Journal of Legal, Ethical and Regulatory Issues (Print ISSN: 1544-0036; Online ISSN: 1544-0044)

Research Article: 2021 Vol: 24 Issue: 1S

Building the Case for Jus Cogens Norm of Universal Jurisdiction in International Crimes; A Hope for Extra-Territorial Justice

Misbah Saboohi Prince, Sultan University

Keywords:

Universal Jurisdiction, Crimes Against Humanity, International Law, Jus Cogens, International Criminal Court

Abstract

 International Criminal Court (ICC) created in 2004 is not ratified by some powerful states but their involvement in international disputes has created victims of injustice which world conscience cannot leave unpunished. Though Rome Statute of the International Criminal Court (Rome Statute) does not explicitly incorporate Universal Jurisdiction principle but most states parties to Rome Staute have tacitly opened up for universal jurisdiction in International Criminal Court to some acts. The article argues that Dictatorships and non state actors’ acts of tortures and terrorism have fundamentally altered the principles and dynamics of International Justice norms by which it is constituted. The doctrine of Universal Jurisdiction of courts for certain crimes has now evolved into a pluralist norm in International Relations and many states allow prosecution in their national courts regarding certain most heinous extra territorial crimes. This article will see how much the doctrine of Universal Jurisdiction has been developed post Ex-Parte Pinochet case in United Kingdom court and is it an appropriate platform. Universal jurisdiction doctrine was in its nascent stages of development however Pinochet case provided a breakthrough moment of its effective invocation when a foreign court took cognizance of crimes against humanity committed by the government and its proxies. Now the debate is whether Universal Jurisdiction Doctrine has emerged as new norm (Jus Cogens) in International Law or it still has flawed foundation which can be abused and exploited by states with arm twisting political power over others in International Criminal Court.

Introduction

Universal jurisdiction principle of international law allows the prosecution of certain crimes regardless of where they were committed, irrespective of nationality of the victims or the culprits. Research reveals that some states are actively resorting to the universality principal to investigate and prosecute some heinous crimes that may have occurred outside their territories e.g. France, Germany, Netherlands. In fact in landmark development of 2019 and 2020 France and Germany have joined efforts to enhance their investigation in relation to crimes committed in Syria since 2011. Recently a historic judgment has been passed by German court in Koblenz against Syrian security person who was accused of abetment of torture against civilians in Syria, against Syrians (Reuters Report 24 February 2021). Hence the doctrine of universal Jurisdiction needs to be reviewed to see whether states generally have converged to one point that Universal jurisdiction is now the customary norm to be followed for serious crimes perpetuated against people by their own governments.

Research Methodology

This article seeks to place the doctrine of Universal Jurisdiction of courts for some international crimes in the context of debates about changing nature of norm of sovereignty. The framework of the principle varies from state to state and concept of sovereignty of states my pose some limitations to it. Hence the element of ‘state practice’ in customary international law changes depending on how a state views the application of this principle. This article aims to help review different legal systems to show whether the Universal Jurisdiction is being supported and ‘new norm of international law’ (Jus Cogens) is moving towards greater solidarity among nations.

The research is primarily built on analysis of different legal cases in various jurisdictions of courts. Study was done of reports of some states’ national war crime-units handling the International crimes, accounts of lawyers engaged in the International cases and reports of some organizations specializing in International Criminal Law were also read. Frist the history of the doctrine of Universal Jurisdiction was examined in order to ascertain the extent of the doctrine’s acceptance within states. Hedley Bull’s illustrations of state tensions were studied between order and justice of the rule (Bull, 1977). Secondly Anne Marie Slaughter’s thesis was studied for contours of norm of Sovereignty of states and campaign run by international lawyers and networks for Universal Jurisdiction (Slaughter, 2004). Some treaties will also be mentioned in the article that provide for Universal Jurisdiction including 1973 International.

Convention On Suppression And Punishment Of Crime Of Apartheid (UNTS, 1973), Additional Protocol To Geneva Conventions (UNTS, 1949), Convention on law of the Sea, 1984 (UNCLOS, 1982), Convention Against Torture And Other Cruel And Inhuman Degrading Treatment Or Punishment (UNTS, 1984). In the end case analysis of Gambia Vs Myanmar and more recently German court’s verdict shall be discussed for proving the argument that Universal Jurisdiction is now being accepted by many states.

