Fighting impunity: Positive conflicts of jurisdiction and the principle of universality - 2008

FIGHTING IMPUNITY: POSITIVE CONFLICTS OF JURISDICTION AND THE

PRINCIPLE OF UNIVERSALITY

Gabriel ChavezTafur

Geneva Academy of International Humanitarian Law and Human Rights

Abstract

The prosecution of suspected international criminals based on the principle of universal jurisdiction continues to damage the international relations of States and, as a consequence, the development of an effective tool to fight impunity. The doctrine, prone to controversy, has already been labelled a form of neo-colonialism. With this in mind, the following paper will attempt to tackle some of the issues currently being debated, in three Chapters: Chapter One will attempt to establish the current legal basis under which a State may have the right or even the duty to exercise universal jurisdiction in compliance with international law, focusing on how at least two different rationales currently applied to the concept may affect the potential prosecution of international crimes today. Secondly, Chapter Two shall discuss the potential consequences a decision to prosecute could bring with regards to proceedings carried out in other States, particularly the State where the crimes were committed. The discussion of such positive conflicts of jurisdiction between two or more States shall include, first, a review of norms of general international law, followed by an analysis of the law and practice of more specific bilateral agreements, namely extradition treaties, as guidance for the existence of a hierarchy of principles of jurisdiction, and whether they should apply to prosecution of international crimes. Finally, these potential conflicts of jurisdictions when resorting to universality shall be analysed in Chapter Three in the light of the complementarity regime found in the Statute of the International Criminal Court. It shall raise the questions whether proceedings before the ICC would make universal jurisdiction unnecessary, followed by how would the rules on complementarity apply to States acting under such principle of jurisdiction. It will finalize with a reflection on the potential effect the Security Council, through its capacity to take action under Chapter VII of the Charter of the United Nations, may have on such proceedings, including if its actions went against jus cogens norms.

Fighting Impunity: Positive Conflicts of Jurisdiction and the Principle of Universality

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TABLE OF CONTENTS

Foreword iv

Prosecuting international crimes v The option of universal jurisdiction vii

Introduction ix

Chapter One 1

The exercise of extraterritorial jurisdiction under international law 2 Universal Jurisdiction: definition, rationales and applicable norms 6

Definition and origins 6

The rationales behind the principle 7

Moving beyond the debate: universal jurisdiction as provided in treaty and customary law 14

War crimes 14

Crimes against humanity 16

Genocide 17

Potential obstacles in the exercise of universal jurisdiction 18 Non bis in idem 18

Immunities 19

Practical considerations 21

Concluding remarks 22

Chapter Two 23

Conflicts arising from concurrence of jurisdictions under international law 24 Bilateral agreements: the law of extradition 27

Interpreting the rules: the case for different solutions to positive conflicts of jurisdiction 33

Establishing a Hierarchy of Jurisdictions and the Principle of inter-State Subsidiarity 33

Establishing the best forum, disregarding hierarchies 37


Chapter Three 43

The Jurisdiction of the International Criminal Court: overview 44 Ratione materiae, ratione tempore, ratione personae: triggering the ICC’s jurisdiction 44

Admissibility or the complementarity regime 46

Gabriel ChavezTafur Geneva Academy of International Humanitarian Law and Human Rights

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The ICC Statute and universal jurisdiction 47

Positive conflicts of jurisdiction: universal jurisdiction vs. the ICC 50 Establishing a hierarchy: should the ICC necessarily prevail over universal jurisdiction? 51

Positive conflicts of jurisdiction: the Security Council as a third party 56 Security Council referrals and the exercise of universal jurisdiction 56

Security Council deferrals under Article 16 of the Statute 57

The question of the Security Council acting under Chapter VII vs. jus cogens obligations 62


Conclusions 66

Bibliography 68

Books 68 Papers 69 Reports 71 Cases 72 Legislation, guiding principles 73 Internet websites 75


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FOREWORD

“Mister Minister of Defence, send ten battalions to the border, including the tanks”.1

With such decisive order, given live during his weekly TV show, Venezuela’s President

Hugo Chavez reacted to Colombia’s bombardment of a FARC2 camp situated 1.8kms

inside Ecuadorian territory.3 Colombia reacted unexpectedly; while the Ministry of

Defence announced the mobilization of “not one single soldier to the border”,4

President Uribe declared that Colombia would formally accuse Chavez before the

International Criminal Court (ICC) for charges of genocide.5 After an emergency

presidential meeting held by the Organization of American States in Dominican

Republic, hands were shaken, tanks withdrawn and judicial accusations forgotten.6

A week after the attack, an op-ed in Spain’s El País highlighted an unusual consequence

of the recent crisis: the realization that “the threat of being brought to trial before the

International Criminal Court can weigh as much in the mind of a president as the threat

of ten battalions, tanks and bombers.”7 Indeed, there is a new world tendency, the article

continued, by which crimes committed in one country are no longer the internal affairs

of one State, but of the world; the rule that allowed criminal and murderous dictators to

retire peacefully by the French Riviera has now given way to an attitude by which military

officers from Argentina to Congo are extradited from their countries of origin to face

charges in tribunals in other countries. “We live now in a world where in some

circumstances it is possible to reply with lawyers to those who threat with tanks. And

that is certainly good news.”8

1 See El País, ‘Chávez rompe relaciones con Colombia y envía el Ejército a la frontera’, 3 March 2008. Available at: http://www.elpais.com/articulo/internacional/Chavez/rompe/relaciones/Colombia/envia/Ejercito/frontera/elpepiint/20080303elpepiint_8/Tes (last visited on 9 January 2009). 2 Fuerzas Armadas Revolucionarias de Colombia, a rebel group labelled as terrorist by the United States, represents one of the parties to the region’s longest lasting non-international armed conflict. 3 The attack resulted in the killing of Raúl Reyes, second-in-command of the organization, and the seizure of computers with valuable inside information on FARC operations and, perhaps most worrying to Chavez, dealings with Venezuelan officials. Soon thereafter, the US Treasury froze assets from three Venezuelan high intelligence officials, under suspicion of having provided weapons and other support to FARC. 4 Naím, M. infra note 7. 5 See El País, ‘Uribe intenta sentar a Chávez en el banquillo por apoyar a las FARC’, 5 March 2008, http://www.elpais.com/articulo/internacional/Uribe/intenta/sentar/Chavez/banquillo/apoyar/FARC/elpepiint/20080305elpepiint_1/Tes (last visited on 9 January 2009). 6 The full text of the Resolution may be accessed at: http://www.eltiempo.com/archivo/documento/CMS-3987373# (last visited on 12 December 2008). 7 Naím, Moises, El País. ‘Tanques, abogados y merengue’, 9 March 2008. Available at http://www.elpais.es (last visited on 9 January 2009). 8 Idem.


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It is undeniable that certain developments of the last 15 years do support such an

optimistic view of international justice. The creation of the ad hoc international criminal

tribunals for Yugoslavia9 and Rwanda10 (ICTY and ICTR, respectively), followed by the

establishment of an international criminal court,11 added to such notorious cases as the

request for extradition of former Chilean dictator Augusto Pinochet from the United

Kingdom to Spain,12 all provide basis to admit that, in effect, there would be a growing

sense among the international community that the responsibility to ‘respect and ensure

the respect’13 of human rights falls upon all and that impunity cannot or should not be

tolerated any further.

Reality, however, is not so promising.

Prosecuting international crimes

Three alternatives may be considered for the prosecution of international crimes: a trial

in the domestic courts of a State with a link to the crime, usually accepted to be that

where the crime was committed or that of which the perpetrator or victims are nationals;

two, prosecution in an international court, be it an ad hoc tribunal or the ICC; and to face

proceedings in the court of a State with no link to the crime committed, but where

jurisdiction is exercised over the offences based on the principle of universality.

As for the first option, one main problem usually arises: States’ authorities too often find

it extremely difficult to initiate proceedings against their own nationals. Not only will

governments not prosecute their own officials out of complicity,14 but in many grave

cases they could even find the stability of the country compromised if they try to

prosecute other parties, such as members of a rebel group with which the State continues

9 International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia since 1991, created via Resolution 827 (1993), 25 May 1993. 10 International Tribunal for the Prosecution of Persons responsible for genocide and other serious violations of International Humanitarian Law committed in the territory of Rwanda and Rwandan citizens responsible for genocide and other such violations committed in the territory of neighbouring States, created via Resolution 955 (1994), 8 November 1994. 11 The International Criminal Court (ICC) was created after the adoption of the Rome Statute on 18 July 1998. The treaty entered into force on 1 July 2001. 12 R. v. Bow Street Metropolitan Stipendiary Magistrate and Others, ex parte Pinochet Ugarte (No. 3), 2 All E.R. 97 (H.L. 1999). 13 Paraphrasing the wording found in Article 1 common to the four 1949 Geneva Conventions. 14 As the recent history of Latin America shows, prosecutions are always held only after the collapse of the regime committing the crimes, in some cases more than 30 years later. See, for example, the case against Pinochet, in Chile, and Vladimiro Montesinos, in Peru.


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to struggle.15 The same could be said of former members of a military regime whom

negotiated their way out of government and still hold considerable power.16 Such

examples as the most recent sentence by an Argentinean federal court of General

Menéndez to life in prison for crimes committed 31 years ago,17 commendable as they

are, can be as telling for their rare occurrence as for the number of years victims had to

wait before the judiciary found it appropriate to prosecute a now 81-year-old man.18

With regards to the ICC, much hope has been posed on its role as an effective world

criminal court,19 particularly since its creation was awaited for more than fifty years.20

However, it contains inherent limitations which must be taken into account: inevitably,

the Court will only be able to deal with a handful of selected cases per year,21 necessarily

discarding all other grave violations of human rights. Further, even from the Preamble to

the ICC Statute, States were clear to underscore that the main responsibility to prosecute

international crimes would continue to fall upon themselves;22 with this in mind, the

Court was assigned a subsidiary role to that of domestic tribunals, provided for in detail

under its complementarity regime.23 Thirdly, even in those cases where the Court finds

itself to have jurisdiction and admits a case, it will still strongly depend on the willingness

and ability of States to cooperate in such practical matters as the arrest and surrender of

the suspects, the obtaining and processing of evidence, and the protection of witnesses

and their testimonies.24 It is possibly this love-hate relationship with States – its creation

as an instrument of the international community to fight impunity, on one hand, while

depending so heavily on the will of States, on the other – which has led to seven years

15 See, for example, the debate resulting from the granting of amnesty to rebel groups in the Democratic Republic of Congo, on 12 July 2008. ‘DR Congo: Amnesty controversy grows’, Institute for War and Peace Reporting, 22 August 2008. Available online at http://www.reliefweb.int (last visited on 10 December 2008). 16 Precisely the cases of Chile and Argentina in the 1980s. 17 General Menéndez was one of the most powerful military commanders during the military dictatorship that ruled Argentina from 1976 to 1983. He is believed responsible for thousands of deaths and enforced disappearances. 18 He was sentenced to life in prison. 19 Cf. Delmas-Marty, M. ‘Interactions between National and International Criminal Law in the Preliminary Phase of Trial at the ICC’, 4 Journal of International Criminal Justice, 2006, p. 2-11. 20 The notion of an international criminal court was born out of the Nurnberg trials. Reference to the creation of such a court was included into the 1948 Genocide Convention. Unfortunately, the Cold War made the initiative remain dormant until the 1990’s. 21 See Delmas-Marty, M., supra note 19. 22 Cf. Paragraphs 6 and 10, Preamble to the ICC Statute. 23 Found in Articles 17 and 19 of the ICC Statute. For a general discussion of the complementarity regime, see below Chapter Three. 24 As established under Chapter 9 of the ICC Statute.


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since the entry into force of the ICC Statute without a single conviction and only three

cases currently awaiting trial.25

The option of universal jurisdiction

The third option is the exercise of universal jurisdiction, i.e. prosecution of a suspected

offender when there is no direct link between the forum and the crime committed. The

doctrine, which has been part of international law for centuries, recently found

invigorated support in new domestic penal legislation passed in relation to international

crimes.26 This led, most notably in Belgium and Spain, to the filing of proceedings against

high-profile personalities such as Pinochet, Yasser Arafat, Ariel Sharon, George W. Bush,

Collin Powell, and others.27 Scholars, groups of experts and important non-governmental

organizations have also drawn their attention to the notion of universality, producing

inter alia the Princeton Principles on Universal Jurisdiction,28 a resolution by the Institute

of International Law,29 extensive work by Amnesty International30 and Human Rights

Watch31, and a most recent report by the International Association of Penal Law, where

the doctrine was labelled “the favourite technique used to prevent impunity for

international crimes” and “one of the most effective methods to deter and prevent

international crimes by increasing the likelihood of prosecution and punishment of its

perpetrators”.32

The initial enthusiasm, however, has also met with strong resistance from diverse fronts.

It could be first mentioned the Arrest Warrant case,33 brought by the Democratic

Republic of Congo against Belgium before the International Court of Justice (ICJ).

Although it dealt primarily with the immunities afforded to high-officials by international

25 Namely, Prosecutor v. Thomas Lubanga Dyilo; Prosecutor v. Germain Katanga and Mathieu Ngudjolo Chui; and Prosecutor v. Jean-Pierre Bemba Gombo. Further warrants of arrest have been issued but not yet executed. 26 Most notably legislation passed in Germany, Belgium, the Netherlands, Japan, Hungary, Finland, Croatia, Turkey and others. Cf. Global Report on Universal Jurisdiction, infra note 32. 27 See infra note 31, Human Rights Watch Report on Universal Jurisdiction in Europe, footnote 141, p. 37. 28 Princeton University Program in Law and Public Affairs, The Princeton Principles on Universal Jurisdiction, 2001. Available at http://www.1.umn.edu/humanrts/instree/princeton.html (last visited on 12 November 2008). 29 Institute of International Law, Seventeenth Commission ‘Universal Criminal Jurisdiction with regard to the crimes of genocide, crimes against humanity and war crimes’, Krakow Session, 26 August 2005. 30 Amnesty International, ‘Universal Jurisdiction: the Duty of States to Enact and Implement Legislation’, Chapter Five (Crimes Against Humanity, The legal basis for universal jurisdiction), Report, AI Index: IOR 53/008/2001, Distr: SC/CO/PG/PO. 31 Human Rights Watch, ‘Universal Jurisdiction in Europe’, Report Human Rights Watch, Volume 18, No. 5(D). 32 International Association of Penal Law, ‘Universal Jurisdiction, Global Report’ (Report), prepared by Isidoro Blanco and published in the Revue International de Droit Pénal, Volume 79, 2008. 33 Case Concerning the Arrest Warrant of 11 April 2000 (Belgium v. Congo) 2002, available at: www.icj-cij.un.org (last visited on 15 November 2008).


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law, the ICJ held in a highly criticized obiter that ministers could only be prosecuted by

States other than their own (thus including those exercising universal jurisdiction) for

acts committed while in office only if such acts were performed in a private capacity.34 As

the most serious cases of international crimes very often involve a ‘public’ policy and are

not isolated private acts, the Court’s dictum could effectively mean the barring from

prosecution those massive violations of human rights committed as part of a government

policy.

This was followed by a reform to the Belgian legislation, originally among the most

liberal on the matter of universality, succumbing to pressure from the United States (US)

authorities. This resulted in an amendment process in April 2003, and then

embarrassingly a second one in August of the same year.35 As it stands today, only

victims of the alleged crime and legally residing in Belgium for more than three years may

file a case against a non-Belgian national for crimes committed outside Belgian territory.36

Already in 2003 these and other minor examples led Professor Antonio Cassese to

wonder whether, in fact, the principle of universal jurisdiction over international crimes

was not on its last legs, if not already in its death throes.37

Since then, much has been said about the need to develop an appropriate legal

framework through which to exercise universal jurisdiction in a way that would be both

predictable and effective – that is, one in which States, human rights advocates and

scholars would find themselves comfortable and which would allow the number of

heinous crimes going unpunished to be considerably reduced. As will be seen

immediately below, that is yet to be achieved.

Focused specifically on the issue of positive conflicts of jurisdiction, this paper will

attempt to contribute to such an effort.38

34 Arrest Warrant case, Idem, para. 61. 35 Loi relative aux violations graves du droit international humanitaire, 5 August 2003, Moniteur Belge (Law Gazzette), No. 286, 7 August 2003. 36 Criminal Code of 1867 (Code Penal), Articles 136 bis – 136 octies, available online at http://www.juridat.be (last visited on 9 September 2008) 37 Cassese, A. ‘Is the Bell Tolling for Universality? A Plea for a Sensible Notion of Universal Jurisdiction’, 1 Journal of International Criminal Justice, 2003, p. 589-595. 38 Special mention must be made, however, of the Spanish Constitutional Court’s ruling on the Guatemalan Generals case (cf. infra note 93), by which it explicitly denied the Supreme Tribunal’s assertion that the exercise of jurisdiction is strictly conditioned to the existence of a link between the crime and the forum State. This absolute defence of universality, however, stands for now as an exceptional case.


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INTRODUCTION

On 23 June 2008, the General Assembly of the African Union approved a highly critical

report presented by a Commission on The Use of the Principle of Universal Jurisdiction by some

non-African States (hereinafter the AU Report),39 passing a resolution by which it

highlighted the urgent need to discuss the issue of universal jurisdiction with the

European Union and establish clearly defined parameters of action. The AU Report

developed its arguments in three parts: first, it questioned the very existence of the

principle of universal jurisdiction, introduced as an unconditional and unilateral decision

taken by some States to prosecute foreign State officials. This was done by revising both

the provisions on jurisdiction found in some international treaties dealing with

international crimes, such as the 1949 Geneva Conventions,40 the 1984 Convention

against Torture,41 the 1948 Genocide Convention42 and a number of agreements dealing

with terrorism-related offences; and the practice of States, with particular mention of

Belgium and Spain.43

Based on such review, the AU Report then passed on to raise caution as to the possibility

that universal jurisdiction, so understood, in essence could develop “as a tool of

discrimination against nationals of certain States, especially less developed States”.44

Finally, it recommended that States of the African Union should refer cases to the ICC,

under Article 14 of the Rome Statute, as “this would check the excesses and whims

[emphasis added] of individual States as well as address some of the concerns of potential

for abuse highlighted earlier in the Report”.45

39 Report of the Commission on the Use of the Principle of Universal Jurisdiction by Some Non-African States as Recommended by the Conference of Ministers of Justice / Attorneys General, presented to the Executive Council on its Thirteenth Ordinary Session, 24-28 June 2008. Ex.CL/411 (XIII). Available online at http://www.africa-union.org (last visited on 14 September 2008). 40 Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field (12 August 1949) 75 UNTS 31; Geneva Convention for the Amelioration of the Condition of the Wounded, Sick, and Shipwrecked Members of the Armed Forces at Sea (12 August 1949) 75 UNTS 85; Geneva Convention Relative to the Treatment of Prisoners of War (12 August 1949) 75 UNTS 135; Geneva Convention Relative to the Protection of Civilian Persons in Time of War (12 August 1949) 75 UNTS 287. 41 Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, UNGA Res 39/46, UN Doc A/39/51, 1984. 42 Convention on Prevention and Punishment of the Crime of Genocide, 9 December 1948; 78 UNTS 277. 43 AU Report, para. 59 – 78. 44 AU Report, para. 83. 45 AU Report, para 91.


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Undoubtedly, the AU Report presents some inaccuracies and in some respects important

flaws.46 However, the position adopted by the African Union does prove the necessity to

analyse a number of questions surrounding universal jurisdiction, namely: what exactly, in

the understanding of States and international law, is universal jurisdiction, and when and

under what conditions may it be exercised by foreign courts? Is universal jurisdiction a

means of unilateral action, by which impertinent States can indeed ‘harass’ foreign Heads

of State47 and other senior officials? May the ICC and its complementarity regime, as the

Report suggests, put a check on the ‘abusive’ exercise of universal jurisdiction?

The following paper will attempt to tackle these issues, in three Chapters: starting from

the point of view of a State not traditionally linked to the crime in question, Chapter One

will attempt to establish the current legal basis under which a State may have the right or

even the duty to exercise universal jurisdiction in compliance with international law. For

such purpose, the text shall analyse the principles of law applicable to jurisdiction in

general, as particularly developed by State practice and international jurisprudence,

moving then from territorial to extra-territorial scenarios. Following, the review shall

focus on the specific principle of universal jurisdiction, as a particular form of extra-

territorial jurisdiction, including its origins and raison d’être, but most importantly how the

different rationales when approaching these issues may affect the potential prosecution

of international crimes today. A third argument for universal jurisdiction will be sought

in treaties and customary law, from the generally accepted human rights treaties and State

obligations arising from them, to the more specific texts concerning international crimes

and their prosecution under international criminal law.

Secondly, and once established a legal basis for universal jurisdiction, Chapter Two shall

discuss the potential consequences a decision to prosecute could bring with regards to

proceedings in other States, particularly the State where the crimes were committed. The

discussion of such positive conflicts of jurisdiction between two or more States shall

include, first, a review of norms of general international law, followed by an analysis of

the law and practice of more specific bilateral agreements, namely extradition treaties, as

guidance for the existence of a hierarchy of principles of jurisdiction, and whether they

46 The main one being the assumption, perhaps for the sake of argument, that universal jurisdiction may only be understood to mean an unconditional exercise of jurisdiction, with no regard to the numerous conditions found in treaty law and domestic legislation. 47 AU Report, para. 83.


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should apply to prosecution of international crimes. Based on scholarly opinion and

some State practice, some guidelines as to the resolution of these conflicts shall be

suggested.

