Dublin, Ireland. Photo by Giammarco Boscaro via Unsplash.
By Danielle Soba
Introduction
Since the Peace of Westphalia in 1648, the essence of the international system continues to evolve and transform according to the needs and priorities of the global community. As we move deeper into the 21st century, a shift toward a more communal and altruistic world order requires a change of pace from the familiar. Threats to humanity are becoming greater with time, demanding collective action from all states within the international system. As states begin to abandon the traditional and individualistic nature of the international realm to a more collectivist attitude, new universal norms and ideas are established. Universal jurisdiction is an example of a positive change that could help center human rights and accountability at the forefront of international relations to foster peace and security across the globe.
Definition
Universal jurisdiction is closely related to the idea that certain international norms are jus cogens (“compelling law”) and erga omnes (“towards all”).1 It’s the notion that war crimes and crimes against humanity such as genocide, piracy, and terrorism can be prosecuted by national courts irrespective of the location of the crime and/or nationality of the accused.2 These acts are of such great magnitude that they demand universal prosecution and prevention. Therefore, universal jurisdiction permits domestic courts to claim power to prosecute an accused individual regardless of nationality, country of residence, or where the alleged crime was committed. These types of heinous crimes are of interest to the international community as a whole because they not only indiscriminately endanger human lives and property interests, but also disrupt the global legal order and threaten global security.3 Universal jurisdiction is based on the principle that no place should be a safe haven for hostis humani generis (“enemy of mankind”) since they pose a major threat to the entire international community. Thus, it is the responsibility of the states within the global community to hold individuals accountable for the worst of crimes, no matter where they take place.
The Evolution
Hugo Grotius, a Dutch jurist considered the founding father of modern international law, laid the foundation for universal jurisdiction wherein he expanded on the principle of natural law. Grotius’ contribution helped in the evolution of the notion of rights, arguing that “[depriving] another of what belongs to him merely for one’s own advantage is repugnant to the law of nature.”4 In addition, he proposed the idea that universal principles of right and wrong transcends territories and cultural standards, thus, laying the fundamental foundation for universal jurisdiction, where everyone possesses natural rights inherited from “God, nature, or reason.”
Universal jurisdiction was first proclaimed in customary international law in the 17th century. Initially utilized against pirates and slave traders, the norm departed from traditional principles of territoriality and nationality and instead encouraged nations to collectively fight against a form of criminality that affected the community of states. Many states had some form of legislation and enforcement jurisdiction over various pirate acts on the high seas during this period. The United States (US) Supreme Court decision of United States v. Smith in 1820 showcased such dealings and influenced a critical development in domestic and international law surrounding the universality principle. Thomas Smith, along with sixteen other men, was were charged with piracy under the act of the Congress of the US for robbing and plundering a Spanish vessel. The jury issued their special verdict as “an act to protect the commerce of the United States, and punish the crime of piracy.”5 As time went on, the principles of universal jurisdiction began to expand to include those who committed more serious human rights violations.
Towards the second half of the 20th century, the two world wars left a devastating effect throughout the world. An important element of recovery and reconstruction included gaining justice for the victims affected and establishing accountability. One way this was achieved was through the Nuremberg Trials, which were a series of military tribunals starting in 1945 that prosecuted various German officials for their roles in the Holocaust. Holland held the Almelo Trial in November 1945, the United Kingdom held the Zyklon B Case in March 1946, and the US tackled the Hadamar and Eisentrager Trials in 1945 and 1950, respectively. All of these trials were held outside of where the crimes occurred and took place in countries that had no nationality connection to the defendants. These trials were critical in the horrific aftermath of the Holocaust as a step towards transitional justice and reconciliation. These cases further cemented the idea of universal jurisdiction as more states began to adopt and exercise this doctrine.
