a large degree of prosecutorial discretion regardless of the basis of jurisdiction. A 2011 study by Maximo Langer demonstrates the often conflicting pursuits of the judiciary and the executive by suggesting that states whose legislation provides for a low degree of executive discretion are more prone to exercise universal jurisdiction against high ranking officials and vice versa. 55Also, as shown by the above state practice, in those
53 Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v. Belgium) ICJ 14th February 2002 (Dissenting Opinion of Judge ad hoc Van den Wyngaert 56)
54 Scottish Parliament Official Report, Thursday 13 September 2001, Session 1 pg 2423
55 Maximo Langer, ‘The Diplomacy of Universal Jurisdiction: The Political Branches and the Transnational
states that permit a wide exercise, when this is subsequently utilised by the courts the executive often steps in to constrict the legislation. Due to the potentially high diplomatic costs the exercise of universal jurisdiction inevitably engages the interest of the executive. However, by heeding the warning that “When exercising universal jurisdiction… states should bear in mind the need to avoid impairing friendly international relations”56states can
be said to have denied legitimate individual interests and threatened the separation of powers doctrine.
The retreats of both Belgium and Spain can be seen to be a direct result of the pressure exerted by the political might of the USA, China and Israel respectively. In relation to the Spanish cases against Chinese officials for instance, Spain was highly dependent on China for trade, tourism and commerce and it was clear that, however just the cause, the political branches were not prepared to risk upsetting this relationship.57In multiple instances of state
retreat it can be seen that justice was inappropriately contingent upon political considerations. This was the accusation brought by the Center for Constitutional Rights and the ECCHR against the US and Spain in relation to an interference with the independence and impartiality of the judiciary, particularly in the ‘Bush Six’ case.58 Based on numerous incriminating
WikiLeaks documents, the NGOs claimed that members of the American and Spanish governments interfered to obstruct proceedings in favour of the defendants and “in an effort to elevate political considerations over the rule of law, officials of both countries violated fundamental legal principles”.59
States have allowed comity based concerns about infringing what is now an overly strict outdated conception of sovereignty to prevail over justice. For instance in Germany, all but one of the cases brought in response to the Syrian conflict that have reached trial under the universal jurisdiction principle have been against members of terrorist and non-state armed groups. The one case that did proceed against a member of the Syrian army was against a low level perpetrator. This is supportive of the contention that, despite enacting a pure form of universal jurisdiction, Germany is still reluctant to prosecute members of the armed forces of another state, however reprehensible that state’s actions may be. Furthermore such
56 The Council of Europe, ‘AU-EU Expert Report on the Principle of Universal Jurisdiction’ (2009) 8672/1/09 REV1 at R6. Available at: http://register.consilium.europa.eu/doc/srv?l=EN&f=ST%208672%202009%20REV %201
57 Craig Peters, ‘The Impasse of Tibetan Justice: Spain’s Exercise of Universal Jurisdiction in Prosecuting
Chinese Genocide’ 39 Seattle Law Review
58 Center for Constitutional Rights, ECCHR, ‘Complaint against the United States of America and the
Kingdom of Spain: Interference with the Independence and Impartiality of the Judiciary’ (2012) Available at:
file:///C:/Users/Lucy/Downloads/US%20Accountability,%20Spanish%20Cases,%20Complaint%202012-01-19.pdf
prosecutions are suggestive of a lingering adherence to the no safe haven approach with Germany aiming to protect its own interests by weakening ISIS and discouraging German nationals from defecting.
Political interference in the judicial process, furthering threatening the separation of powers, can be seen in the arguably questionable findings of Pinochet’s medical incapacity to stand trial. Tony Blair had promised an “ethical foreign policy,”60 in contrast to the previous
amicability between Margaret Thatcher and Pinochet, and was under a great deal of pressure from many European states to prosecute Pinochet.61 Whilst on the other hand the USA
supported the coup d’etat and was advocating Pinochet’s return to Chile. Ultimately the UK avoided upsetting either side by releasing Pinochet on the basis of medical incapacity and averting a trial.
Political and public perception is also a strong determinative factor in the application of universal jurisdiction. This was evident in the case of Hissene Habre where it is doubtful that Senegal would have acted were it not for the political pressure exerted by Belgium and then later the African Union.62 Following his indictment Habre garnered a huge network of
support within Senegal which was very vocal in opposing his charges. However, the prospect of prosecution was greatly enhanced by the determination and perseverance of the victims whose testimonies clearly swayed public opinion towards favouring prosecution and it became clear to the initially reluctant Senegalese authorities that the crimes were so serious and public opinion so strong, that impunity was politically not an option. Both internal and external political perception had a clear impact on the investigation and trial.
