Table of Contents. 1
1. INTRODUCTION.. 2
2. WHAT IS UNIVERSAL JURISDICTION?. 3
3. DIFFERENCE BETWEEN UNIVERSAL JURISDICTION AND PRIVATE JURISDICTION.. 5
4. SCOPES OF UNIVERSAL JURISDICTION.. 6
A. International law and standards guaranteeing the right to reparations without any geographic restriction 8
B. The right to reparations for torture under Article 14 of the Convention against Torture. 9
5. LIMITATIONS. 10
6. FUTURE PROSPECTS. 11
7. CONCLUSION.. 13
8. BIBLIOGRAPHY. 14
UNIVERSAL JURISDICTION: SCOPE AND LIMITATIONS UNDER INTERNATIONAL LAW.
1. INTRODUCTION
Universal jurisdiction is the principle that certain crimes are so heinous and so universally recognized and abhorred, that a state is entitled or even obliged to undertake legal proceedings without regard to where the crime was committed or the nationality of the perpetrators or the victims. It applies to the most serious crimes under international law: slavery, war crimes, crimes against humanity, torture, and some others[1]. Universal jurisdiction appears as a potent weapon[2]: it would cast all the world’s courts as a net to catch alleged perpetrators of serious crimes under international law. It holds the promise of a system of global accountability – justice without borders – administered by the competent courts of all nations on behalf of humankind.
In spite of its growing importance and it’s even greater potential as a tool of accountability, universal jurisdiction is not widely understood. There are, moreover, no clear principles of international law to help guide the use of universal jurisdiction and to help thoughtful observers decide when its use is justified. This project is helps to dissipate some of the mystery of the principle of universal jurisdiction, its roles, scopes and limitations.
2. WHAT IS UNIVERSAL JURISDICTION?
Universal jurisdiction or universality principle is a principle in public international law (as opposed to private international law) whereby states claim criminal jurisdiction over persons whose alleged crimes were committed outside the boundaries of the prosecuting state, regardless of nationality, country of residence, or any other relation with the prosecuting country. The state backs its claim on the grounds that the crime committed is considered a crime against all, which any state is authorized to punish, as it is too serious to tolerate jurisdictional arbitrage.[3]
The Princeton principles of Universal Jurisdiction[4] are as follows.
Ø Principle 1 : Fundamentals of universal jurisdiction
Ø Principle 2 : Serious crimes under international law
Ø Principle 3 : Reliance on universal jurisdiction in the absence of national legislation
Ø Principle 4 : Obligation to support accountability
Ø Principle 5 : Immunities
Ø Principle 6 : Statutes of limitations
Ø Principle 7 : Amnesties
Ø Principle 8 : Resolution of competing national jurisdictions
Ø Principle 9 : Non bis in idem/double jeopardy
Ø Principle 10 : Grounds for refusal of extradition
Ø Principle 11 : Adoption of national legislation
Ø Principle 12 : inclusion of universal jurisdiction in future treaties
Ø Principle 13 : Strengthening accountability and universal jurisdiction
Ø Principle 14 : Settlement of Disputes
According to Larry Cox[5] “Universal jurisdiction is simply the realization that there are crimes which are crimes not against a particular people living in one particular place, but crimes against all of humanity. And so therefore, the jurisdiction is all of humanity, it’s universal.”
3. DIFFERENCE BETWEEN UNIVERSAL JURISDICTION AND PRIVATE JURISDICTION
We have mainly two types of jurisdiction, private jurisdiction and universal jurisdiction. According to Wikipedia, “Private jurisdiction is the right of an individual or a legal entity to establish courts of law. It was prevalent during feudalism[6]”. On the other hand, universal jurisdiction is universal, where there is no boundary, no territory, no limitations of any other laws, and any one can be sued under the international law. And the private jurisdiction is followed by a state with precise rules and regulations, laws under different acts which only can be applicable inside the state. So it is very important to have an international law for the people or the organization who works and need to be sued beyond boundaries.
4. SCOPES OF UNIVERSAL JURISDICTION
Where the scope of a nation’s version of universal jurisdiction is wide, it seems that politics often drives the filing of claims that can find no other home. This danger is small in the ICC, partly because its jurisdiction is so limited, but also because the prosecutor and the judges are chosen by the treaty parties and may be disciplined by them. The political culture of the international community controls their discretion in somewhat the same way that national political culture controls national courts and prosecutors. In a place like Belgium, however, under the statute as it was before it was amended, such controls on the filing of claims were much weaker. In one case, Belgium sought to extradite the Congolese Minister of Foreign Affairs for speeches that allegedly incited to race-hatred in the Congo. Given Belgium’s dark history in the Congo, such a complaint would at least have opened the country to a charge of colonialism. In any case, the World Court avoided a possible embarrassing international incident by holding that an incumbent minister of foreign affairs was immune from the Belgian process. This was a result that itself contributed to limiting the potential effectiveness of universal jurisdiction.
