Spain's National
Court recently indicted former Chinese President Jiang Zemin and four other Chinese officials on suspicion of involvement in genocide in Tibet. Apparently arrest
warrants are already out against them, which means that these five people from
the top brass of CCP face potential arrest if they ever decide to visit Spain
to enjoy its sunny beaches or to watch Barcelona play Real Madrid at Camp Nou.
Although Spanish authorities might hesitate to execute the arrest warrants, fearing deterioration of Sino-Spanish ties, the very fact that these leaders
will think twice before booking their flights to Spain or any other countries
with which Spain has extradition treaty is in itself, I think, a major victory
for us Tibetans.
So as to familiarize
readers with the concept of universal jurisdiction, which was invoked to lodge
our genocide case before the Spanish National Court, I have posted below an
academic paper on it, which I wrote a few years ago. I hope this provides
readers with a rough idea about the scope and limits of universal jurisdiction
as an instrument of international justice. Apologies for the legal jargons used
(after all it is an academic paper) but I think readers will be able to make
sense of the paper despite them.
The doctrine of
universality is in shambles. The extension of universal jurisdiction to serious
human rights offences such as genocide, crimes against humanity, war crimes and
torture has transformed this, once uncomplicated and rarely invoked,
jurisdictional principle into a subject of intense political debate and heated
scholarly exchanges.[1]
The explosion of universal jurisdiction cases before various municipal courts in
recent years has, in its wake, exposed several debilitating flaws in the
doctrine of universality. The existential crisis afflicting the universality
principle has been exacerbated by the World Court’s failure to elaborate upon
the substance and scope of universal jurisdiction in the Case
Concerning the Arrest
Warrant of 11 April 2000 (Democratic Republic of the Congo v Belgium). Furthermore,
amendments effected by states such as Belgium, Spain and the UK in their
previously broad universal jurisdiction laws have pushed this jurisdictional
principle to the fringes of international law. These recent events have
prompted one analyst to declare that universal jurisdiction “is on its last
legs, if not already in its death throes.”[2]
This essay, after
a brief discussion of the underlying rationales of universal jurisdiction and
its customary international law origins in Section I, will firstly argue that
despite the universality principle’s nonconformity with the basic principles of
the international law of jurisdiction, it is conceptually permissible under
international law. Next in Section II, it will identify weaknesses and
uncertainties in the doctrine of universal jurisdiction, which are resulting in
excesses in its application and preventing it from becoming a viable instrument
of international justice. Section III will consider grants of immunity as a
remedy for the abuse of universal jurisdiction and reason that the current
immunities regime is extensive enough to address any misgivings sovereign
states may have about the universality principle. Finally, the essay will call
for an authoritative delimitation of the legal content and scope of universal
jurisdiction either by the International Court of Justice (ICJ) or by the UN
General Assembly, and conclude by making three key recommendations in this
respect.
I. The
Universality Principle & The International Law of Jurisdiction
Although there
exists no authoritative definition of universal jurisdiction in customary and
conventional law,[3]
it is generally agreed that universal jurisdiction permits states to assert their
prescriptive jurisdiction over a narrow category of universally recognized
crimes, irrespective of the nationalities of the perpetrator or the victims,
and regardless of where the offence was committed or where its effects were
felt.[4]
Universal jurisdiction is, therefore, different from other more traditional
“heads” of jurisdiction in that it does not require a prescribing state to
establish any kind of nexus between its interests and the putative offence it
seeks to criminalize.[5]
The logic underpinning this extraordinary basis of jurisdiction is twofold.
Firstly, certain crimes are, in the words of Justice Robert Jackson, “so
calculated, so malignant, and so devastating that civilization cannot tolerate
their being ignored because it cannot survive their being repeated.”[6]
It is, thus, the egregious nature of these crimes that authorizes every state
to take punitive measures against their perpetrators on behalf of the international community in a
manner equivalent to the Roman concept of actio
popularis.[7]
Secondly,
these crimes of universal concern are often carried out in areas over which no state
has jurisdiction or in circumstances where states with more credible claims to
jurisdiction (premised on territoriality or nationality principles) are either
unable or unwilling to prosecute the offenders.[8]
It is specifically in such situations when more established doctrines of
jurisdiction prove inadequate to bring perpetrators of grave international
crimes to account that a state interested in prosecuting them can have legitimate
recourse to the universality principle.[9]
Simply put, universal jurisdiction is a default
legal mechanism contrived to close existing jurisdictional gaps so that the
culture of impunity surrounding certain harrowing crimes, which infringe core
values shared by all of humanity, could be broken.
Given
the transnational scope of its purpose, it is expected, even required of
universal jurisdiction to not conform to the conventional, nexus-based model of
establishing jurisdiction. But this prompts the question: Does international law
permit states to institute a jurisdictional ground based on something other
than the nexus criterion? The answer to this critical question can be inferred
from an often-cited dictum of the Permanent Court in the Lotus case. There the Court famously stated:
“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.”[10]
Put differently,
states are free to establish any form of extraterritorial criminal jurisdiction
as long as, in doing so, they do not violate any existing prohibitive rule
arising from custom or convention. Since customary international law itself
grants states the discretion to exercise universal jurisdiction, there is no
question of such an exercise of jurisdiction violating a prohibitive norm.
