The concept of universal jurisdiction evolved out of protecting international commerce, but now it has become a necessity for protecting human values in modern times. Even though the concept is good, its misuse threatens peaceful international relations. The study propose to discuss the legal status of the concept of universal jurisdiction under international law and its conflict with other legal principles like State sovereignty, sovereign immunity and non-intervention. It will also highlight how jus cogens norms and obligatio erga omnes strengthen the concept of universal jurisdiction. Further, the study will discuss the related concepts, such as ‘responsibility to protect’ and ‘extradite or prosecute’.
However, scope of the study will be limited to the problems of universal jurisdiction under international criminal law; and it will not address the issues of active, passive and territorial jurisdictions except to the extent necessary.
CONTENTS
ACKNOWLEDGEMENT
LIST OF ABBREVIATIONS
I. INTRODUCTION
1. BACKGROUND OF THE STUDY
2. DEFINITION, RATIONALE AND SCOPE OF THE STUDY
3. RESEARCH QUESTIONS
4. HYPOTHESES
5. RESEARCH METHODOLOGY
6. SCHEME OF THE STUDY
II. EVOLUTION OF UNIVERSAL JURISDICTION
1. THE CONCEPT OF PIRACY
2. AN OPTION INTO AN OBLIGATION
3. EXPANSION OF UNIVERSAL JURISDICTION
4. DEVELOPMENT OF UNIVERSAL JURISDICTION
5. OTHER BASES OF JURISDICTIONS
6. APPROACH OF UNIVERSAL JURISDICTION
6.1. Positive Approach
6.2. Negative Approach
7. THE PRINCIPLE OF NE BIS IN IDEM
8. DIFFERENT STATE PERSPECTIVES
8.1. Debate in the UN General Assembly
8.2. Opinion of the International Committee of the Red Cross
8.3. Opinion of Belgium and Spain
9. SOME CASES RELATING TO UNIVERSAL JURISDICTION
9.1. Eichmann Trial
9.2. Arrest Warrant Case
9.3. Pinochet Trial
10. EXPERIENCE OF SPAIN AND BELGIUM
III. LEGAL STATUS OF UNIVERSAL JURISDICTION
1. INTERNATIONAL CUSTOMARY AND CONVENTIONAL LAWS
1.1. International Crimes under Customary International Law
1.2. Conventional International Law
2. DOUBLE JEOPARDY AND DOUBLE CRIMINALITY
3. ABSOLUTE AND CONDITIONAL UNIVERSAL JURISDICTION
4. JUS COGENS AND OBLIGATIO ERGA OMNES
5. DOCTRINES IN CONFLICT WITH UNIVERSAL JURISDICTION
5.1. State Sovereignty
5.2. Sovereign Immunity
6. PARALLEL DOCTRINES
6.1. Principle of Extradite or Prosecute (EoP)
6.2. Responsibility to Protect (R2P): Origin and Development
IV. RESPONSIBILITY, USE AND ABUSE OF UNIVERSAL JURISDICTION
1. LEGAL MEANING AND MODES OF RESPONSIBILITY
1.1. State responsibility
1.2. Individual Responsibility
1.3. Joint Criminal Responsibility (JCR)
1.4. Collective Responsibility
1.5. Command or Superior Responsibility
2. USE AND ABUSE OF UNIVERSAL JURISDICTION
2.1. Use of Universal Jurisdiction
2.2. Abuse of Universal Jurisdiction
V. CONCLUSION
REFERENCES
LIST OF ABBREVIATIONS
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Preface
The concept of universal jurisdiction evolved out of protecting international commerce, but now it has become a necessity for protecting human values in modern times. Even though the concept is good, its misuse threatens peaceful international relations. The study propose to discuss the legal status of the concept of universal jurisdiction under international law and its conflict with other legal principles like State sovereignty, sovereign immunity and non-intervention. It will also highlight how jus cogens norms and obligatio erga omnes strengthen the concept of universal jurisdiction. Further, the study will discuss the related concepts, such as ‘responsibility to protect’ and ‘extradite or prosecute’.
However, scope of the study will be limited to the problems of universal jurisdiction under international criminal law; and it will not address the issues of active, passive and territorial jurisdictions except to the extent necessary.
August, 2018 P.R. Ramdhass
Alliance School of Law Assistant Professor
Alliance University
Bangalore (India) - 562106
ACKNOWLEDGEMENTS
I express my sincere thanks to Late Prof. R.P. Anand, whose writings have improved my understanding and analytical capabilities in international law. I thank my respectable teachers Prof. B.S. Chimni, Prof. Y.K. Tyagi, Prof. B.H. Desai, Prof. V.G. Hegde, Prof. A. David Ambrose, Prof. Venugopal, for introducing me to international law from a third world perspective.
I thank my supervisor Prof. B.S. Chimni for his invaluable guidance and encouragement. He made me to read very widely and raised my level of confidence to produce this dissertation. His expert guidance has taught me not only how to write but also the ethics of research.
I extend my special thanks to my seniors Prof. Kalidhass and Prof. Thulasidhass for sharing their valuable views and thoughts throughout the research and for their encouragement in completing the dissertation successfully. I also thank my friends for spending their valuable time in discussing my topic, which helped me to clarify my rough ideas.
Last but not least I would be failing in my duty if I fail to thank my parents and brothers for their support.
CHAPTER I INTRODUCTION
1. BACKGROUND OF THE STUDY
The doctrine of universal jurisdiction is used to authorize domestic courts to exercise jurisdiction over serious international crimes, like piracy, genocide, war crimes, slave trade and other crimes against humanity. Universal jurisdiction means a State, without any jurisdictional bond, exercising jurisdiction over a crime on behalf of global community. It allows for the trial of international crimes committed by anybody, anywhere in the world. This doctrine has evolved for two reasons: first, to punish the crimes that are grave and harmful to the entire international community; and second, to ensure that no safe haven is available to those who have committed serious crimes.
Historically, piracy was the basis for the establishment and development of the concept of universal jurisdiction. Since all nations had an interest in protecting international commerce, piracy was declared as a crime against humanity conferring universal jurisdiction on States to prosecute pirates. Later, the concept was extended to prosecute those responsible for serious international crimes, such as war crimes, genocide, crimes against humanity and so on to secure universal human values.
The establishment of Nuremberg and Tokyo tribunals, the International Criminal Tribunal for Former Yugoslavia and Rwanda, the International Criminal Court, Special Court for Sierra Leone, etc. and the issue of arrest warrant against the perpetrators of serious human rights violations (against Eichmann, Augusto Pinochet, Thomas Lubanga, Germain Katanga, Jean-Pierre Bemba Gombo, Yerodia Ndombasi, Charles Taylor, Ariel Sharon, Omer Al-Basher and so on) and their prosecution before courts and tribunals lead to a rapid growth of international criminal law and attracted much attention of legal scholars at the international level.
These developments have resulted in conflicting arguments: on the one hand, the developing countries argue that the establishment of criminal tribunals and the claim of universal jurisdiction are discriminatory in nature. They contend that the criminals are prosecuted and universal jurisdiction exercised mostly from the developing countries; on the other hand, the developed countries contend that the concept of universal jurisdiction has evolved to protect the victims of neglected crimes and to avoid impunity for perpetrators of serious crimes.
The lack of proper definition as to the circumstances in which universal jurisdiction can be claimed lead to misuse, which threatens peaceful international relations. As a result, the legal status of universal jurisdiction and its validity is still questionable in international law.
But the global community realized the importance of universal jurisdiction especially, after the Kuala Lumpur War Crimes Tribunal claimed jurisdiction against former American President George W. Bush, Vice-President Dick Cheney and other superior officials based on the principle of universal jurisdiction (Cooke, 2012). The action taken by this tribunal is a precedent for developing countries to exercise universal jurisdiction in their domestic courts even against the criminals from powerful or developed countries.
In early days, the concept was an option to follow by the States but later the same concept turned as an obligation to save the people from serious international crimes by the international community (i.e., the UN Security Council and other international courts and tribunals). The purpose of the UN Security Council is to maintain international peace and security, which includes the prosecution of perpetrators of serious international crimes.