International law permits the exercise of adjudicative universal jurisdiction over civil tort claims, including those based on genocide, crimes against humanity, war crimes, torture and other crimes under international law without requiring a link between the tort or underlying crime and the forum state.[7]
International law and standards permit and, in some instances, require states to provide civil remedies for crimes under international law committed abroad by foreigners against other foreigners. In particular, as made clear by the Committee against Torture in its examination of Canada’s report, Article 14 of the Convention against Torture requires states to provide a procedure allowing victims to seek and obtain reparations for torture committed abroad, even when the victims and their torturers were not nationals of the state party.[8]
A. International law and standards guaranteeing the right to reparations without any geographic restriction
The right of victims and their families to recover reparations for crimes under international law, whether during peace or armed conflict, has been confirmed in provisions of a number of international instruments adopted over the past two decades since the Convention was adopted in 1984. These instruments do not restrict this right geographically, require a link to the forum state or abrogate the right by state or official immunities. They include the 1985 UN Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power,[9] the 1998 Rome Statute of the International Criminal Court[10] and two adopted in April 2005 by the Commission on Human Rights, the first of which was adopted subsequently in December of that year by the UN General Assembly, the UN Basic Principles and guidelines on the right to a remedy and reparation for victims of gross violations of international human rights law and international humanitarian law (Van Boven-Bassiouni Principles)[11] and the UN Updated set of principles for the protection and promotion of human rights through action to combat impunity (Joinet-Orentlicher Principles).[12] Both instruments, which were designed to reflect current international law obligations, have been cited by Pre-Trial Chamber I of the International Criminal Court in its determination that the harm suffered by victims of crimes under international law includes emotional suffering and economic loss.[13] Most recently, the UN General Assembly adopted by consensus the International Convention for the Protection of All Persons from Enforced Disappearances with a very broad definition of the right to reparations at its 61st session in 2006.[14] This right is inherent in the right to a remedy, as guaranteed in Article 2 of the International Covenant on Civil and Political Rights (ICCPR), adopted four decades ago in 1966.[15] Indeed, the international community recognized the rights of victims to civil recovery directly against foreign states for war crimes a century ago in Article 3 of the 1907 Hague Convention IV Respecting the Laws and Customs of War on Land.[16]
B. The right to reparations for torture under Article 14 of the Convention against Torture
Recent practice of the Committee against Torture and scholarship demonstrates that states parties have an obligation to provide victims with a forum to obtain reparations for torture, regardless where it occurred and regardless whether the victim is a national of the forum state. For example, when the Committee against Torture, the expert body that monitors implementation of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment, examined the report of Canada in May 2005, it made clear that states parties had an obligation “under article 14 of the Convention to ensure the provision of compensation through its civil jurisdiction to all victims of torture”, and it is clear from the context that this obligation extended to victims in Canada who suffered torture inflicted abroad by foreigners.[17] A thorough review of the drafting history of Article 14, state practice and the work of the Committee against Torture has concluded that Article 14 requires states parties to provide a forum for foreign victims as well as citizens of the forum to seek reparations for torture committed abroad by foreigners.[18]
5. LIMITATIONS
There are some limitations to universal jurisdiction inferred in the Geneva Conventions.[19] First, it cannot be stated that universal jurisdiction became an obligation for all war-related crimes. The provisions in the Geneva Conventions mentioned above apply only to ‘grave breaches’ of the Geneva Conventions. For lesser crimes and for other war-related crimes, there was no indication under international law that these were subject to the same universal jurisdiction during this period of time. Secondly, note that the obligation of universal jurisdiction over grave breaches of the Geneva Conventions was only for those breaches committed during an international armed conflict. Dealing with non-international armed conflict in the conventional form of a protocol came much later in the 1970s.
The two sets of problems are interlocking. Where jurisdiction is very wide, it will act as a magnet for complaints, regardless of their merit, leading to arguments that complaints are rooted in political vendettas. On the other hand, international power politics will tend to narrow the jurisdiction and to cut off complaints, which will lead to arguments that meritorious complaints are being stifled. In the final analysis, is the dilemma likely to make a feeble mockery of the institutions of universal jurisdiction?
Universal jurisdiction is not destined to be a mockery, for some of the same reasons that we do not think that domestic jurisdiction in criminal cases, for all its limitations, is a mockery. Domestic criminal jurisdiction, at its best, aspires to be free of politics and discrimination, but of course it is not; cases are pressed or dismissed because of bias, whether overt or unconscious. At its worst, it is a state instrument of oppression. Interest in universal jurisdiction has grown in recent years partly because of the biases in domestic jurisdiction. The limitations of international criminal jurisdiction cannot mean that it must disappear, any more than we expect domestic jurisdiction to disappear.
