Universal Jurisdiction

Eichmann in the dock.

We discussed the issue of universal jurisdiction at our regular seminar for doctoral students at the Irish Centre for Human Rights yesterday evening. There has been a great deal of activity at the political level on the subject in the last few years. Put simply, universal jurisdiction authorizes a state to prosecute crimes that were not committed on its territory or by its nationals, or with some other connection to the state itself. Historically, piracy – a crime committed on the high seas and thus on the territory of no state - was prosecuted using universal jurisdiction. More recently, it has been used for human rights violations or atrocity crimes, the most celebrated examples being the prosecution of Eichmann in the early 1960s and Pinochet in the late 1990s.

To read the international criminal law textbooks, one would have the impression that this is all a straightforward matter, with well-established principles enshrined in customary international law. It is a rather clear and uncontroversial norm of customary international law, according to the study conducted by the International Committee of the Red Cross. In reality, there are essentially no treaty-law provisions that directly address the issue, although universal jurisdiction is said to be implied by provisions in some treaties that require states to try or extradite persons suspected of committing specific crimes who are found on their territory. Recent debates suggest the matter is more complicated.

We do not have a clear ruling on the point from the International Court of Justice. In 2002, the Democratic Republic of the Congo dropped its charge against Belgium based upon an alleged violation of international law resulting from the use of universal jurisdiction. It reduced its case to one founded on a violation of immunities, and was successful. Individually judges penned separate opinions on the issue of universal jurisdiction that suggested that we were far from unanimity. Then, the Republic of the Congo sued France, and it looked as if we would finally have a judgment to resolve the matter. It was due to come before the Court for hearing this month, but a few weeks ago the Republic of the Congo dropped the case.

The African Union seems to have launched the current conversation on the subject with its 2008 ‘Report on the Abuse of Universal Jurisdiction’. African states insisted they were not opposed to the principle, but that they were concerned it was being used by states in the north who targeted states in the south. An expert report on the matter was prepared at the request of the African Union and the European Union.

Then, the African Union raised the matter in the United Nations General Assembly. A resolution was adopted in January of this year  calling upon states to submit information on the subject, and requesting the Secretary-General to prepare a report based on the replies. All of the documents can be found here. 

The responses paint a rather confused picture. It seems clear that some of the states do not even understand the issue. Some states – China and Malaysia, for example – take the position that universal jurisdiction under customary law is only available for the crime of piracy. Others go much further, but there are significant nuances on a range of issues. One of the problems – as the responses confirm – is that there is a paucity of actual practice.

A common theme in the responses was the idea that universal jurisdiction should be exercised cautiously and with discretion. Many states require some form of political control before prosecutions can be launched, usually in the form of authorization by the Minister of Justice or something similar. What is striking is the number of states that say this is necessary in order to prevent ‘politicization’ of the process. This is really quite droll. Do we really ‘depoliticize’ a process by taking its control out of the hands of judicial officials and by requiring a minister to give the green light? What they mean, I think, is that they want to control the politics of the process, so that it can deal with an African tyrant but not a NATO general.

A good example of the hypocrisy of the process can be found in the report of the United States. Washington brags about  being able to use universal jurisdiction, in accordance with the Torture Convention, to prosecute the son of Charles Taylor for atrocities committed in Liberia (although the report notes that it was able to prosecute him otherwise, as a US national). It is silent on the fact that its former president has himself boasted about using torture (‘it save the lives of Americans’) and continues to bask in the glow of impunity.

There is now a draft resolution, adopted by the Sixth Committee of the General Assembly last month following a debate on the subject.  It should be adopted by the plenary General Assembly in the coming days. It calls for the establishment of a working group of the Sixth Committee to undertake a thorough discussion of the scope and application of universal jurisdiction.
Amnesty International published a major report on the subject a few weeks ago.

This is a great subject for further research. The reports from states and the debates in bodies like the Sixth Committee provide a very significant addition to the sources of evidence of custom. It appears as if the real custom is not quite co-terminus with the custom that has been claimed to exist in the academic literature and the NGO materials. Nevertheless, the debate may also provide the opportunity to clarify agreement and move the goalposts on this issue.

I have often said that universal jurisdiction generates more heat than light. For all of the talk about it, few prosecutions have actually succeeded. The deterrent effect seems largely confined to a fear of foreign travel rather than the certainty of prosecution. Even when the threat of prosecution appears somewhat serious, it is usually more of a nuisance than a genuine concern about being put in jail for a long time. Many of the reports describe universal jurisdiction as a component of the struggle against impunity. Perhaps, but it is a small component. International tribunals and truth commissions seem a better investment of scarce resources.

We meet next on 17 January, at 5 PM, when we will discuss WikiLeaks. For starters, there is an interesting article by Simon Chesterman on the subject. We'll be exchanging other materials in the weeks to come.