Finally, these potential conflicts of jurisdictions when resorting to universality shall be

analysed in Chapter Three, in the light of the complementarity regime found in the

Statute of the International Criminal Court. It shall raise the questions whether

proceedings before the ICC would make universal jurisdiction unnecessary, as the AU

Report suggests; followed by how would the rules on complementarity apply to States

acting under such principle of jurisdiction. It will finalize with a reflection on the

potential effect the Security Council, through its capacity to take action under Chapter

VII of the Charter of the United Nations, may have on such proceedings, including if

acting against jus cogens norms.


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CHAPTER ONE

As briefly discussed in the Introduction, the prosecution of international crimes often

depends greatly on the availability of an appropriate forum able and willing to carry out

the proceedings. This would include the investigation, arrest, trial and sentence of the

suspects, with due respect for the rights of the accused, the proper handling and

obtaining of evidence and the protection of the victims and witnesses. Unfortunately,

while ordinary domestic offences are routinely investigated and prosecuted there where

the offences were committed, this has not ceased to become an extraordinary event

when it involves international crimes. As Amnesty International provides,

Despite the millions of acts of genocide, crimes against humanity, war crimes, cases of torture, extrajudicial executions and ‘disappearances’ committed since the end of the Second World War, only a handful of individuals have ever been brought to justice by national courts in the territories or jurisdictions where they occurred. …Indeed, in most cases when suspects are at liberty abroad, one can presume, absent a convincing showing by the territorial State to the contrary, that the reason is that the territorial State has not only failed to fulfil its responsibilities under international law, but also that it is unlikely to do so.48

This concern for the impunity of those responsible for international crimes, and the

inherent difficulties States often find to try their own nationals was expressly behind the

Nuremberg49 and Tokyo50 trials after the Second World War and, past the Cold War, in

the creation of the International Tribunals for Yugoslavia (ICTY)51 and Rwanda

(ICTR),52 other internationalized forums (Special Tribunal for Lebanon (STL),53

Extraordinary Chambers in the Courts of Cambodia (ECCC),54 and the Special Court for

Sierra Leone (SCSL)55) and most notably the International Criminal Court (ICC). It has

also pushed some States to exercise their criminal jurisdiction extra-territorially,

48 Amnesty International Report, supra note 30, at IV. 49 Cf. Trial of the Major War Criminals before the International Military Tribunal at Nuremberg, 14 November 1945 - 1 October 1946. Available at http://www.loc.gov/rr/frd/Military_Law/NT_major-war-criminals.html (last accessed on 9 January 2009). 50 International Military Tribunal for the Far East. The tribunal convened on May 3, 1946, and was adjourned on November 12, 1948. 51 ICTY, supra note 9. 52 ICTR, supra note 10. 53 Special Tribunal for Lebanon, created through an Agreement with Lebanon, annexed to Resolution 1757, S/RES/1757, 30 May 2007. 54 Extraordinary Chambers in the Courts of Cambodia for the Prosecution of Crimes Committed during the Period of Democratic Kampuchea, formally established through an Agreement between Cambodia and the United Nations which entered into force on 29 April 2005. 55 Established through the Agreement between the United Nations and the Government of Sierra Leone on the Establishment of the Special Court for Sierra Leone, signed on 16 January 2002. Available online at http://www.sc-sl.org/DOCUMENTS/ImportantCourtDocuments/tabid/200/Default.aspx (last visited on 8 January 2009).


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effectively prosecuting before their domestic courts crimes committed by foreigners

against foreigners in foreign territory.

The practice, as could be expected, has raised many questions, particularly among those

States whose nationals have been indicted. With this in mind, this Chapter will attempt to

provide the legal basis found in international law for the exercise of universal jurisdiction

for international crimes. It will do so in four parts: firstly, it will review the exercise of

criminal extraterritorial jurisdiction by States, their rights and obligations as accepted by

practice and case-law. This will be followed by a brief discussion on the principle of

universality as a special form of extraterritorial jurisdiction, the intended purpose behind

its development and its relationship with the principles of jus cogens and erga omnes

obligations. Thirdly, a legal basis for universal jurisdiction shall be searched for in

international treaties, particularly specific agreements dealing with international crimes, as

well as the practice and opinio juris of States. Finally, this Chapter will discuss the

applicability of limiting factors and other conditions to the lawful exercise of universal

jurisdiction, such as the requirement for the suspect to be present in the forum State

before initiating proceedings, the question of immunities for State officials, the principle

of non bis in idem, and others.

The exercise of extraterritorial jurisdiction under international law

There is no doubt that States posses the power to prosecute individuals for offences

committed in their territory, as “jurisdiction is one of the most obvious forms of the

exercise of sovereign power”.56 From this starting point, the question arises whether they

are also entitled to exercise their jurisdiction for offences committed beyond their

borders.

The issue was first tackled by the Permanent Court of Justice (PCIJ or Court) in the SS.

Lotus case.57 The dispute, brought before the Court by Turkey against France in 1927,

revolved around the intention of Turkey to prosecute, before its domestic courts and

applying Turkish law, a French national for a case of manslaughter. The case arose from

a collision occurred in the high-seas between a ship flying a French flag and a Turkish

vessel which resulted in the sinking of the latter and the death of eight Turkish nationals.

56 The Case of the Legal Status of Eastern Greenland, PCIJ Judgment, PCIJ Series A-B, 1933, p. 48. 57 The Case of the SS. Lotus (France v. Turkey), PCIJ Judgment of 7 September 1927, PCIJ Rep., Series A, No. 10, pp. 18-19.


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Each State presented before the PCIJ confronting views as to the legal basis in

international law for the exercise of extraterritorial jurisdiction: on one hand France

argued that Turkey had to provide the principle which allowed it to exercise jurisdiction.

On the other, Turkey argued sufficient to show that its actions did not come into conflict

with any principle of international law. In a highly disputed verdict (decided by the

President of the Court’s casting vote), the PCIJ resolved in Turkey’s favour, in the

following terms:

International law emanates from relations between independent States, meaning any rules

binding them emanate from their free will. Restrictions upon such independence cannot

therefore be presumed; and although international law does impose a restriction upon

States in that they may not exercise their power in any form in the territory of another

State, “it does not, however, follow that international law prohibits a State from

exercising jurisdiction in its own territory, in respect of any case which relates to acts

which have taken place abroad, and in which it cannot rely on some permissive rule of

international law”.58 In other words, each State has the right to exercise its jurisdiction for

acts committed abroad as long as there is no international obligation to the contrary. By

adopting “the principles it regards best and most suitable”,59 this would clearly entail the

possibility for any State to exercise its domestic jurisdiction, including universal

jurisdiction, for international crimes committed abroad, by foreigners against foreigners.

The judgment, highly controversial even at the time,60 has been severely criticized on

various counts,61 of which the most important refers to the Court’s failure to explicitly

state which ‘obligations to the contrary’ would international law recognize to limit the

free reign of States concerning their power to prosecute. In addition, further analysis of

the International Court of Justice’s (ICJ) jurisprudence provides a number of examples

where the liberty of States to exercise their jurisdiction over acts occurred abroad were

not so easily assumed a priori, as had been the case with Lotus. This has been commonly

interpreted from the Fisheries62 and Nottebohm63 cases, where the Court seemed to shift

58 Idem, p. 18. 59 Ibid. 60 See Brierly, J., ‘Règles générales du droit de la paix’, 58 Hague Recueil, 1936, IV, 146-8, 183-4. 61 Among them, that the Court’s view did not reflect the state of customary law at the time of ruling, an argument reinforced by the minority view of the dissenting judges. Cf. Brownlie, in Principles: “In most respects the Judgment of the Court is unhelpful in its approach to the principles of jurisdiction, and its pronouncements are characterized by vagueness and generality”. In Brownlie, (infra note 68, p. 305. .) 62 The Fisheries Jurisdiction Case (FR Germany v. Iceland), ICJ Reports, 1974, p. 3.


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from the ‘free reign’ approach to a clearly more restrictive position. However, it must be

borne in mind that in none of those cases or any other since Lotus did the ICJ or its

predecessor directly tackle the question of extraterritorial jurisdiction.

As for possible restrictions to the exercise of jurisdiction, clearly the one most commonly

argued by States is the principle of non-interference in their internal affairs. The

argument, which simply upholds the notion that no State has legal power or authority

over other States, finds its base in the principle of independence and equality of States as

enshrined in the Charter of the United Nations Organization (UN Charter),64 and has

been reaffirmed in numerous occasions via treaties and UN resolutions.65 A most

relevant example for the purposes of universal jurisdiction may be found in the affaire

Pinochet,66 where Chile resorted to the principle of non-interference to challenge the

United Kingdom and Spain’s intention to institute proceedings against the former

dictator, affirming that such decision would constitute a threat to the process of Chilean

national reconciliation, which was to be considered an absolutely internal affair.67

Further clarification on the matter was attempted by Professor Ian Brownlie, in his

authoritative study on the Principles of International Law.68 After distinguishing between the

power of States to enforce their domestic laws via territorial and extraterritorial

jurisdictions, he proposes three conditions for the lawful exercise of the latter: first, that

there should be a substantial and bona fide connection between the subject-matter and the

source of the jurisdiction; secondly, that the principle of non-intervention in the

domestic or territorial jurisdiction of other States should be observed; and thirdly, that a

principle based on elements of accommodation, mutuality and proportionality should be

applied, by which nationals resident abroad should not be constrained to violate the law

of the place of residence.69 However, he goes on to admit that these basic principles,

perfectly valid for the prosecution of common offences, ‘do not apply or do not apply

63 The Nottebohm Case (Liechtenstein v. Guatemala), Second Phase, ICJ, 1955. 64 Article 2 para. 1 of the UN Charter. Available at http://www.un.org/aboutun/charter/pdf/uncharter.pdf (last visited on 8 January 2009). 65 Cf. Marc Henzelin, M. Le Principe De L'universalite En Droit Penal International. Droit Et Obligation Pour Les Etats De Poursuivre Et Juger Selon Le Principe De L'universalite, (2001) Helbing & Lichtenhahn, 2001; footnote 744. 66 Ex parte Pinochet, supra note 12. 67 Henzelin, supra note 65, p. 165. 68 Brownlie, I. Principles of Public International Law, 5th Edition, Oxford University Press, 1998. 69 Idem., p. 313.


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very helpfully’ to crimes against international law, the gravity of which can alter their

applicability and an area where special rules have evolved.70

Those in favour of such an exception when it comes to international crimes, left mostly

undeveloped in the Principles, find initial support in the jurisprudence of the ICJ, most

particularly the Barcelona Traction case.71 In an often-cited passage, in the midst of

resolving a conflict of competences between Spain and Belgium, the Court stated that

An essential distinction should be drawn between the obligations of a State towards the international community as a whole, and those arising vis-à-vis another State…. By their very nature the former are the concern of all States. In view of the importance of the rights involved, all States can be held to have a legal interest in their protection; they are obligations erga omnes.72

Such obligations, the Court continued, derive, for example, “from the outlawing of acts

of aggression, and of genocide, as also from the principles and rules concerning the basic rights of the

human person [emphasis added], including protection from slavery and racial

discrimination.”73 In other words, for the Court those ‘principles and rules’ protecting

human rights, and by extension the most serious violations of such rights as embodied in

the definitions of international crimes, would indeed transcend the internal affairs of the

territorial State and can be held to generate a legal interest in any State, qua representative

of the ‘international community as a whole’. This would, consequently, justify the resort

to the ‘protection’ of such rights via the effective prosecution of the alleged perpetrators

of international crimes through the exercise of extraterritorial jurisdiction.74

A similar interpretation is accepted and was made explicit by the Institut de Droit

International in a resolution adopted on 13 September 1989, where it stated in Article 1

that “Les droits de l’homme … cessent d’appartenir à la catégorie des affaires qui relevant

essentiellement de la compétence nationale des Etats”,75 allowing States to take diplomatic,

economic or other measures to ensure their protection, individual or collectively, and as

70 Ibid., p. 314. 71 The case of Barcelona Traction, Light and Power Co. Ltd. (Belgium v. Spain), ICJ, 5 February 1970, 3, at 32. 72 Idem., at 33. 73 Ibid., at 33. 74 The classification of international crimes as generating obligations erga omnes is closely linked to that which labels them examples of jus cogens norms. This line of argument and its consequences for the exercise of universal jurisdiction shall be further developed in the next subsection. 75 Institute de Droit International, 1991, as cited in Henzelin, supra note 65, p. 170.


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long as they were admitted by international law. These measures “ne peuvent pas être

considérées comme une intervention illicite dans les affaires intérieures de l’Etat…”.76

In sum, there would seem to be fair grounds to believe that, although the principle of

non-interference does and will continue to hold a primal position in the international

relations of States, its scope would not be absolute. As stated by Professor Gaeta,

[…] la nécessité de préserver le principe de non-ingérence peut survenir à l’égard des infractions de droit commun, soit celles dont l’interdiction découle du droit pénal national de tout Etat souverain. […] À l’inverse, les crimes internationaux, […] ont une nature et une portée entièrement différentes: leur interdiction vise à protéger des valeurs reconnues comme fondamentales par toute la communauté internationale, et revêtent donc une dimension universelle. La conséquence naturelle en est que tout État doit se voir accorder le droit d’assurer le respect de ces valeurs au niveau juridictionnel, en dehors de tout rattachement territorial ou personnel avec l’intéressé.77

Universal Jurisdiction: definition, rationales and applicable norms

International law recognizes at least four principles of extraterritorial jurisdiction: the

active personality principle (by which jurisdiction is exercised based on the nationality of

the offender), passive personality (based on the nationality of the victim), protective

jurisdiction (based on the protection of a State’s national interests) and universal

jurisdiction. Evidently, for reasons that will become clear below, the latter has become

the most controversial form, as the ‘interference’ in the internal affairs of another State

would seem to be less explicitly justified than in any of the other cases. The following

section will attempt to shed some light on the main issues surrounding the application of

such principle, some of which will remain central throughout this paper.

Definition and origins

Much of the political friction surrounding universal jurisdiction may depend greatly on

what is understood by the concept. For the purposes of this discussion and as a starting

point, it shall be assumed to be that which “authorizes the tribunals of all states to take

cognizance of certain international crimes, regardless of where the offence has been

committed and regardless of the nationality of the perpetrator or the victim.”78 Evidently,

its main difference with any other grounds of jurisdiction is precisely the lack of a

necessary link to the crime committed.

76 Idem. 77 Gaeta, P. ‘Les règles internationals sur les critères de compétence des juges nationaux’, in Cassese, Delmas-Marty (Eds.) Crimes internationaux et juridictions internationales, Presse Universitaires de France, 2002, p. 196. 78 La Rosa, A. ‘Sanctions as a means of obtaining greater respect for humanitarian law: a review of their effectiveness’. 90, 870 International Review of the Red Cross, 1990, pp. 221-248.


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As for its limitation ratione materiae, that is, the relevant crimes for which a court may

resort to universality, most scholars readily admit to the list the core crimes of

international law, namely war crimes (at least those in the Geneva Conventions 1949),

crimes against humanity, genocide and torture – although justification for each is found

in different sources of law and is still subject to challenge. More specific treaties allow for

universality against other international crimes such as hijacking of airplanes, crimes

against internationally protected persons, the taking of hostages and others.79

Regarding its origins, the first examples of universal jurisdiction are generally attached to

the prosecution of the crime of piracy, as far back as the 16th Century.80 The initiative, a

response against the attack on their vessels in the high-seas, led States to join ranks and

label the perpetrators as hostis humanis generis, or common enemy of mankind. In practice,

this meant any State could apprehend and prosecute a pirate without the need to have

been especially affected by that particular pirate’s deeds. Although some differences

between the original crime of piracy and human rights violations can easily be

distinguished,81 in the last 60 years several international treaties and State practice,

together with scholarly opinions, have extended a similar notion of universality to the

most serious violations of human rights.

The rationales behind the principle

Such simple definition and account of the origin of universal jurisdiction remain fairly

uncontroversial. Further analysis into its scope and rationale, however, reveal two

important and substantially different approaches to its application, and most importantly,

the legal basis behind its exercise by a State.82

The first of these revolves around the notion that certain acts are so heinous that they

cease to constitute an affront against the local community or even the State in whose

79 For a comprehensive review of each treaty, see generally Henzelin, supra note 65. 80 Some authors defend the existence of universal jurisdiction for war crimes dating to at least the 14th Century. Cf infra notes 85, 86 and 87. 81 See Orentlicher, D. ‘Settling Accounts: The Duty to Prosecute Human Rights Violations of a Prior Regime’, 100 The Yale Law Journal 8, 1991, p. 2557, footnote 78. 82 Similar distinctions into the way to approach universal jurisdiction were suggested by Cassese in “Bell tolling…” (supra note 37). Mark Henzelin, in his extremely comprehensive study on the topic, distinguished three: the unilateral application of universal jurisdiction, its deferred exercise and the absolute approach. Only the last two will be used for the present analysis. (See Henzelin, M. Le Principe De L'universalite En Droit Penal International. Droit Et Obligation Pour Les Etats De Poursuivre Et Juger Selon Le Principe De L'universalite, Helbing & Lichtenhahn, 2001). The International Association of Penal Law Global Report on Universal Jurisdiction recognized four: representing the international community, acting under a treaty obligation, preventing non-punishment of a perpetrator of international crimes and fighting against organized crime. (See supra note 32.)


8

territory they occur and become an offence against humanity as a whole. As the UN

High Commissioner for Human Rights stated in 2001,

the principle of universal jurisdiction is based on the notion that certain crimes are so harmful to international interests that states are entitled - and even obliged - to bring proceedings against the perpetrator, regardless of the location of the crime or the nationality of the perpetrator or victim.83

Similarly, for Professor Broomhall the imperative to defend the fundamental interests of

the international community through criminal process is what “[endows] national courts

exercising universal jurisdiction with the de facto status of agents of the international

community, the declared values of which the proceedings vindicate.”84 Such position can

be traced back almost four centuries to the writings of prominent jurists, such as Richard

Zouche85 and Emerich de Vattel,86 as well as Hugo Grotius. In his famous work De Jure

Belli et Pacis, he writes,

The fact must also be recognized that kings, and those who possess rights equal to kings, have the right of demanding punishments not only on account of injuries committed against themselves or their subjects, but also on account of injuries which do not directly affect them but excessively violate the law of nature or of nations [emphasis added] in regards to any persons whatsoever.87

A similar contention was strongly developed after the Second World War to justify the

proceedings before the Nuremberg, Tokyo and other similar tribunals. There, the

prosecution by an international court of crimes committed by German nationals against

German nationals was justified in that such “conduct, by its nature, offended humanity

itself. Because the crime originated in ‘humanity’ – presumably under natural law – its

legal status and consequences transcended the province of municipal law”.88 Although

severely contested during the Cold War years, the argument and its two main pillars –

namely, the gravity of the crime as justification and the placing of the international

community as a whole as ‘victim’ of such crimes – has regained important momentum in

the last two decades, most particularly in the work of scholars and human rights

advocates. According to the Global Report on the topic published by the International

83 Forward by the UN High Commissioner to the Princeton Principles on Universal Jurisdiction, supra note 28. 84 Broomhall, B. International Justice and the International Criminal Court: Between Sovereignty and the Rule of Law. Oxford University Press, 2003, pp. 108-109. 85 See Zouche, R., Iuris et Iudicii Fecialis, sive, iuris inter gentes, et Quaestionum de Eodem Explicatio, 1650. Reprinted in The Classics of International Law, 1911. 86 See De Vattel, E. Le droit des Gens, 1758, Chapter XIX, paras. 232-33. Both de Vattel and Zouche cited in Orentlicher, D. ‘Settling Accounts: The Duty to Prosecute Human Rights Violations of a Prior Regime’. 100, No. 8. The Yale Law Journal, June 1991, p. 2556. 87 Grotius, H. De Jure Belli et Pacis, 1625. Chapter XX, § XL, para 1. 88 Orentlicher, D. ‘Settling Accounts…’ Supra note 81, p. 2557.


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Association of Penal Law, this would also be the approach taken by Germany, Croatia

and Spain when implementing universal jurisdiction to their domestic legal codes.89

The second approach to universal jurisdiction finds support in a more conservative

interpretation of international law and the international relations between States, namely,

that which depends exclusively on their explicit consent, be it through their participation

in multilateral agreements or via their opinio juris and practice. For the supporters of this

view, universal jurisdiction – far from representing the international community – finds

its legal basis only in a pre-arranged deferral of jurisdiction from the territorial State (or

one other entitled to prosecute) to another State, a process which only in a limited

number of occasions would include States acting under the principle of universal

jurisdiction. In other words, it is a regime of jurisdictional rights and obligations arising

among States, inter partes, where and under such conditions as were agreed to in advance.

Such approach would be the logic behind the laws of Finland, Hungary, Turkey,

Romania and Japan.90

Whichever of the two approaches is taken inevitably affects the exercise of universal

jurisdiction in at least three ways:

It does so, firstly, by establishing distinct conditions and limitations as to the initiation of

proceedings. Of particular relevance in this regard becomes the requirement (and in what

measure, or not at all) of a nexus to the crime, of which the presence of the alleged

offender in the territory of the forum State is the most commonly cited. In this sense, for

the internationalist approach, which –as already mentioned – focuses primarily on the

gravity of the crime and for which any State can act as ‘affected party’ – no such

traditional nexus is necessary. It would be sufficient for a court to have before it

substantial evidence regarding the commission of an international crime in order to allow

for the prosecution of the alleged offender.