There are two parallel doctrines exist with the concept of universal jurisdiction, namely: the concept of ‘Responsibility to Protect’ (R2P); and the concept of ‘Extradite or Prosecute’ (EoP). Similarly, there are three conflicting principles against the principle of universality which include State sovereignty, sovereign immunity and non-intervention. These doctrines are giving much importance to prohibit the third States’ intervention because every State is sovereign independent and no State will allow the State without their permission. Similarly, heads of State, heads of government, diplomats and other higher officials enjoy the sovereign immunity and no criminal proceedings sought against them. But the concept of universal jurisdiction permits third State intervention and it also allow them to take action against anybody including heads of State and heads of government for serious international crimes. States may claim universal jurisdiction against the perpetrators of serious international crimes without any territorial connection with disputing State.
The proceedings conducted by the States are only based on the merits of the case and to protect the victims on behalf of the global community and not for the benefit of the prosecuting State. Fundamental concepts of international law, like jus cogens as well as the obligatio erga omnes also strengthen the concept of universal jurisdiction. Opinion of States about the principle of universal jurisdiction differ from country to country especially developing world’s opinion varies from the opinion of the developed countries. But both sides expect the proper application of universal jurisdiction against the offending States or its leaders or its citizens.
The concept of Responsibility is important to save people from serious international crimes. The responsibility is of various kinds they are: State responsibility, individual responsibility, collective responsibility, and command or superior responsibility. These concepts of responsibility come into play only if it affects the rights of others or if it breaches or violates the duties owed towards others. State has the primary responsibility to protect human values to the citizens of foreign as well as domestic. Even some of the corporations as well as organizations have primary responsibility to save succeeding generation from serious international crimes committed by its authorities in the course of employment. Therefore, the concept of responsibility further strengthens the concept of universal jurisdiction of domestic as well as international courts and tribunals.
2. DEFINITION, RATIONALE AND SCOPE OF THE STUDY
The concept of universal jurisdiction evolved out of protecting international commerce, but now it has become a necessity for protecting human values in modern times. Even though the concept is good, its misuse threatens peaceful international relations. The study propose to discuss the legal status of the concept of universal jurisdiction under international law and its conflict with other legal principles like State sovereignty, sovereign immunity and non-intervention. It will also highlight how jus cogens norms and obligatio erga omnes strengthen the concept of universal jurisdiction. Further, the study will discuss the related concepts, such as ‘responsibility to protect’ and ‘extradite or prosecute’. However, scope of the study will be limited to the problems of universal jurisdiction under international criminal law; and it will not address the issues of active, passive and territorial jurisdictions except to the extent necessary.
3. RESEARCH QUESTIONS
The study addresses the following research questions:
1. What is meant by universal jurisdiction under international criminal law?
2. Whether the principle of universal jurisdiction is means to achieve commercial interest or end in itself to punish serious international crimes?
3. Is there any difference between domestic, international and universal jurisdictions over serious international crimes?
4. Who can claim the universal jurisdiction and against whom it applies?
5. What is the legal status of universal jurisdiction in international law?
6. When the conflicts arise between the universal jurisdiction and immunities of State which one prevail over the other?
7. How the concepts of ‘Extradite or Prosecute’ and ‘Responsibility to Protect’ are analogues to Universal Jurisdiction?
8. How far the exercise of universal jurisdiction may have a negative impact on peaceful inter-State relations?
9. Is universal jurisdiction a prerequisite to provide justice to neglected victims and to ensure no heinous crimes go unpunished?
10. Does the proper codification is essential to strengthen the concept of universal jurisdiction and to avoid its improper usage in inter-state relations?
4. HYPOTHESES
The study is based on the following hypotheses:
1. The concept of universal jurisdiction under international criminal law was evolved to ease the smooth conduct of inter-State commerce.
2. Universal jurisdiction is not end in itself to punish serious international crimes rather a means to achieve States’ ulterior motives.
3. Abuse of universal jurisdiction by States negatively affects the peaceful inter- State relations.
4. Proper codification is essential to strengthen the concept of universal jurisdiction under international criminal law and to avoid its improper usage in inter-State relations.
5. RESEARCH METHODOLOGY
The research work would be mainly based on primary and secondary sources of international criminal law, humanitarian law and human rights law. The primary sources include various international conventions, legal principles, declarations, resolutions, etc. that have been adopted by international institutions. The major conventions and principles include: Hague Laws 1899 and 1907, UN Charter 1945, UDHR 1948, Geneva Conventions 1949 and its two Additional Protocols 1977 and third Additional Protocol 2005, Vienna Convention on Diplomatic and Consular Relations 1961 and 1963, VCLT 1969, ICC Rome Statute 1998, Draft Convention on the State Responsibility 2001, Princeton Principles on Universal Jurisdiction 2002, etc. The travoux preparatoires of these legal instruments will also be considered along with some case laws of ICC, ICTY, ICTR, SCSL, ICJ and other courts and tribunals. The domestic legislation of some countries would also be used to understand the concept of universal jurisdiction. The secondary sources include books, journals and internet sources.
6. SCHEME OF THE STUDY
The study has four further chapters:
Chapter - 2 traces the historical evolution and development of universal jurisdiction under international criminal law.
Chapter - 3 identifies how universal jurisdiction is in conflict with other legal principles like immunity of States, State sovereignty, and non-intervention. Similarly, it addresses how far the concept is analogous to other principles like, ‘extradite or prosecute’ or ‘responsibility to protect’. However, it also analyses the legal status of universal jurisdiction under international law.
Chapter - 4 analyses the debate surrounding the responsibility of universal jurisdiction along with the existing critique on the use and abuse of universal jurisdiction. Further, it focuses the issue of selective usage of universal jurisdiction and its impact on peaceful inter-State relations; its functionality to provide justice to the neglected victims and to ensure no heinous crimes go unpunished.
Chapter - 5 contains conclusion of the present study with some suggestions to improve the concept of universal jurisdiction and to prevent the abuse of universal jurisdiction.
CHAPTER II EVOLUTION OF UNIVERSAL JURISDICTION
The concept of universal jurisdiction evolved out of a necessity to prevent and regulate the activities of piracy and to protect commercial interests of colonial powers. Later it was developed to prevent other serious crimes like slavery, war crimes, genocide and crimes against humanity. In the beginning the universality principle was an option for States to exercise jurisdiction over serious crimes, but later it became an international obligation to bring justice to victims of serious crimes. The principle of universal jurisdiction is also establishes a link to the exercise of domestic jurisdiction over persons committing serious crimes, that is without any territorial connection. The State claiming such jurisdiction can exercise its authority on behalf of the international community as a whole to eradicate serious international crimes. In sum, the main objective of universal jurisdiction is to ensure justice to victims and by punishing authors of serious crimes. This chapter discusses the historical evolution and development of universal jurisdiction along with the help of state practice and decided cases by domestic courts. In the process the Chapter also identifies the perspectives of different countries over the development of universality principle.
1. THE CONCEPT OF PIRACY
Piracy is of note in international law as it is commonly held to represent the earliest invocation of the concept of universal jurisdiction. The crime of piracy is considered a breach of jus cogens, a peremptory international norm that States must uphold. Those committing thefts on the high seas, inhibiting trade, and endangering maritime communication are considered by sovereign States to be hostis humani generis (enemies against human race) (Kissinger 2001: 87). A universal jurisdiction, action can be taken against pirates without objection from the flag State of the pirate vessel. This represents an execution to the principle extra territorium jus dicenti impune non paretur which means “one who exercise jurisdiction out of his territory is not obeyed with impunity” (Black’s Law Dictionary 1979: 528).
The phenomenon of piracy is at the basis of origin of the universality principle. For piracy is viewed as an offence against the universal law of society. Historically, the concept of piracy existed even before the birth of Christ and is mentioned in Homer’s ‘ Iliad ’ novel. The word ‘ pirate ’ itself, derived from the Greek term ‘ peirato ’ and the Latin term ‘ pirata ’, was in classical times often used to describe brigands and other marauders on land, or essentially any group that did not formally declare war before attacking (Rubin, 2006: 4-13).