In 2003 the Spanish Supreme Court held that Spain did not have universal jurisdiction over crimes committed in Guatemala, one of the reasons being that the accused were not on Spanish territory, a requirement not laid down in Spanish law and no doubt influenced by the critical stance of the Popular Party. The decision was overturned by the Constitutional Court in 2005 after the Socialist party rose to power. Despite subsequent legislative amendments to the Spanish law, the Guatemalan Generals case highlights the degree of political control over the effectiveness of the principle and demonstrates the difficulty in deducing consistent state practice and opinio juris. Justice should not be so dependent upon the political leniencies of
60 The Guardian, ‘Robin Cook’s speech on the government’s ethical foreign policy’, (1997) Available at: https://www.theguardian.com/world/1997/may/12/indonesia.ethicalforeignpolicy
61 European Parliament, Resolution on the arrest of General Pinochet in London, October 22nd 1998, B4-0975/98. Available at: http://eur-lex.europa.eu/legal-content/EN/ALL/?uri=CELEX:51998IP0975; General Assembly Official Records, Report of the Committee against Torture, A/54/44, 21st-22nd session, (1998-1999),
pg 10 para 77(f) Available at: file:///C:/Users/Lucy/Downloads/N9924847.pdf
62 Questions relating to the Obligation to Prosecute or Extradite (Belgium v Senegal) ICJ, (2009) and (2012) Available at: http://www.icj-cij.org/en/case/144
the particular government of the time and such selectivity is inconsistent with the emerging idea that punishing the core crimes is a moral imperative incumbent upon all states. Justice must be pursued independently of national or political interests; it is an objective in and of itself. Only by enacting a pure form of universal jurisdiction, where states prosecute purely because of the threat to the international community posed by the heinousness of the crimes, can states divorce justice from politics.
In October 2017 Sweden became the first country to prosecute a soldier of the Syrian government for war crimes.63 In response to the ongoing deadlock over Syria we are now
seeing the first glimmers of hope that political reluctance to prosecute is waning in light of evolving sovereignty and the pressing need to end impunity. This supports the argument that political considerations are less likely to play a defining role in prosecution when the crimes in question are clearly and widely defined as unacceptable by the international community and there is a unanimous mandate for their punishment. Therefore I would argue that due to the universally agreed heinousness of the core crimes subject to universal jurisdiction states are in fact more inclined to act regardless of political considerations because unanimous moral outrage means there is a smaller scope to justify non-prosecution. On this same reasoning, making universal jurisdiction pure would not increase the risk of politicisation by any real degree.
The introduction of presence requirements into domestic legislation is an expression of the political fear of infringing state sovereignty and a means of controlling such incursion. However such stringent caution has allowed politics to stand in the path of justice and is no longer sustainable in today’s context of impunity or justifiable in today’s de-territorialised and globalised world. Only by removing requirements for a connecting link and allowing the principle to operate free from the influence of politics can the rule of law and the separation of powers doctrine be upheld. Moreover, the parameters of the principle should now be codified to harmonise application and reduce the margin for abuse. This is a proposition that has garnered much support in General Assembly debates64 and is essential to ensure that the
principle is locked in as an international commitment with normative value and minimal room for political interference.
63 Anne Barnard, ‘Syrian Soldier is Guilty of War Crime, a First in the 6-Year Conflict’ New York Times (Oct 3 2017) Available at: https://www.nytimes.com/2017/10/03/world/middleeast/syria-war-crime.html
64 UNGA meetings coverage, 6th Committee 69th Session 11th and 12th meetings, ‘Universal Jurisdiction
principle must be defined to avoid abuse, endangerment of International Law, Sixth Committee hears as debate begins’, GA/L/3481 (15 October 2014) Available at: https://www.un.org/press/en/2014/gal3481.doc.htm
Practicality
A further reason that states are reluctant to exercise universal jurisdiction in its pure form is the perceived increase in practical problems associated with widening the pool of
prosecutorial participation. Kontorovich65 and Fletcher66 argue that universal jurisdiction does
not protect against an accused being tried in one court after another for the same offence, thus violating the double jeopardy principle. Fletcher argues that this constitutes an affront to the legal processes of sovereign states and the dignity of the accused.67 However, such risk is
“not peculiar to universal jurisdiction”68 and “there are neither reasons nor indications that a
national court would take the principle of ne bis in idem less seriously if it proceeds
according to the principle of universality.”69The principle is respected in the vast majority of
legal systems and is considered a general principle of international law.