The position, which includes the possibility of exercising universal jurisdiction in absentia,

was defended by Judges Higgins, Buergenthal and Koojimans of the ICJ in their joint

separate opinion in the Arrest Warrant case,91 albeit together with a caveat suggesting the

need to develop safeguards in order to prevent abuse. It has also been accepted in a

89 Global Report, supra note 32, page 61. 90 Idem., page 62. 91 Arrest Warrant, supra note 33.


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number of domestic codes (Hungary, Finland, Croatia)92 and cases at the national level

(most notably Guatemalan Generals,93 in Spain) and was included into the Princeton Principles

on Universal Jurisdiction,94 for the purposes of “seeking the extradition of the person

accused or convicted of committing a serious crime [and] provided that [the court] has

established a prima facie case of the person’s guilt”.95 Evidently, it has also been severely

criticized, by States and scholars, both in terms of its incompatibility with long-

established international law on jurisdiction (arguably prioritizing prosecution based on

the territoriality principle) as for its procedural shortcomings (difficulty to apply in

practice) regarding evidence available for trial, rights of the victims and the accused, and

immunities (discussed further below).

On the contrary, the inter partes or conditional approach, which would appear to find

greater support among States,96 does demand that a State have a nexus to the case other

than the sole fact of being a member of the international community. Usually this comes

in the form of the physical presence of the suspected offender in the territory of the

forum State, and is expressly provided for in treaty law, and most specifically as part of

the common formula aut dedere aut judicare.97 As the texts provide, a State is not only

conditioned by the suspect’s presence in order to initiate proceedings, but also by the

decision not to extradite him or her to another State, including of course the State where

the alleged crime was committed. In the words of Cassese, such limitations to the

exercise of universal jurisdiction would indeed reflect the state of the law, as the opposite

“would seem contrary to the logic of current State relations”.98

A second yet connected issue arising from the distinction between the two approaches to

universal jurisdiction concerns differentiating between issues of jurisdiction proper

(which questions the appropriateness of the forum to which the claim is presented) and

admissibility (which questions the appropriateness of the claim itself). Indeed, under an

92 Global Report, supra note 32, p. 65. 93 Guatemalan Generals, Constitutional Tribunal, judgment of 26 September 2005, STC 237/2005, available at: http://www.tribunalconstitucional.es (last visited on 15 January 2009). 94 Princeton Principles, supra note 28. 95 Idem., Principle 3. 96 It is worth noting, however, that at least in the specific case of war crimes, the ICRC found domestic State practice ‘not uniform’. While the requirement that some connection exist between the accused and the forum State was indeed reflected in the military manuals, legislation and case-law of many States (Canada, France, India, etc.) the Study also found such link unnecessary in numerous other cases. Cf. Henckaerts and Doswald-Beck, Customary International Humanitarian Law, Cambridge University Press, 2005, p. 606. 97 Such approach is found in several texts, including the Convention against Torture (CAT) and a number of treaties on offences related to terrorism. 98 Cassese, supra note 37, p. 592.


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internationalist approach, for a case to fall under the jurisdiction of a domestic court it

would be sufficient to consider whether the crime in question is indeed one of the most

serious violations of international law. Concerns regarding the practical implications of

such case progressing into a full-fledged trial, as for example the requirement to have the

suspect present during the proceedings, would be decided on admissibility grounds (or

resolved through the successful issuance of a request for extradition).

This was, precisely, the position of the Constitutional Tribunal of Spain in the Guatemalan

Generals case,99 where it overturned a decision of the Tribunal Supremo not to prosecute

due to the fact that there was not a sufficient link between the case and the forum

(including but not restricted to the fact that the suspects were not in Spanish territory,

and considering Spanish law does not allow trials in absentia). Clearly favouring an

absolutist approach to universal jurisdiction, the highest Tribunal argued that

international law allowed for the Spanish courts to exercise jurisdiction over the most

heinous crimes,100 and that the presence of the accused or availability of evidence could

result in a dismissal of the case, but only as a decision to be considered at a later stage in

the proceedings. The position, as will become clearer from the analysis of treaty law, runs

counter to the provisions establishing extraterritorial jurisdiction. Similarly, the Tribunal’s

decision constitutes an oddity in any review of the most recent State practice.101

Thirdly, both approaches provide different answers to the question whether there exists

an international obligation, as opposed to just a discretionary right, to prosecute suspects

for the commission of international crimes.

For the first approach, the logic would be that certain crimes violate universal values

embodied in imperative norms of international law or jus cogens,102 which concern all

99 Guatemalan Generals, supra note 93. 100 In the words of Ascensio, “According to the Tribunal, Article 23(4) of the Organic Law broadens the scope of Spanish jurisdiction to universality because of the gravity of the crimes concerned and because of the correlative protection established by international law. … [I]t establishes unconditional universal jurisdiction, without any kind of procedural limit (except res judicata by foreign courts) and without any hierarchy between different bases of jurisdiction. This is justified by the specific nature of the crimes prosecuted under this law”. In Ascensio, H. ‘The Spanish Constitutional Decision in Guatemalan Generals’, 4 Journal of International Criminal Justice, 2006, p. 589. 101 As shall be discussed infra, most of States’ legislation are following a tendency to add diverse limitations to the exercise of universal jurisdiction, moving away from such an absolutist approach. 102 According to the Vienna Convention on the Law of Treaties of 1969, a peremptory norm of general international law is a norm accepted and recognized by the international community of States as a whole as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character. (Article 53, available at http://untreaty.un.org/ilc/texts/instruments/english/conventions/1_1_1969.pdf ) Last visited on 8 January 2009.


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States, and thus all States have an obligation not to tolerate their commission.103 This

would be further justified in the fact that, as Professor Thomas Franck explains, these

fundamental rules, “contrary to the ordinary practice of international law, are not

themselves subject to the specific consent of States, except in the very act of accepting

membership in the [international] community itself”.104 Bassiouni concurs, arguing that

the implications of jus cogens are those of a duty and not of optional rights; otherwise jus cogens would not constitute a peremptory norm of international law. Consequently, these obligations are non-derogable in times of war as well as peace. Thus, recognizing certain international crimes as jus cogens carries with it the duty to prosecute or extradite, the non-applicability of statutes of limitation for such crimes, and universality of jurisdiction over such crimes irrespective of where they were committed,… Above all, the characterization of certain crimes as jus cogens places upon States the obligatio erga omnes not to grant impunity to the violators of such crimes.105

Such approach has also been used by domestic courts to justify the prosecution of

international crimes that would have otherwise gone against local procedural norms, such

as statutes of limitations. This was and continues to be precisely the argument used by

the Supreme Court of Argentina in numerous cases dealing with atrocities committed by

former military commanders during General Videla’s military regime – crimes that, when

typified as domestic offences, would ordinarily fall under a statute of limitations of 15

years.106

Similar arguments, albeit less compelling, in this regard have also been presented through

resorting to more general international human rights treaties, and more specifically the

duty to investigate violations of human rights falling on State parties.107 It should be

103 What exactly provides an international crime with the status of jus cogens is not firmly established. For Bassiouni, this would entail the fulfilment of at least two conditions: the crime should affect the interests of the world community as a whole because it threatens the peace and security of mankind; and it should shock the conscience of humanity. “If both elements are present in a given crime, it can be concluded that the crime is part of jus cogens”. Cf. Bassiouni, C., ‘The Sources and Content of International Criminal Law: A Theoretical Framework’, in International Criminal Law, 1999, Vol. 1. As cited in Broomhall, B., infra note 104. 104 Franck, Fairness in the International Legal and Institutional System. The Hague: Academy for International Law, 1993, p. 57. Cited in Broomhall, B. International Justice and the International Criminal Court: Between Sovereignty and the Rule of Law, Oxford University Press, 2003, p. 42. 105 Bassiouni, C. ‘International Crimes: “Jus Cogens” and “Obligatio Erga Omnes”’, 59,4 Law and Contemporary Problems, Autumn 1996, page 66. 106 As the argument goes, international norms of jus cogens such as the prohibition against mass violations of human rights would impede a court the possibility of applying statutes of limitations as a valid defence against prosecution. See further ChavezTafur, G. ‘Using International Law to By-pass Domestic Legal Hurdles: Applicability of the Statute of Limitations in the Menéndez Case’ 6, 4 Journal of International Criminal Justice, December 2008. 107 Concretely, the UN Human Rights Committee, the Inter-American Court of Human Rights and the European Court of Human Rights have taken this stand.


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noted, however, that even if it were accepted that international crimes do hold such

peremptory status, some would contend prosecution would not necessarily follow.108

The second option, which again undeniably finds extensive support in the analysis of

State practice and opinio juris, would hold that universal jurisdiction is not more than a

default principle of jurisdiction, resorted to when the most traditional grounds fail,109 and

even then only when a specific provision so allows (which in turn would apply only

between those States who previously agreed to it).110 This is confirmed in the various

formulas used in treaties to regulate the possibility of prosecution by a third State: on one

extreme one finds the 1949 Geneva Conventions,111 perhaps the most proactive in the

spelling out of a State party’s obligation to take action against an offender present in its

territory;112 on the other, the 1963 Tokyo Convention on Offences and Certain Other

Acts Committed on Board Aircraft (and other treaties following the same model) which

limits itself to requiring States to pass legislation providing for specific grounds of

jurisdiction, but not to actually prosecute anyone under those grounds.113

At any rate, what is clear is that agreement on a set of rules is much needed, even if these

fall on one extreme or the other. Domestic courts relying exclusively on their own

interpretation of the principle – even those strongly favouring a liberal approach to

universality, like the Spanish Constitutional Tribunal – can dangerously jeopardize the

development of an international standard that could then be applied by and – most

importantly – be demanded from any national court. This is something which would, in

effect, counter the current efforts to bring international criminals to justice.114 Although

reaching some degree of agreement was the intention behind the Princeton Principles

108 A substantive prohibition to commit a crime does not necessarily entail an imperative procedural obligation to prosecute the suspects at all costs, as many factors can provide alternative solutions, be it through positive conflicts of jurisdiction by which another forum becomes more suited, or the community affected decides to resort to non-judicial truth and reconciliation methods, to provide two examples. Cf. A. Gattini, A. ‘War crimes and State immunity in the Ferrini decision’, 3 Journal of International Criminal Justice, 2005, pp. 224-242. 109 See Cassese, A. ‘Is the Bell Tolling for Universality? A Plea for a Sensible Notion of Universal Jurisdiction’ (supra note 37); and Abi-Saab, G. ‘The Proper Role of Universal Jurisdiction’, in 1 Journal of International Criminal Justice, 2003. 110 Discussed further in Chapter Two. 111 Geneva Conventions, supra note 40. 112 Discussed further below. 113 The model may also be found in the 1999 Second protocol to the Convention for the Protection of Cultural Property in the Event of Armed Conflict (signed at the Hague, 14 May 1954. Entered in force: 7 August 1956). 114 The consequences of this can already be seen in the case of Belgium, where the proliferation of cases against several world leaders, including George W. Bush, Ariel Sharon and Saddam Hussein, led to strong US pressure on the Belgian parliament to amend the laws on jurisdiction twice, eliminating all traces of absolute universality and effectively raising the alarm on its potential abuse. See supra note 35.


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project, scholarly papers115 and the latest call for discussions between the European

Union and African States made by the Assembly of the African Union,116 so far,

however, no such consensus exists and further work and consultations are required.

Moving beyond the debate: universal jurisdiction as provided in treaty and customary law

Although commendable as an attempt to fight impunity, positive international criminal

law does not contain an explicit norm characterizing a certain crime as part of jus cogens,

nor does State practice conform to the scholarly writings that espouse these views.117

Moving beyond the debate presented above, the following section will attempt to briefly

review the existence of universal jurisdiction for the core international crimes as has

currently been agreed upon by States, both under conventional and customary law.118

War crimes

The best example of conventional universal jurisdiction is that provided for war crimes

explicitly listed as ‘grave breaches’ in the four 1949 Geneva Conventions and their 1977

Additional Protocol I. These include, inter alia, wilful killing of protected persons, torture

and inhuman treatment, unlawful deportation and depriving a protected person of a fair

trial when committed in an international armed conflict.119 Ratified by all countries in the

world, the Conventions provide that every State

shall be under the obligation to search for persons alleged to have committed, or to have ordered to be committed, such grave breaches, and shall bring such persons, regardless of their nationality, before its own courts. It may also, if it prefers,… hand such persons over for trial to another High Contracting Party concerned, provided such High Contracting Party has made out a prima facie case.120

115 Cassese sums it up to five conditions: that universal jurisdiction be only applied to international crimes, when the alleged offender is on the territory of the forum State, only as a substitute for other countries that would be in a better position to prosecute (territorial or active nationality jurisdiction), and fully respecting the personal immunities of high officials. See supra note 37. 116 AU Report, see supra note 39. 117 Bassiouni, supra note 105. 118 For a complete analysis of universal jurisdiction as found in treaty law, see Henzelin, supra note 82. Of particular interest results his nuanced classification of conventions, distinguishing between those that require only the passing of legislation (Tokyo model), and those that require actual prosecution or extradition (Hague model). 119 The full list of grave breaches as found in the Geneva Conventions include: wilful killing, torture or inhuman treatment, including biological experiments, wilfully causing great suffering or serious injury to body or health, unlawful deportation or transfer or unlawful confinement of a protected person, compelling a protected person to serve in the forces of a hostile Power, or wilfully depriving a protected person of the rights of fair and regular trial prescribed in the present Convention, taking of hostages and extensive destruction and appropriation of property, not justified by military necessity and carried out unlawfully and wantonly. (Article 146 GC IV, supra note 40.) 120 Text common to all four 1949 Geneva Conventions, found in Articles 50/51/130/146 respectively. Supra note 40.


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Although the provision makes no reference to the location where the crime was

committed, the phrase ‘regardless of their nationality’ clearly establishes an obligation for

States to give priority to the prosecution of grave crimes, wherever or by whoever

committed, over any other consideration. As Pictet explains,

The obligation on the High Contracting Parties to search for persons accused to have committed grave breaches imposes an active duty on them. As soon as a Contracting Party realizes that there is on its territory a person who has committed such a breach, its duty is to ensure that the person concerned is arrested and prosecuted with all speed. The necessary police action should be taken spontaneously, therefore, not merely in pursuance of a request from another State.121

A similar and unequivocal interpretation is given by Henzelin, who agrees that the

Conventions, in a quite sui generis fashion, establish an obligation primo prosequi secundo

dedere, namely, to search for and prosecute suspected offenders, “avec la possibilité facultative pour

l’Etat où se trouve le prévenu de le remettre à un autre Etat, pour autant que celui-ci retienne également

des charges suffisantes contre ce prévenu.”122 The possible effects of such prioritization shall be

further discussed in Chapter Two.

As for the customary nature of this obligation, little controversy arises in the case of the

1949 treaties, as all States are now parties and thus have expressly consented to the

repression regime found therein. Their customary status had also been previously

confirmed in Nicaragua by the ICJ, in 1986.123 With regards to those war crimes only

found in the 1977 Protocol,124 as well as those committed in non-international armed

conflicts, customary law would also seem to accept a State’s exercise of universal

jurisdiction, albeit in the form of a right to prosecute, not an obligation. Such was the

conclusion of the ICRC Study on Customary International Humanitarian Law,

specifically Rule 157.125

121 Pictet, J. Commentary, IV Geneva Convention Relative to the Protection of Civilian Person in Time of War of August 12, 1949, p. 593, available at http://www.icrc.org/ihl.nsf/COM/380-600055?OpenDocument (last visited on 18 November 2008). 122 Henzelin, supra note 82. p. 353. 123 The Case concerning military and paramilitary activities in and against Nicaragua (Nicaragua v. United States), ICJ, 1986, available at http://www.icj-cij.org/docket/files/70/6503.pdf (last visited on 19 October 2007), pp. 218–219. 124 Currently 168 States are party to the Additional Protocol I. 125 “State practice establishes [States have the right to vest universal jurisdiction in their national courts over war crimes] as a norm of customary law with respect to war crimes committed in both international and non-international armed conflicts.” In Henckaerts, J. and Doswald-Beck, L. Customary International Humanitarian Law. Cambridge University Press, 2005.


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Crimes against humanity

The case for crimes against humanity is much less clearly established. Included in the

Nuremberg Charter,126 annexed to the London Agreement, they were most recently

defined in the Statutes of the former Yugoslavia and Rwanda Tribunals,127 and now fall

under the jurisdiction of the ICC.128 However, no specific convention on crimes against

humanity has been agreed to by States, and thus no explicit grounds for traditional or

extraterritorial exercises of jurisdiction have been determined.

Two treaties may be cited, however, dealing with specific crimes that may amount to the

underlying offence of a crime against humanity. The first is the 1973 International

Convention on the Suppression and Punishment of the Crime of Apartheid, particularly

Article IV, which requires State parties to take measures to suppress, prosecute, try and

punish “in accordance with their jurisdiction”129 persons responsible for apartheid. As

per Amnesty International, this should be read “in accordance with their jurisdiction

under international law, which includes universal jurisdiction”.130 The second refers to

the 1984 Convention Against Torture and Other Cruel, Inhuman or Degrading

Treatment or Punishment which, in much clearer terms requires all State parties to

establish jurisdiction over the crime both under the principle of territoriality, as well as

for “cases where the alleged offender is present in any territory under its jurisdiction and

it does not extradite him” (Article 5).131 Should the situation arise, the State would be

obliged to, “if it does not extradite him, submit the case to its competent authorities for

the purpose of prosecution” (Article 7).132 Certainly if applicable to torture as a discrete

crime, it would necessarily apply as a crime against humanity.

In terms of customary law, most scholars agree in that the opinio juris of States does

indeed provide crimes against humanity with special gravity under international law, and

126 Agreement for the Prosecution and Punishment of the Major War Criminals of the European Axis, and Charter of the International Military Tribunal. London, 8 August 1945. Available at http://www.icrc.org/ihl.nsf/FULL/350?OpenDocument (last visited on 9 January 2009). 127 Article 5, ICTY Statute, Article 3 ICTR Statute. 128 Article 7, ICC Statute. 129 International Convention on the Suppression and Punishment of the Crime of Apartheid, adopted and opened for signature, ratification by General Assembly resolution 3068 (XXVIII) of 30 November 1973, entry into force on 18 July 1976, in accordance with article XV. 1015 UNTS 244 (1973). 130 Amnesty International, Universal Jurisdiction: the Duty of States to Enact and Implement Legislation (Report) Chapter Five. (Crimes Against Humanity, The legal basis for universal jurisdiction), AI Index: IOR 53/008/2001, Distr: SC/CO/PG/PO, p. 3. 131 Convention Against Torture, supra note 41, Article 5§2. 132 Idem., Article 7§1.


17

would allow for the right to prosecute under universal jurisdiction.133 Such was the

position of domestic judges in Pinochet and other cases,134 as well as the conclusion of

comprehensive studies on these crimes.135 As for State practice, more than a 100 States

are known to provide for their courts to domestically prosecute some forms of crimes

against humanity under universal jurisdiction.136 However, “prosecutors have only

opened investigations or commenced prosecutions in a dozen of these States since the

Second World War, […] or have arrested persons at the request of States seeking to

exercise such jurisdiction”.137

Genocide

The commission and punishment of genocide, sometimes labelled ‘the crime of crimes’,

was clearly codified in the 1948 Convention on the Prevention and Punishment of the

Crime of Genocide.138 Quite surprisingly, however, it does not provide for universal

jurisdiction, but limits prosecution to “a competent tribunal of the State in the territory

of which the act was committed, or by such international penal tribunal as may have

jurisdiction with respect to those Contracting Parties which shall have accepted its

jurisdiction”.139

Such limited jurisdiction was broadened by the ICJ, both in its Advisory Opinion on

Reservations To The Convention On The Prevention And Punishment Of The Crime

Of Genocide (Advisory Opinion of 28 May 1951), the Barcelona Traction case (where it

listed genocide as a crime against the community of nations, already cited) and most

recently the Genocide case (Bosnia-Herzegovina v. Serbia and Montenegro),140 where it

confirmed that “the rights and obligations enshrined by the Convention are rights and

133 Scholars justify this assertion based on the Nuremberg trials, the Convention on the non-Applicability of Statutes of Limitations, the Statutes of the ad hoc tribunals, the ICC Statute, plus the fact that these crimes embody exactly the theory that certain offences go against humanity as a whole, and thus any member of that community should be allowed to prosecute a suspect if the opportunity arises. 134 “[W]e consider that there exists a customary rule of international law, indeed jus cogens, recognizing universal jurisdiction and authorizing national authorities to prosecute and bring to justice, in all circumstances, persons suspected of crimes against humanity.” Decision of the Tribunal de première instance, Brussels, 6 November 1998 determining that it had jurisdiction over Augusto Pinochet. In supra note 130. 135 Cf. Bassiouni, Crimes Against Humanity in International Criminal Law Kluwer Law International, 1999, pp. 237-240. 136 See Amnesty International Report, supra note 130. 137 Including Austria, Belgium, Canada, Germany, Israel, Mexico, the Netherlands, Paraguay, Senegal, Spain, the UK and the US. In Beigbeder, Y. International Justice Against Impunity: Progress and New Challenges, Martinus Nijhoff Publishers, 2005, p. 50. 138 Genocide Convention, supra note 42. 139 Idem., article VI. 140 The Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), ICJ case 91, The Hague, 26 February 2007. Available at http://www.icj-cij.org/docket/files/91/13685.pdf (last visited on 13 December 2008).


