Universal jurisdiction application of International Law - Essay Example

Universal jurisdiction application of International Law Introduction Under international law, a jurisdiction in criminalmatters can be either enforcement jurisdiction or prescribed, also known as prescriptive jurisdiction. With respect to criminal offences, prescriptive jurisdiction is the state’s power pursuant to international law to apply its law to interpretation and prosecution of an offence (O’Keefe, 736). Enforcement jurisdiction is the state’s power to apply national criminal law through its enforcement institutions such as the police or the executive via the courts (O’Keefe, 736-737). Universal jurisdiction refers to universal prescriptive jurisdiction and obliges states to assume jurisdiction over international crimes that are especially serious regardless of where the crime was committed (O’Keefe, 745). According to the dissenting opinion of Van den Wyngaert, the definition of universal jurisdiction is not clearly established under international Convention or customary international law with the result that the definition is uncertain (Arrest Warrant of 11 April 2000 also known as Joint Separate Opinion of Judges Higgins, Koijmans and Brugenthal). However, the International Law Commission and the International Criminal Court Statute both provide ample explanation of the concept of universal jurisdiction and its purpose. This paper identifies and analyses the international law on universal jurisdiction and identifies where uncertainties may arise. Definition and Concepts of Universal Jurisdiction According to the International Law Commission’s Report of the Sixth Committee, universal jurisdiction is defined as: …a legal principle allowing or requiring a state to bring criminal proceedings in respect of certain crimes irrespective of the location of the crime and the nationality of the perpetrator or the victim (1). Arguably, the concept of universal jurisdiction is also referred to in the Rome Statute for the International Criminal Court, 1998 (ICC Statute). The Preamble to the ICC Statute, states that “the most serious crimes of concern to the international community” “must not go unpunished” and that all member states will implement laws for ensuring the “effective prosecution of” of those crimes” and in doing so, the international community must cooperate (ICC Statute, Preamble). More specifically, the Rome Statute of the ICC goes further to state that: …it is the duty of every State to exercise its criminal jurisdiction over those responsible for international crimes (Preamble). According to the Joint Separate Opinion of Judges Higgins, Koijmans and Brugenthal, various states have implemented laws conferring jurisdiction on them over international crimes. However, none of these states have provided for jurisdiction over crimes to which the enabling state does not have some form of connection (Joint Separate Opinion of Judges Higgins, Koijmans and Brugenthal, 70). National courts have been more decisive however. For example, the Federal Court of Australia listed a number of international crimes over which it had universal jurisdiction. The Supreme Court of Austria ruled that it had universal jurisdiction over crimes of genocide. The United States has assumed universal jurisdiction in two notable cases, Yunis in 1988 and Bin Laden in 2000(Joint Separate Opinion of Judges Higgins, Koijmans and Brugenthal). Some states are hesitant to assume jurisdiction over a matter that another state has jurisdiction over. For example both the UK and the Russian Federation have expresses similar views against one state assuming jurisdiction over a matter that relates to an offence that was committed within the territory of another state (Joint Separate Opinion of Judges Higgins, Koijmans and Brugenthal). Regardless, in addition to international treaties in which jurisdiction over specific crimes such as torture and genocide require some form of link to the offence, the offender or the victims in order to confer jurisdiction, universal jurisdiction requires that where such an offender is within the jurisdiction of a state, that state is required to either prosecute the offender or extradite him/her (Joint Separate Opinion of Judges Higgins, Koijmans and Brugenthal). The rational for universal jurisdiction is predicated on the presumption that the most serious international crimes are either committed by state actors or are supported by or sponsored by state actors (Morris, 337). The colluding state and its allies cannot be trusted to prosecute itself for crimes against international law and against humanity in general (Morris, 337). Universal jurisdiction is one way of satisfying the objective of the Rome Statutes which is to ensure that the most serious international crimes do not go unpunished. Even so, despite its logic and utility, some uncertainties remain with respect to how effective universal jurisdiction can be. Universal jurisdiction also responds to the notion that some crimes are so heinous that they are crimes against the world at large. Such crimes threaten international peace and security and it is therefore the responsibility of all states to ensure that those crimes do not go unanswered (Sammons, 112). However, in the absence of a codified international instrument providing for universal jurisdiction with a specific list of the applicable international crimes, international comity and cooperation is problematic. If states do not agree on what amounts to an international crime to which universal jurisdiction applies, cooperation will be difficult to obtain and sustain. Thus, there are significant uncertainties and ambiguities surrounding the concept and principle of universal jurisdiction. Uncertainties Surrounding Universal Jurisdiction The principle of complementarity as captured by the Preamble to the Rome Statute requiring states to implement laws complementary to the goal of prosecuting all serious international crimes, has had a difficult coexistence with the realities of practice (Philippe, 376). According to Philippe, the principle of complementarity and universal jurisdiction are easier to articulate than