George W. Bush, the former president of the United States, cancelled his planned February visit to Switzerland due to the risk of legal action against him. It has been alleged that Bush cancelled the visit out of fear of prosecution by Swiss courts for authorizing waterboarding, a widely accepted form of torture.

Although some claim that he still enjoys diplomatic immunity as a former head of state, New York based Human Rights Watch argues that “he is avoiding the handcuffs”. (1) This attempt to bring George W. Bush to justice for his alleged crimes signifies the growing concern of international community to end impunity, and to hold accountable the persons responsible for grave violations of human rights.

Human Rights and International Criminal Justice

The fundamental shortfall of the international human rights regime is enforcement. The regime lacks authoritative enforcement mechanisms to ensure compliance with internationally recognized human rights norms. Although legally binding international treaties exist, in the decentralized international system, there is no central supranational authority punishing the outlaws and making sure that human rights are respected. Arguably, the only challenge a rights-abusive regime faces is the danger of damaged international legitimacy. This results in grave violations of international law going largely unpunished. After all, in the absence of central authority, anarchy reigns in the international system, and the “covenants without sword are but words.” 

However, two major developments in international criminal justice system in the last decade have given a glimmer of hope for the future of human rights. These developments can fill the enforcement gap of the international human rights regime in ensuring compliance with the most fundamental human rights. In this sense, the first groundbreaking development was the establishment of International Criminal Court (ICC), with the second being the application of “universal jurisdiction” in the arrest and trial of former Chilean dictator Augusto Pinochet.

The ICC was established to try “…the crime of genocide, crimes against humanity, war crimes and the crime of aggression.” (3) It is the first permanent war crimes court and commonly considered as a major breakthrough in international justice. Nevertheless, ICC was born with severe jurisdictional limitations which allow the court to prosecute only a small fraction of international crimes. The International Criminal Court Statute (Rome Statute) prohibits ex post facto applications of the Statute. ICC can only look into crimes committed after the Statute entered into force in 2002. This alone puts many potential cases out of the Court’s agenda. Furthermore, in order for the prosecutor to open an investigation, either the violating state or the state where the crime was committed has to be a party to the Rome Statute. If none of these requirements are met, the United Nations Security Council (UNSC) may refer the case to the ICC. However, given the conflictual nature of the relations amongst the P5 states (United States, Britain, France, Russia and China), it is highly difficult for the UNSC to reach a unanimous decision on such a case. These limitations cripple the ICC and prevent it from delivering justice to the fullest. The fact that the ICC has so far only tried African leaders and has failed to look into contentious cases involving, inter alia, the United States, China or Israel, is an evidence of ICC’s innate limitations. In this sense, the universal jurisdiction has cardinal significance in overcoming the jurisdictional setbacks of ICC in delivering international justice.  

It was 1998 when former Chilean dictator Augusto Pinochet was arrested in London based on an arrest warrant issued by Spanish magistrate. He was charged for ordering torture and forced disappearances during his dictatorial rule between 1973 and 1990. The legal basis of such prosecution lies at the principle of ‘universal jurisdiction.’ Universal jurisdiction transcends traditional territorial jurisdiction and allows national courts to try criminals solely based on the nature of the crime, irrespective of territoriality or nationality. In other words, national courts can try persons for crimes committed abroad, regardless of the nationality of the offender or the victim, if the alleged crimes fall within the definition of ‘universal crimes’. Universal jurisdiction is based on the claim that certain crimes (i.e. crimes against humanity, war crimes, piracy, slavery, torture) are so serious that they amount to an offence against the whole of humanity (hostes humani generis) and therefore all states have an obligation to bring those responsible to justice. (4)

The principle of extraterritorial jurisdiction has been part of customary international law as well as international treaties. For instance, under the customary international law, states enjoy universal jurisdiction authority with respect to the crime of piracy. Every state has the right to capture pirates on the high seas, or in any other place outside the jurisdiction of any state and try them in their own courts. Universal jurisdiction is also entrenched into other major international legal instruments. For instance, the Convention Against Torture (1984), ratified by 147 countries, “requires states either to prosecute any suspected torturer found on their territory, regardless of where the torture took place, or to extradite the suspect to a country that will do so.” (5) Similarly, the Geneva Conventions (1949) “require each participating state to search for persons who have committed grave breaches of the conventions and to bring such persons, regardless of nationality, before its own courts.” (6) The Rome Statute of ICC also states that “it is the duty of every state to exercise its criminal jurisdiction over those responsible for international crimes.” (7) In short, under international law, every nation has not only the “right” but also the “responsibility” to bring to justice the perpetuators of international crimes.