18

obligations erga omnes. The Court notes that the obligation each State thus has to prevent

and to punish the crime of genocide is not territorially limited by the Convention”.141

Still, only a handful of national courts have actually exercised universal jurisdiction over

persons suspected of genocide, or authorized their extradition to other States willing to

do so, among them Germany, Israel,142 Mexico and Spain.143

In short, it would seem reasonable to conclude that at least under treaty and customary

law,

the clearly prevailing view is that genocide, crimes against humanity, and war crimes (including not only grave breaches of the Geneva Convention but the ‘Hague law’ applicable in international armed conflict, as well as crimes arising in non-international armed conflicts) give rise to permissive universal jurisdiction at international law.144

Potential obstacles in the exercise of universal jurisdiction

Whether or not a State decides to initiate proceedings against a suspected offender under

universal jurisdiction, even when acting under a firmly recognized international

obligation, will inevitably require consideration of two further sets of potential

difficulties: one of them, legal, in the form of potential conflicts between universality and

other international norms such as the principle of non bis in idem, amnesties for past

crimes or immunities enjoyed by public officials. The second, more practical, would

include such matters as lack of appropriate domestic legislation, international comity (or

the fear of abuse), access to evidence, availability of extradition mechanisms and other

considerations. Some will be reviewed next.

Non bis in idem

Non bis in idem, or double jeopardy, is a general principle of law by which a person may

not be tried for a second time based on the same charges and the same facts.145

Evidently, the forum where this second trial may be held is irrelevant, as what is at stake

is the respect for the humanity and dignity of every individual, including suspected

criminals. Difficult issues arise, however, when dealing with international crimes subject

to the exercise of universal jurisdiction. If no traditional link is required between the

141 Idem., Preliminary objections, para. 31, 11 July 1996. Available at http://www.icj-cij.org/docket/files/91/7349.pdf (last visited on 9 January 2009). 142 Eichmann v. Attorney General of Israel, 36 ILR Supreme Court of Israel, 1968. 143 Beigbeder, supra note 137, p. 52. 144 Broomhall, infra note 155, p. 405 145 In the US, this means that a not-guilty verdict is final. In other countries the restriction applies only for the same acts, however legally characterized. Cf. generally, Global Report, supra note 32.


19

crime and the forum State, potentially courts in every country could decide to install

proceedings against the same person. If, then, to fight impunity implicitly means to find,

prosecute and punish, would the courts of one State respect a decision of acquittal by

courts in other States? If the crime offends the international community as a whole, what

stops each member of such community from seeking a guilty verdict? According to

Professor Fletcher, universal jurisdiction indeed provides “no guarantee whatsoever

against hounding an accused in one court after another until the victims are satisfied that

justice has been done”.146

Clearly, the above scenario could be avoided by a strict respect for the non bis in idem

principle. However, as Fletcher continues, this would also mean that if a court in a third

State acting under the principle of universality tried and acquitted a suspected criminal,

those directly affected by the crime, namely the local community where the crimes were

committed, the direct victims and witnesses, would again be impeded from obtaining

justice. In a way, “the supposed cure of joining non bis in idem with universal jurisdiction

would be worse than the disease. It would give the first court to hear the case the power

to decide the fate of the accused and the whole world would have to defer to their

possibly idiosyncratic judgment”.147

Important as the courts in the local communities are, however, it should be noted that

the fight against impunity through universal jurisdiction, in effect, derives from their

generalized failure to prosecute the most heinous crimes, not from an over-eagerness on

the part of foreign judges in third States. In effect, as Professor Abi-Saab points out, the

problem is not that of establishing which court should hold priority, but that of finding

any judge willing and able to prosecute.148 As such, universal jurisdiction, far from a

violation of the rights of the accused, continues to be merely “a fail-safe solution called

for by urgency and necessity”.149

Immunities

Most of States’ apprehension towards universal jurisdiction, even when their official

discourse favours the international movement against impunity, derives from their

146 Fletcher, G. ‘Against Universal Jurisdiction’, 1 Journal of International Criminal Justice, December 2003, pp. 580 - 584. 147 Idem. 148 Abi-Saab, supra note 109. 149 Idem. See further Chapter Two, on prioritisation of principles of jurisdiction for international crimes.


20

concern for the effect prosecutions abroad could have on the immunities of public

officials as currently recognized under international law. Of course, this is easily

understood when absolutist arguments in favour of universal jurisdiction are misread to

mean that all other norms of international law should yield to the ‘higher purpose’ of

punishing and preventing violations of human rights. It should be borne in mind,

however, that the norms on jurisdiction do not contradict or alter the current rules on

immunities.150 The latter may be summarized as follows:

Two general categories of immunities are recognized under international law. Personal

immunities, on one hand, are those granted to Heads of State, Ministers of Foreign

Affairs, Heads of Mission and arguably other very high State officials. They cover all acts,

private or public, and prohibit the initiation of proceedings against them, providing a

procedural bar against prosecution. This responds to the logic that, while in office, these

high authorities should not be tried, cited or summoned by foreign courts, at least

without their consent, as that could seriously affect the running of government, the

international relations between theirs and other States, and be potentially embarrassing to

the nation as such. As the ICJ stated in the Arrest Warrant case, however, immunity from

jurisdiction should not be made to mean impunity.151 According to the Court, any of the

above mentioned public officers could be tried under an extra-territorial basis of

jurisdiction if the State they represent decides to waive their immunity, or once they

cease to hold office they are prosecuted for acts committed prior or subsequent to their

time in office, or committed during their time in office in a private capacity.152 The whole

question here would be to define the extent of the concept of "private capacity" as

applied to such high-level States' representatives while in office and whether international

crimes could be considered as falling under such concept.

On the other hand, functional immunities attach to the acts of any public official, included

those mentioned above, committed while carrying out their functions (or in an official

capacity). They are a substantial bar, which means the person may be brought before a

court, where the defence of immunities might then be raised. Acts committed privately

are not covered and, as the immunities attach to the act, and not the person, they remain

150 Arrest Warrant case, supra note 33, §60. 151 Idem. 152 Ibid., §61.


21

an applicable defence in court regardless of whether or not the person left his or her

official post.

As for the prosecution of international crimes specifically, there is a strong trend among

international jurisprudence and some scholars to state that, while personal immunities

would normally preclude prosecution of even the core crimes (genocide, crimes against

humanity, war crimes), the functional type, however, no longer constitutes an allowable

defence.153 In practical terms, this means that while an incumbent Head of State or

similar may not be indicted or prosecuted for international crimes in a foreign court, she

or he would still be subject to proceedings once his or her term in office expires.154 As

for lesser officials, they could be prosecuted for international crimes (not any other

offences) even while holding public office.

Practical considerations

The decision to prosecute on the principle of universal jurisdiction also raises special

challenges concerning more practical issues. Some of these include, first, the fact that the

major part of the evidence will most probably be found in the territory of the State where

the crimes were committed, or more worryingly, in the hands of such State’s public

officials. This may not only make it extremely difficult to build a case but even to assess

the authenticity of the little evidence obtained.

Secondly, the prosecuting State may not be in a position to provide protection to

witnesses, either abroad or found in its territory, during the duration of the trial or even

less in the long term. Without sufficient assurances from the forum State, victims or

witnesses may remain understandably reluctant to participate in the trial.

This, in turn, could make it very difficult for a public prosecutor to push for a case which

has little chances of success. The exercise of universal jurisdiction is indeed cumbersome

and costly, which will inevitably lead authorities to consider whether they indeed wish to

spend their limited resources in a case with no direct link to their jurisdictions, and

potentially very problematic.

153 Cf. Cassese, A. International Criminal Law’ 2nd Edition, Oxford University Press, March 2008, Chapter 14. 154 The view would, at least apparently, contradict the literal meaning of paragraph 61 of the Arrest Warrant judgment (see supra note 33), for which reason it has been severely criticized.


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Finally, and as has already been mentioned, universal jurisdiction may cause seemingly

unnecessary political friction between the State attempting to prosecute and the States

where the crimes were committed or whose alleged criminal is a national. This, which

explains why so many countries provide political bodies (such as the Office of the

Attorney-General) with the final decision concerning extraterritorial proceedings,155 was

also behind the fear of ‘jurisdictional imperialism’156 that triggered the latest resolution on

universal jurisdiction by the General Assembly of the African Union.157

Concluding remarks

By briefly reviewing the distinct legal and practical issues, the above text has intended to

provide an overview for States on the exercise of universal jurisdiction. As should have

become clear, the current state of international law allows each country to determine its

own bases of domestic jurisdiction, including extraterritorial jurisdiction based on the

principle of universality, as long as such bases do not go against international law.

Regarding universal jurisdiction proper, it should be borne in mind that, while both the

internationalist and conditional approaches allow for the initiation of proceedings based on

universality, each is based on a substantially different view of the current state of

international law, and thus arrive at different conclusions regarding States’ rights or

obligations to prosecute. This uncertainty is clearly less when based exclusively on treaty

law. However, even in those cases like the 1949 Geneva Conventions where the text

provides for clear parameters of action, States willing to prosecute should remain aware

of the potential difficulties they shall encounter in their attempt to fight impunity. One of

such hurdles, the positive conflict of jurisdictions with another State, shall be discussed

in detail in the next Chapter.

155 Broomhall, B. ‘Towards the Development of an Effective System of Universal Jurisdiction for Crimes Under International Law’, 35:2 New England Law Review, 2001, p. 416 156 International Council on Human Rights Policy, Thinking ahead on Universal Jurisdiction, 1999, p. 26. 157 AU Report, supra note 39.


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CHAPTER TWO

Chapter One attempted to provide an overview of the legal bases for the exercise of

universal jurisdiction when prosecuting the core international crimes. After discussing the

general rules regarding extraterritorial judicial enforcement, it presented two alternative

approaches to universality: one, based on the protection of common international values

and legally justified mostly via the responsibility arising erga omnes from the hierarchically

superior norms of jus cogens; the other, more conservatively dependent on explicit

multilateral State consent, and found primarily in treaty law and State opinio juris. Both

approaches, it was concluded, would at least allow – in given circumstances – for the

lawful exercise of jurisdiction over certain crimes.

Evidently, the exercise of jurisdiction based on universality carries with it certain

implications: precisely the lack of a traditional link between the forum State and the

crime means that there will always be other States, most commonly the State in whose

territory the crimes were committed and that of which the suspect is a national, with a

legitimate interest in the case. This interest may be even greater if the case involves the

accusation of foreign public officials, as can be a common occurrence in the case of

international crimes.158 Although some examples of collaboration do exist,159 States’

reactions will most probably range from inter-State negotiations to interrupt the

proceedings,160 formal extradition requests, up to an open challenge to the forum State’s

actions,161 or even a full-blown international dispute.162

The following Chapter will focus on this inter-State conflict of jurisdictions, in two steps:

first, it will review the existence of general norms of international law available for any

conflict of jurisdiction, discussing whether they provide sufficient guidance for the

solution of these matters. This will include general principles of law, provisions found in

multilateral treaties and, finally, those established in bilateral agreements dealing with

extradition issues. Such analysis of positive rules shall be followed by the presentation

158 This was the case of Pinochet, Scilingo, the Guatemalan Generals, Eichmann, and others. 159 Cf. Kirgis, F. ‘Request for Extradition of Miguel Cavallo from Mexico to Spain for Alleged Torture in Argentina’, American Society of International Law, Insights, 2000. Available online at http://www.asil.org/insigh49.cfm (last visited on 8 January 2009). 160 Perhaps the most noted case was that of the US on Belgium. See Introduction, above. 161 As did Chile during the Pinochet proceedings in the UK. Cf. Supra note 12. 162 The most commonly cited is the Arrest Warrant before the ICJ (cf. supra note 33), although it focused on the question of immunities and did not deal with universal jurisdiction as such.


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and further discussion of two more interpretative approaches to the solution of conflicts

of jurisdiction, mainly proposed by scholars and some State practice: namely, one

favouring an emphasis on the nexus between the forum and the crime as grounds for the

establishment of a hierarchy of jurisdictions, vis-à-vis another that promotes a weighing

of different conditions and interests, ad hoc to each case. Both approaches shall be

reviewed in light of their potential as effective guidelines for States willing to prosecute

those suspect of committing international crimes under the principle of universality.

Conflicts arising from concurrence of jurisdictions under international law

International law recognizes two types of potential conflicts in the exercise of

jurisdiction. The first is known as a negative conflict of jurisdiction, and arises every time a

crime goes unpunished for lack of a competent forum to try the perpetrator. This can

easily occur if criminal conduct is penalized in one State but not in another, or is only

penalized subject to the condition that the crime occurs within the territory of the forum

State, and the offender commits the act in the former State but then travels to the

territory of the latter. In the case of an international crime, such would be the case if, to

take an example from above, domestic legislation established jurisdiction over the crime

of genocide according to a strict interpretation of the conditions set by the Genocide

Convention.163 Indeed, while under Article 5, the treaty requires States to enact the

necessary legislation to give effect to the provisions criminalizing genocide and, in

particular, to provide effective penalties,164 however under Article 6 such legislation limits

the possibility of prosecution only to those Courts operating in the territory where the

crime was committed, and not elsewhere.165 It is to avoid such jurisdictional gaps, and

hence impunity, that international law has long recognized the possibility for States to

establish jurisdictions which they regard ‘best and most suitable’,166 for domestic offences

as much as for international crimes. Such jurisdictional regime was discussed in Chapter

One.167

163 Cf. Chapter One. 164 Article 5 reads: “The Contracting Parties undertake to enact, in accordance with their respective Constitutions, the necessary legislation to give effect to the provisions of the present Convention, and, in particular, to provide effective penalties for persons guilty of genocide or any of the other acts enumerated in article III”. Available at: http://www.unhchr.ch/html/menu3/b/p_genoci.htm (last visited on 8 January 2009). 165 Article 6 states persons ‘shall be tried by a competent tribunal of the State in the territory of which the act was committed’. Available at: http://www.icrc.org/ihl.nsf/FULL/357?OpenDocument (last visited on 11 November 2008). 166 Cf. SS. Lotus case, supra note 57. 167 See ‘The exercise of extraterritorial jurisdiction under international law’, Chapter One, p. 2


25

The second type of conflict, and which will occupy the rest of this Chapter, is known as a

positive conflict of jurisdictions, and arises every time two or more States claim jurisdiction

over the same suspect and for the same events. Following the logic just mentioned

regarding potential for impunity, such concurrence of jurisdictions is deemed “acceptable

and convenient; and forbearance by States in the exercise of their jurisdictional powers

avoids conflicts in all but a small (although important) minority of cases”.168 However, it

is precisely such alleged ‘lack of forbearance’ by a recently increased number of States

willing to prosecute under the principle of universality that currently centres other States’

criticisms.

Unfortunately, and albeit developing into a highly contentious area of international

relations,169 scholars agree in that international law still does not provide with a general

norm establishing a hierarchy of jurisdictions that would thus enable for a more

standardized approach to the resolution of positive conflicts of jurisdiction.170 Although

in the Barcelona Traction case, Judge Fitzmaurice asserted international law does involve

for every State

an obligation to exercise moderation and restraint [emphasis added] as to the extent of the jurisdiction assumed by the courts in cases having a foreign element, and to avoid undue encroachment [emphasis added] on a jurisdiction more properly appertaining to, or more appropriately exercisable by, another State.171

Still the questions as to what would be considered ‘encroachment’ or in what situations a

given jurisdiction would be more appropriately exercised by another State were left and

remain open today. As was already mentioned in the previous Chapter, even when in

certain cases States have indeed argued for the preponderance of the principle of

territoriality as an exclusive ground for prosecution, this has been always expressly

rejected: such was precisely the position of the PCIJ in the Lotus case, in which the Court

– though recognizing that the principle of territoriality was fundamental - established that

matters of jurisdiction should ‘by no means coincide’ with matters of sovereignty, thus

rejecting the notion that the exercise of jurisdiction could be the exclusive competence of

only one State.172

168 Jennings and Watts, (eds.) Oppenheim’s International Law, Vol. 1, Peace (9th ed.), Oxford University Press, 2008, Section 136. 169 The AU Report, mentioned supra, is a clear example of this. 170 See Bantekas, I. and Nash, S. International Criminal Law. Routledge Cavendish, 2003, p. 144 171 Barcelona Traction case, supra note 71, as cited in Inazumi, infra note 199, p. 162. 172 SS. Lotus case, supra note 57.


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With regards to any relevant provisions found in treaty law, most of the conventions

dealing with international crimes are either silent on the matter or limit themselves to

determining the different grounds of jurisdiction under which the crimes may be

prosecuted, but without specifying a hierarchy in case of positive conflicts of jurisdiction

or providing for alternative solutions. Examples of these include the Geneva

Conventions,173 the Genocide Convention174 and the Convention against Torture175 –

briefly reviewed in the previous Chapter – as well as most of the treaties dealing with

other international criminal offences, usually related to terrorism, and which provide for

a conditional exercise of universal jurisdiction.176

Only in a handful of exceptions does a convention provide for an explicit reference to

potential conflicts of jurisdiction. Unfortunately, little help is obtained as the provisions

mainly limit themselves to no more than a call for cooperation. One such an example is

Article 7§5 of the International Convention for the Suppression of the Financing of

Terrorism,177 the first anti-terrorism text to include a provision on the matter, opened for

signature in 2000. The provision reads:

When more than one State Party claims jurisdiction over the offences set forth in article 2 [i.e. providing or collecting funds with the intention that they be used for terrorism offences as defined in nine other treaties dealing with terrorism], the relevant States parties shall strive to coordinate their actions appropriately [emphasis added], in particular concerning the conditions for prosecution and the modalities for mutual legal assistance.

Again, it must be noted that no further details are provided for determining the

“appropriateness” of the coordination nor are States obliged to do more than “strive” to

achieve it. More importantly, no mention is made of any pre-established hierarchy

concerning the “conditions for prosecution”, effectively levelling the possibility for a

State to exercise extraterritorial jurisdiction – allowed conditionally under Article 7§4 of

the Convention178 – with the more traditional grounds found in §1 and §2.179

173 Geneva Conventions, supra note 40. 174 Genocide Convention, supra note 42. 175 Convention Against Torture, supra note 41. 176 See Chapter One. 177 International Convention for the Suppression of the Financing of Terrorism, Adopted by the General Assembly of the United Nations in resolution 54/109 of 9 December 1999, 39 I.L.M. 270, 2000. 178 Article 7§4 of the Convention reads: “Each State Party shall likewise take such measures as may be necessary to establish its jurisdiction over the offences set forth in article 2 in cases where the alleged offender is present in its territory and it does not extradite that person to any of the States Parties that have established their jurisdiction in accordance with paragraphs 1 or 2”. Available at: http://untreaty.un.org/english/Terrorism/Conv12.pdf (last visited on 8 January 2009). 179 Particularly the principles of territoriality, active personality and when on board a vessel flying the flag of the State.


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Bilateral agreements: the law of extradition

Lacking more specific provisions in universal agreements, it is worth reviewing whether

some positive guidance may however be found in inter-State arrangements at the bilateral

level, and more specifically in those related to conditions for the extradition of

individuals facing criminal charges. Evidently, the provisions of any bilateral treaty apply

only inter partes; however, it is widely accepted that in the case of extradition agreements,

most apply the same rules with minimum variations, making them a reliable source of

State practice and potentially customary international law. As the U.S. Restatement

(Third) of the Law on Foreign Relations explains, matters of extradition are

generally governed by treaty and subject to various limitations. A network of bilateral treaties, differing in detail but having a considerable similarity in principle and scope, has spelled out these limitations, and in conjunction with State legislation, practice, and judicial decisions has created a body of law with substantial uniformity in major respects.180

It should also be borne in mind that, in the case of positive conflicts of jurisdiction, a

dispute will almost always comprise no more than two or three States, making its

resolution a bilateral affair to which – in most cases – the terms of any pre-existent

bilateral agreement would prevail as lex specialis over a general rule of international law.181

A request for extradition may arise in a case involving the exercise of universal

jurisdiction in the following scenarios: one is when the accused is detained in the territory

of a State, proceedings are initiated in situ under the principle of universality and then

another State, usually that of which the accused is national or where the crimes were

committed, requests the extradition of the person for prosecution before its own courts.

It may also arise with the parties reversed, that is, if a State willing to prosecute

individuals not present in its territory decides to file a request for extradition with the

State of nationality or residence of the persons indicted.182 In both cases, two aspects of

general extradition law and practice may shed light on the resolution of conflicts of

jurisdiction: one, the development of a set of conditions under which a State may

unilaterally decide not to extradite a person to the requesting State. The other, the

180 Restatement of the Law, Third, Foreign Relations Law of the United States, The American Law Institute Publishers, 1987. 181 Exception being jus cogens norms, see supra note 103. 182 Both scenarios were discussed, albeit from a different angle, when reviewing the different rationales of universal jurisdiction, and within these rationales, the importance given to the presence of the accused in the forum State. The second scenario above described was at the centre of the Spanish Constitutional Court’s judgment in the Guatemala Generals case, cf. supra note 93.


28

inclusion in numerous extradition treaties of explicit criteria under which the requested

State may solve competing petitions of extradition from two or more States. Each shall

be discussed below:

Most extradition treaties demand different conditions be met in order for a State to

detain and send a person to another State for the purposes of prosecution. These

generally include the principle of double criminality, under which the acts committed by

the suspect must constitute a penalized offence in both the custodial and requesting

States; and the principle of speciality, by which the requesting State is bound to try the

extradited person only for those crimes it included in the request and which were

accepted to by the custodial State.183 Some States include conditions under which they

may never grant extradition, most commonly in the form of a prohibition to extradite

their own nationals.184

The particularity of both these sets is that the decision to extradite involves an evaluation

of circumstances mostly within the custodial State (as discussed, the inclusion of the

crimes in question in its domestic criminal code and the nationality of the person held in

the custodial State, inter alia). Most importantly, however, custodial States may also reject

an extradition request after an evaluation of certain conditions existing in the requesting

State.185 This may occur in at least four situations:

The first and most recognized is that of a request for extradition involving the

commission of a political offence. Extradition may be denied if the requested State

considers that the charges against the person constitute a political crime, most commonly

involving acts aimed not at personal gain, but for a higher political purpose.186 Although

the practice used to be well-established in international relations, its application is now

expressly prohibited in cases involving international crimes, mainly via the inclusion of

183 Brownlie, supra note 68, p. 319. 184 Such was the argument posed by Japan in the infamous Fujimori case, to deny extradition of Alberto Fujimori to Peru to face charges of crimes against humanity. Fujimori, president of Peru from 1990-2000, consistently denied holding Japanese nationality during his time in office, an allegation proved false only after he resigned to the presidency during an official trip to Asia, after which he established himself in Tokyo. In a quite unexpected move, he flew to Chile in 2007, where he was detained and finally extradited to Peru. He is currently standing trial in Peru and faces charges for crimes against humanity. The US-Peru Extradition Agreement, on the other hand, expressly prohibits refusal on the ground that the person is a national of the requested State (Article III, see infra note 204). 185 Although this could be seen as interference in the internal affairs of another State, in most cases it would be allowed based on previous consent (an extradition treaty). In others, however, it would not, as will be seen later. 186 Cf. Kellet, M. ‘Extradition – the concept of the political offence’, 8, 1 Liverpool Law Review, March 1986.