Piracy began over 2000 years ago in Ancient Greece, when sea robbers threatened the trading routes of Ancient Greece. Since then, this threat has continued amongst seafaring nations ever since. Roman ships were attacked by pirates who seized their cargoes of grain and olive oil. The Vikings (which means sea-raiders) were renowned for attacking shipping and coastal settlements. However, piracy really flourished between 1620 and 1720. This period is known as the golden age of piracy. Between sixteenth to nineteenth centuries, there have been different types of pirates, these being, privateers, buccaneers and corsairs (Royal Naval Museum Library, 2002).
Piracy was a problem of thousands of years before the Spanish began to bring gold, silver and other treasures from the ‘ New World ’ back to Spain. Men sailed the seas as pirates when countries began to cross the ocean and seas to trade goods with each other. There were powerful pirates who sailed the Aegean and Mediterranean Sea. These pirates set up a large pirate nation in Cilicia (now it is part of Turkey). Barbary corsairs controlled the western part of the Mediterranean sea-raiders were brave and strong pirates (Rubin, 2006: 10-35). They sailed all over the Atlantic Ocean but especially terrorized the European coastlines. Piracy was also active in the water surrounding Asia. As ships were built bigger and better and men became braver, piracy began to spread into the New World.
The pirates of the Spanish era lived and worked in a time called the Golden Age of Piracy. Time began when Queen Elizabeth of England made her best sailors and privateers by giving them permission to plunder and loot in honour of the country. Therefore, the concept of piracy was legalized in ancient days. Sir John Hawkins, Sir Walter Raleigh, Sir Francis Drake, and Captain William Kidd were some of the sailors that became privateers (ibid.). This was a mistake because they all discovered how easy it was to be a pirate and became one. Later buccaneers from the West Indies began to sail the Caribbean Sea and stole from any ship that they found. These buccaneers and the Spanish navy were not friends. In fact, the buccaneers hated the Spanish because they destroyed pirate ships and towns and would capture and kill any buccaneer that they caught. The buccaneers formed a close group together called the Brethren of the Coast. They vowed to fight to the last man standing against the Spanish. They attacked the Spanish colony settlements and merchants’ ships that were bringing supplies from Spain.
In ancient days, the countries (colonial powers) send its representatives to visit the other countries and to sign treaties to develop their commercial relationship. In those days, countries encouraged piracy and privateering concept. Therefore, the piracy concept was legalized by the powerful navy States. Even Queen Elizabeth of England encouraged and plundered the goods at sea by privateers. Later on, Spain, France, Portugal followed. When other countries started piracy and privateering as a legal activity, United Kingdom’s (UK) sole ownership at sea concept came to an end.
The colonial countries’ freedom fighters or the lovers of their motherlands or those who were not happy about colonial occupation were also involved in piracy activities. These people attacked ships and looted the wealth from the colonial dominators and brought back the looted goods of colonial countries. Because of these two reasons, Britain declared at the end of the seventeenth century, piracy as an ‘international crime’ and proposed universal jurisdiction to prosecute the pirates or those who were involved in the activities of piracy. But Spain, Portugal and other strong countries ignored UK’s proposal. But in mid seventeenth century most of the colonial powers realized that the looted goods of the colonies were re-looted by the colonies in the name of piracy. Therefore, the colonial dominators were afraid by the activities of pirates (buccaneers) of the colonies, which was the major threat for colonial masters. When colonial powers’ commercial values were increased by the activities of piracy, it was legalized. Later, when the same pirate activities caused severe damage to the commercial interest of the colonial powers, piracy was announced as an international crime and countries said universal jurisdiction could be exercised to try the pirates. Therefore, it is clear that the concept of universal jurisdiction came only to save the commercial interest of colonial powers rather than to protect human values. Even international law evolved for the purpose to protect the interests of colonial masters.
Piracy was not only a serious human threat in ancient days but is an increasing problem for modern sea-farers. Somalia is among the world's worst piracy hot-spots and the pirates of the region are responsible for more than one third of all piracy attacks in the world. Modern pirates are well armed and well organized. A developing hot-spot is the Gulf of Aden where experts are worried by the rising number of attacks by Somali pirates. All vessels in the area are now being advised to maintain strict 24 hours radar and anti-piracy watch. Some captains are protecting their boats with electrified fencing and satellite tracking (May, 2008).
2. AN OPTION INTO AN OBLIGATION
Custom is a primary source of international law. Due to that, the concept of piracy as an international crime and the pirates were treated as a hostis humani generis, which was considered a customary norm of international law. Thus, the principle of universal jurisdiction became a norm of customary international law. In international law, whenever universal jurisdiction principle is accepted as a customary norm, it gives an option to States but does not place a duty to prosecute the perpetrators of heinous crimes. The system slowly changed due to emergence of various international treaties and the adoption of aut dedre aut judicare principle. Every State has an obligation to follow the treaties and to prosecute the criminals on the basis of universal jurisdiction. If the State fails to prosecute, then it should extradite such (pirates) criminals based on the extradition treaty.[1] In such a way the principle of universal jurisdiction has been changed from ‘ an option ’ into ‘ an obligation ’.
3. EXPANSION OF UNIVERSAL JURISDICTION
Later the vision of universal jurisdiction was slowly expanded to other crimes which include slavery and slave trade practices. In sixteenth and seventeenth century the concept of slavery became a legal practice. The question is: why the international community especially developed countries like, Britain, France, Spain and Portugal announced piracy and slavery as international crimes at the end of 17th and early 18th century? There were two major reason for the inclusion of slavery as an international crime: first, there were continuous protests in the colonial countries against slavery and slave trade practices; second, colonial powers became well developed and there was no need to bring slaves to their country and further, it’s a waste of cost and food expenses, which overburdened the colonial powers.
Piracy and slavery are therefore treated as serious international crimes and more actually involved in and abetting piracy or slavery are punishable on the basis of universal jurisdiction.[2] After the Second World War, the universal jurisdiction concept rapidly grown because several higher officials were punished as war criminals and the nature of serious crimes was expanded not only piracy and slavery but also war crimes, genocide and crimes against humanity. Its vision day by day expanding to most of the crimes are considered as serious international crimes and the States get the jurisdiction on the basis of universality. Now-a-days, universal jurisdiction applicable to all sort of crimes which includes, piracy, slave-trade, war crimes, genocide, crimes against peace, crimes against humanity, torture, at present it extended to terrorism and apartheid also. And there is a possibility in future; some more crimes may come under the categories of crimes of serious nature which could be entertained under the principle of universal jurisdiction.
4. DEVELOPMENT OF UNIVERSAL JURISDICTION
The concept of universal jurisdiction was developed in early nineteenth century. In such period, this concept was widely applicable to piracy and after sometime, such concept was expanded to other illegal criminal activities of serious nature, like slave- trade, war crimes, genocide and crimes against humanity. In such period, the concept was considered as “common law for common enemies” and there was no specific law for different serious international crimes. All crimes considered as a single crime and these crimes were prosecuted and punished under the common umbrella of the domestic criminal legal system of similar nature.
International criminal law (ICL) is developing from time to time. In olden days, each and every kingdom has its own criminal legal system for its convenience. Slowly the criminal legal system between the States has expanded in the name of extradition agreement among States, exchange of diplomats, etc. Even in sixteenth and seventeenth centuries itself many States’ criminal legal systems were strong enough but these systems were not developed internationally.
In 1899 and 1907 the global community put an effort to bring the international criminal law and to regulate the laws of war in two Hague Peace Conferences. Subsequently, the four Geneva Conventions (FGC) and two additional protocols along with the Hague Peace Conferences strengthened the international criminal law in the global scenario. Some of the provisions in four Geneva Conventions and two additional protocols (like, Article 49(2) of GC I, Article 50(2) of GC II, Article 129(2) of GC III, Article 146 of GC IV and Article 6 of the Additional Protocol II)[3] impliedly relates to the concept of universal jurisdiction against serious international crimes such as war crimes, genocide, crime against humanity, etc.
After World War I countries joined together and brought an international organization i.e. League of Nations. In 1939 World War II started because of the failure of League of Nations.[4] After Second World War Nuremberg and Tokyo "Each High Contracting Party 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, and in accordance with the provisions of its own legislation, hand such persons over for trial to another High Contracting Party concerned, provided such High Contracting Party has made out a prima facie case."