Fletcher’s argument for a heightened risk of double jeopardy is premised on the idea that it would be “impossible” for a territorial state to accept the judgement of a “disconnected jurisdiction”.70 However this premise fails to recognise that, in relation to the core crimes
covered by universal jurisdiction, no jurisdiction is disconnected- maybe geographically but not in terms of interest. Just because the territorial state may be more closely connected it does not mean that other states are necessarily disconnected. Fletcher’s argument that only judgement by the “local community”71 is legitimate fails to recognise that these are not
crimes of purely local concern.72 Regardless of the perceived parameters of interest, the
argument that local concern is “ignored under the doctrine” can be further refuted by virtue of the subsidiarity principle by which universal jurisdiction only operates when this local concern is absent.
Kontorovich and Fletcher argue that the prohibition on double jeopardy may oblige states to respect the “lenient”73 or “possibly idiosyncratic judgement”74 of the first court to try.
Kissenger similarly argues that universal jurisdiction opens up the possibility of prosecution in states that do not adhere to international standards of due process.75 Whilst this is in theory
true I would agree with Roth in arguing that in reality the risk is minimal and such concerns
65 Eugene Kontorovich, ‘The Inefficiency of Universal Jurisdiction,’ IllinoisLRev (2008) 66 George P. Fletcher, ‘Against Universal Jurisdiction,’ 1 JICJ 3 (2003) 582
67 Ibid
68 Albin Eser, ‘For Universal Jurisdiction: Against Fletcher’s Antagonism,” 39 Tulsa L. Rev 4 (2013) pg 957 69 Ibid 970
70 George P. Fletcher, ‘Against Universal Jurisdiction,’ 1 JICJ 3 (2003) 583 71 Ibid
72 Albin Eser, ‘For Universal Jurisdiction: Against Fletcher’s Antagonism,” 39 Tulsa L. Rev 4 (2013) pg 973 73 Eugene Kontorovich, ‘A Positive Theory of Universal Jurisdiction,’ forthcoming 80 NotreDameLRev (2004) 23
74 George P. Fletcher, ‘Against Universal Jurisdiction,’ 1 JICJ 3 (2003) 584
are “overblown.”76Because less hindered by practicality and resources, the states most likely
to prosecute under universal jurisdiction are those with developed legal systems and a respect for due process, thus increasing the legitimacy of their judgements and the consequent willingness of other states to respect them. Furthermore, national prosecutorial procedures and practice generally upholds respect for the judgements of sovereign states. This respect should not be underestimated and in reality only judgements which fall drastically below the international benchmark to the degree that the state may be regarded as unable or unwilling will be rightly subject to challenge.
The extradition process also provides checks likely to increase overall prosecutorial standards or at least cast an element of scrutiny, further reducing the prospect of inter-state conflicts. A state will be unlikely to extradite where the requesting state has insufficient protections, this is most obvious in the case of European states receiving requests from states with the death penalty. Suggestions have been made that an international organisation such as the United Nations could undertake a “certification process” to determine which states have adequate procedural protections to prosecute, thus reducing the scope for politically motivated determinations.77 Furthermore, in order to increase uniformity and legitimacy it may be
desirable to formulate a body of procedural rules covering both due process and punishment for international crimes tried in domestic courts.78
Due to the universal nature of the crimes there may be a heightened likelihood of competing claims being brought. However numerous mechanisms are in place to determine prosecutorial priority. For instance many states are parties to extradition treaties which lay down relevant considerations. This contextual approach is also taken in Principle 8 of the Princeton
Principles, under which the standard of protection in the legal system of the requesting state is a pertinent factor. This further reduces the risk of trials being conducted in states with sub-standard due process protections.
