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III. Continuing Obstacles to Universal Jurisdiction

Despite the numerous positive developments in national practice detailed so far, significant limitations remain which hinder the exercise of universal jurisdiction in the countries examined.  These limitations are not necessarily inherent in universal jurisdiction cases, and could be overcome with sufficient political will.  They include the continuing absence of implementing legislation in some states, restrictive threshold requirements for opening investigations, overly broad conferrals of immunity, and a lack of transparency in the exercise of universal jurisdiction.

A. Absence of Implementing Legislation

Several countries considered in this report have not introduced definitions of international crimes into domestic law. Norway and Denmark have taken the step of creating specialized units to investigate universal jurisdiction cases, but the work of these units has been hampered by the absence of laws which incorporate international crimes into Norwegian and Danish law.⁹³  Prosecutors have no choice but to frame international crimes, such as war crimes, in terms of domestic equivalents such as murder or assault.  In one case tried in Denmark, a Ugandan national accused of what were, in effect, war crimes, was successfully prosecuted for armed robbery and abduction.  Using domestic criminal law offenses in this way is thus possible, but fails to fully capture the nature of the offense: torture is a form of assault, but its gravity is not adequately conceptualized as simply assault.  More significantly, utilizing domestic law criminal charges means that the crimes will be subject to statutes of limitation under national law.  Danish investigators have been unable to pursue several cases of international crimes because they are subject to the ten-year limitations period for criminal offenses in Denmark.⁹⁴  Under international law, however, international crimes such as crimes against humanity and war crimes are not subject to statutes of limitations.⁹⁵

Human Rights Watch urges states to take the necessary measures to incorporate international crimes into their criminal laws, and to ensure that international crimes are not subject to statutes of limitations.

B.  Amnesties and Immunities

International practice strongly suggests that genocide, crimes against humanity, torture and war crimes cannot be amnestied.⁹⁶  States prosecuting these offenses under universal jurisdiction laws are not bound by domestic amnesties issued in the territorial state, as acts of a foreign legislature do not bind another sovereign state.  The practice of national courts in Europe concerning amnesties in the territorial state is uneven, and information on prosecutorial authorities’ attitude to the issue is scant.  Spanish courts have indicated that not only will a domestic amnesty in the territorial state not bind them, but also that such laws provide a reason for Spanish courts to exercise jurisdiction because amnesties mean that courts in the territorial state cannot prosecute the crimes.⁹⁷  Spanish law prevents a prosecution only where the individual has been acquitted, pardoned or punished abroad;⁹⁸ an amnesty does not amount to a pardon, because the latter implies that the individual was prosecuted and convicted before having the punishment annulled.  Similarly, the French Supreme Court held that a foreign amnesty law has effect only in the territory of the state concerned, and that recognizing the applicability of a foreign amnesty law in France would be tantamount to a violation by the French national authorities of their international obligations, and to a negation of the principle and purpose of universal jurisdiction.⁹⁹

Danish prosecutors indicated to Human Rights Watch that they do take into account relevant amnesty provisions in the territorial state when deciding whether to prosecute an individual for a universal jurisdiction crime.  Three cases involving international crimes were not investigated due to amnesties that had been enacted in the country where the crime was committed.¹⁰⁰  Thus far the Danish Special International Crimes Office (SICO)has never disqualified an amnesty, as the amnesties in question have been general, referring not only to regime officials, but to both parties of a conflict.¹⁰¹  The rationale advanced for treating these amnesties as a bar to prosecution was that Denmark, as a matter of comity, should respect the sovereignty of another state’s official acts.