Discussion

International Law scholars of like Grotius believed in Natural Law roots of International Law. Grotius and Vattel both believed that people’s community should be given priority over the community of states. E.g. Vattel considered sea pirates as hostis humani generis (the enemy of all humanity). But Peace treaty of Westphalia 1648 created an insulated State Sovereignty concept whereby state jealously guarded its internal right to govern and disallow any outsiders to interfere. Sovereignty concept as understood in classic Public International Law is constitutive in nature i.e., it is ipso facto granted to the Government when a state fulfils legal definition of being a state (Nyst, 2012). However in 20thcentury world War alliances made the principle of sovereignty a contested notion). To begin with the doctrine of Universal Jurisdiction materialized to form basis of jurisdiction exercised by International Military Tribunal at Nuremberg where Chief Prosecutor Robert Jackson declared that “real complaining party at bar is the Civilization”. So it can be said that World War II saw emergence of International Law’s most important realization i.e., Human rights and Duties towards people was paramount and fixing individual criminal responsibility is needed for their violations. Unlike earlier concept of an ‘insulated state sovereignty’, Human Rights and International Criminal Law went further than just regulating interstate relations by engaging in rights of individuals also. It was argued that norms of human rights & international criminal law exist as ERGA OMNES RIGHTS (i.e., Owed to all mankind) of people and in defiance of norm of state sovereignty,a new norm was practised as Jus Cogens to prosecute the international crimes i.e., practise of state accepted as norm by all.

Another rule invoked in Nuremberg Trials was “Protective Principle of jurisdiction to the extent that relevant crimes in World War II had threatened the security of many states specially security of Allied states against Axis states and court was empowered to assume jurisdiction for some crimes under the UN charter to be International Crimes and “subject to jurisdiction of each state” (UN Documents, 1949). Later world saw trials of Otto Sandrock & three others before the British Military Court For War Crimes in Netherlands (Holland, 1949), The General Wagener Case in Military Court of Italy (Tribunal, 1950), Eichmann case under Convention For Prevention And Punishment For The Crime Of Genocide (Israel Report, 1962), Klauss Barbie case in French Criminal Court of Cassation (Cass criminal trial, 1984). In all these cases main ratio of the Judges was that under the general doctrine called Universality of Jurisdiction over War Crimes, every Independent State has International Law right to punish war criminals in its custody regardless of the nationality of the victim or the place where the offence was committed. The court in General Wagener case also opined that customs of war, due to their high ethical content, have universal character not a territorial one. The aim of this interpretation was alleviating the war horrors and to have rules that does not recognize borders and punish the criminal wherever they may be. As a result of this post WWII case history many European states now see existence of an International fraternity and consensus for cooperation in international criminal justice system that is set by common rules and aspirations in their relations with one another, which work in common institutions too. Not to forget that in October 1998 Spanish magistrate issued arrest warrant for Chilean dictator Augusto Pinochet and secured his arrest in London. The very next month a Belgian court recognized Universal Jurisdiction as basis for Pinochet’s prosecution in indictment of crimes against humanity.

In justification of the state practice it can be said that some offences purport to attract Universal Jurisdiction by which state accepts that certain crimes are so serious that they are whole world’s concern regardless of the nationalities of the offenders or the offended (Randall, 1987-88).The doctrine is both contested and advocated but its successful invocation in ex Chilean dictator cases in UK and Spain has been spectacular. Many critics call for its abandonment because it can be exploited for political ends and legal ones. But is it really true ? The House Of Lords decision in Pinochet clearly laid down the importance of the doctrine:

“Crimes prohibited by international law attract universal jurisdiction under customary international law, provided some conditions are adhered to”.

HOL Pinochet verdict prompted great deal of optimism among human right lawyers in International Law. The decision gave a sense that Universal Jurisdiction stood poised to be integral and complimentary component of emerging International Justice System (Broomhall, 2000).