Therefore, one could safely say that despite its divergence from the
traditional, nexus-based approach to jurisdiction, the principle of universality
is neither irreconcilable nor alien to the international law of jurisdiction.
Ironically
however, states, at the level of domestic law, are afforded no authority
whatsoever to unilaterally substantiate the prescriptive substance and the
adjudicative scope of universal jurisdiction.[11]
The legal content of universal jurisdiction is, instead, determined in its
entirety by customary international law,[12]
whose rules are formed when states repetitively conduct themselves in a
particular way out of a sense of obligation (opinio juris).[13]
Domestically, states are granted only the discretion to decide upon ways to
assimilate this jurisdictional norm into their respective judicial systems.
They may do so either by instructing their courts to draw directly from international
law or by passing parallel domestic legislations incorporating the substantive
content of universal jurisdiction from international law.[14]
But whatever legal process a state may choose to enable its courts to hear
universal jurisdiction cases, the substance of the relevant domestic regulation
must remain in complete harmony with the legal content of universal
jurisdiction outlined in customary international law.[15]
This is important because a national court’s assertion of universal
adjudicative jurisdiction based on a statute, which exceeds the applicable
customary standards would, in effect, be a violation of international law.
Regrettably, as we shall see in Section II, these customary standards are not
clearly set out and, thus, open to myriad interpretations.
II. The Expansion of Universal
Jurisdiction & Ensuing Controversies
Piracy was the first crime to be subject to
universal jurisdiction.[16]
Pirates were regarded as “hostis humanis
generis” (enemies of all humanity) and, as such, acts of violence and
depredation perpetrated by them on the high seas deemed “punishable in the
tribunals of all nations”.[17]
These seafaring marauders were reviled not only because they indiscriminately
targeted nationals and vessels of several states but also because, in doing so,
they disrupted maritime commerce and freedom of navigation on the high seas.[18]
Given that the perpetrators of
piratical acts operated beyond any individual state’s territorial waters- often
evading arrest and prosecution, the jurisdiction to prosecute them was awarded
to any state that happened to apprehend them.[19]
States, since the 1600s, have recognized this special jurisdictional scheme for
piracy as a customary norm.[20]
And with its codification in Article 19 of the 1958 UN Convention on the High
Seas and Article 105 of the 1982 UN Convention on the Law of the Sea, this
longstanding customary norm has secured an elevated legal stature in positive
international law as well.[21]
Although
originally conceived to further the pursuit and punishment of pirates, in
recent decades, universal jurisdiction has been extended to a cluster of
serious human rights offences such as genocide, crimes against humanity, war
crimes, torture and certain acts of terrorism.[22]
This marked expansion in the scope of universal jurisdiction has been retrospectively
attributed to the judgment of the Nuremberg Tribunal.[23]
Given that there existed no historical precedent prior to the Second World War
for subjecting human rights offences to the universality principle, the
Tribunal justified the application of universal jurisdiction to Nazi crimes by
analogizing them with the paradigmatic universal crime of piracy.[24]
Since then many other courts have used this analogy to extend the application
of universal jurisdiction to various human rights offences.[25]
But this over-reliance on the piracy analogy has brought to light two major
conceptual anomalies in the doctrine of universality.
The
first flaw relates to the severity of offences covered by the universality
principle. The standard argument is that the crime of piracy, in terms of
degree of violence involved, is similar to any other run of the mill crime like
theft, rape or murder; therefore, it cannot be classed alongside crimes such as
genocide or crimes against humanity, which necessarily involve violence of far
greater magnitude.[26]
Kontorovich, for instance, contends that the special jurisdictional treatment
of piracy had nothing to do with the heinousness of the offence, as
historically piracy was never regarded as a particularly heinous crime.[27]
He insists that this being the case, piracy cannot be used as a precedent to
justify the extension of universal jurisdiction to modern human rights
offences; those who do so uncritically, in his opinion, allow modern universal
jurisdiction to be built on a “hollow foundation”.[28]
It
is true that municipal courts have often likened piracy to robbery on land.[29]
But one must acknowledge that heinousness is a subjective term open to multiple
interpretations. Whilst the effects of common crimes like theft or robbery are
often limited only to the territory of state where they take place, piracy as a
crime has repercussions that transcend national boundaries. It can be argued
that it is this international dimension of piracy, which makes it an offence of
egregious nature. That said, one must concede that pragmatic considerations are
more potent in case of piracy than normative ones, as the likelihood of
culprits evading justice is very high.[30]
The
second flaw arises from the definition of the crime of piracy. Conventionally,
piracy is defined as an illegal act “of violence, detention or any act of
depredation, committed for private ends
by the crew or the passengers of a private
ship or a private aircraft.”[31]
Even centuries before the codification of this definition the crime of piracy,
though not authoritatively defined,[32]
was widely understood to be an offence of private nature. This can be inferred
from the deliberate exclusion of privateering, which was essentially a
state-sponsored act of piracy, from the operative definition(s).[33]
A brief overview of the history of naval warfare suggests that privateering,
unlike piracy, was not only tolerated by maritime states but also frequently
encouraged especially when it was directed against their enemies.[34]
The insistence on the private nature of this crime, therefore, put beyond the
remit of the universality principle all those acts of brigandage on the high
seas, which were carried out with direct approval from states. Thus, what this
heavily constricted definition of piracy did was render unimaginable not only
the possibility of any interstate conflict but also the prospect of politically
motivated assertions of universal jurisdiction over this crime.[35]
This is probably the reason why universal jurisdiction over piracy has remained
uncontroversial for centuries.
