Universal jurisdiction

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Universal jurisdiction or universality principle is a controversial principle in international law whereby states claim criminal jurisdiction over persons whose alleged crimes were committed outside the boundaries of the prosecuting state, regardless of nationality, country of residence, or any other relation with the prosecuting country. The state backs its claim on the grounds that the crime committed is considered a crime against humanity, which any state is authorized to punish. This controversial concept received a great deal of prominence with Belgium's 1993 "law of universal jurisdiction", which was amended in 2003 in order to reduce its scope. The creation of the International Criminal Court (ICC) in 2002 reduced the perceived need to create universal jurisdiction laws, although critics of the ICC observe that it is not entitled to judge crimes committed before 2002.

According to the proponents of universal jurisdiction, certain crimes pose so serious a threat to the international community as a whole, that any state ought to be able to prosecute an individual responsible for it; no place should be a safe haven for war criminals (including criminals involved in genocides) and human rights violators. Amnesty International also includes torture, "disappearances" and extrajudicial executions in this list.

Opponents, including Henry Kissinger, argue that universal jurisdiction is a breach on each state's sovereignty: all states being equal in sovereignty, as affirmed by the United Nations Charter, no state has standing to try a crime, no matter how heinous, in another state's jurisdiction, if they have no sovereign interest in the matter. As a practical matter, since any number of states could set up such universal jurisdiction tribunals, the process could quickly degenerate into politically-driven show trials to attempt to place a quasi-judicial stamp on a state's enemies or opponents. The United States, but also China and Russia are strong opponents of any kind whatsoever of international jurisdiction.

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Debate over universal jurisdiction & progress of international law

War crimes, crimes against humanity, genocide and torture may be subjected to universal jurisdiction. However, it remains a controversial matter.

The controversy has two aspects: a legal aspect (Is the exercise of universal jurisdiction for these crimes permitted, at the present stage of its development, by customary international law?), and a political aspect (Is the application of universal jurisdiction to these crimes a good idea? Will it actually be effective at preventing them? Is it an unwarranted interference in the sovereignty of other states? Is it open to abuse for political purposes? Will its widespread use lead to instability in international relations?).

A separate but related issue is whether heads of state, ministers of government and diplomatic representatives of a state possess immunity in relation to these crimes. It is generally recognized by governments that it would be very difficult to accommodate a law allowing judgement of actual heads of state.

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Extraterritorial jurisdiction and international courts throughout the 20th century

International jurisdiction differs from "territorial jurisdiction", where justice is exercised by a state in relation to crimes committed on its territory (territorial jurisdiction). States can also exercise jurisdiction on crimes committed by their nationals abroad (extraterritorial jurisdiction), even if the act the national committed was not illegal under the law of the territory in which an act has been committed. E.g., see Age of consent. Alternatively, a "double criminality requirement" means that the act has to be forbidden in both countries.

States can also in certain circumstances exercise jurisdiction over acts committed by foreign nationals on foreign territory. This form of jurisdiction tends to be much more controversial. There are three bases on which a state can exercise jurisdiction in this way. The least controversial is that under which a state can exercise jurisdiction over acts which affect the fundamental interests of the state, such as spying, even if the act was committed by foreign nationals on foreign territory. The Information Technology Act 2000 of India largely supports the exterritoriality of the said Act. The law states that a contravention of the Act that affects any computer or computer network situated in India will be punishable by India - irrespective of the culprits location and nationality.

More controversial is the exercise of jurisdiction where the victim of the crime is a national of the state exercising jurisdiction. In the past some states have claimed this jurisdiction (e.g., Mexico), while others have been strongly opposed to it (e.g., the United States, except in cases in which an American citzen is a victim). In more recent years however, a broad global consensus has emerged in permitting its use in the case of torture, "forced disappearances" or terrorist offences (due in part to it being permitted by the various United Nations conventions on terrorism); but its application in other areas is still highly controversial. For example, former dictator of Chile Augusto Pinochet was arrested in London in 1998, on Spanish judge Baltazar Garzon's demand, on charges of human rights abuses, not on the grounds of universal jurisdiction but rather on the grounds that some of the victims of the abuses committed in Chile were Spanish citizens. Spain then sought his extradition from Britain, again, not on the grounds of universal jurisdiction, but by invoking the law of the European Union regarding extradition; and he was finally released on grounds of "health concerns". Argentinian Alfredo Astiz's sentence is part of this juridical frame.

Universal jurisdiction must also be distinguished from the jurisdiction of an international tribunal, such as the International Criminal Court, established in 2002 (the US is not signatory to the treaty), the International Criminal Tribunal for Rwanda (1994) and International Criminal Tribunal for the Former Yugoslavia (1993), or the Nuremberg Trials (1945-49). In these cases criminal jurisdiction is exercised by an international organization, not by a state. Since, lacking sovereignty, the powers of an international organization are derivative of those of its member states, the legal jurisdiction of an international tribunal is dependent on powers of jurisdiction possessed by the states which established it, and to what extent they decided to transfer these powers to the international tribunal. In the case of the Nuremberg Trials, the legal basis for the tribunal was that the Allied powers were exercising German sovereign powers which had been transferred to it by the German Instrument of Surrender.

