In the context of the Sixth Committee of the United Nations General Assembly's preliminary exchange of views on universal jurisdiction, Human Rights Watch believes it is important to convey a few points about the concept of universal jurisdiction.
Universal jurisdiction is the ability of the domestic judicial systems of a state to investigate and prosecute certain crimes, even if they were not committed on its territory, by one of its nationals, or against one of its nationals (i.e. a crime beyond other bases of jurisdiction, such as territoriality or active/passive personality).
1. The Legal Basis and Importance of Universal Jurisdiction
- Despite the recent controversy it has provoked, the concept of universal jurisdiction for grave crimes in violation of international law is not a new concept. It was codified in an international treaty for the first time more than half a century ago, in the 1949 Geneva Conventions on the laws of war, which provide that states parties must prosecute or extradite those suspected of grave breaches of the conventions (war crimes). Universal jurisdiction enabled the state of Israelin 1961 to prosecute a senior Nazi official, Aldolf Eichmann, for his role in the Holocaust during the Second World War.
- Universal jurisdiction can be asserted in relation to a limited number of international crimes including war crimes, torture, crimes against humanity, genocide, piracy, hijacking, acts of terrorism, and attacks on UN personnel.
- International treaties that oblige states parties to use universal jurisdiction include: the 1949 Geneva Conventions, the 1973 Convention against Apartheid, the 1984 Convention against Torture, and the 2006 Convention against Enforced Disappearance (not yet in force). It is also generally agreed that international customary law allows the use of universal jurisdiction with regard to crimes considered particularly heinous by the international community, such as crimes against humanity and genocide.
- The vast majority of states recognize the validity of the concept of universal jurisdiction, as they are parties to conventions that provide for it. For example, 194 states have ratified the 1949 Geneva Conventions.
Universal jurisdiction is a crucial tool by which victims of grave international crimes can obtain redress.
- While it would normally be preferable for victims of grave international crimes to find redress in the courts of the states where the crimes were committed, universal jurisdiction acts as a "safety net" when the territorial state is unable or unwilling to conduct an effective investigation and trial. The application of universal jurisdiction reduces the existence of "safe havens" where a person responsible for grave crimes such as war crimes, crimes against humanity and genocide could enjoy impunity.
- The creation of the International Criminal Court (ICC) has not diminished the need for effective implementation of universal jurisdiction. Indeed, the Court's jurisdiction is limited. With 110 states parties, the Rome Statute of the ICC is widely but not universally ratified, and its temporal jurisdiction is limited to crimes committed after July 1, 2002.
- The concept of universal jurisdiction - which relates to the ability and obligation of national courts to investigate and prosecute war crimes, crimes against humanity, torture and genocide - is distinct from the jurisdiction of the International Criminal Court.
Universal jurisdiction is an important means of reducing the unevenness in the landscape of international justice.
- As the recent African Union-European Union joint report on universal jurisdiction stresses, "[T]emporal, geographical, personal and subject-matter limitations on the jurisdiction of international criminal courts and tribunals mean that universal jurisdiction remains a vital element in the fight against impunity" (paragraph 28). Universal jurisdiction is an important means of reducing the unevenness in the landscape of international justice, where officials from more powerful states-or those protected by powerful states-are less vulnerable to justice than those from weaker governments. This is an unfortunate reality that the responsible use of universal jurisdiction can, over time, help to mitigate.
The willingness and ability of national courts to implement universal jurisdiction provisions contained in national legislation is relatively new.
- Over the last 15 years, as states and the international community have recognized the importance of fighting impunity for the most serious crimes under international law, governments have increased the application of universal jurisdiction, which represents an immense hope for victims who have nowhere else to turn for redress.