they are to implement (376). As Philippe noted: …There are still various international crimes that go unpunished despite the international obligation to prosecute those who committed them (376). For the most part, the concept of universal jurisdiction and its partner, the principle of complementarity are theories that have not been manifested well in practice. Even where states have implemented national law intending to complement the notion of universal jurisdiction, it is soon realized that “the constraints of realpolitik or diplomacy clashed with the concept of universal jurisdiction” (Philippe, 376). Philippe therefore concluded that: …unfortunately, political reasons have prevailed over legal reasoning in a number of cases! Sometimes one cannot help wondering whether discussions on the said principles are no more than an academic exercise without any tangible results (376). Sammons points out that consistency in international criminal law is very important to for establishing its legitimacy (112). Inconsistencies have been present in international criminal law. For example the sentencing policies of two international criminal tribunals for the Former Yugoslavia and Rwanda were very different. The result was that individuals convicted of similar offences received different sentences. The different sentencing policies and practices casts doubt on the “fairness and consistency” and in turn the legitimacy of international criminal law (Sammons, 112). These inconsistencies can only worsen under the principle of universal jurisdiction where national laws and courts decide what amounts to international crimes to which universal jurisdiction attaches (Sammons, 112). According to Zemach, the principle of universal jurisdiction is fraught with uncertainties that render it far more inconsistent with the result that it is a system of inequality and thus questionable legitimacy (143). Zemach argues that “uneven justice” is a prominent feature of universal justice with only choice offenders targeted while others of similar character and conduct are largely left alone (145). Whatever the reasons, this practice speaks to discrimination and inequality, which are significant elements in international human rights. There is a danger that states would use the principle of universal jurisdiction to obtain a political advantage (Zemach, 146). In fact, in a separate opinion, in Joint Separate Opinion of Judges Higgins, Koijmans and Brugenthal President Guillaune noted that if states were allowed to have unlimited universal jurisdiction, this could: …encourage the arbitrary for the benefit of the powerful, purportedly acting as agent for an ill-defined ‘international community’. Contrary to what is advocated by certain publicists, such a development would represent not an advance in the law but a step backward (para. 15). Zemach argues however, that the inequalities associated with the use of universal jurisdiction does not only arise out of the arbitrary use of the principle, but also out of a refusal to exercise universal jurisdiction (147). The refusal to exercise universal jurisdiction will be more profound when the offenders are from the world’s most powerful states or is an ally (Zemach, 147). One such example is Germany and France’s failure to invoke universal jurisdiction over high-ranking US officers over the torture of Iraqi detainees under the control of the US (Zemach, 148). Zemach further notes that since 1994 more than 30 persons have been prosecuted before national courts under the principle of universal jurisdiction and “none of them was a national of a Western country” (148). In this regard, inequality in international criminal law, especially under the principle of universal jurisdiction is aligned with “inequality of sovereigns” (Zemach, 148). Thus far, universal jurisdiction is typically invoked by the world’s most power states with respect to conduct carried out in less powerful states and committed by offenders from those states (Zemach, 148). At present the international crimes to which universal jurisdiction is generally applied to are genocide, war crimes and crimes against humanity. However, in June 2010, the International Criminal Court Review Conference agreed to amend the Rome Statute to include the crime of aggression as one that the International Criminal Court would have jurisdiction over (Scharf, 358). The amendment will come into effect in January 2017 (Scharf, 359). Scharf argues that although the crime of aggression as presented in the Rome Statute, will not apply to state actors, it the United Nations Security Council refers a matter to the International Criminal Court, it might very well include a state as a defendant (360). Regardless, adding acts of aggression to the international crimes list of the Rome Statute, opens up the possibility of national laws regarding aggression as an international crime to which universal jurisdiction can be attached. This will only add to the confusion and inequality surrounding the international law on universal jurisdiction. Aggression is already dealt with under the UN Charter and principles of international law on the legality of war. For example, aggression is dealt with under the principles of jus ad bellum (just war as the legal test for legitimate aggression) and jus in bello (the legality of orders and activities during war) (Scharf, 361). With aggression now forming a part of the international crimes regime, states are free to adopt and enforce laws that confers upon them, the right to invoke universal jurisdiction. As Scharf points out, both the concept of universal jurisdiction and aggression are highly contentious (362). When both are put together in international criminal law, the future of international order is bleak (Scharf, 362). In addition to encroaching upon the principles of jus bellum and jus in bello, the principle of universal jurisdiction threatens the concept of sovereignty which is enshrined in international law. For example Article 2(7) of the UN Charter provides as follows: …Nothing contained in the present Charter shall authorize the United Nations to intervene in matters which are essentially within the domestic