In
contrast, grave human rights offences like genocide and crimes against humanity
are mostly carried out by agents of state. Since these are exclusively official
acts, the extension of universal jurisdiction to them is deemed to be
incompatible with the historical application of this jurisdictional principle
to the private crime of piracy.[36]
It is also claimed that such an expansion of the universality principle
undermines sovereign prerogatives of states and significantly raises the
spectre of interstate conflicts, which the piracy laws from antiquity purposely
sought to avoid.[37]
Therefore, Nuremberg, which
established the precedent for applying the universality principle to hitherto
off-limits deleterious acts of state agents, is often criticized for creating ex post facto laws.[38]
Nuremberg’s legacy has been further
tarnished by accusations of it being a form of victor’s justice.[39]
Nevertheless, the General Assembly’s affirmation of legal principles employed
by the International Military Tribunal (IMT) and their codification by the
International Law Commission (ILC) in the immediate aftermath of its judgment
have ameliorated these precedential problems to an extent.[40]
Besides
these fallacies emanating from the overuse of the piracy analogy, universal
jurisdiction, in its modern rendition, is alleged to suffer from a much more
debilitating foundational weakness.[41]
A closer analysis of Nuremberg
reveals that there was no mention of universal jurisdiction in the Charter of
the Nuremberg Tribunal and very little or no explicit reference to it in the
final judgment.[42]
The legal foundation of the IMT’s jurisdiction has, thus, become a matter of
speculation as the Tribunal, in its judgment, has only stated that:
“The Signatory
Powers created this Tribunal, defined the law it was to administer, and made
regulations for the proper conduct of the Trial. In doing so, they have done together what any one of them
might have done singly; for it
is not to be doubted that any nation has
the right to set up special courts to administer law.”[43]
Some
commentators, including the then UN Secretary General,[44]
have inferred the universality principle from the use of the phrase “any nation” in the aforementioned
clause,[45]
whereas others have maintained that the Tribunal’s jurisdiction was based on
Germany’s sovereign legislative prerogatives which were collectively assumed by
the victorious Allies after its unconditional surrender.[46]
These conflicting interpretations of the nature of jurisdiction exercised by
the IMT have added more fuel to the ongoing debate over the legitimacy of
modern universal jurisdiction.
Moreover, these
foundational uncertainties have inspired a plethora of views as to the legal
scope of universal jurisdiction. Some conservative jurists and analysts have
maintained that universal jurisdiction can only be asserted vis-à-vis piracy.[47]
Others have claimed that apart from piracy and slave trading, genocide, crimes
against humanity, war crimes and torture may also be subjected to universal
jurisdiction.[48]
Although most of these crimes are regarded as non-derogatory, peremptory norms of international law (jus cogens), and their prevention and
punishment acknowledged as obligations erga
omnes i.e. obligations owed by all states towards the international
community as a whole,[49]
multilateral conventions recognizing them as international crimes do not
unequivocally provide for universal jurisdiction. For instance, the four Geneva
Conventions of 1949 and its Additional Protocol I, the Apartheid Convention of
1973, drugs and terrorism-related conventions of the 1970s and 1980s, and the
Torture Convention of 1984 only obligate states parties to either prosecute or
extradite (aut dedere aut judicare)
suspected offenders, if captured on their territory. These extraterritorial
jurisdictional arrangements are firstly limited only to states parties, and
secondly contingent upon the presence of alleged offenders in the territory of
a particular state party. In other words, it does not provide for what has been
perplexingly referred to as “pure universal jurisdiction”, “absolute universal
jurisdiction”, “universal jurisdiction unbounded”, or “universal jurisdiction
in absentia”.
Consequently,
proponents of “pure” universal jurisdiction have turned to customary
international law for validation. But the difficulty here is that particulars
of a customary norm like universal jurisdiction are generally quite difficult,
if not impossible, to ascertain because of variations in state practice and opinio juris, which render it a fuzzy
concept. This difficulty is further exacerbated by national courts’ infrequent
resort to universality in their judicial decisions, which has resulted in a
dearth of case law and contributed to the under-theorization of universal
jurisdiction.[50]
Moreover, there does not, as yet, exist a treaty or a conventional source that
positively affirms the legitimacy of “pure” universal jurisdiction, and spells
out its potential scope and mode of application with requisite clarity. Furthermore,
whilst the advocates of “absolute” universal jurisdiction have often cited the Lotus dictum to defend its validity
under international law,[51]
the use of this diktat, whose continued relevance is itself a matter of much
scholarly debate,[52]
has done little to disperse all the conceptual ambiguities surrounding the
exercise of “unbounded” universality.