Tribunals were established to prosecute the war criminals of Axis powers (defeated countries) by Allied powers (victorious countries), some of them name it as a ‘ victors ’ justice ’ or ‘ strong against the weak ’. Before the establishment of these tribunals, only States were subjects of international law and there was no individual responsibility but only State responsibility. But after the establishment of these tribunals, individual combatants were punished in the name of war criminals. Therefore, individuals got international status and they were also treated as subjects, capable of holding rights and duties.
Section 6 of the Charter of the International Military Tribunal (IMT), Nuremberg and Charter of the International Military Tribunal for the Far East (IMTFE), Tokyo[5] mentioned about the serious international crimes which are considered as hostis humani generis. These tribunals for the first time introduced the concept of ‘individual criminal responsibility’. But the law of universal jurisdiction changed little until the aftermath of World War II (WWII). In the post-war period, numerous prosecutions for war crimes and crime against humanity against individuals conducted in both national and international tribunals (Morris, 2001: 340-342).
The jurisdictional bases for some of the trials are ambiguous and in some cases, controversial, a major development in the doctrine of universal jurisdiction can be traced to this period. Unfortunately this development was based in part upon faulty reasoning. The courts that conducted the post-war trials at the national level based their jurisdiction on various combinations of territoriality, nationality, passive personality, protective and universal jurisdiction, often listing several of those bases. At least some of the national courts appear to have exercised universal jurisdiction whether or not they explicitly so stated (Morris, 2001: 341-343).
5. OTHER BASES OF JURISDICTION
Whenever the serious crimes occurred then countries get jurisdiction in three ways that is: i. Accused State (active personality); ii. Victims’ State (passive personality); and iii. Territoriality (subject matter jurisdiction). Nationality or active personality jurisdiction is asserted by a State whose national is a suspect. It includes jurisdiction asserted by a State based on the domicile or residence of a suspect. Nationality is understood to be ‘universally conceded’. It is noted that under the classical jurisdictional regime, nationality jurisdiction has been commonly circumscribed by many condition and safeguards by the domestic law of many States (Inazumi, 2005: 24).
The Passive personality jurisdiction is asserted by a State whose national is the victim of a crime. It allows States, in limited cases, to claim jurisdiction to try a foreign national for offenses committed abroad that affect its own citizens (Harvard Research Paper: 445). And the subject matter jurisdiction means where the subject- matter occurred gets jurisdiction which is called as territorial jurisdiction. The crime happened within the jurisdiction of the sovereign independent nation gets jurisdiction to prosecute the perpetrators based on the principle of territorial jurisdiction. These are the ways in which countries get jurisdiction to try such matters. Whenever the above said jurisdictions remain silent, then only the principle of universality come into effect.
In 1948, Genocide Convention (GC) confirmed the concept of aut dedre aut judicare and the concept of hostis humani generis. Article VI of the convention impliedly accepts the concept of universal jurisdiction which was an important milestone for the development of International Criminal Law.
Immediately after the UNO’s establishment many colonies started demanding freedom and colonial powers like, Britain and France agreed to sign the freedom treaties. Due to that UN Resolution 1514 was passed for the purpose to give freedom for all colonies from their colonial masters.
After the emergence of UNO, countries put efforts to establish a permanent international criminal court like, ICJ. But due to ideological variations among the two super powers (i.e. USA and USSR) an international community's dream never became reality. During that period, the concept of universality was misused by developed countries. In 1960s Cold War was started between the superpowers, which came to an end in 1990s, after the split of the Union of Soviet Socialist Republics (USSR).[6] In this long gap the development of ICL and the concept of universal jurisdiction were in dormant stage or witnessed a slow improvement. Even though the lack of improvement in the Cold War period, the two additional protocols on Geneva Conventions and two human rights covenants were also adopted to protect human rights from violations. In 1980s some specific human rights conventions were adopted by countries for their convenient.[7] These criminal law conventions impliedly supported the concept of universal jurisdiction and expressly supported the principle of extradite or prosecute.
After the end of Cold War in 1990s, international community took initiatives to establish the International Criminal Court (ICC) to bring out justice from darkness. In 1998 nearly 122 States met at Rome and signed the treaty which is called as the Rome statute of the ICC. From 2002 onwards the ICC came into exist and started functioning peacefully. USA opposed the establishment of ICC for various reasons. The Reason could be that the USA opposed the ICC’s establishment because it did not like the concept of equality where every criminal, he may be heads of State or heads of government, could be held responsible equally equal before the ICC.
Abi-Saab raises the issue that how pirates, slave traders and heads of States who committed war crimes or genocide could be treated equally? He further argues that even though they (heads of State or heads of government) commit serious crimes like genocide, crime against humanity, etc. they should not be equated with pirates (Abi-Saab, 2003: 598-600). The claim of universal jurisdiction should give some minimal respect to immunity angle and pirates must be treated differently. Those who claim universality may justify their argument that pirates, war criminals and heads of State who commit serious crimes against humanity are to be treated equally because such crimes are considered as serious international crimes against global community. As per international law point of view pirate and heads of State both are equal in the eye of law if they commit heinous crimes.
Before the establishment of the ICC two criminal tribunals[8] came into exist for the purpose to provide justice to victims against the war criminals or genociders, either they may be heads of State or any other higher officials. Vattel points out that ‘pirates are distinguished from other heinous offenders by noting that the former ‘are’ universally punished and the latter ‘ought’ to be [punished]’ (Vattel, 1833 Cited by Kontorovich, 2004: 47).[9]
Actually, diplomats and other higher officials escaped from their criminal responsibility at Nuremberg and Tokyo Tribunals in the name of procedural immunity (not granted to substantial immunity)[10] mentioned in the customary law. In 1960s two diplomatic and consular conventions further strengthened the immunity principles. But later the ICTY and ICTR does not permit those loop-holes to escape the genocides and war crimes. Suppose any crimes committed by the heads of State or may be heads of government in the name of nationhood then also those persons cannot escape from their responsibility by way of procedural immunity or in the name of substantial immunity.
ICTY, ICTR, SCSL, Cambodia Tribunal, etc. were established, due to the global community’s political and other pressures upon those States to establish criminal tribunal to conduct trial. Therefore, we can name it as ‘the Subsidiary Universal Jurisdiction’. In that way the international criminal law as well as the concept of universal jurisdiction developed in the international scenario.
In 2000 and 2001 two conferences regarding universal jurisdiction were held at Cairo and Princeton University. Various international criminal law scholars participated in the conference and brought regulations for the concept of universal jurisdiction. The Princeton Principles on Universal Jurisdiction defines the serious international crimes to include: piracy, slavery, war crimes, crime against peace, crime against humanity, genocide and torture. To avoid an illegal claim of universal jurisdiction the Princeton Principle 1(5) explains that ‘ a State shall exercise universal jurisdiction in good faith and in accordance with its rights and obligations under international law ’.
6. APPROACH OF UNIVERSAL JURISDICTION
6.1. Positive Approach
The positive approach of universal jurisdiction principles as follows:
1. If not all municipal law crimes are crimes under international law but most international crimes subsume elements which constitute criminal offences under municipal law (Randall, 1988: 829).
2. Where the national court proceedings were partial and not independent or were intended to shield the accused from international responsibility or the case was not diligently prosecuted (Denters and Schrijver 1998: 256).
3. Sometimes the State or its municipal court of highest body not able to prosecute the perpetrator, who may be a strong political leader of the State or who may be a higher official in the State who commits serious international crimes like, Genocide, War Crimes, Crime against Humanity and Torture. In such situation, he cannot escape from the impunity by way of procedural or substantial immunity.
4. In exercising universal jurisdiction the State does not act in its own name uti singulus [11] but in the name of global community (as with the institution of ' actio popularis ')[12] (Abi-Saab, 2003: 4). Therefore, the positive thinkers of the international criminal law states that the universal jurisdiction of last resort, a failed-State solution called for by urgency and necessity.
