Universal Jurisdiction and State Sovereignty - Essay Example

UNIVERSAL JURISDICTION AND STATE SOVEREIGNTY Introduction This work deals with the examination of whether universal jurisdiction and State sovereignty are compatible with each other. In this regard, both these terms were described, and several incidents evidencing their importance were taken up for discussion. Finally, the conclusion that universal jurisdiction is subservient to State sovereignty was arrived at. The interrelation between state sovereignty and international criminal law is not only intricate, but also indistinct. International criminal law prohibits certain types of behaviour and crimes against humanity. This feature perforce has an influence on state sovereignty. Genocide, war crimes and crimes against humanity adversely affect peace and security. This is viewed very seriously by the international community, and does not constitute the problem of any particular country. Principle of Universal Jurisdiction The principle of universal jurisdiction enables nations to prosecute offenders, irrespective of the place where the crime was committed and regardless of the country to which the victim and author of the crime belong. There are several international treaties and conventions that support the principle of universal jurisdiction and empower states to exercise it.1 Furthermore, customary international law has also accepted the principle of exercise of universal jurisdiction in cases entailing genocide and crimes against humanity. One of the Amnesty International Reports states that there are more than 120 countries, which have enacted legislation that promotes universal jurisdiction.2 The exercise of criminal jurisdiction, with respect to grave crimes against international law, by the national courts, is termed as universal jurisdiction. Under this concept, national courts can prosecute persons who have committed crimes against humanity, war crimes, and torture. Universal jurisdiction comes into play, when it is not possible to rely on traditional criminal jurisdiction to address serious crimes and crimes against humanity.3 In general, the traditional domestic criminal laws do not provide jurisdiction to confront violation of international criminal laws. Another important concept is the responsibility to protect. This principle requires a sovereign nation to intervene diplomatically or militarily, in order to prevent the commission of crimes against humanity and genocide. A variant of extraterritorial jurisdiction is universal jurisdiction. A court of law of a particular country can only exercise jurisdiction over a crime that is related to that nation in some specific manner. Such jurisdiction is achieved by means of the principle of territoriality, which bestows jurisdiction upon the sovereign, with regard to crime committed in its territory. This also transpires, through active or passive extra – territorial jurisdiction, which permits a sovereign to proclaim jurisdiction, in the context of a crime that has taken place outside its territory.4 This happens, when the offender or the victim is a national of that country. Another dimension has been added to the concept of extraterritorial jurisdiction, by the judicial system of the US. This system incorporates objective and protective territorial jurisdiction, whereby it assumes jurisdiction over crimes that are perceived to be inimical to the integrity and the interests of the US, even though these crimes do not take place in US territory.5 In addition to these familiar examples, a nation may exercise jurisdiction over crimes that do not take place in its territory, citing universal jurisdiction as its justification. The underlying principle for such action is that international crimes are targeted at humanity at large and cause significant damage to the values that are common to every human being. War crimes are telling examples of such interventions. These crimes are dealt with in an exhaustive manner by the four Geneva Conventions and their additional protocols.6 For example, the Netherlands had passed judgements in the area of universal jurisdiction relating to crimes against international humanitarian law. Specifically, there were three cases, involving asylum seekers from Afghanistan, who had been allegedly committed torture, during the war in the 1980s, in their country. These courts ruled that the asylum seekers had violated Common Article 3 of the Geneva Conventions on the Laws of War. The laws of Holland provide for such jurisdiction, and in addition the Hague District Court clarified that the Netherlands was empowered to exercise universal jurisdiction over infringements of Common Article 3, by the international law.7 Nevertheless, jurisdiction over the crime of genocide, allegedly committed by some Rwandans, was not granted to the Netherlands by the Hague District Court. These cases had been referred to Holland by the International Criminal Tribunal for Rwanda (ICTR). This put paid to any further referrals to the Netherlands by the ICTR, regarding cases involving genocide. As such, Universal jurisdiction is the capacity of a court to try individuals, with regard to crimes committed beyond the territory of its country and in respect of crimes that have no effect on that country’s interests. In addition, the victim and the offender in these crimes do not constitute nationals of that nation. This tenet is termed permissive universal jurisdiction, and comprises an important facet of customary international