When investigating a crime committed outside of state territory and by a person not within state territory evidence gathering can be particularly difficult, this is especially problematic in the current Syrian war zone. However, the increasing number of asylum seekers and refugees entering Europe has given European states, particularly Germany as a major host state, access to victims and evidence which would previously have been unobtainable. Moreover, as a consequence of the continued jurisdictional deadlock, particularly in relation to Syria, a
76 Kenneth Roth, ‘The Case for Universal Jurisdiction,’ 80 Foreign Aff (2001) 153
77 Brent Wible, ‘De-Jeopardizing Justice: Domestic Prosecutions for International Crimes and the Need for
Transnational Convergence,’ 31 Denv.J. Int’l L. & Pol’y (2002) pg 292
multitude of NGOs and activists have accumulated vast bodies of evidence in anticipation of states finding the impetus to prosecute. Dedicated war crimes units are in operation across much of Europe and have proven effective in building cases.79This is explored further in
section 6.1.
Another practical concern noted by Judge van den Wyngaert was that “States are afraid of overburdening their court system.”80 By widening their laws on universal jurisdiction a state
does risk opening themselves up to a deluge of cases that risk diverting funds away from domestic matters. For instance, public opinion in Spain became progressively aware that Spanish courts were at risk of becoming a “mini-ICC that would solve all of the world’s problems except Spain’s.”81 Such an overburdening can be seen to have happened with
Belgium’s pre 2003 legislation and the attractive forum which this created. It is therefore vital that universal jurisdiction is globally embraced as a commitment undertaken by all states and not left to a pioneering few. This reciprocity is essential to ensure the full force of the principle is felt by perpetrators across the whole world and to prevent forum shopping. As a result prosecutions on the basis of universal jurisdiction, regardless of the scope of the principle, are unlikely to be so frequent so as to amount to a burden that, when shared by all states, is so onerous it constitutes a justifiable bar to prosecution.
In conclusion, any practical problems potentially encountered are surmountable and
minuscule in relation to the serious nature of the crimes and the international importance of prosecuting them. Ultimately "Territoriality of jurisdiction is a rule of convenience in the sphere of the law of evidence. It is not a requirement of justice or even a necessary postulate of the sovereignty of the state."82 In light of these numerous safeguards, in the Arrest Warrant
case Judge van den Wyngaert recognised such concerns as being of “more of a pragmatic than of a judicial nature.”83 The requirement for presence cannot be deemed a necessary
precondition of jurisdiction but rather a mere procedural concern.
79 HRW, ‘The Long Arm of Justice: Lessons from Specialized War Crimes Units in France, Germany and the
Netherlands’ (2014) Available at:
https://www.hrw.org/report/2014/09/16/long-arm-justice/lessons-specialized-war-crimes-units-france-germany-and
80 Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v. Belgium) ICJ 14th February 2002 (Dissenting Opinion of Judge ad hoc Van den Wyngaert 56)
81 Naomi Roht-Arriaz, ‘The Pinochet Effect: Transnational Justice in the Age of Human Rights’ (University of Pennsylvania Press 2005) 173
82 Lauterpacht quoted in Attorney General of the State of Israel v Eichmann, 36 Int’l L. Rep 5 (1962) 83 Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v. Belgium) ICJ 14th February 2002 (Dissenting Opinion of Judge ad hoc Van den Wyngaert 56)
The Need to Move from a Reactive to a Proactive Approach towards International Law Enforcement
I will illustrate this point with reference to the ‘global enforcer’ and ‘no safe haven’
framework advanced by M, Langer.84 In 2015 Langer proposed that states are moving from
being global enforcers to the no safe haven model. I contend that Langer’s predictions have been realised but that states, in today’s context of impunity, must reverse this retreat and become global enforcers once again. Langer states that his model “does not track the
distinction between ‘pure’ and ‘custodial’ universal jurisdiction” but is designed to establish the appropriate role of the state in the jurisdiction regime. However, I would argue that determining the role of states in international law enforcement is a prerequisite for any attempt to define the desirable scope of universal jurisdiction. If states are considered to be global enforcers they act to protect the interests of the international community and require no connecting nexus to justify an exertion of jurisdiction, jurisdiction is absolute. Whereas if states are simply not to be safe havens they adopt a self-serving approach and are only inclined to act when their own national sovereign interests are directly threatened, usually by virtue of the perpetrators presence, i.e. conditional jurisdiction.
The Illogicality of the Presence Requirement
In much of the academic literature scholars distinguish between “conditional” and “absolute” universal jurisdiction in a way which depicts them as two separate jurisdictional bases each requiring their own justification. This was the approach adopted by President Guillaume in Arrest Warrant when he stated “international law does not accept universal jurisdiction; still less does it accept universal jurisdiction in absentia.”85 I agree with O’Keefe86 in that no
distinction exists in law; they are simply two degrees of implementation of the same jurisdictional base.