6.2. Negative Approach
Some of the developing countries' political leaders and criminal law scholars thinks that the concept of universal jurisdiction negatively. Scholars like Fletcher, Kissinger, etc. are negative thinkers of the principle of universal jurisdiction. Fletcher points that the claims of universal jurisdiction are dubious and those that favor this problematic doctrine have a greater burden than they have accepted to date to provide good reasons for their position (Fletcher, 2003: 580-584). Similarly, Kissinger views that the concept of universal jurisdiction plays out differently in different parts of the world. Some powerful countries use the principle of universality against the weaker State in the name of actio popularis but in reality, (the reason may differ) the conduct of prosecution may be to take revenge against the political enemies of the weaker State, rather than bringing universal justice (Kissinger, 2001: 86-96).
Some (developed) countries are misusing the concept and sometimes taking this principle as a powerful tool to attain their goal in the name of actio popularis or delicta juris gentium.[13] The universality principle is never used against the developed countries' heads or higher officials by the developing world.
7. THE PRINCIPLE OF NE BIS IN IDEM
In some exceptional cases the ne bis in idem principle breached by countries for the purpose to exercise universal jurisdiction on behalf of the global community. In Finta (1994) and Ariel Sharon (2003) cases the above said concept was permitted. In Ariel Sharon case, even though the blue-ribbon kahan commission in Israel gave a complete and impartial investigation declared that Sharon was not criminally liable for the murders committed by the philologists in the detention camps of Sabra and Shatila, the Belgium domestic courts were willing to proceed the same case again.
The violation of ne bis in idem is permissible in the following grounds:
1. The criminal case treated as an ordinary crime but in reality such crime is of serious in nature.
2. The State wants to shield the accused from the heinous crimes.
3. The court is not able to give genuine decision against the heads of State or heads of government for various reasons like, heavy political pressure or if he gets conviction then there is a possibility of serious internal conflict in the State.
In such situation, any State may claim universal jurisdiction against the perpetrators to prosecute once again for the same offence as a matter of right. It does not amount to violation of ne bis in idem principle. States are claiming universal jurisdiction in various cases of serious crimes seems to be ut singulus but in reality States may claim only in the name of actio popularis.[14]
As per the developing countries point of view every norms of international law is created for the purpose to protect the developed countries and drain the wealth of the developing countries ‘legally’. For example, mare clausum (closed sea concept), mare liberum (open sea or the free sea or the freedom of the sea),[15] Hull Formula[16] (prompt, adequate and effective compensation), Aut dedre aut judicare (extradite or prosecute), Hostis humani generis (enemy of all human race), etc. In such a way even the universality principle also came only to prosecute the developing countries heads of State or heads of government by developed countries, in the name of international crime, for various reasons but some developing countries also claimed the concept of universal jurisdiction successfully.[17]
On the other side of the argument the colonial masters brought the principle of universality to protect the victims and to prosecute the perpetrators. It’s not for the benefit of developed or developing because every country gets the jurisdiction to prosecute the criminals on behalf of the international community and to save succeeding generation from the serious international crimes and bring peace among nations. According to Dunlap, the use of law is a weapon of war to control serious crimes (Dunlap 2001). In such a way the universal jurisdiction concept developed even though it struggle with many unnecessary black marks, it runs successfully protecting the succeeding generations from serious violations of humanity.
An argument against the universality principle is rapidly developing on the ground that it violates the concept of State sovereignty. ICJ's involvement in Arrest Warrant Case was the great ' blow ' to the concept of universal jurisdiction. ICJ destroyed the Belgium's claim on universal jurisdiction.[18] Even though the concept came for the purpose to protect commercial interests of the colonial powers later it was turned to protect human values against heinous crimes.
8. DIFFERENT STATE PERSPECTIVES
In the end of the Second World War, after the immediate establishment of the United Nations, several specific treaties[19] were adopted to eliminate the grave crimes. Each specific crime was discussed by each international criminal treaty. For example, 1948 Genocide Convention[20] established for the purpose to prohibit the mass killing of human beings in the name of genocide. Similarly, 1949 four Geneva Conventions regulate the rules of war at hostility, 1982 UN Convention on Law of the Sea prohibits the Sea Piracy[21] and Slave-Trade Practices,[22] 1984 Torture Convention specifically prohibit the serious nature of torture. These are the conventions, where almost all the countries signed, ratified and incorporated through their domestic legislation. Those crimes are universal in nature and treated as hostis humani generis based on the principle of universality.
During and after Cold War, some developing countries lost peace, due to internal disputes and war within States. These internal disputes occurred because of various reasons:[23] for example, communal dispute and racial discrimination among people. As a result, some powerful countries started misusing the concept of universality against the rulers of the developing countries, to obtain their objects by prosecuting the heads of developing countries especially, the African leaders.[24] Therefore, the developing countries demanded the regulation for the concept of universal jurisdiction. The United Nations General Assembly and United Nations Security Council passed several resolutions[25] to regulate the concept of universal jurisdiction. At present, whether the universality principle is good for nations? Do we really need the principle of universal jurisdiction? How countries treat the concept of universal jurisdiction and in what way reduce its misuse? How States think about the issue of universal jurisdiction? These unanswered questions are addressed in this part through the debate of the UNGA, States opinion and opinion of the ICRC.[26]
8.1. Debate in the UN General Assembly
For the first time the global community get together and the UNGA arranged a meeting exclusively to discuss about the concept of universal jurisdiction. This was the proper podium for the countries (developed as well as developing) to express their views in a proper manner. Some of the countries put their opinion what they understood about the principle of universal jurisdiction. Almost all the countries effectively participated and shown their interest to practice universal jurisdiction and supported the concept unconditionally but their only request is to avoid the abuse of universal jurisdiction. Some countries effectively debated over the concept of universal jurisdiction in this meeting.
8.1.1. Opinion of African States: The global community should take necessary measures to end the abuse and political manipulation of universal jurisdiction by judges and politicians from States outside Africa. All pending international arrest warrants and prosecutions are filed only against African leaders or other high-ranking officials. The African Union Constitutive Act provides the Union with the right to intervene - at the request of any member State - in situations of genocide, war crimes and crimes against humanity. African States have adopted progressive human rights instruments, including optional protocols that permit individual complaints against their own governments. The African States are respecting, honouring and adopting the various UN Human Rights treaties but still the international arrest warrant is issued only against the African leaders in the name of human rights violations by way of universal jurisdiction. Here the question is, whether African countries alone are violating human rights? The International Court of Justice held that the immunity for heads of State should not be put to question or be re- examined (Arrest Warrant Case). The Egyptian representative Ibrahim Salem pointed out that in sixty seventh General Assembly meeting, some non-African States are misusing the concept of universal jurisdiction in the name of development of fight against impunity but in reality, such kind of use of universal jurisdiction could endanger international law. Therefore, the non-African States should not justify their arbitrary or unilateral application or interpretation of universal jurisdiction as a customary international law.
8.1.2. Opinion of Latin American Countries: The Community of Latin American and Caribbean States (CELAC) view universal jurisdiction and the concept of extradite or prosecute as two different principles but some countries confused them with each other. But the goal of both concepts is to end impunity. Chile believes that universal jurisdiction should be applied only to heinous crimes defined under international law more specifically, in international treaty law in order to end impunity for those crimes. The delegation of Chile Jose Antonio Gonzalez to recalls in UN General Assembly and recognize that the principle of universality specifically applicable only in case of piracy which is established formally in the UNCLOS. Whenever the specific jurisdiction (such as territoriality, active and passive personality) fails, the universal jurisdiction starts its effective operation against the perpetrators of grave crimes it is a universally accepted principle which is broadly evidenced and impliedly accepted by the international treaties.
He further argues that the universal jurisdiction should not be based exclusively on the domestic legislation of the State. The State is not able to proceed its jurisdiction only on the basis of universality but it needs some special character to investigate or to prosecute the perpetrators on the above said jurisdiction.
8.1.3. Opinion of United States: United States argues that the long history of universal jurisdiction as part of international law relating to piracy. The basic questions remained: how jurisdiction should be exercised in relation to universal crimes and States’ relevant practices? Work undertaken by the Committee thus far had highlighted numerous issues associated with universal jurisdiction, including its definition and scope. Its relationship has to the treaty-based obligations and to the law of immunity as well as a need to ensure that decisions to invoke the principle were undertaken in an appropriate manner. Steven[27] said questions about the principle’s practical application, such as the circumstances under which and how often it was invoked also merited its further examination.