law. It is also inherent in domestic legislation and treaties.8 The doctrine of prosecute or extradite precludes a nation from protecting a person who has been accused of some specific types of crime. In such instances, the country in question has to either prosecute that person, extradite the accused to a country that is willing to prosecute him or surrender the accused to an international criminal court.9 For instance in the year 2010, the Finnish authorities prosecuted an individual whom they could not extradite under Finnish law. This person was charged on the basis of universal jurisdiction. In another case, the Swiss authorities initiated criminal investigation against the erstwhile Rwandan Minister, Gaspard Ruhumuriza. This individual was charged with acts of genocide. Switzerland exercised jurisdiction, in preference to acceding to the extradition request of Rwanda.10 The justification for conducting the investigation was that this individual had violated international law, by perpetrating crimes against the natives of Rwanda in Rwanda. The requirement to prosecute or extradite, as such, is not tantamount to universal jurisdiction. Nevertheless, in the context of a foreign national who is suspected of having committed a crime against another foreign national in a foreign country, the principle of prosecute or extradite translates into the exercise of universal jurisdiction. Undoubtedly, impunity strengthens the despot and induces him to commit untold atrocities. Those indulging in genocide were usually firm in their conviction that they would not have to answer for their despicable deeds. Autocrats have frequently resorted to large scale violence and intimidation to suppress any call for prosecution at the national level. Fortunately for mankind, international justice has gradually evolved a system, whereby impunity in the national courts is no longer certain.11 There have been a number of developments in this area, and some instances are the establishment of international war crimes tribunals by the United Nations Security Council for Rwanda and the former Yugoslavia. In addition, there are moves afoot, to create national – international tribunals for the war crimes committed in the Sierra Leone and Cambodia. A major development was the adoption of the treaty in Rome in 998, by the nations of the world to form an International Criminal Court.12 This court was to be bestowed with international jurisdiction over war crimes, genocide and crimes against humanity. There has been a steady increase in the prosecution of tyrants in their custody by the national courts. These paragons of iniquity are being dealt with under the doctrine of universal jurisdiction, for the offences committed by them in their countries. Despite the prevalence of impunity, to some extent, by and large international justice has made its presence felt. This guarantees a tangible amount of solace to the victims and their families. In addition, this development deters many a tyrant from indulging in serious crimes against humanity.13 With the ratification of the Rome Statute, state parties have consented to allow external scrutiny of their judicial processes. This has a profound consequence for state sovereignty. This is viewed very seriously by the international community, and does not constitute the problem of any particular country. Instances of crimes against humanity transpire with disturbing frequency. These acts are considered to be violations of international criminal law. These incidents take place in countries where the government is weak. The experiences from the past establish that such incidents take place, whenever the government failed to exercise adequate control.14 For instance, in Somalia, the government was unable to control the various factions in the country. This had resulted in large scale violence. Serious breaches of international criminal law occurred in the Sierra Leone, on account of the government’s failure to control much of the territory. The state must play a protective role in the face of rebellion or anarchy, till such time as the UN or some international entity assumes charge over the affairs of the nation.15 It is to be borne in mind that the establishment of the ICC was an exercise in sovereignty. The capacity to constitute an international criminal court is the sole preserve of sovereign nations. Thus, the institution of the ICC is the outcome of state sovereignty. This entity is empowered to exercise jurisdiction over the nationals of non – state parties, if they commit crimes within the territory of consenting countries. The establishment of the ICC connotes that the consenting states have conceded that the latter may exercise some of their functions.16 National Sovereignty In April 2003, a number of changes took place with regard to jurisdiction. There were an increasing number of complaints against foreign Heads of State and Ministers, which in turn placed Belgium under a high level of diplomatic pressure. In the Arrest Warrant case, the International Court of Justice held that the arrest warrant issued by Belgium against the foreign minister of Congo was illegal. The Court came to this conclusion, on the basis of the contention that the warrant was in violation of the rules concerning state immunity, under international law.17 In Abbas Hijazi v Sharon, the Court of Cassation held that the second Act could not exclude the immunities under international law. Subsequently, Article 5(3) was altered, and the stance taken