The main question is that in what way some crimes harm the whole humanity that justify Universal Jurisdiction over them? Authors like Larry May (May 2005) give the reason that some crimes have a “group harm” effect when committed by state officials or non-state groups. Such act reduce the humanity to a mere racial, ethnic divisions which are used specifically for peculiar reasons. World conscience cannot allow such mind-set to discriminate between individuals. Gravity theorist Sean Murphy believes that International crimes are more heinous and grave than ordinary criminal conduct. Therefore international community should have the right to punish them (Murphy, 2015). Similar is the view of Michael Giudeice (Giudeice & Schaeffer, 2012) and Andrew Schaeffer. They are convinced that this was the context in which WWII established International War Crimes Tribunals to punish war criminals in Nuremberg and Tokyo. It was felt necessary for a peaceful and territorially stable world order for future peace. Those disturbing international peace & order were world criminals and war was recognized as international crime (Ryan, 2019) This gave birth to International criminal court, and delegates at Rome conference justified a focus on human security crimes on the basis that ICC ought to ensure that state sovereignty became a concept of responsibility and international cooperation instead of obstacle to universal rights and security (UNO, 1998). Important international document to be considered for new Jus cogens based state practice is the Rome Statute of International Criminal Court (ICC). Although Rome Statute of ICC does not explicitly incorporate Universal Jurisdiction but some states accept its jurisdiction in crimes against humanity. (United States has shown its hostility towards such state actions under Universal Jurisdiction and even threatened to challenge ICC powers to investigate any type of matter in which there is involvement of any USA citizens. But USA recognizes also Universal Jurisdiction in its own national courts with respect to Piracy, slavery and torture). The doctrine of Universal Jurisdiction was incorporated into 3rd restatement of Foreign Relations Law of the USA (Para 404 of 3rd Restatement 1987). The USA used these laws against Cambodian leader Pol Pot, and Saddam Hussein of Iraq.

Interestingly in 2001, Princeton University scholars and jurists endorsed principle of Universal Jurisdiction (Princeton papers 2001) and since then there have been prosecutions initiated in Belgium, Spain, New Zealand, Senegal UK France, Argentina & Germany as shows in Table 1.

Table 1
Princeton University Scholars
State Case
Germany From 1999 to 2003 Prosecutors investigated 128 cases of crimes committed in Former Yuoslavia
Belgium 2001 Butare Four case 2001 Ariel Sharon case 2005 Etienne Nzabonimana & others case
Spain 2005,Rawandan general case 2009 Alberto Fujimori case 2005Adolfo scilingo case 2006 Tibetan genocide case 2009 Bush six case
France 2009 Wencelas Munyeshyaka & Callixte Mbarushimana 2003 Robert Mugabe case 2005 Ely Dah case
Senegal Hessene Habre 2005 -2008
UK 2005 Faryadi Zardad
Netherlands 2005 Afghan General case
New Zealand 2004 Dono Almog case 2006 Moshe Yaalon

Today a number of states have ratified many treaties that provide for the Universal Jurisdiction e.g. International Convention On Suppression And Punishment Of The Crime Of Apartheid 1973, Additional Protocols To Geneva Convention 1977, Convention On The Law Of The Sea 1982, Convention Against Torture And Other Cruel Inhuman And Degrading Treatment Or Punishment 1984, and a number of terrorism related treaties enacted post 9/11. Increasing number of countries have introduced Universal principle in their laws for crimes of Genocide, Crimes Against Humanity And War Crimes. Germany adopted the German Code Of Crimes Against International law, South Africa adopted Implementation of Rome Statute On International Criminal Court Act in 2002. In 2009 UN General Assembly supported the application of the principle as consistent with International Law resolved to continue discussing it in its future sessions too (UNGA resolution, 2011).

Some of the International Organizations that continue to undertake litigations based on Universal Jurisdiction are in the Table 2 below.

Table 2
International Organizations
# Name
1 Madrid based Association Pro Derechos
Humanos de Espana (APDHE),
2 France based Ligue des Droits de
L'Homme (FIDH)
3 European Centre for Constitutional and Human Rights (ECCHR), monitors universal jurisdiction litigation in German courts
4 Human Rights Watch
5 Amnesty International (Project safe Haven documenting Universal jurisdiction cases in every state)

Such networks are thriving and perhaps Universal Jurisdiction principle is becoming a norm and constitutive component of International Law. This claim needs a unique authority of legal argument for everyone to be convinced that the principle should be adopted. Kai Ambos argues that creation of ICC already has given strength to need for single institutionalized penal system for international community based on common values of group of states (Ambos, 2013). He is of opinion that ICC represents new element of International Criminal Justice System which can be an instrument of global governance operating through formalization. Robert Cryer (Cryer & others, 2014) is also of the same view that national and international tribunals both act as organs of global prosecuting system of International Crimes. Famous Case of Judge Higgins recognize the phenomena in the international arrest warrant case of ICJ. The judge noted that international crimes should not go unpunished, he advanced as a flexible strategy in newly established International Criminal Tribunals and Treaty Obligations where all states have a role to play (ICJ, 2002) Anthony Duff has given very important statement in his book (Duff, 2009) as :

“ Some kinds of wrongs [namely international crimes], however, should concern us, and are properly our business simply in virtue of our shared humanity with their victims (and their perpetrators); for such wrongs the perpetrators must answer not just to their local community, but to humanity.”