Established in The Hague (Netherlands) in 2002, the International Criminal Court (ICC) is an international tribunal empowered with the right to prosecute state-members' citizens for genocide, crimes against humanity, and war crimes, as defined by several international agreements, most prominently the Rome Statute of the International Criminal Court signed in 1998. It provides for ICC jurisdiction over-state party or on the territory of a non-state party where that non-state party has entered into an agreement with the court providing for it to have such jurisdiction in a particular case (consent).

However, Amnesty International argues that since the end of the Second World War more than a dozen states have conducted investigations, commenced prosecutions and completed trials based on universal jurisdiction for the crimes or arrested people with a view to extraditing the persons to a state seeking to prosecute them. These states include: Australia, Austria, Belgium, Canada, Denmark, France, Germany, Israel, Mexico, Netherlands, Senegal, Spain, Switzerland, the United Kingdom and the United States <ref> Amnesty International's report on international jurisdiction </ref>. Indeed, answering to the legal aspect of the controversy, Amnesty International claims that universal jurisdiction for these above-mentioned crimes, including torture, is not only permitted, but encouraged, at the present stage of its development, by customary international law.

"All states parties to the Convention against Torture and the Inter-American Convention {aka Inter-American Convention to Prevent and Punish Torture} are obliged whenever a person suspected of torture is found in their territory to submit the case to their prosecuting authorities for the purposes of prosecution, or to extradite that person. In addition, it is now widely recognized that states, even those which are not states parties to these treaties, may exercise universal jurisdiction over torture under customary international law." <ref> Amnesty International on torture & international jurisdiction </ref>

According to Amnesty International, crimes such as "genocide, crimes against humanity, war crimes, torture, extrajudicial executions and disappearances, and certain ordinary crimes of international concern" fall under international jurisdiction: "This legal memorandum is designed to serve as a self-contained, comprehensive explanation for prosecutors, judges and ministries of justice and foreign affairs of the solid basis in customary and conventional international law for universal jurisdiction over war crimes, crimes against humanity, genocide, torture, extrajudicial executions and disappearances, so that they can ensure that such jurisdiction is exercised effectively." <ref> Various crimes subject to universal jurisdiction according to Amnesty International </ref>

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Belgium's 1993 "law of universal jurisdiction" & Spain's 2005 court decision

In 1993, Belgium's Parliament voted "law of universal jurisdiction", allowing it to judge people accused of war crimes, crimes against humanity or genocide. In 2001, four Rwandan people were convicted of sentences from 12 to 20 years of prison for their involvement in 1994 Rwandan genocide. But there was quickly an explosion of suits deposed; Prime Minister Ariel Sharon was accused of involvement in the 1982 Sabra-Shatila massacre in Lebanon, conducted by a Christian militia ostensibily under his control, while some Israelis deposed a suit against Yasser Arafat for his presumed responsibility for terrorist actions. In 2003, Iraqi victims of a 1991 Bagdad bombing deposed a suit against George H.W. Bush, Colin Powell and Dick Cheney. Confronted with this sharp increase in deposed suits, Belgium established the condition that the accused person must be Belgian or present in Belgium. However, in September 2005, Chad's dictator Hissène Habré (dubbed the "African Pinochet") was indicted for crimes against humanity, torture, war crimes and other human rights violations by a Belgium court. Arrested in Senegal following requests from Senegalese courts, he is now under house arrest and waiting for (an improbable) extradition to Belgium.

In October 2005, the Audiencia Nacional, the Spanish National Court, declared that the "principle of universal jurisdiction prevails over the existence of national interests", following a suit deposed in 1999 against atrocities committed in Guatemala between 1978 and 1986 <ref> Template:Cite news </ref>

With Spain, Belgium has thus far been the only country to put universal jurisdiction into its laws, and the United States pressured it into restricting prosecutions with threats to move the headquarters of NATO from Brussels.

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A new concept ?

There is disagreement over whether universal jurisdiction is an old or new concept. Kissinger argues that it is a new one, citing the absence of the term universal jurisdiction from an authoritative law dictionary. Beside, the principle of universal jurisdiction itself applies to genocide and crimes against humanity, modern notions invented during the Nuremberg trials. Others contend that the concept itself is quite an old one, giving the example of piracy. However, this is generally considered to be different, strictly speaking, from international jurisdiction: if piracy was prosecutable by any state, it is because pirates were considered as outlaws, deprived of any citizenship, as opposed to the privateers, who were considered as prisoners of war if caught by a foreign state. Hence, it could not be considered a breach on another's state sovereignty. Since at least the nineteenth century, pirates have been recognized as hosti humanis generis ("enemies of the human race"), a juridical status close to Giorgio Agamben's homo sacer. The exercise of jurisdiction over pirates is well settled practice, at most part of international jurisdiction, if not universal jurisdiction. However, it may be given as an example of international law.

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Applicable jurisdictions

One can conclude that to avoid prosecution by any country one may have to obey each of the following:

  • laws of the country one is a national of
  • laws of the country one lives in
  • laws of the country one is in
  • for behavior in relation to someone else:
    • laws of the country the other is national of
    • laws of the country the other lives in
    • laws of the country the other is in
  • for all countries with universal jurisdiction, laws for which the principle applies
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References

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External links

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