Article 6(5) of the Second Additional Protocol to the Geneva Conventions¹⁰² urges authorities to grant the “broadest possible amnesty to persons who have participated” in an internal armed conflict or those deprived of their liberty due to the conflict.  This article envisages amnesties for individuals who may have been susceptible to prosecution because they took up arms during a non-international armed conflict.  As clarified by the International Committee of the Red Cross—and consistent with international practice—it should not be read as permitting or mandating amnesties for war crimes, torture, crimes against humanity or genocide.¹⁰³  Principles of comity may require that a state respect the sovereign acts of another state in many circumstances. However, where the state has ratified treaties which oblige it to extradite or prosecute alleged perpetrators of international crimes if the territorial state is unwilling or unable to do so (such as the Convention against Torture and the ICC Statute), it is difficult to see how comity would require a state to defy its treaty obligations.¹⁰⁴

Human Rights Watch urges states exercising universal jurisdiction over war crimes, crimes against humanity, torture or genocide, not to apply domestic amnesties passed in the territorial state which purport to annul criminal liability for these crimes.  International practice now firmly rejects general amnesties for the gravest international crimes, and states should not regard such amnesties as a reason not to pursue a prosecution.

Official position is not a defense and cannot be a basis to negate the criminal responsibility of a person who would otherwise be guilty of an international crime, even if the crime was committed in the course of his or her official duties.¹⁰⁵  However, the International Court of Justice (ICJ) has held in the “Arrest Warrant”case that certain officials of foreign governments, such as accredited diplomats, current heads of state (or heads of government such as prime ministers) and current foreign ministers, are entitled to a temporary procedural immunity from the criminal jurisdiction of foreign states, which lasts for as long as the person holds the post.¹⁰⁶  Once an individual ceases to hold the position of head of state/government or foreign minister, he or she loses immunity from the criminal jurisdiction of foreign states. 

Human Rights Watch’s research indicates national authorities in the countries examined in this report have relied on the decision in the “Arrest Warrant”case to decline to investigate allegations of international crimes against a visiting official, and that in some cases that reliance went beyond what Arrest Warrant supports. British authorities in 2005 declined to investigate visiting Chinese Trade Minister Bo Xilai for his alleged involvement in torture and genocide of members of the Falungong spiritual group, on the grounds that he had immunity as a visiting minister and member of an official delegation.¹⁰⁷  In 2005, German authorities argued that former Chinese President Jiang Zemin was entitled to immunity from German criminal jurisdiction.¹⁰⁸  However, as noted above, the immunity from national criminal jurisdiction afforded by international law to certain kinds of state officials does not apply to former officials,¹⁰⁹ and thus the German prosecutorial authorities’ decision appears to be a significant widening of immunity which finds no support in the “Arrest Warrant” case.  The ICJ decision is clear in its implication that the jurisdictional immunity of heads of state/government and foreign ministers derives from the nature of the functions their duties entail.  The immunity should not be extended to persons who no longer have such duties, or whose duties as a sitting minister are not closely analogous to those of a head of state/government of foreign minister.

In 2003, a French court rejected an application for an arrest warrant against Robert Mugabe for torture because he enjoyed immunity from prosecution as the current head of state of Zimbabwe.¹¹⁰ Interviews with French officials revealed that French judicial authorities refer cases with potential immunity issues to a special unit of the Foreign Affairs Ministry, which decides on the matters.¹¹¹ This raises the concern that political, rather than legal, standards may be applied when determining whether a suspect is entitled to immunity from French jurisdiction.

C. Presence Requirement and the Possibility of Investigation

Most countries examined in this report require that a suspect be physically present or likely to be present in the territory of the state before a prosecution is initiated.¹¹²  In some countries, presence or anticipated presence is the precondition for an investigation to be opened by police authorities.¹¹³  The principle of universality in international law does not require that states pursue investigations and prosecutions where a suspect is not within their territory and not susceptible to their law enforcement authorities; at the same time, neither does international law preclude a state from seeking the extradition of a non-national who is outside its territory, in order to try that person for international crimes.¹¹⁴  This is an issue broadly within the discretion of states and will vary as a matter of law and policy from one state to another.  Nevertheless, rigid presence requirements in law or prosecutorial policy will greatly diminish the effectiveness of universal jurisdiction laws as an “important reserve tool in the international community’s struggle against impunity.”¹¹⁵  For example, in October 2005, Danish authorities received a complaint concerning a Chinese official who was scheduled to attend a conference in Copenhagen.  The complaint was received in advance of the suspect’s entry into Denmark, but the strict presence requirement in Danish legislation meant that Danish authorities could not legally open an investigation into the complaint before the suspect arrived. In effect, Danish investigators had only five days—the duration of the conference—to investigate the complaint and apply for an arrest warrant.  When the Chinese official left Denmark after five days, the investigation had to be discontinued.¹¹⁶ 