8.1.4. Opinion of Russian Federation: The country of Russian Federation views that the universal jurisdiction is an important tool to combat impunity; a great deal of circumspection was needed in dealing with it. Noting that there had been instances where criminal courts had invoked or even misused the principle resulting tensions between States, while there were other less controversial instruments available. It was important that the implementation of universal jurisdiction takes into account the rules of customary international law on immunity for State officials. Any attempt to extend universal jurisdiction at the international level by limiting immunity of individuals in foreign courts was not in the interest of justice.
8.1.5. Opinion of Democratic Republic of Congo: The Democratic Republic of Congo (DRC) has declined to accept the jurisdiction of universality in its laws due to an absence of clarity on how to apply the principle and the difficulties in implementing it. Hence, the DRC views that the working group on universal jurisdiction including ILC must help to define the clear rules to enable the application of universal jurisdiction. Those new rules must be universal in nature and conform to international customary law. The crime of torture and war crimes should not go unpunished but the DRC requested that the preconditions for consensus were needed in order to facilitate exercise of the principle.
The delegate of DRC, Melanie Paoni Tupa at the sixty seventh meeting of the UNGA recalled, “[around] thirty senior representatives of foreign States, most of who were from the southern hemisphere, who were ‘ in office ’ or ‘ no longer in office ’ and who had been subject of universal jurisdiction. If each of the United Nations member States exerted jurisdiction in those cases, there would be a monstrous cacophony taking place” (UNGA Reso. 3441, 2012). Therefore, in order to establish the significant rules in the context of immunity and it would be difficult for a State applying universal jurisdiction to go against immunity granted by a third country.
8.1.6. Opinion of India: Initially piracy on the high seas was the only crime over which claims of universal jurisdiction were undisputed under international law. Later, the piracy prohibited under customary norm of international law was included in international treaties (Article 105 of the United Nations Law of the Sea, 1982). The universal jurisdiction was expanded to other serious crimes by the different international treaties including the four Geneva Conventions (1949),[28] the Apartheid Convention (1973)[29] and Torture Convention (1984).[30] Here the question is, whether the jurisdiction in certain treaties could be extended to commonly exercisable jurisdiction for a wider range of offences? Derek Obrien as a delegate of India to UNGA points out that the issues with extending universal jurisdiction centred on the principle’s relationship with laws relating to the sovereign immunity, pardoning and amnesty as well as harmonization with domestic laws. So many treaties obliged States to either prosecute the perpetrators or hand over those persons for trial to a party that was willing to do so. The obligation is to either extradite or prosecute should not be confused with universal jurisdiction.
Usually, the theories of jurisdiction require proper connection territorially, like accused as a national or victims as nationals to get jurisdiction to prosecute the perpetrators. But the new theory of jurisdiction based on this universality theory does not require any territorial link. India was referring the general jurisdiction based on the principle that ‘a criminal should not go scot-free’ because of the procedural technicalities, including the lack of jurisdiction.
8.1.7. Opinion of Iran: Eshagh Al Habib, the Iranian delegate to UNGA, speaking for the Non-Aligned Movement (NAM) said although universal jurisdiction provided a tool to prosecute the perpetrators of certain serious crimes under international treaties, there were questions and controversies related to it, including the range of crimes that would fall under its jurisdiction as well as conditions for its application. Further, the application of universal jurisdiction on the immunity of States’ officials and consequently, on the sovereignty of the States had alarming implications. NAM strongly condemned that the illegal application of universal jurisdiction against some [NAM] member States.
Moreover, the representative of Iran noted the African Union’s decision during its nineteenth session and the AU called upon all concerned States to respect international law, particularly the immunity of State officials when applying universal jurisdiction and to search for a durable resolution to its abuse. Further, he suggests that the clarification is needed to prevent any misapplication or improper resort to universal jurisdiction. He also cautioned against the unwarranted expansion of the crimes under universal jurisdiction. The works of ILC and the decisions of the ICJ should be considered as a source of international law which is useful for sixth (legal) committee to take a proper decisions in this field.
8.1.8. Opinion of New Zealand: Alice Revell as the representative of New Zealand to United Nations General Assembly’s meeting on delegations urge clear rules to avoid Abuse of universal jurisdiction principle and she also spokes for Australia and Canada. She said that universal jurisdiction conferred upon States that ability to exercise criminal jurisdiction over those individuals responsible for the most serious crimes of international concern, irrespective of where that conduct occurred, the nationality of the perpetrator or any other links between the crime and the prosecuting State. She continued that it provided a complementary mechanism to ensure that those accused were held accountable when the territorial State was unable or unwilling to exercise jurisdiction. It should always be exercised in good faith and in a manner consistent with other principles of international law. Actually, Australia, Canada and New Zealand strongly recognize universal jurisdiction over serious international crimes and these States practicing such principle in their domestic legislation and these countries encouraging others to do the same.
8.1.9. Opinion of the Republic of Korea: States require to determine universal jurisdiction to certain crimes such as terrorism, apartheid because other grave crimes of piracy, war crimes are already reached its peak, among the international community. This country saying same thing as that of others, the application of universal jurisdiction creates great legal complexity because it linked with too many practical questions, including on whom and how it should be exercised. The representative of Korea to UN General Assembly, Moon Jihye strongly condemn that the principle of universal jurisdiction should not be politically misused. The application of universality process should be clear and its exercise confirmed with international law and consistent with the rule of law. Further, she suggested that different possible solutions should be explored, including the opinion from the legal experts of the ILC to advice on the scope and application of the principle.[31]
8.2. Opinion of the International Committee of the Red Cross (ICRC)
Joy Elyahou as an ICRC delegate said States had demonstrated a trend towards the obligation to exercise universal jurisdiction over the most serious international crimes. Such actions reflected a unanimous rejection of those crimes and a willingness to prevent impunity beyond their borders. The principle should be central to international humanitarian law. As per the Geneva Convention of 1949, States had a legal obligation to search for persons alleged to have committed grave breaches and to bring those persons before their own courts, regardless of nationality and where the crime was committed. That obligation demanded an active approach. States had a duty to act as soon as they became aware that a person who had committed a grave breach had entered their territory.
State practice had helped to consolidate a customary rule whereby they were entitled to endow their courts with universal jurisdiction over war crimes. When States incorporated those crimes into their domestic legislation, they tended not to make a distinction between the various bases of jurisdiction that could apply in order to try such crimes themselves. Despite challenges in implementation, she encouraged the emergence of positive practices, such as States’ efforts to centralize their knowledge. A national strategy is to improve criminal investigation and prosecution including the invocation of universal jurisdiction, as to protect witnesses and victims. Moreover, the principle should not be viewed in isolation as it was not the only way to tackle impunity for international crimes. It is a part of broader system that aimed to stop the occurrence of international crimes and to enhance the deterrent effect of punitive measures.
8.3. Opinion of Belgium and Spain
The State of Belgium is one of the leading users of the concept of universal jurisdiction in its domestic courts. This country is the role-model to other States to practice the principle of universality. Because Belgium adopted a new legislation called as Universal Jurisdiction Act (1993), to prosecute the perpetrators who commit serious international crimes without any jurisdictional link, whereby Belgium has an authority to claim jurisdiction against such perpetrators whoever he may be. As per the act, Belgium court issued an arrest warrant against some Congo nationals including Yerodia Ndombasi as a minister of foreign affairs working in his office. In this situation, Congo filed a case before ICJ against the decision of Belgium on the basis that, it violates the Congo’s State sovereignty and sovereign immunity of its officials. Therefore, the ICJ cancelled the arrest warrant and condemned the activities of Belgium, and recommended Belgium’s universal jurisdiction to be repealed. It's a ‘ great blow ’ to the Belgium law and the principle of universal jurisdiction as well.
[...]
[1] Extradition is the official process whereby one nation or State surrenders a suspected or convicted criminal to another nation or State. Between nation States, extradition is regulated by treaties. Where extradition is compelled by laws, such as among sub-national jurisdictions, the concept may be known more generally as rendition. It is an ancient mechanism, dating back to at least the thirteenth century, when an Egyptian Pharaoh negotiated an extradition treaty with a Hittite King (Carter, 2007: 22).