In universal jurisdiction cases, traditional shield of immunity is also lifted. As “the Princeton Principles on Universal Jurisdiction” puts it, with respect to serious crimes under international law, “the official position of any accused person shall not relieve such person of criminal responsibility nor mitigate punishment.” (8) This principle is in line with the precedent set by the Nuremberg Charter which states that “the fact that a person who committed an act which constitutes a crime under international law acted as head of state or responsible government official does not relieve him from responsibility under international law.”(9) Similarly, the Amnesty International report on universal jurisdiction states that “courts can exercise jurisdiction over grave crimes under international law regardless of the official capacity of the accused at the time of the crime or later, be it the head of state, head or member of government, Member of Parliament or other elected or governmental capacity.” (10) The norm that no one is above the law with respect to universal crimes was affirmed by the British House of Lords (Supreme Court of the UK) in the Pinochet case, when it ruled that Augusto Pinochet had no immunity from prosecution as former head of state. Lord Nicholls of Birkenhead justified their ruling by arguing that “international law has made plain that certain types of conduct, including torture, are not acceptable conduct on the part of anyone. This applies as much to heads of state, or even more so, as it does to everyone else. The contrary conclusion would make a mockery of international law.” (11)

Prominent Cases

Although the universal jurisdiction has been solidly entrenched into international law, its application is quite new. With the exception of Eichmann Case (1961), in which a former (Nazi) SS officer was tried and executed by Israel for his involvement in the Holocaust, universal jurisdiction had not been exercised until the Pinochet Case in 1998. However, since 1998, many complaints have been lodged against high profile state officials.

Most universal jurisdiction lawsuits have been lodged in Belgian, Spanish and British courts. In 2001, a lawsuit was lodged in Belgium courts against Ariel Sharon for his role in the Sabra and Shatila Massacre in 1982. The complaint was filed by the survivors of the massacre, in which unarmed Palestinian and Lebanese civilians were murdered. However, Belgian courts ruled that they could not try Sharon in absentia. In other words, the court ruled that it could not try Sharon unless he was physically in Belgium. 

In 2009, British courts issued an arrest warrant for Israeli Minister Tzipi Livni after she announced her plans to visit UK. She was charged for orchestrating the Operation Cast Lead (2008), in which 1,300 Palestinians, most of whom were women and children, were killed by the Israeli forces. However, the warrant was withdrawn after she cancelled her visit. Similarly, in 2005, an arrest warrant was issued for Doron Almog, former general at Israeli Defense Forces (IDF). When he landed in UK, police was waiting to arrest him at the airport. Therefore, to escape the arrest, Almog did not leave the plane, and returned back to Israel with the same plane.  

Another prominent case involves Hissène Habré, the former President of Chad. In 2005, Habré, the “African Pinochet,” was convicted by the Belgian courts for war crimes and crimes against humanity. It is alleged that he was responsible for 40,000 political murders and 200,000 cases of torture during his eight year rule from 1982 to 1990. Belgium has requested Senegal, where Habré has been under house arrest, to extradite him. However, in spite of the existing arrest warrant against Habré, and Belgium’s requests of extradition, Senegal has refused to extradite him to Belgium. In the end, Senegal decided to instead form a special tribunal to try him in Senegal. (12)

In short, since 1998, universal jurisdiction has been widely used as an international justice tool. Many accused war criminals have managed to escape trials by making changes in their international travel arrangements. However, these cases damaged their reputations and the image of their countries. In this sense, universal jurisdiction has arguably functioned as a deterring force thus making a significant contribution to the promotion of human rights. However, in 2003, Belgium revised its laws and limited the applicability of universal jurisdiction not to jeopardize its relations with other Western powers. Spain and Britain have also been under pressure to change their universal jurisdiction laws in a similar way. For instance, in the UK, there has been a public debate over amending the universal jurisdiction law to grant immunity to suspects from British allies, including, inter alia, the United States, Israel, Saudi Arabia and Bahrain. (13)

Ethics of Universal Jurisdiction

Since the “Pinochet Precedent,” there has been an ongoing debate about the increasing application of universal jurisdiction. This debate also reflects the fundamental controversy in the modern international system; namely, the conflict between sovereignty and human rights. The Westphalian states system is founded on the principle of sovereignty and the sovereign equality of states. The United Nations Charter also reaffirms sovereignty as the basis of international order. The principle of sovereignty signifies the supremacy of national governing bodies within a given territory and thus precludes foreign intervention into states’ internal affairs. On the other hand, according to the UN Charter, protection of human rights is also the responsibility of the international community. Human rights supersede sovereign authority and dictate universal norms upon national governments with or without the consent of the sovereign body. Briefly, while sovereignty requires non-intervention, human rights, by definition, necessitates intervention. Therefore, human rights inevitably clashes with the principle of sovereignty. In this sense, determining which international norm, sovereignty or human rights, should take priority has been one of the central questions within the international relations discipline.