There were a series of human rights treaties that also assisted in reinforcing the universality principle within international and domestic frameworks, while also extending it from just customary to conventional law. The 1948 Convention on the Prevention and Punishment of the Crime of Genocide, the 1973 Convention against Apartheid, the 1984 Convention against Torture as well as the various multilateral treaties on terrorism empowered states to take effective measures to prevent such atrocities. The 1949 Geneva Convention, in particular, put the responsibility on states to prosecute or extradite those suspected of breaching conventions.6 The 1984 Convention against Torture similarly authorized states to bring to justice any persons who engaged in torture abroad or within their own country. The signing of the International Criminal Court (ICC) Rome Statute in 1998 was also a critical moment in the evolution of the universality principle. This further codified and asserted the state’s duty to exercise criminal jurisdiction over those responsible for international crimes. By With the establishment of the ICC in 2002, more states began to adopt the principle into their national legislation. By September 2012, a total of 147 states had exercised universal jurisdiction over one or more crimes under international law.7 These treaties and multilateral institutions reinforced the global condemnation of these international crimes and affirmed the state’s role in punishing offenders. Throughout time, states became universal guardians against attacks on humanity. Universal jurisdiction no longer needed to be justified by joint national or commercial interests, but rather on the basis of safeguarding universal values by prosecuting the accused on the behalf of the whole international community.
Cases For and Against Universal Jurisdiction
The debate over the effectiveness of universal jurisdiction continues to dominate the discourse within the international realm. Since it is still a fairly new concept, there exists a gap between theory and its actual application. Hesitation and a lack of political will prevent many states from exercising universal jurisdiction. In addition, the overall lack of state capabilities and adequate knowledge of the concept prove to cause challenges. This makes it difficult for states to define crimes under international law within their national criminal code, causing inconsistencies in the final rulings. Thus, it’s helpful to have a special investigation and prosecution unit to handle such cases, as without them, there are risks of potential delays. For instance, in 2002, the UK accused Lieutenant Colonel Tharcisse Muvunyi of having an active role in the genocide, torture, and other crimes under international law in Rwanda.8 Without a special unit to handle this case, it took months before they could request his surrender and arrest, making such a process inefficient. Countries also struggle with achieving custody of the offenders, especially hijackers and terrorists, as they have to be careful not to violate other states’ territorial sovereignty and ultimately exacerbate geopolitical tension. The willingness to collaborate with other nations is key for this to work. If the prosecuting country cannot extradite the defendant or convince the other state to cooperate, it could request a trial in absentia. However, the prosecuting country risks receiving pushback for violating the rights of the alleged offender. This was highlighted in the controversial trial between Belgium and the incumbent Minister of Foreign Affairs of the Democratic Republic of the Congo, Mr. Abdoulaye Yerodia Ndombasi. Yerodia was accused of inciting genocide and encouraging the Congolese population to kill members of an anti-government rebel group, consisting of mostly ethnic Tutsis. Belgium decided to issue an international arrest warrant in absentia against him but received criticism, claiming it was unfair for Yerodia not to be there to answer for himself.9
Other critics also stress the risk of abuse that it can have on a state’s sovereignty. Henry Kissinger, former US Secretary of State, claimed that it gets in the way of the national reconciliation process that states need to set up on their own.10 Kissinger further explains that states should feel empowered to handle their own affairs in their quest for peace and justice. He also believed that universal jurisdiction sets a dangerous precedent that could lead to unnecessary witch-hunts led by tyrant judges that could target foreign state officials, hindering global diplomatic relations.11 Similarly, other arguments highlighted that the principle did not prevent impunity as much as it claimed. Most brought under universal jurisdiction were low and mid-level officials who did not benefit from immunities or those from influential countries who still maintained their protections despite the efforts.12