was that although immunities were in principle inapplicable, these were to influence the application of the Act to the extent specified in international law.18 Article 14 of the Rome Statute of the Court 1998, permits a country to refer cases to the International Criminal Court. Such referral would have the beneficial effect of controlling state excesses and the enactment of arbitrary laws by a nation. An instance is provided by the Central African Republic, which referred cases for investigation, on the basis of the jurisdiction of the International Criminal Court. This initiative had the positive outcome of bringing about the arrest of Jean – Pierre Bemba, the leader of an armed group that was committing untold atrocities in the Central African Republic.19 However, the jurisdiction of the International Criminal Court is not with retrospective effect, as it does not address crimes commissioned, prior to the enactment of the Rome Statute of the Court. At the same time, the scope of the rule under Article 7, regarding universal jurisdiction was limited. It would be applicable only if the under mentioned conditions had been satisfied. First, the violation had not been committed on Belgian territory; second, the alleged offender was not a Belgian; third, the alleged offender was not located within Belgian territory; and finally, the victim was not a Belgian national or had not resided in Belgium for at least three years.20 Thus the decision of the Federal Prosecutor, with respect to extraterritorial jurisdiction, was made mandatory. If an international court or some other court was seen to provide a more equitable, independent, and effective forum for justice, then the Federal Prosecutor was not under a duty to act on a complaint. Although, the victims could contest the prosecutor’s decision to abstain, they could not initiate legal proceedings, if their case was unrelated to Belgium. Thus, universal jurisdiction was abolished, as the investigating justice was precluded from taking action, solely on the strength of a complaint.21 Moreover, in the year 2003, Belgium annulled the second Act Concerning the Punishment of Grave Breaches of International Humanitarian Law. It included the provisions of this act in the Criminal Code and the Code of Criminal Procedure. Moreover, Belgium incorporated the three ICC core crimes into its Criminal Code. In addition, the immunity provision was included in the Code of Criminal Procedure.22 Immunity is to be determined on the basis of the provisions of international law o the provisions of binding treaties. The immunity provision is also relevant to those who have been invited to stay in Belgium. These amendments have been made in response to the threats of the US that it would remove NATO headquarters from Brussels if Belgium failed to limit the application of universal jurisdiction.23 The major political problem caused by universal jurisdiction is that it interferes with the judicial affairs of the state in which it is exercised. The exercise of universal jurisdiction generates a number of adverse political and diplomatic consequences. As such, it is possible for a developed country to extend its jurisdiction into the territory of an underdeveloped country. Universal jurisdiction, on occasion is tantamount to neo-colonial domination. For this reason, many States consider the ICC as the legitimate entity to challenge and restrict impunity rather than relying on the universal jurisdiction of a third state. If the litigation of universal jurisdiction is in connection with strong states, then such states will be in a position to resist the application of universal jurisdiction.24 Furthermore, the stronger States may be able to terminate the proceedings altogether. Another possibility is the abuse of the criminal justice system, in order to promote political objectives. This enables the State to initiate criminal proceedings against its political enemies and dissidents. Another difficulty arises, on account of the entitlement of private citizens to initiate criminal proceedings. This right is independent of victim status and on several occasions has been misused. 25 It is indispensable to distinguish the right of private individuals to commence criminal proceedings from the participation of the victims in criminal proceedings related to grave breach of human rights. The latter category of criminal proceedings has much greater legitimacy as the outcome is usually dependent on the testimony of the victim.26 Experiences in this regard indicate that there are a number of practical problems involved in criminal proceedings relating to human rights violations. It is a fact that some of the European countries lack the necessary infrastructure and capacity to deal with cases involving universal jurisdiction. Accordingly, special police and prosecutorial units have to be established to resolve cases successfully. Moreover, these countries should provide adequate resources to these bodies.27 In the absence of these measures, it is not possible to address the practical problems inherent in such cases, and to obtain evidence in foreign nations. A majority of these problems will be caused by shortcomings in security and transport. In addition, difficulties are created by logistical problems, which include lack of proficiency in the local language of a foreign state and differences in culture. Moreover, the lack of cooperation between territorial states and foreign states will also acerbate difficulties. Discussion International law permits considerable latitude to States to determine the jurisdiction that they will uphold in their domestic law. However, such discretion is not unlimited. In accordance with the international law, it is permissible for a country to exercise jurisdiction in a case, even if the incident had taken place outside its territory. 