Notwithstanding
these lingering uncertainties in the legal content of universal jurisdiction,
states like Belgium and Spain, in the recent past, endowed their municipal
courts with far-reaching adjudicative powers under their respective universal
jurisdiction laws. The 1993 Belgian universal jurisdiction law, which was
broadened in 1999, and Article 23.4 of the 1985 Spanish Judicial Power
Organization Act enabled municipal courts in these two states to hear cases
from any part of the world, which came under the purview of these statutes,
even without the presence of suspects in their territory. This broad conception
of universal jurisdiction resulted in an explosion of lawsuits in the early
2000s against various foreign leaders in Belgium and Spain, which, critics
allege, not only created an unprecedented judicial chaos but also adversely
affected peaceful international relations. Moreover, the dangers of politically
motivated invocations of universal jurisdiction became increasingly apparent as
claims and counter-claims began to be initiated against rival leaders like, for
instance, Ariel Sharon and Yasser Arafat.[53]
Nevertheless,
in the wake of intense diplomatic pressure from other states, Belgium and Spain
were forced to make sweeping changes to their universal jurisdiction laws.[54]
In 2011, responding to complaints from the Israeli government regarding the
issue of arrest warrant in the UK against the Israeli opposition leader Tzipi
Livni,[55]
Britain also reformed its law to considerably narrow the scope of universal
jurisdiction.[56]
Regrettably, these legislative amendments have thrown the proverbial baby out
with the bathwater as they have introduced a wholesale prohibition on lawsuits
based on “absolute” universal jurisdiction in order to prevent, what would have
been, occasional instances of abuse and exploitation.
III. Grants of Immunity
as a Remedy for Abuse of Universal Jurisdiction
As Cassese has
noted, at the heart of the ensuing debate about the viability of universal
jurisdiction is “the tension between the need to safeguard major prerogatives
of sovereign states and the demands of emerging universal values which may
undermine those prerogatives.”[57]
This tension, however, may be resolved to some extent if prosecuting states
allow pleas of official immunity, where appropriate, to curtail the excesses of
universal jurisdiction. The immunities regime, as it stands in the aftermath of
Arrest Warrant, appears robust enough
to thwart any unwarranted infringements of sovereignty caused by a municipal
court’s assertion of universal jurisdiction.
Immunities can be
of two types: substantive and procedural (or jurisdictional). However, as a
substantive defence in relation to jus
cogens crimes, immunities of heads of state and other high-ranking
officials have been abolished since Nuremberg.[58]
The elimination of substantive immunity means that a suspect cannot invoke his
official position to exempt himself from criminal responsibility.[59]
The ICJ, in Arrest Warrant, has
restated this well-established position in following terms:
“Immunity from
criminal jurisdiction and individual criminal responsibility are quite separate
concepts. While jurisdictional immunity is procedural in nature, criminal
responsibility is a question of substantive law. Jurisdictional immunity may
well bar prosecution for a certain period or for certain offences; it cannot
exonerate the person to whom it applies from all criminal responsibility.”[60]
Thus, whilst
substantive immunity is completely barred, senior state officials can still
have recourse to procedural immunity under customary international law when
charged by foreign courts for violations of peremptory norms of international law.[61]
Procedural immunity is allowed because “it does not contradict a prohibition
contained in a jus cogens norm but
merely diverts any breach of it to a different method of settlement. Arguably
then, there is no substantive content in the procedural plea of State immunity
upon which a jus cogens mandate can
bite.”[62]
Therefore, as the House of Lords in Pinochet,
the Spanish Audienco Nacional in Castro
and the French Cour de cassation in Qaddafi
have ruled, serving heads of state (and other high-ranking officials) enjoy
immunity ratione personae even when
indicted for committing jus cogens
crimes.[63]
This immunity is absolute in that it covers acts performed in both official and
private capacities both before and during their time in office.[64]
An incumbent head of state is afforded this absolute immunity to
facilitate effective performance of his official functions, which is
crucial for the smooth conduct of international relations of the state that he
represents.[65]
The ICJ has used this functional analysis in Arrest Warrant to extend immunity ratione personae to ministers of foreign affairs as well.[66]
This has created grounds for extension of this procedural immunity to other
government ministers such defence ministers and ministers of trade and commerce
whose official duties involve frequent foreign trips.[67]
Whilst
immunity ratione personae is
absolute, it is limited to the duration for which state officials hold their
posts. Once they cease to
serve in their posts, they only retain immunity ratione materiae (functional immunity), which protects them from
prosecution for their official acts but not for those acts committed in private
capacity before and during their time in office.[68]
Notably, jus cogens crimes like
genocide, crimes against humanity and torture are not categorized as official
acts of states,[69]
which means that former heads of state and government ministers may be tried by
municipal courts of foreign states for such crimes irrespective of whether they
were committed before or during their tenures.[70]
The hierarchically inferior normative stature of immunity ratione materiae compared to jus
cogens crimes makes the exercise of (universal) jurisdiction by municipal
courts possible,[71]
albeit only after the culprit is relieved from his official position.