Despite these critiques, many advocates still believe universal jurisdiction is a positive step in the right direction. The universality principle has the potential to deter extreme human rights violations, prevent the existence of safe havens, bypass domestic law, and reduce impunity.13 Former Chilean Army General, Augusto Pinochet Ugarte, had amnesty based on national laws, but that could not stop the proceedings from being filed against him and other government officials in Spain under the universal jurisdiction.14 The universality principle is also helpful for victims whose state is unable or unwilling to do their own investigation and prosecution. Some domestic courts lack the proper capabilities and constitutional powers to prosecute offenders at the magnitude and time frame that is necessary. Multilateral support helps to increase state capacity and fortify political will in order to implement universal jurisdiction. Moving toward a world where increasingly violent acts are reaching more people, the international community needs to collectively work together to increase regional and global security. This is seen in the establishment of internationalized courts in Sierra Leone and Cambodia. With the assistance of the international community, domestic courts prosecuted many offenders and deterred others from similar criminal behavior. As a powerful multilateral entity, the ICC’s efforts work complementary with domestic institutions to achieve its “primary mission to help put an end to impunity for perpetrators of the most serious crimes of concern to the international community as a whole.”15 But the ICC’s jurisdiction to prosecute crimes is limited to offenses after July 1st, 2002, and to countries that ratified the Rome Statute, which hinders its full potential. Countries like the US, Russia, China, and various Middle Eastern countries have not ratified the Statute, weakening ICC’s jurisdiction and power.16 Therefore, it’s it is more important than ever that international and domestic courts work together to navigate this barrier in order to achieve justice for victims. Both actors need each other to be successful and more influential.
The fear of risking state sovereignty can be lessened with the encouragement of regional support in assisting with the implementation of universal jurisdiction. Regional and country peer support reduce the chances of backlash from western involvement in the developing world’s affairs. This can be seen in 2016 when Senegal partnered with the African Union to establish the Extraordinary African Chambers, a tribunal that charged the Chadian dictator Hissène Habré for crimes against humanity during his tenure that included murder, rape, sexual slavery, and the killing of 40,000 people.17 This partnership allowed for the trial to take place closer to home, increasing victim participation and easing social tensions, which further facilitates transitional justice.18 While still imperfect, universal jurisdiction has slowly evolved into something substantial with more support and practitioners, which will only increase as human rights continue to become the main priority within international affairs.
Discussions Today
The universality principle is still a highly debated concept today. However, human rights advocates and lawyers continue to achieve some progress. In December 2020, Alieu Josiah, a former Liberian rebel commander who was accused of pillage, rape, and the conscription of child soldiers was the first Liberian leader to be put on trial for war crimes committed in the First Liberian Civil War.19
However, the application of universal jurisdiction involving defendants from powerful countries creates a double standard in the execution of the principle. The Center for Constitutional Rights (CCR), the European Center for Constitutional and Human Rights (ECCHR), and French League for Human Rights have all tried to file a complaint with French prosecutors to charge former US Secretary of Defense, Donald Rumsfeld, with ordering and authoring torture in 2007.20 The complaint was that the US has not launched any independent investigation into this or any other high-level US officials for torture. But since the US is not a party to the Rome Statute, it is left to the international community of states, like France, to address this. It was dismissed in 2007, appealed by the CCR, and dismissed again in 2008 concluding that Rumsfeld was immune for acts he committed in office.21 While universal jurisdiction is meant to override impunity granted on the domestic level, the US officials were still able to avoid repercussions. Similar to any other principle practiced within the international realm, in order for it to be successful, all countries must abide by it. If the most powerful people are exempt from accountability, there will be a lack of legitimacy that can break down the needed trust and cooperation that is keyis areis key to maintaining world peace and order.
Discussions around the principle of universal jurisdiction within the United Nations also creates similar polarizing beliefs. Representatives from countries like Haiti, Iran, and South Africa warn of the potential abuse of this law on smaller countries, while Burkina Faso believes that it gives a voice to victims who may not have had the opportunity to be heard before.22 The German representatives highlighted their ongoing trials, stating that “The message is clear: those who commit atrocities cannot feel safe. They will eventually be held accountable.”23 In the end, the universal jurisdiction principle helped catalyze the shift of the landscape and priorities of the international realm. Where states were only concerned about their own national security, they are now expanding their focus and concern to include global security. These universal concepts are meant to protect and ensure safety for everyone around the globe. While universal jurisdiction may have its faults, it does hold dangerous individuals accountable. There is no longer a safe place to hide under the universality principle, which promotes a more humanitarian and communalist approach to international affairs.