It is generally considered that, regardless of the position taken with regards to Lotus, “a State must be able to identify a sufficient nexus between itself and the object of its assertion of jurisdiction.”87 This is a vital condition on a states exercise of jurisdiction and a safeguard
against the infringement of sovereignty and territorial integrity. I am not denying that such a link is required; to claim otherwise would lead to the potential for unfettered assertions of jurisdiction over any crime anywhere which would no doubt create chaos. However, the
84 Maximo Langer, ‘Universal Jurisdiction is Not Disappearing: The Shift from ‘Global Enforcer’ to ‘No Safe
Haven’ Universal Jurisdiction’ 13, No 2 JICJ (2015)
85 Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v. Belgium) ICJ 14th February 2002
(Separate Opinion of President Guillaume 16)
86 Roger O’Keefe, ‘Universal Jurisdiction: Clarifying the Basic Concept,’ JICJ Vol. 2(3), (2004) 749 87 Bernard H Oxman, ‘Jurisdiction of States,’ MPEPIL 1436 (OUP 2007) 10
nexus requirement of universal jurisdiction is satisfied by the universally recognised heinousness and consequent condemnation of the crimes in question, no additional legitimising link such as presence or residence is required.
Because of the increased political incentive to prosecute when the suspect is present on state territory the exercise of jurisdiction is a logical consequence of presence but presence cannot similarly be considered a logical prerequisite of jurisdiction. Textuality the word “universal” obviously implies application beyond a state’s borders. Moreover, to impose the requirement for an additional nexus frustrates the object and purpose of universal jurisdiction. If we re-consider the origins of the principle, it was intended to fill a potential impunity gap as the pirates operating on the high seas fell outside the jurisdiction of any one state. As such, there was no requirement for the accused to be present on the territory of the prosecuting state; in fact this absence was the very reason for the existence of the principle. The defining
characteristic of universal jurisdiction is this absence of link and it therefore follows that “as a matter of international law, if universal jurisdiction is permissible, then its exercise in absentia is logically permissible also.”88 For states to require a link in their domestic
legislation is in direct contravention to the rationale of the principle and is completely illogical as the principle ultimately fails to fulfil its purpose and potential.
In retreating their legislation states have de facto abolished universal jurisdiction as existing in any meaningful sense and it has essentially become identical for all intents and purposes to active and passive personality jurisdiction. States, by declaring they have universal
jurisdiction but then preconditioning this on presence or residence cannot claim they are exercising universal jurisdiction and by doing so they are “diluting and cheapening the concept.”89 The very raison d’etre of universal jurisdiction is its ability to act where no other
jurisdictional basis can, therefore to require additional links is to undermine the very
foundations upon which universal jurisdiction was built and to completely diminish its unique functional usefulness, rendering the concept practically redundant.
The Changing Parameters of Interest
Many critics claim that there is a lack of political will to prosecute on the basis of universal jurisdiction on the grounds that “By prosecuting pirates on a universal basis, nations would be conferring a benefit on many states while single-handedly shouldering all the costs, hardly
88 Roger O’Keefe, ‘Universal Jurisdiction: Clarifying the Basic Concept,’ JICJ Vol. 2(3), (2004) 750 89 Sienho Yee, ‘Universal Jurisdiction: Concept, Logic and Reality’ 10, Issue 3 Chinese Journal of International Law (2011) 8.4
the kind of action one would expect of rational, self-interested states”90 Kontorovich argues
that high costs and low benefits mean that universal jurisdiction, despite being normatively desirable, is not practically attractive for states. He bases his argument on the rational choice model and is “unclear why the unaffected nations would have any interest in prosecution.”91
However the very nature of the core crimes is their extreme heinousness which is capable of transcending state boundaries and leaving no state uninjured. Kontorovich considers this idea of universal injury to be “abstract.”92 However inference can be drawn from the actions of the
Security Council where such a wider notion of harm has long proven sufficient to justify intervention to quell situations which initially appear to be contained within a state; “If military intervention is acceptable to protect human rights then judicial intervention surely is too.”93 Where such fundamental norms are at stake there is no distinction between injured and
uninjured states.