A legal threshold of “likely presence” or “anticipated presence” as the precondition for opening an investigation may be one way of avoiding the difficulties confronted by Danish authorities in the case above.  This threshold is incorporated in a new provision of the German Criminal Procedure Code,¹¹⁷  which makes obligatory an investigation into a suspected perpetrator of international crimes where the suspect is present in Germany or the suspect’s presence is anticipated.¹¹⁸ German authorities, however, have yet to open an investigation under these laws.¹¹⁹ 

Where a suspect is not present in Germany, the prosecutor has the discretion to decline to open an investigation, and Human Rights Watch interviews with German lawyers indicated that, when exercising this discretion, the federal prosecutor will take into account the practical ability of German investigators to investigate the complaint in the absence of the suspect.  According to officials interviewed by Human Rights Watch, the possibility of questioning witnesses in other European countries is disregarded even where the presence and identity of such witnesses in neighboring countries is specified by the complainants.¹²⁰ 

This approach was evident in the German federal prosecutor’s refusal to open an investigation into former Uzbekistan Interior Minister Zokirjon Almatov, who is alleged to have had command responsibility for systematic torture and the massacre of hundreds of individuals in Andijan in May 2005.¹²¹  A complaint against Almatov was filed with the prosecutor by victims¹²² when he traveled to Hannover for medical treatment, but Almatov had left Germany before the prosecutor made a decision concerning the complaint.  In that decision, in which he declined to open an investigation, one of the reasons given by the prosecutor was that the expectation of non-cooperation from Uzbekistan made an investigation practically impossible.  By ignoring the possibility of conducting investigations outside the territorial state—such as by interviewing witnesses and victims present in other states and identified by the complainants¹²³—the federal prosecutor has de facto made the physical presence of the suspect a strict precondition for opening an investigation into an international crime.  This seems to unduly narrow the scope of Germany’s universal jurisdiction laws and contradicts the spirit of the legislation, which expressly leaves open the possibility of opening an investigation despite the absence of the suspect.  While recognizing that, depending on the case, investigations in the territorial state may be indispensable,¹²⁴ due notice should be taken of the experience of other European states considered in sectionII.B, above, which suggests that investigations and prosecutions can be successful without the cooperation of the territorial state where well-organized private petitioners identify witnesses and sources of evidence.¹²⁵

D.  Prosecutorial Discretion

In most of the countries examined in this report, prosecutorial discretion is pivotal to whether an investigation into and prosecution of an alleged perpetrator of an international crime will proceed.  The discretion is exercised by different authorities in each country, such as by the police and Crown Prosecution Service (CPS) in the United Kingdom,¹²⁶ or solely by the prosecutor as in Belgium, the Netherlands, Norway, Denmark and Germany.  Prosecutors thus frequently play the role of “gatekeepers” to the use of universal jurisdiction laws, with the notable exceptions of Spain and France,¹²⁷ where an investigative judge may pursue a case brought by private petitioners in spite of opposition by the public prosecutor.¹²⁸  Each prosecutorial authority takes a different approach to exercising this discretion, and employs different criteria, as might be expected across diverse national legal systems.  Nevertheless, prosecutorial discretion can be particularly non-transparent if the criteria are difficult to ascertain.  Indeed, the principles governing the exercise of prosecutorial discretion are commonly found only in internal guidelines,¹²⁹ or articulated on a case-by-case basis. ¹³⁰  Without a degree of transparency and publicity concerning how prosecutorial discretion will be exercised, it is difficult for complainants and victims to know with any certainty when a complaint will be investigated, or the reasons behind a decision not to open an investigation.  A lack of transparency also makes it easier for non-legal reasons—such as concerns that a prosecution will be embarrassing to the foreign relations of the forum state—to be parsed as legal ones.