It is true that there is a link between world security and sovereign order. If international crimes are not punished internationally, world peace will be always fragile. When territorial state in unable to prevent or punish acts of genocide, war crimes or crimes against humanity by the state officials or non-state actors or foreign states, there is a serious breakage in the chain of sovereign order which must be protected. The legal committee tackling Customary International Law, Environmental Protection In Armed Conflicts in 2014 (UNO, 2014) recorded many delegates’ observations which summarized that:

• Combating certain crimes are of serious concern to international community.

• Extraditing such individuals is also not easy procedure,it effects everyone, so extradition treaties should be encouraged.

• Universal jurisdiction is now Erga Omnes obligation(a right Owed to all ) and Jus cogen Norm (what is ethically correct).

• If Universal authority of all states is established through institutions like ICC then influence of non-state actors will also be reduced significantly.

How such ne jus cogen norm will benefit the international community? Case study of two regions is helpful. One is Middle East which is suffering from civil wars and clashes started in 2010, Universal jurisdiction is on the upswing. Swiss NGO named “TRIAL International” released annual Report in March 2019 in which it mentioned that there is a link between world security and sovereign order. It also issued image of European states that have filed criminal cases against Syrian officials for crimes against humanity against civilians in Middle East civil wars as shows in Figure 1.

Figure 1: Trial International

Image showing European jurisdictions where Cases against Syrian officials are filed for crimes committed by those offcials against Syrians in Syrian civil war.

In the report the NGO also made an appeal that there should be more cooperation between all actors to help overcome the challenges of tracking, investigating and punishing crimes remotely. (NGO Report by Crawford 2019) Some interesting facts in the report are as shows in Table 3 follows:

Table 3
NGO Report By Crawford 2019
Fact Statistics
Number of states using Universal Jurisdiction in 2018 15 states – (18% up from 2017)
Type of charges 111 cases for war crimes
90 cases for crimes against humanity
15 cases for genocide
42 cases of torture
Ongoing trials 17
convictions 8
acquittals 2

TRIAL International’s director Philip Grant accepted that the challenge to practice Universal Jurisdiction cases is evidence of those crimes, tracking victims, finding witnesses which are scattered in many territories. Extra territoriality of such cases makes finding justice challenging task. There is case of Chad’s ex-dictator Habre who was indicted in Senegal under African Union court and sentenced to life for crimes against humanity during his rule in 2016. But before that due to many legal glitches case was taken to Belgium, then back to Senegal after unwavering pursuit of victims. International cooperation is the key to success of universal jurisdiction. Belgian court took up the Pinochet case purely on customary international law rules and Jus Cogens norm despite absence of any Belgian law at the time of offences Pinochet was charged with. Some Syrian cases which has given new life to the doctrine e.g. Caesar case in France related to Syria renewed interest in Universal jurisdiction in 2019 when lawyers in Netherlands brought 4 cases before the Dutch courts seeking remedy on behalf of the Syrian citizens for the suffering caused during the Syrian war in which approximately 500,000 people died (BIRN 2019). Some 24 people have been sentenced to life in Italy for their involvement in Operation Condor in which rulers of six South American states conspired to kidnap and kill political opponents in those territories (News report, 2019). The convictions included high ranking officials in the Governments as shown in Table 4 below.

Table 4
Trial International’s
State Individual
Peru Francisco Morales Bermúdez(president of Peru )
Uruguay Juan Carlos Blanco(Foreign minister of Uruguay)
Jorge Néstor Fernández Troccoli (Intelligence Officer )
Chile Pedro Espinoza Bravo (deputy intelligence chief of chile)