29

explicit provisions in multilateral conventions.187 All crimes here analysed and subject to

universal jurisdiction would be exempt from this categorization.

Secondly, a person may not be extradited if there is risk of such person being subjected

to torture, inhuman or degrading treatment. Embodied in the principle of non-refoulement

and largely developed in the context of refugee law, it has been emphatically confirmed

and sustained by the European Court of Human Rights (ECHR),188 Some would argue

the principle has attained jus cogens status.189

Closely linked to the condition just mentioned is the prohibition to extradite if the

person could be subjected to the death penalty. Although not expressly prohibited by

international human rights instruments,190 many countries have raised their doubts as to

the appropriateness of such form of punishment, establishing an internal prohibition to

extradite to any country where a guilty verdict could entail such possibility: an example

worth mentioning in this respect is that of Niyonteze v. Public Prosecutor,191 involving a

Rwandese national detained in Switzerland and facing an extradition request to his home

country for violations of Article 3 Common to the Geneva Conventions and other war

crimes. In a surprising decision, Swiss authorities considered preferable to prosecute the

suspect on the basis of universal jurisdiction rather than grant the extradition and allow

Rwanda to prosecute under the principle of territoriality, based primarily on the fact that

a conviction could have implied capital punishment.192 Similarly, several of the most

recent extradition treaties signed by the US – where capital punishment is still legal in

187 One such provision may be found in Article 14 of the International Convention for the Suppression of the Financing of Terrorism: “None of the offences set forth in article 2 shall be regarded for the purposes of extradition or mutual legal assistance as a political offence or as an offence connected with a political offence or as an offence inspired by political motives. Accordingly, a request for extradition or for mutual legal assistance based on such an offence may not be refused on the sole ground that it concerns a political offence or an offence connected with a political offence or an offence inspired by political motives”. Available at http://untreaty.un.org/english/Terrorism/Conv12.pdf (last visited on 9 January 2009). 188 Cf. Soering v. United Kingdom, (Series A, No 161; Application No 14038/88), European Court Of Human Rights, (1989) 11 EHRR 439, 7 July 1989. 189 Cf. Newmark, Robert L. ‘Non-Refoulement Run Afoul: The Questionable Legality of Extraterritorial Repatriation Programs’, 71 Washington University Law Quarterly, 1993, pp. 833-845. 190 See Article 6 of the International Covenant on Civil and Political Rights. Available at http://www.unhchr.ch/html/menu3/b/a_ccpr.htm): “2. In countries which have not abolished the death penalty, sentence of death may be imposed only for the most serious crimes in accordance with the law in force at the time of the commission of the crime and not contrary to the provisions of the present Covenant and to the Convention on the Prevention and Punishment of the Crime of Genocide. This penalty can only be carried out pursuant to a final judgement rendered by a competent court”. 191 For a full account of the case, see Reydams, L. ‘Niyonteze V. Public Prosecutor. Swiss Military Trial Of Former Rwanda Town Mayor Accused Of War Crimes For Inciting Murder Of Civilians In Rwanda’, 96, 1 American Journal of International Law, 2002, pp. 231-236 192 The case will be further commented upon in the following section, when discussing the ‘weighing of interests’ approach to solving positive conflicts of jurisdiction.


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some States193 – include a provision by which, should the offence for which extradition is

sought be punishable by death in the requesting State but not in the requested State,

the executive authority in the Requested State may refuse extradition unless the Requesting State provides an assurance that the person sought will not be executed. In cases in which such an assurance is provided, the death penalty shall not be carried out, even if imposed by the courts in the Requesting State.194

Similar provisions with minimum variations may be found in agreements with Argentina,

France, India, Republic of Korea, Poland and the United Kingdom.195

Finally, scholars identify a growing trend towards rejecting an extradition request also

based on an external evaluation of the requesting State ability and willingness to provide

a fair trial and a minimum standard of judicial guarantees. Such was expressly included in

the UN Model Treaty on Extradition,196 approved by the General Assembly on 12

December 1997, where it may be found as mandatory grounds for refusal the fact that a

person

… would be subjected in the requesting State to torture or cruel, inhuman or degrading treatment or punishment or if that person has not received or would not receive the minimum guarantees in criminal proceedings, as contained in the International Covenant on Civil and Political Rights, article 14.197

Clearly, the especial relevance of these criteria for the resolution of positive conflicts of

jurisdiction arises when it is considered that, as already mentioned, most of the

conventions providing for universal jurisdiction present States with the alternative,

founded in the principle of aut dedere aut judicare,198 of either to prosecute the suspect

found in its territory or extradite the person to be prosecuted in another State. This

would entail that, at least with respect to such treaties, a State’s decision to reject an

extradition request under any of the above criteria would necessarily trigger the

obligation to prosecute the person in custody for the international crimes imputed, based

on the principle of universality provided for in the same treaties. Such a decision would,

in effect, solve the positive conflict of jurisdiction arising out of the two States willing to

prosecute the same person for the same facts.

193 Most famously, Texas. 194 Article V, Peru-US 2003 Extradition Treaty. Infra note 204. 195 Murphy, S. (Ed.) ‘New U.S./EU and U.S./UK Extradition Treaties’, American Journal of International Law, Vol. 98, No. 4, Oct., 2004, pp. 848-850. 196 United Nations Model Treaty on Extradition, GA A/RES/52/88, 70th Plenary meeting, 12th December 1997. 197 Art. 3, Idem. 198 Although some authors have tried to establish whether the conventional rule means first extradite, secondly prosecute or vice-versa, this remains unclear. For the purposes of this discussion it shall be assumed States may choose equally between both options. For further detail on the debate see Henzelin, op.cit.


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Many extradition treaties also provide specific criteria for situations where two or more

States pose competing extradition requests, forcing the custodial State to choose between

them. While some establish a fairly simple decision-making process, demanding

consideration of only one determining factor, most present a range of elements to be

taken into account.

Indeed, a brief analysis of some of such agreements199 showed that, in the case of the US

and the UK, for example, an extradition treaty concluded in 1931 established that the

decision was to be made based entirely on the date of the competing requests, giving

obvious preference to that filed at an earlier time.200 In the case of the US and Hong

Kong, however, the relevant provision in an agreement signed in 1995 states that, should

concurrent requests arise with a third State,

the executive authority of the requested Party shall make its decision having regard to all the circumstances, including the relevant provisions [of agreements concluded between the US or Hong Kong and the requesting third State], the place of commission of the offences, their relative seriousness, the respective dates of the requests, the nationality of the fugitive offender, the nationality of the victim, and the possibility of subsequent surrender to another jurisdiction.201

Falling along the same line, the European Convention on Extradition requires States to

“make its decision having regard to all the circumstances and especially the relative

seriousness and place of commission of the offences”,202 together with the respective

dates of the requests, the nationality of the person claimed and the possibility of

subsequent extradition to another State.203

Certainly, the explicit mention of such factors as where the crime was committed, the

seriousness of the crime and the nationality of the person claimed do provide a State

with further guidance than international treaties and custom. Evidently, their inclusion is

an obvious reference to the well-accepted principles of jurisdiction based on territoriality

and active and passive nationalities. However, it is also a fact that none of the agreements

provide for an express hierarchy to be applied by the custodial State. Such is still the case

199 Performed by M. Inazumi in Universal Jurisdiction in Modern International Law: Expansion of National Jurisdiction for Prosecuting Serious Crimes under International Law, Utrecht: Intersentia, 2005, pp. 173 and following. 200 Article 10: “If the individual claimed by one of the High Contracting parties in pursuance of the present Treaty should be also claimed by one or several other Powers on account of other crimes or offences committed within their respective jurisdictions, his extradition shall be granted to the Power whose claim is earliest in date, unless such claim is waived”. In Inazumi, Idem., p. 173. 201Agreement for the Surrender of Fugitive Offenders between Hong Kong and the United States, reprinted on 36, 4 International Legal Materials, July 1997, p. 842, as cited in Inazumi, supra note 199. 202 European Convention on Extradition, CETS No. 024, entered into force on 18 April 1960, Article 17. 203 Idem.


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even in the new set of extradition treaties recently concluded by the US which, though

presenting clearer formatting and language, would seem to purposefully fall short of the

mark.

For example, the agreement between Peru and the US establishes a list of criteria, headed

by “(a) whether the requests were made pursuant to treaty; (b) the place where each

offense was committed; (c) the respective interests of the requesting States; (d) the

gravity of each offense;”204, and only then the possibility of further extradition and the

dates of the competing requests. As is common with the interpretation of lists found in

treaties, this could be read to provide for a hierarchy in the factors to be considered by

the requested State, giving priority to the existence of a previous extradition agreement

with the competing State (and thus favouring the fulfilment of previous treaty

obligations), followed by the territory where the crime was committed (that is, the

principle of jurisdiction based on territoriality). In spite of this, the provision itself leaves

clear that “in making its decision, the Requested State shall consider all relevant factors

[emphasis added]”,205 including – and thus not restricted to – the ones mentioned. Such a

wording clearly rejects any mechanical “checklist” approach to solving the issue, and

rather demands a comprehensive consideration of the situation as a whole.

In sum, it would seem clear that extradition law, much like the general principles of

public international law and multilateral conventions analysed before it, has been

explicitly developed by States to leave a wide range of discretion to the State where the

suspect is present. As recently discussed, such custodial State may resort to multiple

arguments to justify whether it should establish proceedings in its domestic courts,

including under universal jurisdiction, or it should proceed to extradite the person to

another State. Lacking a clear hierarchy in the rules, such discretion and the decision

making process that entails is the subject of multi-tiered interpretations, to be reviewed

below.

204 Extradition Treaty Between The United States Of America And The Republic Of Peru, Signed At Lima On July 26, 2001. Article XI on Concurrent Requests. Available at: http://www.oas.org/juridico/mla/en/traites/en_traites-ext-usa-per.pdf (last visited on 9 January 2009). 205 Idem., Article XI.


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Interpreting the rules: the case for different solutions to positive conflicts of jurisdiction

Having analysed the multilateral and bilateral rules applicable to positive conflicts of

jurisdiction, the next section will attempt to find further guidance in the domestic

solutions proposed by some States in their penal codes and local jurisprudence, followed

by an analysis of some general rules proposed by scholars.

As with the rationales behind the exercise of universal jurisdiction, two approaches to the

solution of positive conflicts of jurisdiction may be identified: one which favours a clear-

cut prioritisation of jurisdictions, determined mainly by the nexus between the forum and

the particular criminal acts in question. The other, one in which several components,

including the particular context and circumstances, may hold different degrees of

importance for the solution of any given case, leaving each State to make a final decision

on an ad hoc basis.

Establishing a Hierarchy of Jurisdictions and the Principle of inter-State Subsidiarity

For the first approach, the initial step involves the establishment of a hierarchy of

principles of jurisdiction, by which a State would only proceed to prosecute a suspect if

no other State with higher-ranking grounds for exercising jurisdiction effectively

proceeds. Such hierarchy would be composed of, in first term, the territoriality principle,

followed or equalled by the active nationality principle, and then by the passive

nationality, protective206 and finally universality principles.

The view finds support in scholarly opinion, among it Bassiouni’s early attempt to

produce a statute for an international criminal court. In his Draft International Criminal

Code,207 he suggested that, should the proposed international tribunal refuse to take on a

given case, contracting parties would have the right to exercise their jurisdiction in

accordance with “applicable theories of jurisdiction and their priority ranking […],

starting with the territorial principle, followed by the active and passive personality

principles, the protected interest, and the universality theory”.208 Such theories, in his

view, would be based on recognised international law and practice.209 An even stricter

206 Cf. Chapter One on the extra-territorial exercise of jurisdiction. 207 Bassiouni, M. Cherif. International Criminal Law: A Draft International Criminal Code, Brill Archive, 1980, p. 145. 208 Idem, p. 146. 209 Ibid.


34

position was taken by Professor Fletcher when, strongly opposing the exercise of

universal jurisdiction, he openly challenged the convenience of installing proceedings in

any other forum than that of the aggrieved community. In his opinion,

The principle of local concern is recognized in the Sixth Amendment to the American Constitution […].210 Why should this principle of keeping trials close to home receive constitutional status? The answer, I believe, is that […] the local community must confront the crime that has occurred among its people and seek a nuanced resolution that they can live with. When the local community tries the case, other countries can recognize the legitimacy of their interest and are likely to honour the decision […].211

As such, in his view “the very idea that a totally disconnected country would bring the

case [before its courts] is an offence to the jurisdictions that have the primary

responsibility to resolve the conflicts inherent in the trial”.212

A more nuanced hierarchy was proposed by S. Z. Feller, labelling the territoriality and

protective principles as of a primary nature, “since foreign legal factors relating to an

offense committed within the territory of the state can have no effect on the applicability

of the lex loci”;213 while the active, passive and universality principles would hold a

residuary status in the scale of priorities.214

What deserves attention is that the existence of a hierarchy of jurisdictions carries with it

the consequence that a State willing to prosecute under the principle of universality will

only be permitted to do so once it is established that other States with higher-ranking

grounds for jurisdiction have effectively waived their ‘right’ to prosecute. Such was

precisely the position of the Commission of Inquiry on Darfur, when, after labelling the

territoriality and active personality principles “the traditional way to bring alleged

perpetrators of international crimes to justice”,215 it stated that

[…] before initiating criminal proceedings this State [exercising universal jurisdiction] should request the territorial State (namely, the State where the crime has allegedly been perpetrated) or the State of active nationality (that is, the State of which the person

210 Which reads “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed”, US Constitution, available at http://www.findlaw.com/casecode/constitution/ (last visited on 10 January 2009). 211 Fletcher, supra note 147, p. 583. 212 Idem. 213 Feller, S. Z. ‘Jurisdiction over Offenses with a Foreign Element’, in A Treatise on International Criminal Law, Vol. II. Charles C. Thomas, 1994, p. 18. 214 Feller does acknowledge, however, that in many countries the active personality principle would in fact hold a primary status. (See Idem., p. 31). 215 Report of the International Commission of Inquiry on Darfur to the United Nations Secretary-General, Pursuant to Security Council Resolution 1564 of 18 September 2004, Geneva, 25 January 2005, at §611. Available online at http://www.un.org/News/dh/sudan/com_inq_darfur.pdf (last visited on 9 January 2009).


35

suspected or indicted is a national) whether it is willing to institute proceedings against that person and hence prepared to request his or her extradition. Only if the State or States in question refuse to seek the extradition, or are patently unable or unwilling to bring the person to justice, may the State on whose the person is present initiate proceedings against him or her.216

This, of course, falls clearly in line with those who support the inter partes or conditional

approach to universal jurisdiction (discussed in Chapter One), which contends its

exercise should be restricted to an action of last resort.217 Professor Abi-Saab was

sufficiently explicit in this regard, warning that any “representation [of universal

jurisdiction which] assumes a positive conflict of jurisdiction between fora competing for

the prosecution of international crimes” would “ignore its origins and rationale in

international law”.218

In terms of State practice, such a strong preference for providing universality with a

subsidiary nature to that of other principles of jurisdiction may be found in various

examples. An explicit case is that of the German Code of Criminal Procedure, amended

in June 2002 by the Act Introducing the Code of Crimes Against International Law,

which allows the Prosecutor to dispense with trying an offence under universal

jurisdiction if “the offence is being prosecuted […] by a State on whose territory the offence was

committed, whose national is suspected of its commission or whose national was harmed by the offence

(emphasis added)”.219 Similar conditions may be found in Belgium,220 the Netherlands,221

Japan222 and, at least with regards to recent jurisprudence, in Spain.223

As for specific cases, a rather extreme view of the principle of subsidiarity was adopted

by the Audiencia Nacional and the Supreme Court of Spain, when they rejected on

jurisdictional grounds a case against Guatemalan high military officers.224 Filed by Nobel

Peace Prize-winner Rigoberta Manchú and more than 20 NGOs on 2 December 1999,

the indictment charged with genocide a number of Guatemalan officials allegedly

responsible for the killing and persecution of members of the Mayan ethnic group during

216 Idem., at §614. 217 See Cassese, supra note 37, p. 593. 218 Abi-Saab, supra note 109. See also Chapter One, on Non bis in Idem. 219 German Code of Criminal Procedure, Article 153f (2)(4). 220 Article 7 of the Law amending the law of 16 June 1993, concerning the prohibition of grave breaches of international humanitarian law and Article 144 ter of the Judicial Code. 221 Human Rights Watch, supra note 31, p. 72. 222 Global Report, supra note 32, p. 65. 223 See National Court, 4th Section of the Criminal Chamber, Roll of Appeal No. 196/05, Preliminary Proceedings of 10 January 2006, concerning the Tibetan Genocide case. Cited in Human Rights Watch Report, supra note 31, p. 88. 224 Guatemalan Generals, supra note 93.


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the civil war in Guatemala, especially during the period 1980-1984. In an odd

interpretation of the Genocide Convention, the appeals court ruled that, as the treaty

imposes a duty to prosecute only upon the State on the territory of which the crime was

committed, this necessarily proved the subsidiary nature of universal jurisdiction with

regards to the territorial basis.225 The logic, which has been severely criticized226 and was

later overturned by the Constitutional Court,227 was taken by the Asamblea Nacional to the

highly debatable point of labelling subsidiarity a general principle of international law

with jus cogens character.228

Evidently, the greatest advantage of such an approach is that it presents States in the

midst of a positive conflict of jurisdiction with a uniform set of rules, applicable

objectively in all cases, no matter the circumstances. It should be noted, however, that

although a hierarchy of jurisdictions poses few problems when two or more States show

a genuine intention to prosecute (as it effectively establishes an order of priority), the

opposite occurs when Courts willing to act under the principle of universality face

complete inactivity there where the crimes were committed. In this sense, the question

which arises is when – absent explicit consent – could it be safely assumed that a State

has effectively waived its right to prosecute under the principles of territoriality or active

nationality, thus opening the door to other jurisdictions. Although some have resorted to

the common formula by which universal jurisdiction should be applied when “the justice

system of the country that was home to the violations is unable or unwilling to do so”,229

the question of when this is so, at least with regards to inter-State relations,230 remains

largely unclear.

225 Audiencia Nacional, Second ground of the decision of 13 December 2000: ‘en razón de la prevalencia de los tratados internacionales sobre el derecho interno ( ... ), es que el artículo 6 del Convenio para la Prevención y la Sanción del delito de Genocidio impone la subsidiariedad de la actuación de jurisdicciones distintas a las que el precepto contempla, de forma que la jurisdicción de un Estado debería abstenerse de ejercer jurisdicción sobre hechos, constitutivos de genocidio, que estuviesen siendo enjuiciados por los tribunales del país en que ocurrieron o por un tribunal penal internacional’. In Ascensio, H. ‘Are Spanish Courts Backing Down on Universality? The Supreme Tribunal’s Decision on Guatemalan Generals’, 1 Journal of International Criminal Justice, 2003, p. 694, footnote 12. 226 Ascensio, H. ‘Are Spanish Courts Backing Down on Universality? The Supreme …’, 1 Journal of International Criminal Justice, 2003, p. 690–702. 227 See supra note 93. 228 Cf. Ascensio, supra note 226, p. 694. 229 UN Secretary General Report, “The rule of law and transitional justice in conflict and post-conflict societies” S/2004/616, para. 48. 230 More clarity, of course, exists with regard to the complementarity regime of the ICC, where the same formula, together with brief definitions of the terms unable and unwilling, is found. This shall be discussed when dealing with positive conflicts of jurisdiction between a State and the ICC, in Chapter Three.


37

Proof of this is that, while the Audiencia Nacional and the Supreme Court in Guatemalan

Generals found insufficient the plaintiffs’ allegations regarding the elapse of almost 20

years since the commission of the crimes,231 the Constitutional Court overturned the

ruling, for considering the proof of a negative fact or omission (in this case inability or

unwillingness) too close to a probatio diabolica, that is, a burden of proof impossible to

discharge.232

Further discussion on this question, namely what can “unable or unwilling” mean in the

context of positive conflicts of jurisdiction, shall be discussed below as part of the

second approach (weighing of interests), and in more detail with regards to the ICC

Statute’s interpretation of the formula in Chapter Three.

Establishing the best forum, disregarding hierarchies

The alternative approach to solving conflicts of jurisdiction does not assume any pre-

established prioritisation of principles of jurisdictions. On the contrary, it puts its

emphasis on the notion that prosecution should be exercised in the forum that offers the

best possible guarantees of efficiency and success, with only the interests of justice in

mind. Evidently, such approach involves the rejection of a simple hierarchy of

jurisdictions and necessarily entails an analysis of several factors on a case by case basis.

