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Universal Jurisdiction – Hoisting a Red Flag Against Impunity

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Written by Lennart Poulsen

This blog considers the concept and application of the principle of universal jurisdiction, its current limitations and its future potential.

The publicity surrounding November’s G20 meeting in Buenos Aires was noticeable for reasons other than the economic and geo-political mainstays that tend to feature on the agenda for discussion among world leaders at such gatherings. One man in particular was the centre of attention, and not for reasons that he would have wished. He is Mohamed bin Salman, Crown Prince, and de facto ruler, of Saudi Arabia.

The still-simmering embers from his purported sanctioning of the murder of journalist Jamal Khashoggi in the Saudi Embassy in Turkey coupled with growing international exasperation of his role in the Saudi-led war against Yemen, were further fanned when Human Rights Watch (HRW), in the run-up to the G20, requested Argentinian prosecutors to invoke a war crimes clause in the Argentinian constitution that would allow them to investigate the role of Prince Mohammed bin Salman in possible crimes against humanity.

Argentina’s constitution recognises universal jurisdiction for war crimes and torture. Accordingly, its national judicial authorities can investigate and prosecute those crimes in domestic Argentinian courts, regardless of where they were committed.

The term “universal jurisdiction” refers to the concept that a national court may prosecute individuals for any serious crime against international law, encompassing crimes such as crimes against humanity, war crimes, genocide, and torture even where such crime has not taken place on its territory and the accused and/or victim may be a foreign national. While the concept has long existed as part of customary international law, its first proper applications were in the trials against the Nazi regime at Nuremburg following the end of the Second World War.

The current definition and exercise of universal jurisdiction varies from country to country. As a result, some countries have universal jurisdiction for some crimes and not for others and the criteria for prosecutorial jurisdiction can vary.

In the United Kingdom, offences which might be prosecuted under the principle of universal jurisdiction are, (i) grave breaches of the Geneva Conventions, contrary to the Geneva Conventions Act 1957, (ii) torture, contrary to s.134 Criminal Justice Act 1988, (iii) offences contrary to the War Crimes Act 1991 and (iv) offences contrary to the International Criminal Court Act 2001, which incorporated the Rome Statute into English law and criminalises international crimes such as genocide, crimes against humanity and war crimes.

The principle of universal jurisdiction hit the headlines in the UK in 1998 when the House of Lords upheld the arrest in London of the visiting former dictator of Chile, Augusto Pinochet, at the request of a Spanish judge who had issued a warrant for his arrest for his participation in war crimes in Chile and Argentina in the 1970s.

Since then, the principle has gathered momentum, with a number of governments having created specialised war-crimes units to enable their governments to prosecute such crimes within their own domestic courts. For instance, in 2016 an Argentinian judge invoked the principle to seek the extradition to Argentina of Spanish officials alleged to have committed torture during the Franco dictatorship, given the perceived absence of any prosecutions in Spain (although Spain refused to extradite them).

In Europe, countries including Germany, France, and Sweden are using universal jurisdiction laws to investigate allegations of war crimes, crimes against humanity, and genocide in Syria and Iraq.

In 2015, a Swedish court convicted and sentenced Mouhannad Droubi a Syrian national and member of the Free Syrian Army who had obtained residency in Sweden in 2013, to 5 years (later increased to 8 years) for the offence of torture as a war crime.

While welcomed by many as a path toward justice for victims of atrocious crimes, universal jurisdiction is, inevitably, not without its limitations.

One of these is the requirement of many countries that the accused must be present in the country in order to be arrested (where extradition is either refused or not possible).

Another, as illustrated in the case of Mohamed bin Salman’s official visit to Argentina for the G20, is the subject of diplomatic immunity. This issue was tested in the case of the former Foreign Minister of the Democratic Republic of Congo (DCR), Yerodia Ndombasi.

In what has become widely known as the “Warrant Case”, Belgian prosecutors, in 2000, issued an international arrest warrant under its domestic laws that allow for it to exercise universal jurisdiction over certain crimes (in this case, Yerodia was accused of inciting genocide against ethnic Tutsis in the DCR). The DCR responded by filing an application against Belgium in the International Court of justice (ICJ), claiming that Yerodia enjoyed diplomatic immunity as Foreign Minister. The ICJ held that, as Foreign Minister, Yerodia enjoyed immunity from foreign prosecution which only DCR could revoke and the arrest warrant was cancelled.

Notwithstanding the ‘failure’ of this case on the single ground of immunity, the ICJ did acknowledge that, technically, Belgium could rightly hear the case under the principle of universal jurisdiction. The Court also reasserted that universal jurisdiction is a separate issue from individual criminal responsibility – a form of liability which has its root in customary international law and which is frequently brought (in various forms) by prosecutors in international criminal tribunals. Government officials do not enjoy any immunity from criminal jurisdiction under international law in their own countries and as such the ICJ ruling did not dismiss the ability of the Congolese national courts to initiate criminal proceedings against Yerodia Ndombasi themselves, should they so choose.

This should sound a warning bell to heads of state who believe, like Saddam Hussein did, that immunity can protect them from impunity in all circumstances. Inevitable shifts in social sentiment and political power could potentially result in immunity being stripped. How likely that is to happen in a given case is a very different question and one which straddles the sphere of geopolitics which is beyond the scope of this article.

Worth mentioning in closing however, is the overlap with the jurisdiction of the International Criminal Court (ICC). The European Union’s persistent calls on the UN Security Council to refer the situation in Syria to the ICC and on the government of Iraq to refer jurisdiction to the court and ratify the Rome Statute, have been futile. Neither Syria nor Iraq is a member of the ICC and all attempts by the Permanent Members of the Security Council to refer these matters to the ICC have been blocked by Russia and China.

Universal jurisdiction is therefore an important tool in the arsenal for prosecutors of international crimes. It signals to those in power that even where the ICC cannot reach them, there may well come a time when they will face justice for their crimes elsewhere.

 

Lennart Poulsen
Barrister
Chambers of Steven Kay QC
9 Bedford Row
London

 

Image source: pixabay.com

 

 

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