28 Thus, jurisdiction is not an exclusive domain and the international law permits a nation to select an appropriate jurisdiction for its national laws. States are required to act in accordance with their obligations under treaties or customary international laws. They should not violate this requirement and should not undermine the rights of other nations.29 If the acts of a country are found to be in breach of these laws, then such acts will be illegal. Whenever a nation complains that a nation had exercised jurisdiction, in a manner that had affected its rights, it is the usual practice for the accused nation to defend itself by referring to the rules of jurisdiction. The legality of jurisdiction does not bestow an absolute right upon a nation to exercise jurisdiction. The exercise of jurisdiction by a country and the degree to which such exercise of jurisdiction is accepted by the other nations are fundamentally different issues.30 Moreover, it has been contended that universal jurisdiction undermines state sovereignty. For instance, during the drafting of the Genocide Convention, the Soviet Union and several Eastern nations had contended that it would affect state sovereignty. However, no evidence of the violation of state sovereignty was forthcoming.31 The concept of universal jurisdiction, with regard to core crimes, has received a substantial amount of academic support. State practice plays an important role in this context, and such jurisdiction can be assumed to encompass genocide, war crimes and crimes against humanity. With respect to aggression, the situation is much more intricate and any evaluation of universal jurisdiction has to be in the context of the decision in the Yerodia case.32 Universal jurisdiction is an important legal principle, which empowers a country to initiate criminal proceedings against entities that have committed certain serious crimes. Such proceedings can be commenced, irrespective of the location of the crime and the nationality of the offenders. However, this principle is limited in scope and applies to a few crimes. Some of these include war crimes, crimes against humanity, genocide, and torture. It can also be applied to issues, like slavery and piracy.33 There are several examples, wherein offenders were prosecuted under the principle of universal jurisdiction. These include the prosecution of Augusto Pinochet Ugarte in Spain and Ariel Sharon in Belgium. These proceeding were aimed at punishing them for the crimes committed in a place that was far removed from the nation and court that sought to prosecute them.34 However, universal jurisdiction could pose a substantial challenge to the sovereignty of a nation. It could also intervene in the internal affairs of a country. Jurisdiction has historically been deemed to be directly related with the sovereignty of a country. It admits of just a few exceptions for extraterritorial application.35 The latter requires the cooperation of a nation that is interested in trying the case. Some of the other origins of extraterritorial jurisdiction are; territorial or establishing jurisdiction on the place of commission of the offence; nationality of the offender; protective or on the basis of harm to national interests; and the nationality of the victim. State sovereignty restricts extraterritorial jurisdiction, and their creation is chiefly to prevent conflicts in the exercise of jurisdictions. Moreover, these restrictions are aimed at ensuring uniformity and predictability.36 The principle of non-interference prevents unwanted interference with the internal affairs of a state. In some instances, national judges have adopted markedly different approaches to the application of universal jurisdiction. For instance, in a case that involved victims from Spain, the Spanish court resorted to universal jurisdiction, domestic laws implementing international treaties, and passive personality jurisdiction. In the Pinochet case, the Belgian judge invoked customary international laws and universal jurisdiction, in order to establish the jurisdiction of his court.37 The national judges tend to combine different sources for the exercise of jurisdiction. Thus, they employ familiar sources, such as those related to their state’s territory or interests. The International Criminal Court uses extraterritorial jurisdiction to prosecute offenders of serious crimes under international law. Countries that have signed for the ICC are required to fulfil the obligations. The International Criminal Court (ICC) Statute ensures legal consistency.38 The courts rely on different sources to invoke universal jurisdiction. These include the provisions of domestic legislation that specifically provides for the extraterritorial application of criminal laws. Some judges invoke the provisions of their domestic legislation which incorporate the provisions of treaties that provide for universal jurisdiction.39 Conclusion Universal jurisdiction may produce serious consequences. The situation is aggravated, if there are no restrictions on the scope of such jurisdiction. In addition, any such restriction has to be universally accepted. Universal jurisdiction undermines national sovereignty, and is not based on the principles of state consent and sovereignty. This is in marked contrast to other categories of international jurisdiction. 