Bibliography
[1] Weatherall, T. “The Enforcement of Jus Cogens: Obligations Erga Omnes.” In Jus Cogens: International Law and Social Contract (2015): pp. 351-383. Cambridge: Cambridge University Press. doi:10.1017/CBO9781139976664.022
[2] Padmanabhan, Aishwarya. Origin, Development, and Evolution of the Principle of Universal Jurisdiction: A Study of its Application in National Courts and Practical Obstacles Facing its Implementation (June 1, 2010).
[3] Ibid.
[4] Grotius, H. The Rights of War and Peace (R. Tuck & H. Grotius, Eds., 2005). Liberty Fund.
[5] Joel H. Samuels, The Full Story of the United States v. Smith, America’s Most Important Piracy Case, 1 Penn. St. J.L. & Int’l Aff. 320 (2012).
[6] Padmanabhan, 2010
[7] Ibid.
[8] Ibid.
[9] Boister, N. “The ICJ In “The Belgian Arrest Warrant Case”: Arresting The Development Of International Criminal Law.” Journal of Conflict & Security Law 7, no. 2 (2002): 293-314.
[10] Kissinger, H. A. “The Pitfalls of Universal Jurisdiction.” Foreign Affairs. 80, 4 (July – August 2001): 86 – 96
[11] Ibid.
[12] “Basic Facts on Universal Jurisdiction.” Human Rights Watch, accessed October 28, 2020, https://www.hrw.org/news/2009/10/19/basic-facts-universal-jurisdiction
[13] International Committee of the Red Cross. “Universal jurisdiction over war crimes – Factsheet.” International Committee of the Red Cross, accessed May 21, 2021, https://www.icrc.org/en/document/universal-jurisdiction-over-war-crimes-factsheet
[14] “The Universal Jurisdiction.” The Center for Justice & Accountability, https://cja.org/what-we-do/litigation/legal-strategy/universal-jurisdiction/
[15] “About the International Criminal Court.” International Criminal Court, https://www.icc-cpi.int/about/the-court
[16] “Q&A: The International Criminal Court and the United States.” Human Rights Watch (September 2, 2020), accessed April 3, 2022, https://www.hrw.org/news/2020/09/02/qa-international-criminal-court-and-united-states
[17] Weiss, P. “Universal Jurisdiction: Past, Present, and Future.” Proceedings of the ASIL (American Society of International Law), Annual Meeting 102 (2008): 406-409. doi:10.1017/S0272503700028032.
[18] “The Legacy of Rwanda’s Community-Based Gacaca Courts.” Human Rights Watch (May 31, 2011). accessed April 3, 2022, https://www.hrw.org/report/2011/05/31/justice-compromised/legacy-rwandas-community-based-gacaca-courts#
[19] “Q&A: Swiss Trial for Liberia Atrocities: Universal Jurisdiction Paves Path for Justice.” Human Rights Watch (May 14, 2021). https://www.hrw.org/news/2021/02/12/qa-swiss-trial-liberia-atrocities-universal-jurisdiction-paves-path-justice.
[20] “Accountability for U.S. Torture: France.” Center for Constitutional Rights. (January 29, 2021) https://ccrjustice.org/home/what-we-do/our-cases/accountability-us-torture-france
[21] Ibid.
[22] “Speakers Point to Lack of Progress, Divisions over Universal Jurisdiction Scope, Application, as Sixth Committee Begins Debate on Principle.” United Nations. (November 3, 2020). https://press.un.org/en/2020/gal3624.doc.htm
[23] United Nations. Meetings Coverage and Press Releases. 2020.