2. Is Universal Jurisdiction Being "Abused"?
Some contend that the concept of universal jurisdiction is being "abused." Certainly, complaints can be filed that are aimed at causing political embarrassment where there is not sufficient evidence to bring a case. However, it is necessary to recall that:
- The most frequently cited cases of such abuse are not, in fact, cases of universal jurisdiction but rather passive personality cases (i.e. initiated on the basis of the victim's nationality). Passive personality jurisdiction is the basis for the pending arrest warrants issued by judicial authorities in France and Spain against officials of the Rwandan Patriotic Front (RPF). The case in France was initiated because two French citizens, who were part of the flight crew, died in the downing of the aircraft used by the late Rwandan President Habyarimana. Also, arrest warrants have sometimes been issued as a means to obtain testimony of the concerned persons (for example Rose Kibuye, Chief of Protocol of President Paul Kagamé) because investigations in the territorial state, Rwanda, had not been allowed.
- Of course, it is impossible to entirely avoid individuals' efforts to "instumentalize" judicial mechanisms in order to further political objectives where there is no sufficient legal basis. For example, there have been numerous complaints filed with judges in Belgium or Spain that did not contain detailed evidence, but were essentially seeking to create an effect through filing a case. This happens regularly in national judicial systems in relation to ordinary crimes. Prosecutors and investigative judges did not, however, act on these flawed complaints, and it is essential to differentiate these complaints from actual judicial action undertaken by national judicial authorities.
- Due process guarantees in national courts should eliminate any existing cases for which the evidence is insufficient. This is especially true in countries where the judicial system is independent.
Analysis of the cases that have actually proceeded to trial on the basis of universal jurisdiction shows a responsible application of the concept on the part of national judicial officials.
- Over the past 15 years, a number of states have started to apply their universal jurisdiction legislation with regards to war crimes, crimes against humanity, torture or genocide (Australia, Austria, Belgium, Canada, Denmark, France, Finland, Germany, Norway, The Netherlands, Spain, Senegal,Sweden, Switzerland, the United Kingdom, and the United States).
- A limited number of cases (fewer than 20) have been brought to trial in that period of time. Most of these cases concern low- or mid-level alleged perpetrators who had found refuge on the territory of the state exercising universal jurisdiction.
- Most of the countries that have implemented universal jurisdiction have dedicated special resources to ensure quality investigations into cases. Some states have created special "war crimes units" to ensure the necessary degree of professionalization of the staff working on these cases. Investigations have sometimes involved several missions to the places where the crimes were committed. The actual practice of universal jurisdiction supports the conclusion that national judicial officers are generally committed to fairly pursuing justice for grave international crimes.
3. Claims about the Abuse of the Application of Universal Jurisdiction
In the wake of arrest warrants against leaders of the Rwandan Patriotic Front, some have argued that universal jurisdiction is a tool used unfairly against Africans. Previously, others denounced universal jurisdiction as a means of advancing political objectives against the State of Israel or the United States. Here again, it is important to consider the facts:
- The recent AU-EU report on universal jurisdiction shows that complaints have been filed before European courts against nationals of 27 different states, including individuals from 10 AU member states (paragraph 26).
- Among the cases that have actually been brought to trial under universal jurisdiction laws, the state of nationality of the accused includes the former Yugoslavia, Afghanistan, and various Latin American states, as well as a number of cases involving Rwandans and Congolese.
Critics also suggest that universal jurisdiction proceedings have ignored official immunities recognized under international law. However:
- As mentioned above, actual accused who have been brought to trial under universal jurisdiction laws have been low-level or mid-level perpetrators who would not have benefited from immunities.
- It is important to be wary of efforts to "stretch" the notion of immunities under international law with regard to grave international crimes. Even if individual state practice in this matter differs, the decision of the International Court of Justice in the Yerodia case, which upheld the immunity from prosecution for a Congolese foreign minister, is limited to a very small group of officials holding governmental positions. Any effort to secure privileges (such as not being subject to arrest warrants) for a much broader category of individuals, defined as "foreign state officials exercising a representative function on behalf of his or her state," would be wholly inappropriate and contrary to the evolution of international law. This would seek to shield individuals from accountability for the most serious crimes known to humanity on an unprecedentedly broad basis.