As
can be seen, the immunities regime, unlike the one governing universal
jurisdiction, is relatively unambiguous and straightforward. In its current
form, it sufficiently caters to the fears of sovereign states regarding abuses
and excesses of universal jurisdiction whilst also implicitly facilitating the
pursuit of international accountability. Thus, it would be imprudent to further
strengthen this already comprehensive set of immunities enjoyed by senior state
officials on the pretext of preventing abuse of universal jurisdiction. Doing
so will only tilt the balance too far in favour of states and lead to grants of
blanket immunity to both former and incumbent state officials. Consequently,
the victims of serious human rights offences will be denied the only available
legal avenue for obtaining redress and remedy for heinous crimes perpetrated
against them. This will not only completely undermine the international
community’s fight against impunity but also reduce the universality principle
to a rhetorical device of little practical significance. Ergo, as both grants
of immunity and the universality principle serve purposes that are equally
valued by the international community, it would be a mistake to reinforce one
to a point where the other becomes completely meaningless.
Besides,
excesses in the exercise of universal jurisdiction have occurred not because of
inherent weaknesses in the immunities regime but because of conceptual
ambiguities pervading the doctrine of universality. Therefore, the only way to
positively curb these abuses is by some form of authoritative delimitation of
its scope and clarification of its substance either by the ICJ or by the
General Assembly. The World Court squandered an excellent opportunity in Arrest Warrant to elaborate upon the
legal principles governing the application of universal jurisdiction. Legal
analysts were hoping that the ICJ would avail itself of the opportunity
presented by Certain Criminal Proceedings in France[72]
to shed more light on the character and limits of universal jurisdiction, but
that case was later withdrawn by the Applicant State. In light of these facts,
it would be ideal if the General Assembly took upon itself the task of
clarifying the substantive content of universal jurisdiction. Since 2009, the
Sixth Committee of the General Assembly has been actively collating information
regarding domestic legal rules and judicial practices pertaining to universal
jurisdiction in various UN member states.[73]
In 2011, the Assembly, through resolution 65/33, also established a working
group of the Sixth Committee to undertake thorough discussions on the scope and
application of universal jurisdiction.[74]
These efforts will undoubtedly facilitate the harmonization of divergent
practices in the member states, and may even enable the Assembly to produce, if
not a full-fledged treaty, a set of consensual guidelines for the equitable
application of universal jurisdiction.
Conclusion
A legal norm as
crucial as the universality principle cannot be accurately elucidated by references
to permissive and prohibitive norms external to this jurisdictional concept. Therefore,
in order for universal jurisdiction to become a more practical tool of
international justice, it is imperative that its substantive core is positively
defined. Much of the ensuing controversy will automatically dissipate if either
the ICJ or the General Assembly undertakes this important task. Until then, the
present author believes that, abuses and excesses in the exercise of universal jurisdiction
can be significantly curtailed if certain guidelines along following lines are
incorporated within municipal judicial systems:
· To
prevent judicial chaos and politically motivated invocations of universal
jurisdiction, a municipal court should only entertain those cases, which have
been approved by the designated prosecutor.
· A
prosecuting state should only be allowed to assert universal jurisdiction over
an extraterritorial conduct if states possessing primary jurisdiction based on
territoriality or nationality principles are unable or unwilling to prosecute
the offender. In other words, universal jurisdiction should only be used as a
subsidiary basis of jurisdiction.
· Whilst
preliminary investigations should be allowed even in the absence of the suspect
in the territory of the prosecuting state, trials in absentia should be allowed
only in those cases in which there are overwhelming prima facie evidence
against suspected individuals.
[1] Steiner, ‘Three Cheers
for Universal Jurisdiction- Or Is It Only Two?’, 5 Theoretical Inquiries in Law (2004) 199, at 200.
[2] Cassese, ‘Is the bell
Tolling for Universality? A Plea for a sensible Notion of Universal
Jurisdiction’, 1 Journal of International
Criminal Justice (2003) 589, at 589.
[3] Case Concerning the Arrest Warrant of 11 April 2000 (Democratic Republic
of the Congo v Belgium), International Court of
Justice, 14 February 2002, available online at http://www.icj-cij.org/docket/index.php?p1=3&p2=3&k=36&case=121&code=cobe&p3=4, diss. op. Van den Wyngaert, at § 44; also see Trinh, Bannister &
O’Brien, ‘The Principle of Universal Jurisdiction’, Humanitarian Law Perspectives, available online at http://www.redcross.org.au/files/2010_The_Principle_of_Universal_Jurisdiction.pdf, at 6.