[2] Later, these two concepts were adopted in 1958 High Seas Convention (Article 14-22) and 1982 UN Convention on Law of the Sea (Article 100-110). Piracy and slave trade are ‘ serious crime ’ because these two are pursued for private gain and those who are involving in piracy and slave trade are prosecuted under universal jurisdiction.
[3] The four Geneva Conventions contain a common article (Art. 49/50/129/146) relating to penal sanctions; paragraph 2 states:
[4] League was failure because of inferiority and superiority complex among the States. Powerful countries continue the violations against the weak States. The League of Nations was dominated by England and France and consequently the other States began to lose their confidence in that organization. The rise of dictatorship in Italy, Japan and Germany also weakened the chances of success of the League of Nations. Japan was determined to acquire fresh territories and her unscrupulous patriotism threw to the winds of all principles of international law and morality. If the League was to prepared to condone her fault of conquering Manchuria. She was to prepare to give up her membership of the League and that is exactly what she actually did. When League decided to take action against Italy on account for her aggression in Abyssinia, Italy left the League. In the wakeup spreading dictatorship States continued to be the members of the League so long as their national interest were not in any way endangered and sacrificed. Every single member including the smallest had the right to veto. This system had two important consequences:
1. A small power could irresponsibly hamstring the League in its action against an aggressor. For instance aid to Republican Spain and condemnation of Fascist attack against Spain was prevented by a hostile vote of Portugal. The small powers that could not have the responsibility of maintaining world peace could yet wreck it.
2. The big powers very often used small powers as stalking horses from behind the veto of a small member and thus escaped responsibility for a particular decision before their own people and world public opinion.
[5] Article 6 of the IMT Charter, 1945 as follows:
The Tribunal established by the Agreement referred to m Article 1 hereof for the trial and punishment of the major war criminals of the European Axis countries shall have the power to try and punish persons who, acting in the interests of the European Axis countries, whether as
individuals or as members of organizations, committed any of the following crimes.
The following acts, or any of them, are crimes coming within the jurisdiction of the Tribunal for which there shall be individual responsibility:
(a) CRIMES AGAINST PEACE: namely, planning, preparation, initiation or waging of a war of aggression, or a war in violation of international treaties, agreements or assurances, or participation in a common plan or conspiracy for the accomplishment of any of the foregoing;
(b) WAR CRIMES: namely, violations of the laws or customs of war. Such violations shall include, but not be limited to, murder, ill-treatment or deportation to slave labor or for any other purpose of civilian population of or in occupied territory, murder or ill-treatment of prisoners of war or persons on the seas, killing of hostages, plunder of public or private property, wanton destruction of cities, towns or villages, or devastation not justified by military necessity;
(c) CRIMES AGAINST HUMANITY: namely, murder, extermination, enslavement, deportation, and other inhumane acts committed against any civilian population, before or during the war; or persecutions on political, racial or religious grounds in execution of or in connection with any crime within the jurisdiction of the Tribunal, whether or not in violation of the domestic law of the country where perpetrated. Leaders, organizers, instigators and accomplices participating in the formulation or execution of a common plan or conspiracy to commit any of the foregoing crimes are responsible for all acts performed by any persons in execution of such plan.
[6] USSR split into 15 countries they are; Lithuania, Georgia, Latvia, Estonia, Ukraine, Belarus, Moldova, Azerbaijan, Kyrgyzstan, Uzbekistan, Tajikistan, Armenia, Turkmenistan, Russia, and Kazakhstan. The reason for such split is the ideological differences between communism and capitalism.
[7] Several countries adopted these conventions because of reservation clause.
[8] International Criminal Tribunal for Yugoslavia, 1993 (ICTY, 1993) and International Criminal Tribunal for Rwanda, 1994 (ICTR, 1994).
[9] These words of Vattel cited by Eugene Kontorovich in “The Piracy Analogy: Modern Universal Jurisdiction's Hollow Foundation”.
[10] Immunity can first refer to a kind of substantive immunity, meaning that the person benefiting from this kind of immunity would not have to abide by the existing laws. In this first meaning, immunity would amount to complete irresponsibility. Of course, if such substantive immunity does not exist, then the consequences have to be drawn on the procedural level, and no general procedural immunity should be granted to heads of States. As states by the ILC ‘the absence of any procedural immunity with respect to prosecution and punishment in appropriate judicial proceedings is an essential corollary of the absence of any substantive immunity or defence’. But procedural immunity can exist without can exist without necessarily implying impunity: this is so, if this procedural immunity is only immunity from some procedures and not immunity from all possible procedures, or alternatively even when it is immunity from all procedures, if this immunity exists only for a certain period of time.
[11] Uti singulus is a Latin word which means a criminal trial conducted by the State for its personal benefit against anybody.
[12] Actio popularis is a Latin term which means a lawsuit brought by a third State in the interest of the international community as a whole. It derives from Roman penal law. For example, it is sometimes used in the context of warcrimes and genocide prosecution under international law.
[13] delicta juris gentium means the serious crimes which struck at the whole of mankind and shocked the conscience of nations, are grave offences against the law of nations itself. (Harris, 1998: 281).
[14] Belgium, France and Spain States claimed universal jurisdiction against the perpetrators of serious international crimes and to protect its own citizens as well as to bring the universal justice to the global community, not in its personal benefit.
[15] The title literally translated from Latin means “enclosed sea,” in pointed opposition to the work Mare liberum, or “free sea,” published by Hugo Grotius in 1609. While Grotius, a prominent Dutch legal scholar, argued that the sea was openly navigable by all countries for trade, Selden countered that the sea was as subject to a country’s private dominion as land. Ultimately, the inexorable growth of global trade favored the cause of Grotius. Nonetheless, Mare clausum provided the basis of England’s official position on the seas for over 100 years. Although in time Selden's argument failed, his participation in the debate helped launch the field of modern international law.
[16] Compensation for expropriation or nationalization of foreign companies and such compensation must be prompt, adequate and effective which is called as hull formula.
[17] The cases relating to the concept of universal jurisdiction and what are the countries claimed the universality are as follows: Dusko Cvjetkovic (1994) proceedings conducted by Austria and crimes occurred in Former Yugoslavia, (Bush et al. 2003); proceedings conducted by Belgium and crimes occurred in Iraq, (Castro et al. 2001-2003); proceedings conducted by Belgium and crimes occurred in Cuba, (Tommy Franks 2003-2004); proceedings conducted by Belgium and crimes occurred in Iraq, (Pros. v. Ntezimana et al. 2001); proceedings conducted by Belgium and crimes occurred in Rwanda, (Ariel Sharon 2001-2003); proceedings conducted by Belgium and crimes occurred in Lebanon, (Ely Ould Dah 2002-present); proceedings conducted by France and crimes occurred in Mauritania, (Javor et al. contre X 1995-1996); proceedings conducted by France and crimes occurred in Former Yugoslavia, (Rumsfeld et al. 2004-present); proceedings conducted by Germany, France, United States of America and crimes occurred in Iraq, (Maksim Sokolovic 1999-2001); proceedings conducted by Germany crimes occurred in Former Yugoslavia, (Pros. v. Adolf Eichmann 1961-1962); proceedings conducted by Israel crimes occurred in World War II, (Ricardo Cavallo 1999-2011); proceedings conducted by Argentina, Mexico, Spain and crimes occurred in Argentina, (Desire Bouterse 2000- 2001); proceedings conducted by The Netherlands and crimes occurred in Suriname, (Hesamuddin Hesam 2005-2008); proceedings conducted by The Netherlands and crimes occurred in Afghanistan, (Habibulla Jalazoy 2005-2008); proceedings conducted by The Netherlands and crimes occurred in Afghanistan, (Darko Knesevic 1996-1997); proceedings conducted by The Netherlands and crimes occurred in Former Yugoslavia, (Hissene Habre 2000-present); proceedings conducted by Belgium, Chad, Senegal crimes occurred in Chad, (Jiang Zemin et al. 2005-present); proceedings conducted by Spain and crimes occurred in China, Lia Oinglin (2004-2006) proceedings conducted by Spain and crimes occurred in China, (Rigoberta Menchu et al. v. Rios Montt et al. (‘ Guatemala Genocide case ’) 1999-present); proceedings conducted by Spain and crimes occurred in Guatemala, (Adolfo Scilingo 1998-2007); proceedings conducted by Spain and crimes occurred in Argentina, (Bush et al. 2003); proceedings conducted by Switzerland and crimes occurred in Iraq, (R. v. Sarwar Zardad 2003-2005); proceedings conducted by United Kingdom and crimes occurred in Afghanistan, (Dolly M. E. Filartiga & Joel Filartiga v. Americo Norberto Peña-Irala 1980); proceedings conducted by United States and crimes occurred in Paraguay, (Tel-Oren v. Libyan Arab Republic 1984); proceedings conducted by United States and crimes occurred in Libya, (Khaled Nezzar 2011-present); proceedings conducted by Switzerland and crimes occurred in Algeria, (T. 2010-present); proceedings conducted by Denmark and crimes occurred in Rwanda, (Krasniqi (Naser), Krasniqi (Nexhmi), Limaj (Fatmir) and Shala (Naser) (1999-present); proceedings conducted by Kosovo and crimes occurred in Kosovo/EULEX, etc.
