Lesson 6.3. Universal Jurisdiction

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We continue from our previous lesson which explained the principles of territoriality, nationality, passive personality and protective jurisdiction.

UNIVERSAL JURISDICTION

In this case, the crime was committed abroad, neither the person who committed the crime, nor the victims, were nationals of that State. Universal jurisdiction enables a person to be tried before a national court even when there is no link to the State. Under this principle, jurisdiction is exercised on the basis that the crime committed is so serious and of universal concern that each State has an interest to prosecute. In other words, these crimes are punishable by any State.

Universal jurisdiction is a developing concept in international law and its scope, method of application and extend of application is controversial. Universal jurisdiction was exercised in:

the Eichmann Case where Israel used universal jurisdiction as a basis to prosecute Eichmann for his involvement in organizing the deaths of Jews, in Germany, during the Natzi era (remember that we said that the protective principle was also used). Here, Universal Jurisdiction was used on the basis that Eichmann committed war crimes and crimes against humanity.

the Pinochet Case, House of Lords in UK exercised universal jurisdiction on the basis that Pinochet was responsible for acts of torture at the time he was the head of State in Chile.

RECENT DEVELOPMENTS IN UNIVERSAL JURISDICTION

See also the following situations in which arrest warrants or indictments were made in the exercise of universal jurisdiction by national courts:

In 2000, a Belgium Magistrate issued an international arrest warrant for DRC’s Foreign Minister on charges of war crimes and crimes against humanity.
In 2002, French Courts exercised universal jurisdiction and issued arrest warrants for the President of Congo and some senior Minsters.
In 2008, Rwanda’s Chief of Protocol was arrested in Germany by German officials and handed to the French. The French courts had issued a warrant for his arrest and was trying him on the basis of universal jurisdiction on charges of ‘complicity to murder in relation to terrorism’.
In the same year Spanish Courts indicted former and current military officials of Rwanda over genocide, war crimes and crimes against humanity.

As you can see there is no direct link between Spain, Belgium and France and the atrocities that happened during the Congo or Rwanda conflicts.

You may have noticed that in the situations that universal jurisdiction was exercised in situations of torture, war crimes, crimes against humanity and genocide. It can also be used to assert jurisdiction over pirates (provided that the pirate was caught in the high seas or within the territorial jurisdiction of a State), hijackers and terrorists (Yunis case). Some argue that universal jurisdiction is available under customary international law to prosecute all international crimes; others feel its limited to crimes that are prohibited under Jus Cogens norms (See Pinochet case and the Belgium Arrest Warrant Case).

It is the States that decide what crimes have universal jurisdiction in their courts. As you know, Sri Lankan courts can’t assert jurisdiction over someone or something, unless some Act of Parliament or the Constitution gives it this jurisdiction. In other words courts do not have adjudicative jurisdiction (power to hear and decide cases), unless the legislature gives it this jurisdiction. For example, in the UK, national courts have universal jurisdiction over hostage taking, torture and grave breaches of the Geneva Conventions (this includes war crimes). At the same time, UK national courts do not have ‘pure’ universal jurisdiction over war crimes, genocide and crimes against humanity if they are brought under the UK’s International Criminal Court Act 2001. (This Act gives UK national courts the jurisdiction to try cases relating to war crimes etc, where ever it was committed, provided that it was committed by UK nationals or a resident.)

As we discussed, its important to note that judges have been reluctant to use universal jurisdiction alone as its basis for asserting jurisdiction. In Eichmann’s case, as we discussed, Israeli courts depended on both the passive personality principle and protective principle. In Yunis Case – universal jurisdiction and protective principle. Most of the cases against Rwanda and Congo were initiated by family members of victims who were french, belgian or spanish nationals: jurisdiction was asserted both on principles of universal jurisdiction and passive personality.

If you also noticed, most of these claims were brought against current or former Heads of State, Ministers or other government agents. Usually, Heads of State enjoy immunity from jurisdiction before foreign courts (although they don’t enjoy the same immunity before international courts and most international tribunals). This is because there is a general principle in international law that sovereign States are equal and because of this equality one State can’t exercise jurisdiction over another State (although as you will learn in your human rights lectures -the ICC can). A Head of State is an extension of the State and similar to the State, it is not subject to the civil or criminal jurisdiction of another State. ✐ Read the note attached on the Pinochet case on immunity rationae personae and ratione materiae. A former Head of State on the other hand enjoys immunity only in respect of the official functions that he performed in his official capacity as the Head of State. In Pinochet’s case it was held that acts of torture can never be an official function of a Head of State; therefore, Pinochet does not enjoy immunity for the commission of torture.

EXTRA TERRITORIAL ENFORCEMENT MEASURES

As discussed in the section on “territorial jurisdiction” Kithmini has fled to Namibia. How do we ensure that Kithmini is arrested and brought to SL?

We can ask the Namibian authorities to arrest her and “extradite” (send) her to SL. The only way Namibia can extradite Kithmini to SL is if there is an extradition agreement between SL and Namibia or some other special arrangement (written agreement) in place.
In the absence of an extradition agreement: the Namibian and SL authorities can (1) kidnap her, blindfold her, put her on a plane and send her to SL (We call this extraordinary rendition and this is obviously illegal under international law!), or (2) we can lure her to a third country which has an extradition agreement with SL and once she is there, we can have her arrested and sent to SL.

On the kidnapping scenario: can Kithmini be tried in a national court when her presence in that national court was secured through a violation of international law?

In this regard read the Eichmann Case: where Israel regardless of the illegality asserted jurisdiction; US position in Alvarez Machain Case: where US asserted its jurisdiction; UK position in Bennett Case ( UK courts have no jurisdiction) and Westfallen Case: where UK courts said if it can be proved that UK authorities were complicit in the kidnapping; then, the UK national courts will not have jurisdiction. if UK authorities were not involved in the illegality; then, they have jurisdiction.