[4] See, e.g. Restatement (Third) of
the Foreign Relations Law of the United States, 1987, § 404(a); Princeton Principles on
Universal Jurisdiction, available online at http://lapa.princeton.edu/hosteddocs/unive_jur.pdf, Principle 1(1);
Amnesty International, ‘Universal Jurisdiction: The duty of states to enact and
enforce legislation’, available online at http://www.amnesty.org/en/library/asset/IOR53/002/2001/en/be2d6765-d8f0-11dd-ad8c-%20f3d4445c118e/ior530022001en.pdf.,
at 1.
[5] See, e.g. Reydams, Universal
jurisdiction: International and Municipal Legal Perspectives (Oxford, New
York: Oxford University Press, 2003), at 5; Meron, ‘International
criminalization of Internal Atrocities’, 89 American
Journal of International Law (1995) 554, at 568; Ascensio, ‘Are Spanish
Courts Backing Down on Universality? The Supreme Court’s Decision in Guatemalan Generals’, 1 Journal of International Criminal Justice (2003)
690, at 699; O’Keefe, ‘Universal Jurisdiction: Clarifying the Basic Concept’, 2
Journal of International Criminal Justice
(2004) 735, at 745.
[6] Justice Jackson, ‘Opening Statement before the International Military Tribunal’,
21 November 1945, available online at http://www.roberthjackson.org/the-man/speeches-articles/speeches/speeches-by-robert-h-jackson/opening-statement-before-the-international-military-tribunal/
[7] Attorney-General of Israel v Eichmann, 36 International Law Reports (1962, Sup. Ct Israel) 277, at 304; also
see Demjanjuk v Petrovsky, 776 F.2d
(6th Cir. 1985) 571, at 582-83; Bassiouni, ‘Universal Jurisdiction
for International Crimes: Historical Perspectives and Contemporary Practice’,
42 Virginia Journal of International Law
(2001-02) 81, at 88; also see Schachter, International law in Theory and Practice
(Dordrecht: Martinus Nijhoff Publishers, 1991), at 209.
[9] See, e.g. Decision of the Spanish Supreme Court
concerning the Guatemala Genocide Case, Decision No. 327/2003 (25 February
2003) available online at http://www.derechos.org/nizkor/guatemala/doc/stsgtm.html; Broomhall, ‘Towards
the Development of an Effective System of Universal Jurisdiction for Crimes
under International Law’, 35 New England
Law Review (2001) 399, at 402;
Ryngaert, ‘Applying the Rome Statutes Complementarity Principle: Drawing
Lessons from the Prosecution of Core Crimes by States Acting under the
Universality Principle’, 19 Criminal Law Forum (2008) 153.
[10] The S.S. Lotus (France v Turkey), 1928 PCIJ
Series A, No. 10, available online at
http://www.icj-cij.org/pcij/serie_A/A_10/30_Lotus_Arret.pdf, at 19.
[11] Colangelo, ‘The Legal Limits of Universal Jurisdiction’, 47 Virginia Journal of International Law
(2005) 1, at 13.
[13] See Article 38 (1)(b) of
the Statute of the International Court of Justice (ICJ) available online at http://www.icj-cij.org/documents/index.php?p1=4&p2=2&p3=0; also see Continental Shelf Case (Libyan Arab Jamahiriya v. Malta), International
Court of Justice, Judgement, 3 June 1985, ICJ Reports 1985, at 29-30.
[16] Jordan, ‘Universal
Jurisdiction in a Dangerous World: A Weapon for all Nations against International
Crime’, 9 MSU-DCL Journal of
International Law (2000) 1, at 10; Randall, ‘Universal Jurisdiction Under
International Law’, 66 Texas Law Review,
(1987-88) 785, at 791; Sponsler,
‘The Universality Principle of Jurisdiction and the Threatened Trials of American
Airmen’, 15 Loyola Law Review
(1968-69) 43, at 44.
[17] See, e.g. United States v Smith, 18 U.S. (1820) 153
at 156; United States v Brig Malek Adhel,
43 U.S. (2 How.) (1844) 210, at 232; Lotus,
diss. op. Finlay, at 51, diss. op. Moore, at 70; Tel-Oren v. Libyan Arab Republic, 726 F.2d (D.C. Cir.
1984) 774, at 781.
[19] Kraytman, ‘Universal
Jurisdiction- Historical Roots and Modern Implications’, 2 BSIS Journal of International Studies, (2005) 94, at 98.
[21] The 1958 UN Convention
on the High Seas, available online at http://untreaty.un.org/ilc/texts/instruments/english/conventions/8_1_1958_high_seas.pdf; The 1982 UN Convention
on the Law of the Sea, available online at http://www.un.org/depts/los/convention_agreements/texts/unclos/unclos_e.pdf.
[22] See, e.g. Eichmaan, supra note 6; Filartiga v
Pena-Irala 630 F.2d (2d Cir. 1980) 876, at 890; Prosecutor v. Furundzila, Case No. IT-95-17, Judgment, 10 December
1998; ex parte Pinochet Ugarte (No. 3), 2 All E.R. 97 (H.L.