Such view may be found in various sources. The US Restatement (Third), for example,

establishes that “a State may not exercise jurisdiction to prescribe law with respect to a

person or activity having connections with another State when the exercise of such

jurisdiction is unreasonable”.233 In order to determine such ‘reasonableness’, the State

should include an evaluation “of all relevant factors (emphasis added), including, where

appropriate”,234 the link of the activity to the territory of the regulating State, the

connections, such as nationality, residence or economic activity between the regulating

State and the suspect, inter alia. The Restatement goes as far as to conclude that the rule

231 It noted instead the fact that Guatemalan law does allow for the prosecution of the crime of genocide and a Truth Commission had been set up and issued a report on 25 February 1999 – that is, less than a year before the initiation of proceedings in Spain – and discarded any indication of inability or unwillingness on the part of Guatemala. 232 Ascensio, H. ‘The Spanish Constitutional Decision in Guatemalan Generals’, 4 Journal of International Criminal Justice, 2006, p. 589. 233 US Restatement (Third), supra note 181, Section 403. 234 Idem.


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of reasonableness has become not only part of US law, but also a rule of international

law.235

A similar view is found in the Princeton Principles on Universal Jurisdiction. Indeed,

Principle 8, which deals with the specific issue of conflicts of jurisdiction, states:

Where more than one State has or may assert jurisdiction over a person and where the State that has custody of the person has no basis for jurisdiction other than the principle of universality, that State or its judicial organs shall, in deciding whether to prosecute or extradite, base their decision on an aggregate balance of the following criteria (emphasis added): (a) multilateral or bilateral treaty obligations; (b) the place of commission of the crime; […]

And, most importantly, the requirement to evaluate

(f) the likelihood, good faith, and effectiveness of the prosecution in the requesting State; (g) the fairness and impartiality of the proceedings in the requesting State; (h) convenience to the parties and witnesses, as well as the availability of evidence in the requesting State; and (i) the interests of justice.236

Evidently, both the Restatement and the Principles bear extreme resemblance to the

approach found in numerous extradition treaties. Already discussed above, they would

provide further evidence to show a clear will from States to indeed leave matters of

jurisdiction to the discretion of the custodial State as much as possible, rather than

establish a rigid hierarchy of jurisdictions. A similar view has been expressed by

Professor Lagodny, when he argued that the State that prosecutes the suspect should be

the one whose jurisdiction offers the “best quality”, a characteristic

“not at all confined to the principles of jurisdiction (territoriality, personality, etc) but – also if not mainly – [found in] the interests of the prosecution (e.g. in which State is the most important evidence?) and those of the individual (e.g. where is the domicile?).237

Such a practical approach to determining the forum plus conveniens finds also support in

important cases. Perhaps the most notorious example would be Eichmann,238 where the

Supreme Court in Israel rejected the notion that the custodial State would necessarily

have to offer the suspect for extradition to the State where the crime was committed.

According to the Court,

the idea [behind giving preference to prosecution in the territory where the crime was committed was not designed] to prevent the violation of its territorial sovereignty. Its

235 In Inazumi, supra note 200, p. 177. 236 Princeton Principles of Jurisdiction, Principle 8. Supra note 28. 237 Cited in Inazumi, supra note 200, p. 184. Full citation in footnote 71. 238 Eichmann, infra note 239.


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basis is rather a purely practical one. Normally, the great majority of witnesses and the greater part of the evidence are concentrated in that State and it is therefore the most convenient place (forum conveniens) for the conduct of the trial.239

Observing that “we have not heard a single protest by any of [the countries where

Eichmann’s crimes were committed] against conducting the trial in Israel, and it is

reasonable to believe that in the face of Israel’s exercise of jurisdiction no other State will

demand the right to do so itself”,240 the Israeli court found itself to be the best suited

forum to provide justice, as many of the witnesses as well as much of the evidence was in

Israel, not mentioning great part of an aggrieved community expecting justice be done.

Another example could be Niyonteze v. Public Prosecutor, already mentioned above,241 where

the Swiss authorities preferred to prosecute the suspect for international crimes (namely

violations of the 1949 Geneva Conventions and their Additional Protocol II) under the

universality principle rather than extradite him to his home State, Rwanda, where the

crimes were committed, due to the possibility that the suspect could be sentenced to

death.242

As for the factors to be considered when resolving a conflict of jurisdictions, many have

already been mentioned, ranging from the date of initiation of the proceedings to the

practical possibility of obtaining the most relevant evidence and the testimonies of all the

appropriate witnesses. Considering Fletcher, especial relevance should also always be

given to the interests of the aggrieved community and the particular victims of any given

case, as they should always hold priority status in seeing justice done.243 In that sense it

can’t be ignored, however, than in many cases involving universal jurisdiction it has been

the victims themselves who, having exhausted the possibility of local remedies, resort to

judicial systems abroad where they hope to find the justice that is denied at home. Such

was precisely the case in Guatemalan Generals.244

Further, importance has also been given to the gravity of the crime. Present in

extradition treaties and the work of different international law organizations,245 the

239 Eichmann v. Attorney General of Israel, 36 ILR Supreme Court of Israel, 1968, p. 303. 240 Idem. 241 Niyonteze v. Public Prosecutor, supra note 192. 242 Idem. 243 Fletcher, supra note 147. 244 Cf. Ascensio, supra note 232. 245 Namely, the Institute of International Law, the International Law Association, and the International Commission of Jurists. Cf. Inazumi, supra note 199, p. 185.


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criterion could become particularly relevant in prosecutions involving international

crimes, as that would necessarily impede the State where the crimes were committed, for

example, from charging the suspect with domestic offences instead of the more

appropriate international crimes, thus making the objective and subjective elements

established in international criminal law a specific judicial finding; or worse, to indict the

suspect with minor offences, in an attempt to protect the person from proceedings

involving the more serious crimes.246

Finally, special consideration must be given to the possibility of a State, whether that

where the crimes were committed or any other, to conduct a fair trial that offers the

accused and the victims with the minimum standard of judicial guarantees.247 This would

involve a two-part test: first, whether the State is actually capable of providing the

conditions necessary for a fair trial, including, but not limited to, the appropriate

inclusion of international crimes in its domestic code,248 procedural safeguards for the

accused and victims, respect for international human rights standards, and others.

Secondly, and perhaps involving a subjective element to the evaluation not unlike

determining the mens rea or intentionality inside the mind of a suspect, the test would

include establishing a State’s willingness to prosecute, and thus avoid impunity.

Both elements were included into the ICC Statute, as part of the Court’s

complementarity regime and its criteria to determine the admissibility of a case.

According to Article 17, the Court may determine a State is unwilling to carry out an

investigation or prosecution if any of the following is met: proceedings were or are being

undertaken for the purpose of shielding the person concerned from criminal

responsibility; there has been an unjustified delay in the proceedings which in the

circumstances is inconsistent with an intent to bring the person concerned to justice; and

the proceedings were not or are not being conducted independently or impartially.249

246 Although not involving universal jurisdiction, such was the strategy followed by the Government of Alberto Fujimori with regards to the infamous Grupo Colina. A deal was cut with the members of the paramilitary group to stand trial for minor offences, or expect an amnesty soon afterwards (as eventually happened), in order to appease the international community. Fujimori is currently on trial for crimes against humanity, under the mode of liability known as command responsibility. 247 Discussed for extradition rejections, Chapter Two. 248 Cf. the case of Michel Bagaragaza, accused of “conspiracy to commit genocide, genocide or complicity in genocide”. Norway requested his extradition to the ICTR, but was rejected allegedly because of lack of appropriate legislation establishing jurisdiction. Norway has not introduced definitions of international crimes into its domestic law. See further, Human Rights Watch, supra note 31, p. 80. 249 Article 17, ICC Statute.


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Evidently, the main criticism to the above test, as with the present approach in general,

involves the question to what extent can one expect States to be willing to apply such

criteria horizontally (that is, towards one another), particularly in those cases in which

they would be potentially jeopardizing their international relations. This was precisely the

Supreme Court’s main concern in Guatemalan Generals when, after discussing the question

of subsidiarity, the majority judges found further reasons to discard the case, arguing

that,

in evaluating the functioning of a foreign legal system, domestic courts pronounce on a foreign sovereign State. They also interfere with international relations, a matter which the Spanish Constitution reserves for the government. In the case at issue, this would be all the more problematic since it concerns a sovereign State with which Spain has maintained normalised diplomatic relations.250

What influence will the Constitutional Court’s reversal have on domestic prosecutions in

other States remains to be seen.

Concluding remarks

In sum, it would seem reasonable to accept that, as already mentioned, positive conflicts

of jurisdiction may be tackled from two different angles: one clearly influenced by a

rather State-centred view of international law, where individual States’ consent is still

regarded indispensable for actions taken at the international level. The second approach,

where emphasis is put on the interests of an international community as a whole, acting

both as victim and, thus, also as the one responsible for the prosecution of international

crimes. Evidently, both approaches may be closely linked to the rationales for the

exercise of universal jurisdiction, discussed in Chapter One: they are mere expressions of

more general discussions on the current state of international law, the international

justice movement, and the role States continue to play as the alleged sole actors with

capacity to bind themselves and other subjects to international norms.

At least one distinction is worth noting with regards to Chapter One, however. While it

remains undeniable that, for the exercise of universal jurisdiction, States have managed to

establish explicit set of rules, via conventions and custom, with which they restrict the

applicability of universal jurisdiction to international crimes, in the case of intra-State

positive conflicts of jurisdiction, it would seem that – on the contrary – States have been

250 Ascensio, supra note 226, paraphrasing the Judgement at the Sixth ground of the Decision, footnote 13.


42

consistently unwilling to restrict their room to manoeuvre, rather favouring the

establishment of solutions on a case-by-case basis, and always providing the State taking

the initiative with a number of criteria to be taken into account in order to make a final

decision.251 Although vague rules will always allow for their manipulation, usually for

political rather than legal motives, at least no express restriction currently stops those

States willing to prosecute in the interests of international justice to carry on with

proceedings.

251 In words of the Global Report (cf. supra note 32), “There is no country that would establish express criteria to decide upon competing national jurisdictions”.


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CHAPTER THREE

Following from Chapter One, where the definition and rationales for a legal basis for the

exercise of universal jurisdiction were examined, Chapter Two discussed the possibility

of two or more States being in a position to prosecute the same persons for the same

acts, one of them under the principle of universal jurisdiction. Such positive conflicts of

jurisdiction raise a series of questions not easily answerable in international law, and –

just as with universality itself, or perhaps arising out of the same developments in the

fight against impunity – States’ practice and the opinions of scholars would tend to

support two alternative approaches: one favouring the explicit consent of individual

States, the other emphasising the role of the international community as a whole.

Throughout both Chapters it should also have become clear the special role an

international court with jurisdiction over the international crimes in question can and is

already playing in the struggle for justice, and most particularly in the development and

exercise of universal jurisdiction. Indeed, the creation of an international criminal court

has led to important questions being raised, ranging from those who criticize its limited

power to realize its main function effectively (that is, prosecute the perpetrators of

international crimes) to others who wonder whether its establishment, pondered for

more than 50 years, in effect eliminates the need for any further prosecutions to be

carried out by a State with no direct link to the crime, perpetrators or victims – other

than it being a representative of the international community.

With these questions in mind, Chapter Three will focus on the relationship between the

International Criminal Court (ICC or Court) and universal jurisdiction, and most

concretely in the resolution of positive conflicts of jurisdiction arising between the Court

and a State willing to prosecute under such principle. It shall do this in three parts: first, it

will briefly describe the ‘rules of the game’ or legal framework, namely, the ICC

jurisdictional regime – establishing the conditions and limitations under which the Court

may exercise its jurisdiction over a case; followed by an overview of the rules on the

principle of complementarity that should govern relations between States parties to the

ICC Statute and the Court. Secondly, this paper will attempt to provide guidance for the

solution of positive conflicts of jurisdiction between the Court and a State, explaining

potential situations in which such a conflict could arise; and discussing whether the

exercise of universal jurisdiction is compatible with the ICC Statute and analysing the


44

possibility of a pre-established priority of jurisdictions (this time comparing the

international against the national) in the opinio juris of States and scholars. This will be

followed by a more detailed application of the conditions of complementarity found in

the ICC Statute to a State prosecuting under the principle of universality. Finally, this

Chapter will conclude with some reflections on the possibility of the Security Council

acting as a third party to a conflict of jurisdictions between the Court and a State,

attempting to shed some light on how such body could dictate or bear influence on the

actions of both ‘parties’.

The Jurisdiction of the International Criminal Court: overview

Evidently, a pre-requisite for a positive conflict of jurisdiction to arise is that the courts

involved have a legal basis to exercise their jurisdiction over a particular case. For the

ICC, such regime involves a two-part test: jurisdiction proper, which involves the

limitations imposed by the ICC Statute to the prosecution of crimes before the Court;

and admissibility, or the requirement to determine the appropriateness and possibility of

a specific case being tried by the Court, based on the principle of complementarity. Each

shall be described below.

Ratione materiae, ratione tempore, ratione personae: triggering the ICC’s jurisdiction

The Statute of the International Criminal Court allows for the Court to exercise its

jurisdiction over four international crimes: aggression, war crimes, crimes against

humanity and genocide. For the first one, however, Article 5(2) provides that “the Court

shall exercise jurisdiction over the crime once a provision is adopted […] defining the

crime and setting out the conditions under which the Court shall exercise jurisdiction

[…].”252 The adoption of such a provision is expected to be developed during the

Assembly of State Parties, to be held in early 2010.

In the case of war crimes, the Court shall have jurisdiction over crimes committed both

in international and non-international armed conflicts, providing under Article 8 of the

Statute quite a comprehensive list of offences, including those found in the ‘grave

breaches’ provisions of the 1949 Geneva Conventions and their additional Protocol I.253

252 Art. 5 ICC Statute. 253 Articles 50, 51, 130 and 147 of the Geneva Conventions (Supra note 40). Not all grave breaches found in Additional Protocol I were included in the Statute, however, namely launching an attack against works or installations containing dangerous forces, the unjustified delay in the repatriation of prisoners of war or civilians, and the practice of apartheid,


45

Crimes against humanity include a list of acts committed as part of a widespread or

systematic attack directed against any civilian population, such as murder, extermination,

enslavement, torture, rape and persecution. As for genocide, the Statute took the

definition of the crime found in the 1948 Genocide Convention,254 which demands the

act be committed with an intent to destroy, in whole or in part, a national, ethnical, racial

or religious group.255

Such crimes must have been committed after the Statute’s entry into force, that is, on 1

July 2002.256 For States becoming parties to the Statute at a later date, the Court shall

have jurisdiction over crimes committed after the treaty’s entry into force for that

State.257

Being a criminal court, the ICC may exercise its jurisdiction over individuals, aged 18 or

above,258 should the crime comply with any of two conditions: that it was committed by a

national of a State party to the Court, with no regard to the act’s location; or it was

committed in the territory, vessel or aircraft of a State party to the Court, with no regard

to the perpetrator’s nationality.259

Finally, the ICC may seize itself of a situation via one of three alternatives: by the

initiative of the Prosecutor, who by proprio motu, initiates an investigation in respect of

crimes under the jurisdiction of the Court;260 a State party to the Statute refers to the

Court a situation where one or more crimes in Article 5 appear to have been

committed;261 and finally if a situation is referred to the Prosecutor by the Security

Council acting under Chapter VII of the UN Charter.262

From such provisions, it should be noted that the ICC has, in effect, a very limited

jurisdiction with regards to human rights violations, particularly excluding those not

found in the relevant provisions of the Statute, not amounting to a situation grave

although the latter was included as a crime against humanity. All these may be considered as part of customary law, as found in the ICRC study on the subject. Cf. supra note 96. 254 Genocide Convention, see supra note 42. 255 For a complete review of the crimes’ objective and subjective elements, please cf. ICC Statute, Articles 6, 7 and 8; Triffterer, O. (Ed.), Commentary on the Rome Statute of the International Criminal Court, Aufl. – Baden-Baden: Nomos Verl, 1999. 256 Art. 11, ICC Statute. 257 Idem. 258 Art. 26, ICC Statute. 259 Art. 12, ICC Statute. 260 Art. 15 (1), ICC Statute. 261 Art 14, ICC Statute. 262 Art. 13 ICC Statute.


46

enough to trigger action by the Court, or committed prior to the entry into force of the

treaty.263 As for those violations committed in the territory and by a national of a non-

State party, the Statute only provides the possibility of proceedings after obtaining

consent from the State concerned,264 or when requested by the Security Council.265 As is

currently the case with Sudan,266 the latter option is always binding on any State member

to the United Nations, based on the application of Articles 24,267 25,268 103269 and

Chapter VII of the UN Charter.270

Admissibility or the complementarity regime

Once the different criteria of jurisdiction are fulfilled, it shall be for the Court to rule on

the admissibility of the case. According to the wording in Article 17, a case shall be

deemed inadmissible by the Court if a State – party or not to the Statute – is already

carrying out proceedings, concerning the same persons for the same acts.271 This, in

effect, clearly provides States with an overall primacy over the Court, something that was

made clear from the beginning and included into the Statute’s Preamble. There it reads

that it shall be “the duty of every State to exercise its criminal jurisdiction over those

responsible for international crimes”,272 while further “emphasizing that the International

Criminal Court established under this Statute shall be complementary to national criminal

jurisdictions”.273

Such primacy of States may be overturned, however. The Court may find a case

admissible in the following conditions: first, if it considers the State to be “unwilling or

unable genuinely to carry out the investigation or prosecution”.274 Secondly, if the case

263 Most notably, those massive violations committed during former military regimes in Latin America, the Balkan wars in the 90s, the aftermath to Rwanda, etc. 264 Art. 12 ICC Statute. 265 Art. 13 (b) ICC Statute. 266 Sudan referral, see infra note 334. 267 Article 24 (1) reads: “In order to ensure prompt and effective action by the United Nations, its Members confer on the Security Council primary responsibility for the maintenance of international peace and security, and agree that in carrying out its duties under this responsibility the Security Council acts on their behalf.” 268 Article 25 reads: “The Members of the United Nations agree to accept and carry out the decisions of the Security Council in accordance with the present Charter”. 269 Article 103 reads: “In the event of a conflict between the obligations of the Members of the United Nations under the present Charter and their obligations under any other international agreement, their obligations under the present Charter shall prevail”. 270 While Article 24 defers powers to the Security Council, Chapter VII allows it to take such measures as seen necessary to secure peace and security. Article 103 prevents any conflicting obligations on States by giving preference to the Council over any international treaty. 271 Art. 17 ICC Statute. 272 Paragraph 6, Preamble ICC Statute. 273 Paragraph 10, Preamble ICC Statute. 274 Art. 17(a) ICC Statute.


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was already investigated by a State and such State decided not to prosecute the person

concerned, but the decision resulted from the unwillingness or inability of the State

genuinely to prosecute.275 Thirdly, if the person concerned was already tried for the same

acts, but the trial was held for the purpose of shielding the person concerned from

criminal responsibility, or the proceedings were not conducted independently or

impartially in accordance with norms of due process recognized by international law.276

The application of these norms to the exercise of universal jurisdiction shall be discussed

further below.

The ICC Statute and universal jurisdiction

As mentioned above, the negotiations in Rome277 and the resulting ICC Statute left very

clear States’ intentions to continue to hold primary responsibility in the prosecution and

punishment for the most serious crimes. With regards to the exercise of universal

jurisdiction, however, opposing views have been raised concerning the general role it

should play now that the ICC Statute has entered into force.278

On one hand, some have argued that, given that universal jurisdiction was conceived to

permit a State to represent the interests of the international community, the creation of

an international criminal court would turn such domestic prosecutions unnecessary, as

“in fact, the ICC would probably do so with greater authority than national courts and be

better equipped to adjudicate cases.”279 Such a view finds support, as already mentioned

in Chapter One, in Article VI of the Genocide Convention, where the prosecution of

such crime was effectively restricted to the courts of the State in whose territory it was

committed or by an international tribunal.280

Evidence in this regard may also be found in the practice of some States which, when

implementing their obligations arising from becoming a party to the ICC Statute, limited

their jurisdiction over the crimes contained in the treaty (war crimes, crimes against

humanity, genocide) to the same main legal grounds delimiting the jurisdiction of the

275 Art. 13(b) ICC Statute. 276 Art. 13(c) and 20 ICC Statute. 277 United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court, 15 June-17 July 1998. 278 It did so on 1 July 2002. 279 Kleffner, J. ‘The impact of complementarity on National Implementation of Substantive Criminal Law’, 1 Journal of International Criminal Law, 2003, p. 108. 280 As expressed in Chapter One, such limitation as found in the Genocide Convention has been authoritatively discarded by the ICJ, making it beyond debate that the crime may be subject to the exercise of universal jurisdiction.


48

Court, namely territoriality and active personality. Such is the case, for example, of the

United Kingdom’s International Criminal Court Act 2001.281 Others such as Congo have

gone to the extent of arguing that implementing universal jurisdiction in its criminal code

would actually run counter to their international obligations arising from the Statute of

the Court.282 In a way, this has been interpreted as strong, albeit tacit support for the

view that prosecution of international crimes should only be exercised under the more

traditional principles of jurisdiction, discarding – or at least discouraging – the resort to

universal jurisdiction following the ICC as example.283 Such view was supported by

Henzelin, when he stated that

… le Préambule ne dit pas clairement que les Etats, compétents à titre complémentaire pour poursuivre et juger les crimes décrits, le sont selon le principe de l’universalité. Rien ne laisse en effet entendre que le Statut n’envisage pas tout simplement que les Etats soient compétents pour poursuivre et juger les crimes décrits selon leur competence actuelle, territoriale, personnelle et de protection.284

Such arguments fail to see, however, that while indeed it would be desirable to perceive

the ICC as the court of the international community, the truth remains that its Statute is

still far from acquiring universal status, not only due to the number of parties currently

bound by it,285 but also for the fact that some of the major international players, including

three permanent members of the Security Council, are yet to become parties to the Court

and there is little expectation that they will become so in the near future.286 In addition, it

should also be borne in mind that, as is usual with international tribunals, the Court shall

only be capable of handling a handful of cases a year, resulting from the most serious

situations, thus leaving the majority of crimes to be dealt with through resort to domestic

courts.287 Unfortunately, such a reality, when restricted to the State where the crime was

committed or that of the nationality of the perpetrators, has failed to produce – as

already noted in the Introduction and Chapter One, the desired impact on the overall

fight against impunity.