jurisdiction of any state or shall require the Members to submit such matters to settlement under the present Charter (Charter of the United Nations, Article 2(7). Thus the notion of sovereignty requires that states respect the domestic powers and functioning of other states. Jurisdiction is also closely connected to the notion of sovereignty and only in rare circumstances could a state assume exorbitant jurisdiction that reaches beyond its territory. Even where those limited circumstances arise, a state is required to have some connection to the offence, the offender or the victim (Sriram, 1966). Thus the notion of universal jurisdiction is alien to the concept of state sovereignty and the traditional concepts of prescriptive jurisdiction. Territorial jurisdiction is not only founded on the concept of sovereignty. It is also founded on the need to control the number of states that would have jurisdiction over a matter and therefore to reduce the risk of multiple jurisdictional claims and conflicts of laws. By taking this approach it is believed that there would be greater “consistency and predictability” in the application of laws (Sriram, 1966). Moreover, under international law, the concept of sovereignty is greatly respected. With the rise of the state, the tendency toward leaving states alone has become even more important than previously (Sriram, 1966). Ryngaert argues that it is far more beneficial for state actors to benefit from exceptions to prosecution under universal jurisdiction. The exceptions include, apologies, pardons, amnesty and compensation. By foregoing prosecution on the grounds of an apology, compensation, pardons and amnesty, the state can move forward peacefully for the long term (Ryngaert, 216). States are increasingly shying further away from prosecuting other states or using universal jurisdiction, unless there is a nexus between the prescribing state and the offence. For example Spain now requires that its courts only exercise universal jurisdiction if it is entirely necessary under the “principle of necessity of jurisdictional intervention” (Ryngaert, 217). Moreover, if the state having national jurisdiction over the matter is ready, willing and able to assume jurisdiction over the international crime, Spanish courts are required to decline jurisdiction (Ryngaert, 217). Europe in general takes a vastly similar approach to that of Spain (Ryngaert, 226). It therefore follows that universal jurisdiction is a complex principle that contradicts and confuses clearly established principles of international law. In addition, states have demonstrated an unwillingness to aggressively act as prosecutors of crimes to which their country has little or no ties. Considering its progressive fall into misuse amidst fears of abuse, the principle of universal jurisdiction is virtually a non-factor in practice. If states aggressively held one another and their citizens accountable under the principle of universal jurisdiction, world peace might become more at risk than it currently is. Conclusion Theoretically, the principle of universal jurisdiction has a profound justification: the prosecution of international crimes that are essentially crimes against world peace. However, its conflict with traditional concepts of state sovereignty and the underlying premise of territorial jurisdiction and its sharp departure from the concept of extraterritorial jurisdiction leaves room for far too much uncertainty. In the addition, the threat of abuse as evidence by the unequal use of universal jurisdiction by stronger states against weaker states further threatens world peace and order. In the absence of a Convention or Treaty articulating the law and limits of the law on universal jurisdiction, states are generally free to implement their own national laws on universal jurisdiction. Thus as a result, the international law on universal jurisdiction is far from universal. Different national laws defining the limits and extent of its own universal jurisdiction has already produced diverse laws with the potential for greater conflicts of laws. The iron is, jurisdictional laws were intended to resolve these conflicts while universal jurisdictions threatens to intensify these conflicts. Thus in the final analysis, at the very least an international framework defining international crimes to which universal jurisdiction can be applied should be drafted. Bibliography Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v Belgium) International Court of Justice 14 February 2002. Web 4 December 2013 http://www.icj-cij.org/docket/files/121/8126.pdf Charter of the United Nations, 1945. Print. International Law Commission. “The Scope and Application of the Principle of Universal Jurisdiction: The Report of the Sixth Committee.” A/54/452-Res 64/117. Web 4 December, 2013 http://www.un.org/en/ga/sixth/65/ScopeAppUniJuri_StatesComments/Kenya.pdf Morris, Madeline, H. “Universal Jurisdiction in a Divided World: Conference Remarks.” New England Law Review, Vol. 35(2) (2001): 337-361. Print. O’Keefe, Roger. “Universal Jurisdiction: Clarifying the Basic Concept.” Journal of International Criminal Justice, Vol. 2 (2004): 735-760. Print. Philippe, Xavier. “The Principles of Universal Jurisdiction and Complementarity: How do the Two Principles Intermesh?” International Review of the Red Cross, Vol. 88(862) (June 2006): 375-398). Print. Rome Statute for the International Criminal Court, 1998. Print. Ryngaert, Cedric. Jurisdiction in International Law. Oxford: Oxford University, 2008. Sammons, Anthony. “The Under-Theorization of Universal Jurisdiction: Implications for Legitimacy on Trials of War Criminals by National Courts.” Berkeley Journal of International Law, Vol. 21(1) (2003): 111-143. Print. Scharf, Michael, P. “Universal Jurisdiction and the Crime of Aggression.” Harvard International Law Journal, Vol. 53 (Winter 2012): 358-389. Print. Sriram, Chandra, Lekha. Globalizing Justice for Mass Atrocities: A Revolution in Accountability. Oxon: Routledge, 2010. Print. Zemach, Ariel. “Reconciling Universal Jurisdiction with Equality Before the Law.” Texas International Law Journal, Vol. 47 (2011): 143-199. Print. Read More