1999); W.A.
Schabas, ‘National Courts Finally Begin to Prosecute Genocide, the “Crime of
Crimes’, 1 Journal of International
Criminal Justice (2003) 39, at 58; Oberlandersgericht Dusseldorf, 26
September 1997; Princeton Principles on Universal Jurisdiction, supra note 4, Principle 2(1);
Restatement (Third), supra note 4.
[24] Morris, ‘Universal
Jurisdiction in a Divided World: Conference Remarks’, 35 New England Law Review (2000) 337, at 345.
[25] See, e.g. Eichmann,
supra note 6; Filartiga v Pena-Irala
and Prosecutor v. Furundzila, supra note
20.
[27] Kontorovich, ‘The Piracy
Analogy: Modern Universal Jurisdiction’s Hollow Foundation’, 45 Harvard International Law Journal (2004)
183, at 186; also see Goldwin, ‘Universal Jurisdiction and the Pirate: Time for
an Old Couple to Part,’ 19 Vanderbilt
Journal of Transnational Law (2003) 973, at 995.
[31] The 1958 UN Convention on
the High Seas, available online at http://untreaty.un.org/ilc/texts/instruments/english/conventions/8_1_1958_high_seas.pdf, Article 15; The 1982
UN Convention on the Law of the Sea, available online at http://www.un.org/depts/los/convention_agreements/texts/unclos/unclos_e.pdf,
Article 101.
[32] Harvard Research in International
Law, ‘Draft Convention and Comment on Piracy’, 26 American Journal of International law (suppl. 1932) 739, at 769.
[37] Morris, supra note 22, at 340; also see Kissenger,
‘The Pitfalls of Universal Jurisdiction’, Foreign
Affairs (July/August 2001) available online at http://www.icai-online.org/xp_resources/the_pitfalls_of_uj.pdf.
[38] Lippman, ‘Nuremberg: Forty-Five
Years Later’, 7 Connecticut Journal of
International Law (1991) 1, at 44; MacPherson, ‘Building an International
Criminal Court for the 21st Century’, 13 Connecticut Journal of International Law (1998) 1, at 9.
[39] McCormack and Simpson, (eds.), The
Law of War Crimes, National and International Approaches, (The Hague:
Kluwer Law International, (1997), at 5.
[40] Cassese, ‘Affirmation of
the Principles of International Law recognized by the Charter of the Nurnberg
Tribunal’, available online at http://untreaty.un.org/cod/avl/ha/ga_95-I/ga_95-I.html.
[42] Ibid; Osofsky, ‘Domesticating International Criminal Law: Bringing
Human Rights Violators to Justice’, 107 Yale
Law Journal (1997) 191, at 195.
[43] ‘International Military Tribunal (Nuremberg), Judgment and Sentences’, 41
American Journal of International Law
(1947) 172, at 216.
[44] Secretary-General of the
United Nations, The Charter and Judgment of the Nurnberg Tribunal 80, U.N. Doc.
A/CN.4/5, U.N. Sales No. 1949v.7 (1949).
[45] Carnegie, ‘Jurisdiction
over Violations of the Laws and Customs of War’, 39 British Yearbook of International Law (1963) 402, at 415.
[47] Arrest Warrant, supra note 1, sep. op. of
Guillaume, at § 12; Kontorovich, supra
note 25, at 186.
[48] Arrest Warrant, supra note 1, jt. sep. op.
of Higgins, Kooijmans and Buergenthal, at § 61, dis. op. of Van den Wyangaert,
at § 59; Princeton Principles on Universal Jurisdiction, supra note 2, Principle 2(1).
[49] Case Concerning the Barcelona Traction, Light and Power
Company (Belgium v Spain), International Court of Justice, Judgment, 5 February 1970,
available online at http://www.icj-cij.org/docket/files/50/5341.pdf, § 33-34.
[50] See, e.g. Simmons, ‘The
“Undertheorization” of Universal Jurisdiction: Implications for Legitimacy on
Trials of War Criminals by National Courts’, 21 Berkeley Journal of International law (2003) 111, at 13-14; Sadat,
‘Symposium: Universal Jurisdiction: Myths, Realities, and Prospects: Redefining
Universal Jurisdiction’, 35 New England
Law Review (2001) 241, at 244; Bassiouni, supra note 5, at 83.
[51] Arrest Warrant, supra note 1, jt. sep. op.
of Higgins, Kooijmans and Buergenthal, at § 49-50 , dis. op. of Van den
Wyangaert, at § 48-51.
[52] Higgins, Problems and Process: International Law and
How We Use It (Oxford, New York: Oxford University Press, 1994), at 77; Harris,
Cases and Materials on International Law
(6th edn, London: Sweet and Maxwell Limited, 2004), at 278 (quoting
Brierly).