281 Available at the Office of Public Sector Information, http://www.opsi.gov.uk/acts/acts2001/ukpga_20010017_en_1 (last visited on 9 January 2009). 282 Memorial of Congo in Arrest Warrant, ICJ judgment of 14 February 2002, para. 59. In Kleffner, supra note 279, p. 108. 283 Inazumi uses the argument that the ICC provides only for territoriality and active personality as support for an alleged superiority of these grounds over universal jurisdiction. Cf. Supra note 200. 284 Henzelin, supra note 82, p. 447. 285 108 State parties to date. 286 US, Russia and China. 287 This is clear from the preamble “the most serious crimes”, and from Article 17(1)(d).


49

The alternative position towards the role of the ICC would seem to be precisely based on

concern for such failure. This was the view of Judge Louise Arbour when, after

questioning whether States party to the ICC Statute have undertaken an additional

obligation to establish and exercise universal jurisdiction for crimes falling under the

scope of the Court, she stated that

I postulate that the Preamble to the Rome Statute is a call for the fullest exercise by States of their own international criminal jurisdiction, and that includes, of course, not only their permissive universal jurisdiction, but also their compulsory one.288

Such stance also finds support in some States’ opinio juris, the most notorious example of

which would be the explicit statement given by the Netherlands, in the context of an

Explanatory Memorandum, where it mentioned that

Although not expressly provided for in the Statute, the majority of States – including the Kingdom – were always of the opinion that the principle of complementarity entails that States parties to the Statute are obliged to criminalise the crimes that are subject to the International Criminal Court’s jurisdiction in their natural laws and furthermore to establish extra-territorial, universal jurisdiction [emphasis added] which enables their national criminal courts to adjudicate these crimes even if they have been committed abroad by a foreign national.289

Finally, such a positive role for universal jurisdiction in connection with the Court was

also agreed upon by a group of experts debating the complementarity regime of the ICC

in practice (hereinafter Group of Experts),290 when they stated that, in effect, nothing in

the Statute impeded States from resorting to universal jurisdiction.291 Further, they

concluded that, just as with proceedings being carried out in the territory where the crime

was committed, “a genuine investigation by such third States would preclude the ICC

from exercising jurisdiction, provided they are indeed able to secure the surrender of

offenders and obtain access to evidence.”292 Such conclusion will be further analysed

next.

288 Arbour, L. ‘Will the ICC have an impact on Universal Jurisdiction?’, 1 Journal of International Criminal Justice, 2003, p. 587. 289 In Kleffner, supra note 279, footnote 18. 290 The Group was set up as an Expert Consultation Process on Complementarity in Practice, in April 2003, by the Director of Common Services of the ICC, by suggestion of the Court’s Office of the Prosecutor. The resulting “informal paper” may be accessed at: http://www.icc-cpi.int/otp/complementarity.html&l=fr (last visited on 9 January 2009). 291 Idem, p. 24. 292 Ibid.


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Positive conflicts of jurisdiction: universal jurisdiction vs. the ICC

If it is accepted that States may continue to prosecute suspects of committing

international crimes under the principle of universal jurisdiction, the issue that now arises

is whether them, or the ICC, would hold priority over a case potentially prosecutable by

any of the two.

In a best-case scenario, such a situation would be resolved via true cooperation between

the ICC and the State, resulting in the choice of the forum plus conveniens. Thus, while in

certain cases the ICC would have a true interest in allowing or even collaborating with

domestic proceedings, perhaps providing expertise or in a quasi-supervisory role,293 in

others the State would acknowledge the Court to be in a better position to secure

cooperation294 of other States affected by the crimes, or guarantee access to evidence or

the accused.

Unfortunately, it is still conceivable that a conflict of jurisdictions could arise in the

following scenarios:

From the side of the State, a situation could develop by which a court would push for

domestic prosecution of an international crime due to a genuine intention to best serve

the interests of justice at the local level. This could be the case if the presence of the

accused were secured for trial, sufficient evidence was available to build a prima facie case,

and the victims, which in many instances would be the party pushing for action, found

the domestic courts their preferred option. It should be remembered that proceedings

before the ICC, in their view, could be unfamiliar ground (or too remote, too Western?),

not really road-tested yet, and carry the risk of further delay in obtaining justice, added to

the possibility that the case’s admissibility be challenged by the State of nationality of the

suspects or that where the crime was committed (precisely the forums, as in Guatemalan

Generals, not providing an adequate solution to the victims in the first place).

A second option would involve additional non-judicial considerations. Given that the

exercise of universal jurisdiction is often subject to the prosecutorial discretion of the

Attorney General or Public Prosecutor, proceedings at the domestic level could become

293 Clearly this would be the ideal situation in those cases not to be taken up by the ICC Prosecutor. Discussion of an ICC supervisory role may be found in Stahn, C. ‘Complementarity: A Tale of Two Notions’, 19, 1 Criminal Law Forum, March 2008, pp. 87-113. 294 As provided for in Chapter 9 of the ICC Statute.


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a priority for political reasons, ranging from the high-official’s personal ambition to carry

out a high-publicity case, to the State’s policy decision to pursue proceedings in an

attempt to show a Government’s tough stance against impunity before the international

community. Evidently, a political decision could also be made for prosecution with the

sole intention of barring, or at least endlessly stalling substantive action by the ICC,

gaining time while the ICC resolves the necessary jurisdictional and admissibility issues295.

Such inter-State cooperation to avoid justice being done – that is, a third State acting to

protect the government of the State where the crimes were committed – would not be

entirely rare, as the extensively documented case of the military regimes of the 1970s in

South America would show.296

From the side of the ICC, a situation could arise by which a State would be willing and

able to prosecute – impeding a possible resort to Articles 17 and 19 of the Statute – but,

due to the complexity, impact of the case or magnitude of the crimes, indeed it would be

desirable, in the best interests of international justice, for the person to be tried (and be

seen being tried) by the international community, and not by the courts of any particular

State. Such was precisely the objective behind the Nuremberg and Tokyo trials, which

were preferred to the traditional approach of bringing war criminals before the courts of

the victorious powers.297

Establishing a hierarchy: should the ICC necessarily prevail over universal jurisdiction?

As for resolving a positive conflicts of jurisdiction between the ICC and a State

exercising universal jurisdiction, guidance may be found primarily in the Statute and State

legislation.298

Concerning the Statute, the first provisions requiring consideration would be those

directly concerning the complementarity regime, applicable to parties and non-parties to

295 As provided for by the complementarity regime, Articles 17 and following, ICC Statute. 296 See, for example, Uceda, R. Muerte en el Pentagonito, Editorial Planeta, Lima, 2004. 297 “Secretary of War Henry Stimson […] pushed for some sort of tribunal, believing that the rule of law needed to be reinforced where the Nazis had mocked it. He considered the Nazi activities as war crimes that called for a judicial response - and therefore, his counter-proposal called for trying Nazi leaders in open court. Stimson eventually convinced Roosevelt, who gave his approval for the Tribunal only months before he died in April 1945. That approval paved the way for the U.S. to become the prime mover behind the trials.” Cf. Levitt, N. Nuremberg At 60: How the United States is Turning Away from its Proud History’ February 21, 2006, available at http://www.globalpolicy.org/intljustice/general/2006/0221history.htm (last visited on 10 January 2009). 298 The ICC clearly departed from previous practice regarding primacy of jurisdiction in international forums, as may be seen from the ad hoc criminal tribunals. In the case of the ICTY and ICTR, Article 9 and Article 8 of their respective statutes allows them to require national courts, at any stage of their procedure, “to defer to the competence of the International Tribunal”, thus providing absolute primacy over domestic proceedings.


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the Statute.299 Discussed briefly above, these would include paragraphs 6 and 10 of the

Preamble to the Statute, by which priority is clearly placed on States’ duty to “exercise

[their] criminal jurisdiction over those responsible for international crimes”300; and

Articles 17 and 19, through which the ICC would be barred from a case if a State “which

has jurisdiction over it”301 genuinely carries out an investigation or prosecution. The fact

that no distinction or limitation is found in the provisions regarding the different

principles of jurisdiction which a State may lawfully exercise to prosecute a case, makes it

fairly clear, at least a priori, that it would be the State exercising universal jurisdiction

indeed holding priority of prosecution over the ICC.302 Such view was also proposed by

the Commission of Inquiry on Darfur.303

As already mentioned, the Court may still find a case admissible, should the State – even

if it’s one exercising universal jurisdiction – be “unwilling or unable genuinely”304 to carry

out the investigation or prosecution. Each of such criteria – genuineness, unwillingness

and inability – could be the determining factor in a case being admitted by the Court.

Each is comprised of the following elements:

With regards to ‘genuine’ proceedings, the term acts as an overall qualifier to any analysis

of a State’s investigation or prosecution. It includes two elements: first, a subjective

evaluation, by which the Court shall determine whether a State is acting in good faith.

This could be inferred, for example, from the broader context, including the general

laws, procedures, practices and standards of the State concerned. As the Group of

Experts pointed out,

One may credibly draw inferences from the general to the particular. Where a system is shown to be independent, impartial and meeting standards of genuineness, this may contribute to an inference of genuineness in the particular case. Conversely, where a system shown to be plagued with political interference, scripted trials and unwillingness

299 Evidently, States not party to the ICC Statute are not bound by it. However, the Court may still rule on the admissibility of a case based on the inability or unwillingness to prosecute of a non-party State. 300 Para. 6 of Preamble, ICC Statute. 301 Art. 17 ICC Statute. 302 As concluded by the Expert Group – See supra note 290. 303 Commission of Inquiry, see supra note 216, at §616: “The Commission takes the view that complementarity would also apply to the relations between the ICC and those national courts of countries other than Sudan. In other words, the ICC should defer to national courts other than those of Sudan which genuinely undertake proceedings on the basis of universal jurisdiction. While, as stated above, a referral by the Security Council will normally be based on the assumption that the territorial State is not administering justice because it is unwilling or unable to do so, there is instead no reason to doubt a priori the ability or willingness of any other State asserting either universal jurisdiction or jurisdiction based on any of the basis for extra-territorial jurisdiction mentioned above”. 304 Art. 17 ICC Statute.


53

to pursue certain groups of offenders or offences, this may contribute to an inference of a lack of genuineness in the particular case.305

More importantly, however, “genuine” proceedings would also connote a minimum

degree of objective quality that a State may need to guarantee in order for the case to

remain inadmissible before the Court. Although during the drafting of the Statute it

remained extremely important for States that the Court would not consider action not to

be genuine only because of lack of resources,306 it was still accepted that such standard

would be, at least, that which is provided for by international human rights law, and most

particularly that found in the international treaties and developed by UN and regional

bodies.307

For ‘unwillingness’, a first attempt to a definition was included into Article 17 of the

Statute itself.308 It would involve a finding toward any of three options: first, proceedings

undertaken for the purpose of shielding the person concerned from criminal

responsibility; two, an unjustified delay in the proceedings which, under the

circumstances, would be inconsistent with an intent (genuine intent) to bring the person

concerned to justice; or three, proceedings not conducted independently or impartially, in

a manner, under the circumstances, which would be inconsistent with an intent to bring

the person to justice.

In the case of ‘inability’, the Statute provides for a cumulative test:309 first, the national

judicial system must have totally or substantially collapsed or be unavailable; and due to

this, the State should be unable to carry out the proceedings, or obtain the accused, the

necessary evidence and testimony. Although the Court is still to use this criteria on any

given State, the Commission of Inquiry on Darfur did label Sudan “unable or unwilling

to prosecute and try the alleged offenders”, and vouched for a Security Council referral

of the situation to the ICC.310

305 Expert Group, supra note 291, p. 11. 306 During the negotiations, the word “effective” was discarded for these reasons. Cf. Commentary, supra note 255, p. 392. 307 Sufficient case law has been produced at the international and regional level as to produce a minimum standard of judicial guarantees that could be considered universal. Anything below that would necessarily fail to fulfil the “genuine” quality of the proceedings, thus making the Court take over.. 308 Art. 17(2) ICC Statute, (a)-(c). 309 Art. 17(3) ICC Statute. 310 It based its conclusion mainly on six arguments, some against Sudan, others in favour of an ICC prosecution, namely: (1) the existence of crimes threatening peace and security; (2) the difficulty in investigating and prosecuting in Sudan persons wielding control over the State apparatus; (3) the need for the authority of the ICC to convince Sudanese leaders and rebel chiefs to submit to investigation; (4) the fair trial guarantees offered by the Court; (5) the


54

Evidently, any determination that a State is unwilling or unable to carry out genuine

proceedings could be a politically sensitive issue at the international level. Thus the

Court, in making its decision, should be able to rely on credible and sufficient evidence.

The burden of proof, however, would remain at a simple balance of probabilities.311

A second section of the Statute worth reviewing would be the Chapter on International

Cooperation and Judicial Assistance, and more particularly Article 90, where it provides

specific provisions should a State receive an extradition request from another State, and a

competing request for surrender issued by the Court. Similar to the approach taken in

Chapter Two resorting to extradition law, such Article could also be seen to shed light on

the solution of positive conflicts of jurisdiction as follows:

It provides for at least three situations: first, where both the custodial and requesting

States are parties to the Statute, the custodial State shall be bound to respect an ICC

determination on admissibility of the case, and – should the case be admitted – proceed

to surrender the suspect to the Court.312 Secondly, should the custodial State receive a

request from a State not party to the Statute, and a competing request from the Court,

the custodial State should again give priority to the Court, if two conditions are met: the

case is deemed admissible by the ICC, and the custodial State is not under an

international obligation to extradite the person to the requesting State.313

Thirdly, in those cases where the custodial State does have an international obligation to

extradite the person to the requesting State, Article 90 provides the former should decide

its actions based on “all relevant factors, including but not limited to: (a) the respective

dates of the requests; the interests of the requesting State including, where relevant,

whether the crime was committed in its territory and the nationality of the victims and of

the person sought; and (c) the possibility of subsequent surrender between the Court and

the requesting State.”314

Translated to the conflict under analysis, it would be fair to conclude that a State

exercising universal jurisdiction would only hold priority of jurisdiction over a case

ability to intervene immediately; and (6) the lack of a significant financial burden on the international community. Cf. Marty, ‘Harmonizing International and National jurisdictions’, 4 Journal of International Criminal Justice, 2006, pp. 2-11. 311 Expert Group, supra note 291, p. 12. 312 If the case is not deemed admissible, no conflict of jurisdiction arises. 313 Article 90 (4) ICC Statute. 314 Article 90 (6) ICC Statute.


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admitted by the ICC in those scenarios where, first, such State is not a party to the ICC

Statute, and secondly, it requests the extradition of the person sought to a State with

which it contracted a right to such extradition being granted. In cases involving State

parties, they shall remain bound to an ICC determination on admissibility, falling back,

then, on Articles 17 and 19 of the Statute – already reviewed.

Finally, a potential solution for conflicts of jurisdiction has been included into the

domestic legislation of some State parties. Although not a common practice, some

examples may be mentioned: in Germany, the newly enacted Criminal Code includes a

provision that states

(2) In the cases referred to under Section 153c subsection (1), numbers 1 and 2, the public prosecution office can, in particular, dispense with prosecuting an offence punishable pursuant to sections 6 to 14 of the Code of Crimes against International Law, if […] 4. the offence is being prosecuted before an international court […].315

The public prosecutor may also refrain from prosecuting an offence if the ICC declares

to the Ministry of Justice that, in the event proceedings in Germany should be

discontinued, the ICC would seek the surrender of the suspect.316

A similar case would be that of Belgium, where the Prosecutor may refrain from

referring a complaint to the investigative judge if, “taking into consideration the interests

of justice and Belgium’s international obligations, the particular complaint should be

brought before an international tribunal”.317 Should the public officer decide the ICC is

the appropriate forum, the Minister of Justice may, after consultations, refer the case to

the Court.318

Other examples would include Finland, where a request for surrender of a suspected

offender made by the ICC would have priority over domestic proceedings, while in

Croatia domestic courts may only exercise universal jurisdiction to prosecute perpetrators

if criminal proceedings cannot be conducted before the ICC.319

315 Code of Criminal Procedure, Article 153f, introduced with the coming into force of the German Code of Crimes Against International Law, BGBI.2002 I, P 2254, 26 June 2002. 316 Global Report, supra note 32, p. 79. 317 Belgian legislation, supra note 31, p. 72. 318 Belgian law, supra note 220. 319 Global Report, supra note 32, p. 79.


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Positive conflicts of jurisdiction: the Security Council as a third party

During the preparations to the creation of the ICC, the International Law Commission

envisaged three potential ways in which the Security Council and the Court could

interact: first, by impeding the Court from dealing with complaints of or directly related

to acts of aggression unless the Council so labelled a given situation; additionally, by

determining that the Council would be able to refer matters to the Court pursuant to

Chapter VII of the Charter; finally, providing that the Court would not, in the absence of

approval by the Council, commence a prosecution if it arose out of a situation which was

being dealt with by the Council under Chapter VII of the Charter.320 While the first one

was eventually replaced by the final inclusion of the crime of aggression within the

Court’s jurisdiction (albeit currently awaiting a definition), the other two found their way

into the Statute and currently rule all relations between the Court and the Council. Their

effect on potential conflicts of jurisdiction between a State exercising universal

jurisdiction and the ICC shall each be analyzed below.

Security Council referrals and the exercise of universal jurisdiction

As briefly discussed at the beginning of the Chapter, one of the mechanisms established

by the ICC Statute through which to ‘trigger’ the jurisdiction of the Court is that of a

Security Council referral.321 It was also established that the complementarity regime

allows for the primacy of proceedings in domestic forums over those of the Court, even

when the former proceed on the basis of universal jurisdiction. Combining both

elements, a few questions arise: namely, does the complementarity regime apply

differently to cases referred to the Court by the Security Council? Could a State, willing

and able to exercise universal jurisdiction, still challenge the admissibility of a case

referred to the Court by the Council?

Tackling the questions from a policy perspective, it is to be considered that, previous to a

referral, the Security Council would have had to debate, agree upon and pass a resolution

labelling a situation as a threat to international peace and security. An argument could

thus be made that if a situation of massive crimes evolved to a point where the Security

Council had to seize itself of the matter, then this would clearly consist of matters of

sufficient gravity for the State or States involved in or affected by the crimes to – in

320 Lee, R. (ed.) The International Criminal Court, Kluwer Law International, 1999, p. 146. 321 Article 13(b) ICC Statute.


57

accordance with Article 24 of the UN Charter – agree for the Council to act on their

behalf and withhold from challenging the jurisdiction of the Court. This would be

particularly applicable to States considering the exercise of universal jurisdiction, as

arguably their role as representatives of an aggrieved international community would

already be filled by both the Security Council and the Court.

From the point of view of the ICC Statute, however, there would seem to be no

exception contemplated for Security Council referrals in the Court’s complementarity

regime. Indeed, neither Article 17 nor 19 of the Statute establish any differences between

the mechanisms employed to trigger the jurisdiction of the Court, something which does

occur, providing for an a contrario argument, in the notification procedure found in

Article 18. Such was the unanimous position of the Group of Experts,322 as well as the

Commission of Inquiry on Darfur, when it stated that

The Commission wishes to emphasise that the triggering of the ICC jurisdiction by the Security Council should be without prejudice to the role that the national criminal courts of other States can play. Indeed, other States might exercise the so-called universal jurisdiction over crimes allegedly committed in Darfur.323

Concerning challenges arising from States exercising universal jurisdiction, again the

Statute leaves all options open by using the wording “a State which has jurisdiction over

[a case]”.324

Security Council deferrals under Article 16 of the Statute

As for the possibility of restricting the jurisdiction of the Court, negotiations up to and

during the Rome Conference substantially modified it from an implicit and automatic

veto given to the Council by the ILC text (against proceedings involving matters being

dealt with under Chapter VII), onto an arrangement whereby the Court may exercise its

jurisdiction unless the Council explicitly asks her not to.325 More concretely, Article 16 of

the Statute allows the Security Council to defer proceedings before the Court, but only as

a response to a potential threat to international peace and security. The provision reads:

No investigation or prosecution may be commenced or proceeded with under this Statute for a period of 12 months after the Security Council, in a resolution adopted

322 Group of Experts, supra note 291, p. 21. 323 Commission of Inquiry, supra note 216, at §607. 324 Article 17(a) and (b), Article 19(2)(b) ICC Statute. 325 Proposed by Singapore, the formulae was supported by the United Kingdom, the first permanent member of the Security Council to back the initiative.