This clash between these two fundamental international norms is also reflected in the universal jurisdiction debate. Human rights advocates consider universal jurisdiction as an effective human rights enforcement tool and as a mean to end impunity. On the other hand, others criticize it as a violation of sovereignty. For instance, Henry Kissinger, American political scientist and former US Secretary of State, argues that confronting a country’s brutal past and prosecuting alleged criminals must be the respective country’s own business. He argues that universal jurisdiction is used less as a means for international justice and utilized more as a political tool. In this sense, he points out to the arbitrariness of universal jurisdiction cases. For him, national magistrates employ double standards jeopardizing the legitimacy of this principle. (14) However, the writer of these lines believes that in the final analysis neither the principle of sovereignty nor the claims of “selectivity” can shield perpetuators of heinous crimes.    

Conclusion  

 
The latest Guantanamo Papers reveal the widespread human rights violations during the Bush administration. Until recently, no legal action could be taken against such crimes outside the domestic judicial processes. Universal jurisdiction, on the other hand, creates the opportunity to bring those responsible for international crimes to justice even if the domestic courts are unwilling to do so. As a result, as mentioned earlier, universal jurisdiction has become a widely used international justice tool. So far, over 125 countries have enacted universal jurisdiction laws which allow them to exercise the principle, with seventeen of those countries having launched investigations/prosecutions as a result. (15) The increasing application of universal jurisdiction should be considered as a leap forward in ending impunity and strengthening international accountability for widespread human rights violations. Reed Brody, of Human Rights Watch, put it best when he says the “war criminals’ world is a very small place at the moment.”

Endnotes:

(1)“Bush’s Swiss Visit Off after Complaints on Torture”, Reuters. February 5, 2011.  http://www.reuters.com/article/2011/02/05/us-bush-torture-idUSTRE7141CU20110205

(2) Von Stein, J. , 2007-02-28 "'Naming and Shaming in the United Nations Commission on Human Rights: When and How Does it Matter?" Paper presented at the annual meeting of the International Studies Association 48th Annual Convention, Hilton Chicago, CHICAGO, IL, USA <Not Available>. 2009-05-24 from http://www.allacademic.com/meta/p179882_index.html

(3)Rome Statute of the International Criminal Court (1998)  http://untreaty.un.org/cod/icc/statute/99_corr/cstatute.htm

(4)Amnesty International, Universal Crimes: Questions and Answers. http://www.amnestyusa.org/counter-terror-with-justice/reports-statements-and-issue-briefs/universal-jurisdiction/page.do?id=1108003

(5)Kenneth Rote, “The Case For Universal Jurisdiction”, Foreign Affairs. September/ October 2001

(6) Ibid.

(7) Rome Statue- Preamble  http://untreaty.un.org/cod/icc/statute/romefra.htm

(8)The Princeton Principles on Universal Jurisdiction. 2001 http://www.law.depaul.edu/centers_institutes/ihrli/downloads/Princeton%20Principles.pdf

(9) Nuremberg Charter. http://www.icrc.org/ihl.nsf/full/390

(10)Amnesty International, Universal Jurisdiction Fact Sheet, 2007-2008. http://www.amnestyusa.org/international_justice/pdf/UniversalJurisdictionfactsheet.pdf

(11) Andrea Bianchi. Immunity versus Human Rights: The Pinochet Case. European Journal of International Law. http://ejil.oxfordjournals.org/content/10/2/237.full.pdf
(12) Bringing Hissène Habré to Justice: Senegal to Create a Special Tribunal in Compliance with ECOWAS Court Judgment http://hrbrief.org/2011/04/bringing-hissene-habre-to-justice-senegal-to-create-a-special-tribunal-in-compliance-with-ecowas-court-judgment/
(13)  Arrest warrant plans make a mockery of universal jurisdiction http://www.guardian.co.uk/commentisfree/2011/mar/30/coalition-criminal-justice-universal-jurisdiction
(14) Henry Kissinger, “The Pitfalls of Universal Jurisdiction”, Foreign Affairs. July/August 2001. http://www.icai-online.org/xp_resources/the_pitfalls_of_uj.pdf

(15)Amnesty International, Universal Jurisdiction: UN General Assembly Should Support This Essential International Justice Tool, 2010. http://www.amnesty.org/en/library/asset/IOR53/015/2010/en/72ab4ccf-4407-42d3-8cfb-46ad6aada059/ior530152010en.pdf