[18] “The principle of universal jurisdiction over international crimes is on its last legs, if not already in its death throes. The International Court of Justice (ICJ) delivered the first blow to universality in 2002 in its judgment in the Arrest Warrant case” (Cassese, 2003: 589-595).
[19] Genocide Convention, 1948, four Geneva Conventions 1949 and its Additional Protocols,1977, United Nations Convention on Law of the Sea, 1982, Terrorism Related Conventions like; Apartheid Convention, Convention on the Suppression of Unlawful Assembly, etc., Torture Convention, 1984, etc.
[20] The Convention on the Prevention and Punishment of the Crime of Genocide, 1948
Article I provides: “the Contracting Parties confirm that genocide, whether committed in time of peace of in time of war, is a crime under international law which they undertake to prevent and to punish”.
Article II: “In the present Convention, genocide means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such:
(a) Killing members of the group; (b) Causing serious bodily or mental harm to members of the group; (c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; (d) Imposing measures intended to prevent births within the group; (e) Forcibly transferring children of the group to another group” . Article III: “The following acts shall be punishable: (a) Genocide; (b) Conspiracy to commit genocide; (c) Direct and public incitement to commit genocide; (d) Attempt to commit genocide; (e) Complicity in genocide”.
There is no sovereign immunity for heads of State and other higher officials who commits or who conspiracy to commits or attempt to commit genocide is the punishable offence which defined under article IV of this convention.
Article IV: “Persons committing genocide or any of the other acts enumerated in Article 3 shall be punished, whether they are constitutionally responsible rulers, public officials or private individuals”.
Article VI of the Genocide Convention talks about the jurisdictional issues: “Persons charged with genocide or any of the other acts enumerated in Article 3 shall be tried by 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”.
[21] Article 100 of the UNCLOS (1982) provides Duty to cooperate in the repression of piracy: “All States shall cooperate to the fullest possible extent in the repression [or suppression] of piracy on the high seas or in any other place outside the jurisdiction of any State”.
Article 101: Definition of Piracy - “Piracy consists of any of the following acts: (a) any illegal acts of violence or detention, or any act of depredation, committed for private ends by the crew or the passengers of a private ship or a private aircraft, and directed:
(i) on the high seas, against another ship or aircraft, or against persons or property on board such ship or aircraft;
(ii) against a ship, aircraft, persons or property in a place outside the jurisdiction of any State;
(b) any act of voluntary participation in the operation of a ship or of an aircraft with knowledge of facts making it a pirate ship or aircraft;
(c) any act of inciting or of intentionally facilitating an act described in subparagraph (a) or
(b)”.
Article 103: Definition of a pirate ship or aircraft - “A ship or aircraft is considered a pirate ship or aircraft if it is intended by the persons in dominant control to be used for the purpose of committing one of the acts referred to in article 101. The same applies if the ship or aircraft has been used to commit any such act, so long as it remains under the control of the persons guilty of that act”.
Article 104: Retention or loss of the nationality of a pirate ship or aircraft - “A ship or aircraft may retain its nationality although it has become a pirate ship or aircraft. The retention or loss of nationality is determined by the law of the State from which such nationality was derived”.
Article 105: Seizure of a pirate ship or aircraft - “On the high seas, or in any other place outside the jurisdiction of any State, every State may seize a pirate ship or aircraft, or a ship or aircraft taken by piracy and under the control of pirates, and arrest the persons and seize
the property on board. The courts of the State which carried out the seizure may decide upon the penalties to be imposed, and may also determine the action to be taken with regard to the ships, aircraft or property, subject to the rights of third parties acting in good faith”.
[22] Article 99 of the UNCLOS (1982) provides that the Prohibition of the Transport of Slaves: “Every State shall take effective measures to prevent and punish the transport of slaves in ships authorized to fly its flag and to prevent the unlawful use of its flag for that purpose. Any slave taking refuge on board any ship, whatever its flag, shall ipso facto be free”.
[23] Nearly 40 to 50 years from 1960 to 2000 several internal wars causes lakhs and lakhs of people were killed among themselves. These sort of serious crimes occurred due to poverty, ideological variations, lack of education, ignorance of law, countries are lacks in laws, over population, etc. But in reality, powerful or developed countries’ impliedly interfered and its economic interest over the developing countries, some of the rulers from the developing countries’ rulers were mentality or attitude of such rulers were very much interested to protect its own race and they were tried to vanish the other race, they interested in ethnic cleansing of the particular community and primary cause for such violations that the inferiority and superiority complex among the violators is the main cause for such “Hitlorism”.
[24] African country leaders condemning that the attitude of the developed countries because those leaders affected and international arrest warrant issued by the developed countries against the African leaders includes, heads of State or heads of government in the name of universal jurisdiction. Its a clear evidence that developed countries misusing the above said concept severally.
[25] UNGA Resolution 67/98 (14/01/2013) is mainly talks about the scope and application of the principle of universal jurisdiction and it also recalling its previous resolutions of 67/117 (16/12/2009), 65/33 (06/12/2010), 66/103 (09/12/2011). Similarly, UNSC Resolutions are also impliedly related to the concept of universal jurisdiction, such as Resolution 1265 (17/09/1999) relating to the protection of civilians during armed conflict, 1296 (19/04/2000) relating to the steps to enhance the protection of civilians during armed conflict, 1373 (28/09/2001) relating to the counter terrorism measure specifically passed after the 9/11 terrorist attack of the twin towers, 1631 (17/10/2005) relating to the co-operation between the United Nations and regional organisations in the maintenance of international peace and security, 1674 (28/04/2006) relating to the basis for humanitarian intervention in situations of armed conflict, 1973 (17/03/2011) relating to the Libyan situation, etc. UNSC Res.1973 includes the resolution formed the legal basis for military intervention in the Libyan civil war, demanding “an immediate ceasefire” and authorizing the international community to establish a no-fly zone and to use all means necessary short of foreign occupation to protect civilians.
[26] United Nations General Assembly’s 67th Assembly of the Sixth (Legal) Committee’s 12th and 13th Meeting [UNGA/L/3441/2012; UNGA/L/3442/2012].
[27] Steven as the representative of United States to UNGA had given the opinion about the delegations urge clear rules to avoid abuse of universal jurisdiction principle in sixty-seventh meeting of UN General Assembly
[28] Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field of 12th August 1949 (Geneva Convention I), Geneva Convention for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea of 12th August 1949 (Geneva Convention II), Geneva Convention Relative to the Treatment of Prisoners of War of 12th August 1949 (Geneva Convention III), and Geneva Convention Relative to the Protection of Civilian Persons in Time of War of 12th August 1949 (Geneva Convention IV).
[29] Convention on the Suppression and Punishment of the Crime of Apartheid, 1973
[30] Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, 1984
[31] Even the International Committee of the Red Cross (ICRC) participated effectively in the committee’s meeting because it plays an important role during and after hostility. Even though the ICRC as a private organization is to protect the human society in time of war. Especially, the ICRC is maintaining international peace and security including medical aid and other facilities, to both war combatants as well as innocent civilians in case of humanitarian intervention.
- Quote paper
- P. R. Ramdhass (Author), 2018, Universal Jurisdiction under International Criminal Law. A Critical Analysis, Munich, GRIN Verlag, https://www.grin.com/document/437750
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