Furthermore, by virtue of a strengthened international community, the parameters of interest have changed and states now have a higher stake in pursuing justice on a universal scale. My argument is premised upon the existence of an international community within which justice knows no borders. This community exists only in relation to the core crimes where, due to their distinct heinousness, there exists a civitas maximas: a “genuine moral community comprising all humanity.”94 This is reflective of Christian Wolff’s “supreme state”95 which
postulates a sense of human solidarity based on the idea that there exists values common to humanity which override the individual interests of any one state.
Whilst the existence of this international community is contested by certain scholars96
international discourse strengthens its case. The Nazi war criminals prosecuted in Nuremberg were regarded as “answering to humanity itself, humanity which has no political boundaries and no geographical limitations.”97 This common bond of humanity is regarded as creating
interest in prosecution; “What has happened in Syria is a case for humanity, not only for
90 Eugene Kontorovich, ‘Implementing Sosa v. Alvarez-Machain: What Piracy Reveals about the Limits of the
Alien Tort Statute’, 80 Notre Dame L. Rev. (2004) 154
91 Eugene Kontorovich, ‘A Positive Theory of Universal Jurisdiction,’ forthcoming 80 NotreDameLRev (2004) pg 59
92 Ibid pg 37
93 Luc Reydams, The Rise and Fall of Universal Jurisdiction’, Leuven Centre for Global Governance Studies, Working Paper No.37 (2010) pg 3 Available at:
https://ghum.kuleuven.be/ggs/publications/working_papers/2010/37Reydams
94 M. Cherif Bassiouni, Edward M. Wise, ‘Aut Dedere Aut Judicare: The Duty to Extradite or Prosecute in
International Law,’ (Martinus Nijhoff Publishers 1995) pg 28
95 Christian Wolff, James Brown Scott (ed), ‘The Classics of International Law: Jus Gentium Methodo
Scientifica Pertractatum’ Vol II, (Joseph H. Drake trans 1934)
96 Hedley Bull, ‘The Anarchical Society: A Study of Order in World Politics,’ (Columbia University Press 1977), 3rd ed
97 Trials of War Criminals before the Nuernberg Military Tribunals, Vol IV (1946-1949) pg 498 Available at: https://www.loc.gov/rr/frd/Military_Law/pdf/NT_war-criminals_Vol-IV.pdf
Syrians… You too are related to our case because you are human.”98Humanity itself is
conceived of as a supreme entity and all national courts as members, representatives and protectorates of humanity have an interest in prosecution.
Currently states, by virtue of making the exercise of universal jurisdiction conditional upon territorial links, are predominantly concerned about not becoming a refuge. This is suggestive of a much more introvert, state-centric and territorial notion of interest, which detaches the interests of the individual state from that of the wider international community. This defensive approach is out of line with modern perceptions of sovereignty, the international community and the current trend of interdependency between the national and the
international spheres of interest. I advocate that, in order for reality to match the ambitions of the international community’s communitarian pursuits states must take a more proactive approach to enforcement, not restricted by requirements of presence, and become global enforcers once again.
I am proposing that the exercise of universal jurisdiction should be ‘pure’ in the sense that it requires no connecting link and is premised purely on a concern for protecting the interests of the international community as a whole. Therefore in order to legitimate this I must trace and evidence the existence of this international community and establish that all states have an interest in its protection. In this section I will argue that globalisation and deterritorialisation have unified interests and made what were once the fragmented individual interests of states interdependent and indistinguishable.
Through the codification of human rights and the development of jus cogens norms and obligations owed erga omnes, states are increasingly unified in their acceptance of the common values of humanity and the ability of these norms to infiltrate state boundaries. The Barcelona Traction case identified different shades of normativity in the law and recognised that states owe obligations to the international community as a whole.99 Universal jurisdiction
protects such norms, which are considered as “transcending the interest of any one State”100
and prevailing over territorial boundaries. Globalisation has further blurred the boundary between the international and the national spheres. Increasing international interdependency means that the consequences of the core crimes can be said to be indiscriminate and
reverberate across and threaten the international community as a whole and thus engage the
98 David Crossland, ‘Former Syrian prisoners are firing back at the Assad regime,’ The National, (November 16 2017) Available at: https://www.thenational.ae/world/europe/former-syrian-prisoners-are-firing-back-at-the-assad-regime-1.676426
99 Case Concerning the Barcelona Traction, Light and Power Company Limited. ICJ (1970) Available at: http://www.icj-cij.org/files/case-related/50/050-19700205-JUD-01-00-EN.pdf