40 Such jurisdiction has the capacity to generate hostilities between countries, and it permits a nation to intrude upon the sovereign authority of another country, which has full territorial jurisdiction with regard to the offense. Historically, universal jurisdiction had been applied to the crime of piracy. However, at present, a number of core crimes have been brought under the scope of universal jurisdiction.41 Furthermore, it is also employed to prosecute human rights offenses. A large number of countries have accepted the application of universal jurisdiction for serious crimes. This consent has expanded the scope of universal jurisdiction. The piracy analogy had been employed in the development of the principle of universal jurisdiction. The decision of the Nazi war crimes tribunals and the Yugoslavian war crimes tribunal, established by the UN utilised the piracy analogy. Moreover, international law scholars have in general, accepted the legitimacy of the piracy analogy.42 Functionality is the chief distinguishing feature of universal jurisdiction. This is all the more relevant, on account of international legal system being of a decentralised nature. The protection and application of international standards is achieved by universal jurisdiction. Furthermore, the latter makes certain that no individual can avoid the legal consequences of his actions. Universal jurisdiction, by its very nature, diminishes the sovereignty of a country, due to the exercise of such jurisdiction by a nation over another. In addition, there is ample scope for abuse.43 In this context, the International Criminal Court is of considerable significance. This court was established by a multilateral agreement. In addition, the International Criminal Court has the competence and resources to deal with the issue of state sovereignty. The International Criminal Court enjoys criminal jurisdiction, in the context of specific international crimes, such as war crimes and acts of aggression, crimes against humanity, and genocide. 44 A national court that exercises jurisdiction over crimes under the international law or over crimes committed abroad that have international import, is fundamentally carrying out the function of an agent of the comity of nations in implementing the international law. As per the above discussion, it can be surmised that state sovereignty prevails over universal jurisdiction. For instance, Spain and Belgium had been very active in exercising universal jurisdiction. However, the US and its allies restricted these endeavours to a significant extent, and achieved a mitigation of these efforts. In fact, the pressure exerted on Belgium by the US was so great that the former was forced to rescind some legislation that had supported universal jurisdiction. This clearly indicates that universal jurisdiction has been rendered subservient to state sovereignty. On several occasions, the principle of universal jurisdiction has been relegated to the background in favour of national sovereignty. Thus, universal jurisdiction is accorded much lesser importance, in comparison to state sovereignty. In this context, the establishment of the International Criminal Court has been significant, as it has emerged as the principal institute that addresses issues pertaining to international infractions. Bibliography A Articles/ Books / Reports Ambos, Kai, ‘Prosecuting Guantanamo in Europe: can and shall the masterminds of the “Torture Memos” be held criminally responsible on the basis of Universal Jurisdiction?’(2010) 42(1/2) Case Western Reserve Journal of International Law 405 Cryer, Robert, ‘International Criminal Law vs State Sovereignty: Another Round?’(2005) 16(5) The European Journal of International Law 979 Cryer, Robert, Prosecuting international crimes: selectivity and the international criminal law regime (Cambridge University Press, 2005) Inazumi, Mitsuei, Universal jurisdiction in modern international law: Expansion of National Jurisdiction for Prosecuting Serious Crimes Under International Law (Intersentia nv, 2005) Kontorovich, Eugene, ‘The Piracy Analogy: Modern Universal Jurisdictions Hollow Foundation’ (2004) 45(1) Harvard International Law Journal 183 Macedo, Stephen, Universal jurisdiction: national courts and the prosecution of serious crimes under international law (University of Pennsylvania Press, 2006) Ryngaert, Cedric, ‘Universal Jurisdiction over Genocide and Wartime Torture in Dutch Courts: An Appraisal of the Afghan and Rwandan cases’ (2007) 2(2) Hague Justice Journal 13 SriRam, Chandra Lekha, ‘Revolutions in Accountability: New Approaches to Past Abuses’ (2003) 19(2) American University International Law Review 301 B Cases Abbas Hijazi et al v Sharon et al (2003) 127 ILR 110 Arrest Warrant (Democratic Republic of the Congo v. Belgium) [2000] C Others Domestic Exercise of Universal Jurisdiction International Justice Resource Centre Maughan, Chris, Is universal jurisdiction juridical imperialism? International criminal law seminar Megret 2010 Roth, Kenneth, The Case for Universal Jurisdiction (October 2001) The Executive Council, ‘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’ (Paper No. 411(XIII), African Union, 2008) Universal Jurisdiction: UN General Assembly should support this essential international justice tool (5 October 2010) Amnesty International Read More