The most significant case under Universal Jurisdiction is of Myanmar’s Aung San Suu Kyi whereby she was named as an accused in case filed in Argentina for crimes against Rohingya Muslims. Argentinian courts have previously taken up other Universal Jurisdiction cases like Francisco Franco rule in Spain and Falun Gong movement in china. In 2017 Myanmar military and its proxy groups had launched horrific genocide campaign of thousands of people,driving 800,000 Rohingyians to flee to Bangladesh where they are still living a dehumanizing life in the camps. The case was filed by Rohingya Victims through an organization called Burmese Rohingya Organization UK (BROUK) and Latin American Human rights groups under the Universal Jurisdiction for crime of genocide under Convention For Prevention And Punishment Of The Crime Of Genocide 1948. The main reason given for acceptance of the case was that certain crimes are so horrific they are not specific to one nation and can be tried anywhere. The petitioners alleged that they opened case in Argentina because they have no possibility of filing criminal complaint anywhere else. Myanmar objected to the case saying that International Criminal Court already is investing the matter, and duplication of case is not allowed. But Argentina court requested ICC through a diplomatic note for information about the case, and it was learnt that ICC investigation is limited in scope. Myanmar is not party to Rome statute and case in ICC relates only to crimes that took place in Bangladesh. UN Fact finding mission of 2018 also reported the atrocities (UN Report, 2019) which explicitly called on states to pursue Universal Jurisdiction for cases against Myanmar military chief General Tatmadaw and counsellor Aung San suu kyi. BROUK president Mr Tun Khin,after success in Argentina said in a press statement (Business Standard, 2020).

“Today the Argentinian judiciary has sent a clear signal that it is taking seriously the pursuit of justice for some of the worst crimes of our time……We are convinced that universal jurisdiction will only complement and strengthen other international justice efforts not undermine them.”

Gambia also started a case in International Court Of Justice (ICJ) against Myanmar for violation of Genocide convention 1948 (ICJ, 2020). The court imposed provisional measures on Myanmar as part of the case ordering Myanmar to injunct genocidal practices against Rohingya. ICJ adopted its jurisdiction for the case under Article ix of the Genocide Convention which empowers the court to take any matter of the convention at the request of ANY OF THE PARTIES of the contracting states.

Conclusion

There is now evidence available that many old & new legislations have been introduced in some territories based on the doctrine of Universal Jurisdiction to name some are United States’ Aliens Tort Claims Act of 1789, Torture Victim Protection Act 1992, JASTA law in 2017 which extends right of American victims or relatives in respect of acts of torture for summary execution committed by officials of foreign states when there is no other remedy. Britain has adopted since 1988 extraterritorial jurisdiction to try suspects of torture (committed anywhere in the world) in their local criminal courts. In 1987 Canada permitted cases in its criminal courts for Crimes Against Humanity if they are regarded at the time of their commission as International Crime or act contravening International Law. In 1999 King of Belgium promulgated Act Concerning Punishment of Grave Breaches of International Humanitarian Law. Such laws show that Universal jurisdiction is fast converting into Customary International norm even if states do not ratify ICC Rome Statute. The case of Myanmar mentioned above proves that world is prima facie ready for adopting a new Jus Cogens norm of Universal Jurisdiction in International law for most heinous crimes against humanity including torture, rape, terrorism, war of aggression & breaches of human rights.

United Nations 6th legal committee in its seventy fourth session of November 2019 adopted a significant resolution to accept Universal jurisdiction as a norm in International Law (UNO 6th session, 2020). The committee noted that most delegates attending the session on behalf of their governments have accepted that in 21st century Universal Jurisdiction applies under international law to most serious extra territorial crimes including slavery, torture, piracy,aggression, terrorism, crimes against humanity etc. The only point of contest now is with respect to its scope. The delegates expressed concern that scope of universal norm is still uncertain due to unwillingness of big powers in the world. It is to be noted that in the session of the UNO, delegates from Africa were in the forefront to advocate use of universal jurisdiction norm for international crimes. Several members stressed the need that the principle must be applied in accordance with UNO Charter and International Law. Some members also said that the rule is weakened due to immunity right to Government officials in International Law for the rulers of States involved in breaches of International Criminal Law.

Slowly but surely conditions for prospects of finding justice for the victims of extraterritorial crimes against humanity are being strengthened. It cannot be stressed more that for realizing and firmly establishing Universal Jurisdiction principle as established Jus Cogens Norm Of International Law, more international cooperation is needed in matters of extraditions, Mutual legal assistance agreements (MLA), exchange of information and effective law enforcement. International community must continue to do everything to support all ongoing efforts for doctrine of Universal Jurisdiction which is twill create deterrence factor in the governments and non-state actors for reduction in International crimes. Conviction of a former Syrian secret police officer in German court in the month of February 2021 has been hailed by all Human Right groups and lawyers. German lawyers successfully invoked Universal Jurisdiction principle in the case and won. Anwar Al Bunni, a lawyer and activist said that the German court ruling is message to all criminals that time of impunity is over and they will not find any place safe to go. Surely the German precedent has set a landmark for other states to follow in the future (NewYork Times 24/2/2021).

Acknowledgement

The author acknowledges the support of Prince Sultan University for facilitating the research of this article.

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