58

under Chapter VII of the Charter of the United Nations, has requested the Court to that effect; that request may be renewed by the Council under the same conditions.326

Its wording, which was finally agreed upon only in the last stages of the Rome

Conference,327 was the result of arduous negotiations that reflected widely divergent

views on what the link should be between the Court, a judicial body, and the Council, a

political organ.328 Debate around it followed even after the entry into force of the Statute,

when a mere eleven days later (on 12 July 2002) it was already invoked by the United

States as a precondition to lift a veto it was holding on a Security Council resolution

aimed at extending the UN peacekeeping mission in Bosnia and Herzegovina.329

The article contains three main elements: firstly, the fact that a deferral may be applied to

both “an investigation or prosecution”, thus covering even the investigative actions

undertaken by the Prosecutor before the confirmation of charges against an individual by

the pre-Trial Chamber.330 Secondly, Article 16 allows the Council to stop proceedings

before their commencement, or at any moment thereafter, for a period of 12 months,

renewable if a new resolution is passed. Thirdly, and most importantly, the Council must

first identify and determine a given situation to constitute “a threat to the peace, breach

of the peace or act of aggression”,331 as provided for by Article 39 of the Charter. Only

once this is done may the Council make reference to Chapter VII and pass a legally

binding decision “requesting”332 the Court not to proceed.

As for its impact on potential positive conflicts of jurisdiction between a State and the

ICC, it is clear that resort to Article 16 would effectively terminate the conflict by forcing

one of its parties, the Court, to step aside. What would remain necessary to contemplate

is whether a Security Council deferral would also have an effect in proceedings

contemplated by a State willing to prosecute based on the principle of universal

jurisdiction. Two possibilities may arise in this regard:

326 Article 16 ICC Statute. 327 Cf. Commentary, supra note 255. 328 Idem., p. 373, on Article 16 ICC Statute. 329 Cf. Macpherson, B. ‘Authority of the Security Council to exempt peacekeepers from ICC proceedings’, American Journal of International Law, ASIL Insights, July 2002. The US was concerned that US personnel would be subject to unwarranted, politically motivated prosecutions by the newly established Court. 330 It would not, however, cover the initial preliminary examination of facts, conducted before the Pre-Trial Chamber’s authorization of an investigation. Cf. Commentary, supra note 255, p. 379. 331 Article 39, UN Charter. 332 The term should be “decide”, as is common use for Chapter VII resolutions. Article 16 of the ICC Statute., however, uses the term “request”. The different words were used as an argument against the binding character, upon the ICC, of the resolution deferring the prosecution of peacekeeping personnel. Cf. MacPherson, supra note 329.


59

The first is one by which the Security Council would consider prosecution by the ICC to

be a potential risk to international peace and security, but only if it is the Court which

prosecutes, and not if proceedings were to occur in the domestic courts of a State. The

situation is not hard to imagine, considering the highly politicized cases the Court is

facing and thus the inevitable role politics may play in the choice of forum. The situation

in Darfur and the potential indictment of the President of Sudan, Mr. Omar Hassan

Ahmad Al-Bashir, could prove to be a case in point, as shown below.333

The situation may be traced back to 14 July 2008, when the Prosecutor at the ICC

requested Pre-Trial Chamber I to issue a warrant of arrest against the incumbent

president, for the crimes of genocide, war crimes and crimes against humanity.334

President Al-Bashir’s reactions to such measure have been a mix of alleged indifference

and veiled threats of more violence to come335 (especially against members of

international organizations providing assistance to the victims of the conflict)336 and

more recently efforts to show some willingness to bring perpetrators to domestic

justice.337 While there has been no official statement by the Security Council as yet,

formal and informal requests have been made by the African Union,338 Sudan339 and

others to the effect that, given the highly sensitive nature of the case, the permanent

members would consider a deferral of the investigation. On 3 December 2008, the

333 Cf. “ICC Prosecutor presents case against Sudanese President, Hassan Ahmad AL BASHIR, for genocide, crimes against humanity and war crimes in Darfur.”, press release available at http://www.icc-cpi.int/press/pressreleases/406.html (last visited on 8 January 2009). 334 The situation in Darfur, Sudan, was referred to the International Criminal Court by the United Nations Security Council under resolution 1593 of 31 March 2005. The Prosecutor opened an investigation into the situation on 6 June 2005. More information available at: http://www.icc-cpi.int/cases/Darfur.html (last visited on 9 January 2009). 335 Cf. “Sudan: ICC case could provoke violence,” Associated Press, 13 July 2008, Available at: http://ap.google.com/article/ALeqM5inqUzmH0M_JwO_wre74Z0-3h3-2gD91T27080. 336 ‘International aid workers and peacekeepers in the troubled Sudan region of Darfur are at risk after the indictment against President Omar Hassan al-Bashir for war crimes’, his adviser said on Tuesday. […] 'If there is an indictment of the president of the Sudan, how can the international community hold Sudan responsible for the protection of the many international bodies that are working in Darfur?' Bona Malwal told a news conference. […].. “Sudan says Darfur aid workers at risk over ICC”, Reuters, 22 July 2008,. Available at: http://africa.reuters.com/wire/news/usnL221009408.html (last visited on 10 December 2008). 337 “The newly appointed special prosecutor for Darfur said that he will review allegations that were brought against a militia leader indicted by the International Criminal Court (ICC) last year. […]. Cf. “Sudan may file charges against militia leader indicted by ICC”, Sudan Tribune, 12 August 2008. Available at: http://www.sudantribune.com/spip.php?article28238 (last visited on 12 November 2008). 338 “The African Union urged the U.N. Security Council on Monday to put on hold the International Criminal Court's moves to indict Sudanese President Omar Hassan al-Bashir over war crimes in Darfur. The call, after a meeting of the African Union Peace and Security Council in Ethiopia, followed a similar appeal by the Arab League and boosted to Khartoum's diplomatic efforts to block any indictment.” […]. “AU seeks to block charges against Sudan leader”, Reuters, 21 July 2008. Available at: http://africa.reuters.com/wire/news/usnMCD148656.html. 339 “Sudan calls on UNSC to void possible arrest warrant for Al-Bashir”, Sudan Tribune, 25 August 2008. Available at: http://www.sudantribune.com/spip.php?article28386.


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Court’s Chief Prosecutor, Luis Moreno-Ocampo, in his eighth bi-annual report to the

Security Council,340 summed up the situation well when he warned that

President Al Bashir, personally or through his subordinates, claims that the Court is attacking Africa, affecting peace, and affecting victims and international personnel as there could be retaliation against them if he is indicted. The facts are that victims of crimes committed in Darfur are 3 million African citizens; that justice will promote peace in Darfur, as determined by UNSCR 1593, reasserted in Presidential Statement 21 of June 2008; UNAMID, for all its efforts, cannot bring safety to civilians when the most serious perpetrators still hold official positions in Khartoum, and continue to implement a criminal strategy.341

What remains to be seen is whether the Security Council will be convinced by such

arguments that an ICC prosecution is the best solution. Being its “primary

responsibility”342 to guarantee peace and security, the Council will necessarily have to – in

its own assessment of the ‘peace v. justice’ dichotomy – consider further elements into its

decision, such as an evident and growing resentment within African States towards so-

called ‘Western’ institutions attempting to impose their notion of justice on the

continent,343 while imposing neo-colonialist policies to the dangerous extent of indicting

340 As required by Resolution 1593 of 31 March 2005 referring the situation of Darfur to the Court. See supra note 334. 341 Ocampo, L. ICC Chief Prosecutor, ‘Darfur: ICC Prosecutor Eighth Address to Security Council’, para. 85. Available at: http://www.icc-cpi.int/library/organs/otp/8thUNSCreportsenttoUN-ENG.pdf (last visited on 9 January 2009). 342 In the wording of Article 24 of the UN Charter. 343 The Prosecutor’s request of an arrest warrant against Mr. Al-Bashir was not well-received by African States. Review of some of the reactions provides a clearer picture of to what extent the ICC is considered a foreign institution. (The examples below were collected by the Coalition for an International Criminal Court): • “Syria Opposes Bashir Arrest Bid”, Al Alam, 18 Jul 2008.

“The official news agency SANA quoted Syrian President Bashar al-Assad as saying 'the leaders and Syrian people reject the decision by the [ICC] prosecutor [Luis Moreno Ocampo].' [...] Assad, whose country holds the rotating presidency of the Arab League, described the move as 'an attempt to blackmail Sudan, as well as a flagrant interference in its internal affairs.' The Syrian leader said Damascus 'will do everything necessary to support Sudan in the face of plans aiming at its security and stability.' Meanwhile Algerian minister for African affairs has also said that ICC chief prosecutor's move to indict Bashir is undermining peace in Darfur. 'The decision of the prosecutor .... endangers the process of a political and peaceful resolution to the Darfur' conflict, Abdelkader Messahel was quoted as saying in the government daily El Moudjahid....” Available at: http://www.alalam.ir/english/en-NewsPage.asp?newsid=031030120080722200020.

• “ICC charges against Sudan president political: Iran”, Iran mania, 18 Jul 2008. “Iran's Parliament Speaker Ali Larijani says the International Criminal Court's accusations against Sudanese President are political and insignificant, PressTV reported. ‘The recent charges brought against Sudan's President, Omar Hassan al-Bashir, are politically motivated and yet trivial. The world's bullying powers hinder the process of independence seeking states, by any possible means,' Larijani said in a meeting with the special envoy of Sudan's President, Ghazi Salah al-Din...” Available at: http://www.iranmania.com.

• “Jordan: Majali receives the Sudanese Ambassador to Jordan”, Jordanian News Agency, 22 July 2008 (Internet source not available).

• “Tanzania; Sudan Lauds Dar's Stand On ICC Move”, Africa News, 20 July 2008. Available at: http://allafrica.com/stories/200807210101.html. “Yemen: Parliament announces solidarity with Sudan over ICC decision”, Yemen News Agency, 19 July 2008. Available at: http://www.sabanews.net/en/news159351.htm.


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the highest representative of a fellow State.344 Perhaps the Ministry of Foreign Affairs of

Eritrea reflected such sentiments best, when it stated in an official press release that

"The drama that has unfolded in the past few days in the name of the 'International Criminal Court' has baffled many observers. This phenomenon, which can only be interpreted as an 'insult', is a manifestation of the harassment that has been accumulating. As such it must be rejected and challenged.345

In itself, the statement is surprisingly harsh, but also quite direct. Put together with the

reactions from the rest of the continent, it would seem wise for the Council not to

underestimate the message they are sending. In this sense, should the Council consider

that such an ‘accumulated’ resentment could develop to the point of seriously

endangering the peace and security of an already fragile region,346 a compromise could be

reached by which the Security Council could agree to defer proceedings at the ICC, but

allow and promote prosecution in an African State willing and able to provide a fair trial

to Mr. Al-Bashir and others.347 In such case, a Security Council deferral would only affect

the Court, yet not the domestic courts of States.

The second situation that could arise from a Security Council deferral would be that the

resolution requesting a halt in the ICC proceedings, or a separate one passed at another

time, also expressly prohibited States to continue or commence proceedings regarding

the same situation or case, if based on the exercise of extra-territorial jurisdiction. In such

a situation, where the threat to the peace would lie in the possibility of prosecutions, and

not on the external perception of the forum, the Security Council would be lawfully

exercising its mandate under the Charter, via Articles 24348, 39349 and 41,350 in order to

restore peace and security.

344 A similar approach was taken by the AU with regards to universal jurisdiction, even when in practice there is no real example of abuse – in effect, perceptions can be more important than actual events in international politics. 345 “The people and political forces of the Sudan should go beyond this to prevent interference in and 'internationalization' of their domestic affairs. This can only be done if mistakes done in the past are rectified to pave the way for a genuine Sudanese internal solution...”. “Eritrea: Statement of the Foreign Ministry”, All Africa, 22 Jul 2008. Available at http://allafrica.com/stories/200807221172.html. 346 The situation was already labelled as a threat to security in the region by the African Union Security and Peace Council. (Cf. “Sudan's Delegation to UN General Assembly Works Aggressively to Counter Ocampo's Allegations,” Sudanese Media Center, 23 September 2008. Available at: http://english.smc.sd/enmain/entopic/?artID=14558. Excerpt: “AU Security and Peace Council affirmed in a meeting yesterday held in New York (in response to an invitation from Burkina Faso) that it supported Sudan stance of countering ICC prosecutor general Luis Ocampo''s allegations against president Omar Al-Bashir. The council stresses that any attempt of indictment targets Basher considered a threat to African continent security.) 347 Without willing to enter into the very complicated issue of the relations between ‘the West’ and other regions, it should be borne in mind that it was arguably a similar “accumulated” resentment that gave origin and continues to fuel trans-national terrorism groups such as Al Qaeda, a situation that has already been labelled a threat to international peace and security in numerous occasions. 348 Art. 24, see supra note 267.


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As for States, in theory they would be compelled to agree and accept the Council’s

decision, under Articles 25351 and 103352 of the Charter, even if the request went against a

State’s obligations under any other international agreement, such as those providing for

universal jurisdiction reviewed in Chapter One. One exception, however, could be

argued against it and will be reviewed next.

The question of the Security Council acting under Chapter VII vs. jus cogens obligations

Chapter One discussed the possibility that the exercise of universal jurisdiction over

international crimes could find its legal basis on the jus cogens character of the prohibition

to commit certain offences, in turn resulting in an erga omnes obligation to install

proceedings against the alleged offender. As was already discussed, the view, albeit not

widely supported by State practice nor scholarly opinion when used to justify universal

jurisdiction, has however been utilized in the successful prosecution (under the

territoriality principle) of international crimes at the domestic level,353 and has also

received scholarly support.354

The question that now arises is whether and to what extent a resolution by the Security

Council, decided via resort to Chapter VII of the UN Charter, could effectively impose

under international law a prohibition on States to prosecute international crimes via

universal jurisdiction based on the above-described legal basis. Put differently, is the

Security Council limited by jus cogens norms?

Inevitably the issue touches upon discussions on the different theories of international

law and the international order generally, and most particularly the role to be granted to

the Security Council, the United Nations and its Charter.355 Following such debates, a

positive response to the question could be posed in the following manner: if the

349 Article 39 reads: “The Security Council shall determine the existence of any threat to the peace, breach of the peace, or act of aggression and shall make recommendations, or decide what measures shall be taken in accordance with Articles 41 and 42, to maintain or restore international peace and security”. 350 Article 41 reads: “The Security Council may decide what measures not involving the use of armed force are to be employed to give effect to its decisions, and it may call upon the Members of the United Nations to apply such measures. These may include complete or partial interruption of economic relations and of rail, sea, air, postal, telegraphic, radio, and other means of communication, and the severance of diplomatic relations”. 351 Article 25, see supra note 268. 352 Article 103, see supra note 269. 353 See Chapter One, above. 354 See, particularly, Bassiouni, supra note 105. 355 Woods proposes three views on theories of international law: constitutionalization, global administrative law, and an international rule of law approach. Cf. Wood, M. The Security Council and the ‘Constitutionalization’ of International Law, Speech at the University of Leeds, 14 March 2007.


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international community of States is comparable to domestic societies, then the United

Nations Organization, which in effect unites all States, may be assumed to be the world’s

Government. The UN Charter, as the analogy goes, would then be the world’s

Constitution, that is, the ‘supreme law of the land’,356 and the Security Council its

executive body. Following the provisions found in Chapter VII and Article 103 of the

‘constitution’, then indeed it could be argued the Security Council would always have the

last word, even when the decision went against jus cogens norms, for the sake of and in all

matters concerning international peace and security.357 Needless to say, the prosecution

of international crimes would and has already been made a part of such matters in

numerous occasions.358

Further, there is nothing in the Charter to suggest that the Security Council could not, in

case of a threat to the peace, take action inconsistent with international law. As Bryan

MacPherson explains,

[Although] the argument that the Security Council must act consistently with jus cogens norms finds some support in the Vienna Convention which provides that treaties violating jus cogens norms are void[,] the Charter, however, is not like other treaties, and a strong argument can be made that this provision does not apply to it.359

The above contention, however, has been criticized from at least two angles. First, the

analogy comparing the international order with the internal structure of a State would

itself be flawed, as the Charter, other than providing certain principles of international

law, is rather a constituent instrument of an international organization, to which all States

agreed to join, than a collection of core norms regulating the international community of

nations. The Security Council, executive as it may be for certain areas of international

relations, lacks any democratic legitimacy, doesn’t necessarily follow “rule of law”

principles nor is subject to any judicial review, hardly falling under the well-accepted

domestic principle of separation of powers.

Secondly, and concerning the specific question of jus cogens norms, the issue has not been

tackled directly by any of the authoritative voices of international law, such as the

356 As is mentioned in the US Constitution. See supra note 210. 357 One of the limitations imposed upon the Security Council is that it has to act in accordance with the Purposes and Principles of the United Nations. (Cf. Article 24(2) of the UN Charter: “In discharging these duties [that is to say, the Council’s duties under its primary responsibility for the maintenance of international peace and security] the Security Council shall act in accordance with the Purposes and Principles of the United Nations”). 358 Most particularly, of course, when creating the ad hoc tribunals. 359 Macpherson, B. ‘Authority of the Security Council to exempt peacekeepers from ICC proceedings’, American Journal of International Law, ASIL Insights, July 2002.


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International Court of Justice or the International Law Commission. However, Judge ad

hoc Elihu Lauterpacht, in his Separate Opinion at the Provisional Measures stage of the

Genocide case, did state that:

The concept of jus cogens operates as a concept superior to both customary international law and treaty. The relief which Article 103 of the Charter may give the Security Council in case of conflict between one of its decisions and an operative treaty obligation cannot – as a simple hierarchy of norms – extend to a conflict between a Security Council resolution and jus cogens.360

Similarly, the EC Court of First Instance in the Kadi case said that

international law… permits the inference that there exists one limit to the principle that resolutions of the Security Council have binding effect: namely, that they must observe the fundamental peremptory provisions of jus cogens. If they fail to do so, however improbable as that may be, they would bind neither the Member States of the United Nations nor, in consequence, the Community.361

Both examples led Professor Wood to conclude that “it does indeed seem to be assumed

by some to be beyond discussion that obligations under the Charter cannot prevail over

jus cogens obligations, and that therefore Article 103 has to be read as implicitly subject to

this exception.”362 Such conclusion was shared by some, but not all, of the members of

the Group of Experts, chaired by Mr. Darryl Robinson.363

In sum, it would seem still highly debatable, and a theoretical question for now, whether

international crimes, as jus cogens norms, would indeed entail the obligation on all States to

prosecute and, consequently, also override a Security Council resolution explicitly

requiring to the contrary. At any rate, it remains unlikely, given the already numerous

difficulties, legal and otherwise, attached to the regular exercise of universal jurisdiction,

that a State would openly disregard a Security Council resolution expressly demanding a

halt to proceedings in the name of international peace and security.

360 Lauterpacht, E. Separate Opinion, Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro). Available at: http://www.icj-cij.org/docket/files/91/7323.pdf (last visited on 17 January 2009). 361 Kadi v Council and Commission, Judgment, EC Court of First Instance, 21 September 2005, Case T-315/01. Cited in Wood, supra note 355. 362 Wood, M. supra note 355. 363 “[Some] members noted that the Security Council does not have the power to order Member States directly not to investigate or prosecute genocide, crimes against humanity or war crimes, crimes which violate jus cogens prohibitions over which States have erga omnes obligations to repress”. In Informal Expert Paper: the Principle of Complementarity in Practice, supra note 291.


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Concluding remarks

As it should have become clear throughout the Chapter, the establishment of an

international criminal court has, in many ways, reinforced – rather than diminish – the

role of the State as supreme international entity, providing it with an a priori priority of

jurisdiction for the core international crimes. This would extend, albeit some examples of

prosecutorial discretion, even to States with no direct link to the acts committed, but able

and willing to prosecute under universal jurisdiction. In terms of positive conflicts of

jurisdiction, it would seem these States would, more often than not, have the upper hand

when it comes to fighting impunity. Given the limitations inherent to the Court’s

operations, the clear restrictions imposed on its possibility to take action, and the

difficulties faced by victims of heinous crimes to obtain justice in their home courts, it

can only be concluded it should be such States who, in the interests of justice and the

fight against impunity, should take such role seriously and exercise it fully.


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CONCLUSIONS

This paper has attempted to discuss two main issues: the exercise of universal jurisdiction

for the purpose of prosecuting international crimes, and the resolution of positive

conflicts of jurisdiction, arising between two or more States, and between a State and the

International Criminal Court. From such analysis, the following may be concluded:

It should hopefully have become clear that, while consensus would be easily found

around the need to prosecute and punish the commission of the most heinous crimes,

two competing rationales continue to divide the efforts of both States and scholars.

While on one hand emphasis is continuously placed on the promotion and defence of an

‘international community’ as an actor in itself, identifying it as both the primal victim of

the international crimes and also the main responsible – through its representatives, i.e.

States – for their punishment; on the other the primary role is still given to individual

States, their particular interests and, above all, the necessity to obtain their consent

previous to any extra-territorial proceedings or action. This would apply not only to the

definition and application of universal jurisdiction, but also to the different solutions

developed to tackle positive conflicts of jurisdiction between States or a State and the

ICC. Although it is certain States will maintain a degree of control over the development

of international law in this regard, the continuous appearance and strengthening of more

and more influential non-State actors will inevitably continue to push forward the notion

of a common humanity. This should be encouraged and promoted.

In this sense, this paper should also have raised relevant questions regarding the current

challenges and difficulties inherent to the fight against impunity, and particularly when

performed by resorting to the exercise of universal jurisdiction. Although the two

rationales just mentioned both find distinct legal bases in international law, at the end of

the day it should be borne in mind that it will always depend on States and their will to

take action to make a difference. As seen, regarding many of the issues raised no clear

international rule or practice exists. For such reasons, discussion and open debate on

these matters is still much needed. Hopefully this shall lead to the establishment of well-

defined, predictable rules on the exercise of universal jurisdiction and the resolution of

potential conflicts each time more than one State, or a State and the ICC, is capable of

taking action, thus effectively improving the chances of more criminals facing justice

without jeopardising international relations.


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Fighting impunity: Positive conflicts of jurisdiction and the principle of universality - 2008

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