[53]‘Massacre survivors seek
trial of Sharon in Belgium, The Guardian,
19 June 2001, available online at http://www.guardian.co.uk/world/2001/jun/19/israelandthepalestinians.warcrimes?INTCMP=ILCNETTXT3487; ‘Israeli victims
charge Arafat with terrorism’, The
Guardian, 23 November 2001, available online at http://www.guardian.co.uk/world/2001/nov/23/israelandthepalestinians.warcrimes.
[54]‘Belgium: Universal
Jurisdiction Law Repealed’, Human Rights
Watch, 2 August 2003, available
online at http://www.hrw.org/news/2003/08/01/belgium-universal-jurisdiction-law-repealed; ‘Spanish Congress
Enacts Bill Restricting Spain’s Universal Jurisdiction Law’, The Centre for Justice & Accountability,
available online at http://www.cja.org/article.php?id=740.
[55] ‘British court issued
Gaza arrest warrant for former Israeli minister Tzipi Livni’, The Guardian, 14 December 2009,
available online at http://www.guardian.co.uk/world/2009/dec/14/tzipi-livni-israel-gaza-arrest.
[56] ‘The United Kingdom
Changes its Universal Jurisdiction Law’, NGO
Monitor, 21 September 2011, available online at http://www.ngo-monitor.org/article/the_united_kingdom_changes_its_universal_jurisdiction_law.
[57] Cassese, ‘When May
Senior State Officials Be tried for International Crimes? Some Comments on the
Congo v Belgium Case’, 13 European
Journal of International Law (2002) 853, at 854.
[58] The Charter of the
International Military Tribunal, available online at http://avalon.law.yale.edu/imt/imtconst.asp, Article 7.
[59] See, e.g., The Rome
Statute of the International Criminal Court (ICC), Article 27; The Statute of
the International Criminal Tribunal for the Former Yugoslavia (ICTY), Article
7(2); The Statute of the International Criminal Tribunal for Rwanda (ICTR),
Article 6(2).
[62] Jones v Ministry of Interior of the Kingdom of Saudi Arabia, House of Lords, Judgment
of 14 June 2006 UKHL 26, § 44.
[63] R v Bow Street Metropolitan Stipendiary Magistrate ex p
Pinochet (No.3)
2 WLR 827 (1999), at 152 (Lord Hope), 179 (Lord Millet); ‘Spain Rules It has No
Jurisdiction to Try Castro’, Agence-France
Presse, 8 March 1999, Doc. 1999 WL 2560095; Cour de Cessation-Chambre criminelle, Arret no. 1414 du 13 mars 2001,
available online at http://courdecassation.fr/agenda/arrets/arrets/00-87215.htm.
[64] Certain Questions Concerning Mutual Assistance in Criminal
Matter (Djibouti v France), International Court of Justice, Judgment, 4 June 2008,
available online at http://www.icj-cij.org/docket/index.php?p1=3&p2=3&k=93&case=136&code=djf&p3=4, §170; Affaire Gaddafi, France (Cassation Criminelle,
13 March 2001), 125 International Law
Reports 456; Mugabe Case, England
(Magistrates’ Court, 14 January 2004), reported in Warbrick (2004), at 770.
[67] See Re General Shaul Mofaz, England (Magistrate’s Court, 12 February
2004), reported in Warbrick (2004) 771; Re
Bo Xilai, England (Magistrate’s Court, 8 November 2005), 128 International Law Reports 713.
[69] Bianchi, ‘Denying State Immunity to Violators of human Rights’, 46 Austrian Journal of Public and International
Law (1994) 194, at 205; Reimann, ‘A Human Rights Exception to Sovereign
Immunity: Some Thoughts on Prinz v Federal
Republic of Germany’, 16 Michigan
Journal of International Law (1995) 403, at 421-423; Orakhelashvili, ‘State
Immunity and International Public Order’, 43 German Yearbook of International Law (2002) 227, at 237.
[70] Arrest Warrant, supra
note 1, Judgment, § 61; Pinochet (No.3),
supra note 61, at 113, 116 (Lords Browne-Wilkinson and Hutton); R v Bow Street Metropolitan Stipendiary Magistrate ex p Pinochet (No.1) [1998] 4
All ER 897, at 939-40, 945-46 (Lords
Nicholls and Steyn).
[71] Bianchi, supra note 67,
at 265; Reimann, supra note 67, at 421-23; Orakhelashvili, ‘State Immunity and
Hierarchy of Norms: Why the House of Lords Got it Wrong’, 18 European Journal of International Law
(2007) 955, at 964.
[72] See Certain Criminal Proceedings in France (Republic of the Congo v France),
available online at http://www.icj-cij.org/docket/index.php?p1=3&p2=3&k=d2&case=129&code=cof&p3=5.
[73]
For summaries of development and documentation, see relevant
UN 6th Committee webpages, available online at http://www.un.org/en/ga/sixth/64/UnivJur.shtml; http://www.un.org/en/ga/sixth/65/ScopeAppUniJuri.shtml.
[74] UN General Assembly
Resolution 65/33, 10 January 2011, available online at http://daccess-dds-ny.un.org/doc/UNDOC/GEN/N10/514/52/PDF/N1051452.pdf?OpenElement.