Once an investigation is opened, opportunity for the exercise of discretion arises again when deciding whether to pursue a prosecution based on the evidence yielded by the investigation. The main factors governing this decision tend to be whether there is a reasonable prospect of achieving a conviction of the suspect, and whether it is in the public interest to prosecute.¹³¹ The notion of “public interest” is a broad one, and can encompass many factors.  Human Rights Watch urges that, in the context of crimes such as genocide, crimes against humanity and war crimes, the gravity of such crimes, their universal condemnation and the international community’s commitment to repressing them should be considered when evaluating the “public interest” in pursuing such a prosecution.  Similarly, the forum state’s interest in not becoming a “safe haven” for perpetrators of such crimes could reasonably form part of the overall “public interest” in prosecuting such crimes.

The possibility of judicial or administrative review of the exercise of prosecutorial discretion greatly increases its transparency,¹³² and may be a way of promoting consistency in decisions about whether to prosecute international crimes. UK law permits complainants to seek judicial review of a prosecutorial decision to close a case.¹³³ A Belgian appeals court held in May 2005 that, under Belgian laws, a decision of the prosecutor not to investigate a certain complaint can be subject to judicial review, but at present only the prosecutor is permitted to bring forward reasons for his decisions and complainants do not have a right to address the judge.¹³⁴ A complainant in the Netherlands may also seek judicial review of a prosecutor’s decision not to prosecute.¹³⁵ In Norway, Denmark and Germany, only administrative review is available.  The review is generally undertaken by the Director of Prosecutions (Norway, Denmark) or by an officer of the Ministry of Justice (Germany).  Administrative review processes do not provide the same measure of transparency and accountability as judicial review and in light of the political sensitivity of universal jurisdiction prosecutions, judicial mechanisms may be more desirable in ensuring that bona fide legal reasons underlie a decision not to prosecute.

E. Subsidiarity

It is widely accepted that universal jurisdiction is a “reserve tool” in the fight against impunity, to be applied where “the justice system of the country that was home to the violations is unable or unwilling to do so.”¹³⁶  This principle, known as “subsidiarity,” implies that courts in the territorial state that are able and willing to prosecute individuals for international crimes should have priority in exercising jurisdiction over the crimes.  However, an overly restrictive approach to subsidiarity runs the risk of ignoring or widening an impunity gap that may exist in the state where the crimes occurred.  For example, in a 2000 decision, the Spanish National Court held that Spanish courts could not exercise jurisdiction over crimes against humanity allegedly committed in Guatemala because there was a chance that Guatemalan courts would investigate the complaint in the future.  Yet the crimes alleged in the complaint were committed in the early 1980s, and no judicial process had been initiated in Guatemala since that time.  In 2005, Spain’s Constitutional Court reversed this ruling, holding that Spanish courts could exercise universal jurisdiction if the complainant could submit reasonable evidence of legal inactivity by authorities in the territorial state, attributable to a lack of ability or will to effectively investigate and prosecute the crimes alleged.¹³⁷ 

In his decision in a complaint brought against U.S. Defense Secretary Donald Rumsfeld, the German federal prosecutor determined that the principle of “subsidiarity”¹³⁸  meant that German courts could not exercise jurisdiction over allegations that Rumsfeld bore command responsibility for torture committed by the U.S. military, because torture allegations against low-ranking soldiers were already under investigation in the United States.  In the prosecutor’s view, the fact that the investigations did not address the responsibility of Rumsfeld or other commanders was not relevant to the assessment, provided U.S. authorities were investigating the “complex” as a whole:

In what order and with what means the state with [primary] jurisdiction carries out an investigation of individuals in the framework of a whole complex, must be left up to this state according to the principle of subsidiarity.  An alternative only obtains if the investigation is being carried out only for the sake of appearances or without a serious intent to prosecute.¹³⁹

This approach leaves a very wide margin of discretion to authorities in the territorial state, and may mean that the specific crime alleged against a specific suspect by a complainant or victim could remain uninvestigated in the territorial state, but no prosecution could be brought under Germany’s universal jurisdiction laws.  A better approach would be to assess whether the specific crime and specific suspect about which the victim complains have been effectively investigated and prosecuted in the state where the alleged crime took place.