6. FUTURE PROSPECTS
Universal jurisdiction in international criminal cases may be an idea whose time has finally come. The germ of the idea is that some crimes are so heinous that they give rise to a duty in every nation to prosecute if the opportunity arises. The very name “crimes against humanity” captures the notion of an offense to every nation, and a corresponding obligation to take action. Although the concept is old, and had been offered as one of the justifications for the Nuremberg trials of World War II war criminals from 1945 to 1949, it came to the fore after the widespread collapse of dictatorships, especially in Latin America, during the 1980s. The cry was for “an end to impunity,” and the hope was that universal jurisdiction would help to bring torturers and murderers to justice. Time outs of mind, deposed oppressors have sought amnesty in their own country, or have fled into asylum on neutral ground. It often seemed that the worst criminals were the most likely to escape justice.
One such prominent group recently drafted the “Princeton Principles on Universal Jurisdiction,” which hold that the following offenses can be tried by any court in the world without regard to where the crime occurred or who committed it: piracy, slavery, war crimes, crimes against peace, crimes against humanity, genocide, and torture. In stark contrast, universal jurisdiction skeptics–who often include scholars and policymakers in the realist international relations tradition and ideologically conservative analysts–dismiss universal jurisdiction as dangerous legal activism. A variety of positions are included in the broad tent of skepticism: in his recent article in Foreign Affairs, Henry Kissinger suggests that the concept is a recent invention of activists and ill-advised foreign judges, and the Heritage Foundation suggests that it applies only to crimes committed outside the territorial jurisdiction of any state, such as piracy on the high seas.’[20]
7. CONCLUSION
Universal jurisdiction is the principle that every country has an interest in bringing to justice the perpetrators of grave crimes, no matter where the crime was committed, and regardless of the nationality of the perpetrators or their victims.
It’s very important to realize the necessity of universal jurisdiction. Without a strong global network, we couldn’t ensure the execution of the law and the jurisdiction procedure properly. Universal jurisdiction is that network what we are looking for. However, Amnesty International argues that since the end of the Second World War more than a dozen states have conducted investigations, commenced prosecutions and completed trials based on universal jurisdiction for the crimes or arrested people with a view to extraditing the persons to a state seeking to prosecute them. These states include: Australia, Austria, Belgium, Canada, Denmark, France, Germany, Israel, Mexico, Netherlands, Senegal, Spain, Switzerland, the United Kingdom and the United States[21]. In the end, universal jurisdiction is one of the great ideas that is already accepted by most of the countries. We should have a proper law, guidelines, rules and regulations to get the best outcome from universal jurisdiction.
8. BIBLIOGRAPHY
Ø Amnesty International, “Universal Jurisdiction: The Scope of Universal Civil Jurisdiction.”
Ø Cesare P.R. Romano and André Nollkaemper. The Arrest Warrant Against The Liberian President, Charles Taylor, on the website of the American Society of Internation law, June 2003. Cites in footnote 6: Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v. Belgium), Judgment, Merits, para. 61.
Ø Chevigny , Paul. “The Limitations of Universal Jurisdiction” retrieved from, http://www.globalpolicy.org/component/content/article/97/32133.html
Ø Hans Köchler, “The judgment of the International Court of Justice (2002) and its implications for the exercise of universal jurisdiction by national courts: the case of Belgium,” in: Global Justice or Global Revenge? International Criminal Justice at the Crossroads. Vienna and New York: Springer, 2003, pp. 85–101. ISBN 3-211-00795-4
Ø Hawkins, Darren. “Universal jurisdiction for human rights: from legal principle to limited reality”. Online journal.
Ø Inazumi, Mitsue. “Universal Jurisdiction in Modern International Law: Expansion of National Jurisdiction for Prosecuting Serious Crimes Under International Law”, p 59.
Ø Jurisdiction as Property: Franchise Jurisdiction from Henry III to James I by Nicholas J. Szabo.
Ø Kissinger, Henry (July/August 2001). “The Pitfalls of Universal Jurisdiction”. Foreign Affairs.
Ø Macedo, Stephen (Editor). “Universal Jurisdiction: National Courts and the Prosecution of Serious Crimes under International Law”, p 4-5.
Ø Universal Jurisdiction: The duty of states to enact and implement legislation – Chapter Nine (Torture: The legal basis for universal jurisdiction), Amnesty International 1 September 2001. Section II. Universal Jurisdiction over torture.
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[1] Detailed has been discussed by Stephen Macedo on “Universal Jurisdiction: National Courts and the Prosecution of Serious Crimes under International Law”.
[2] He also indicate universal jurisdiction as a potential weapon as it is a net of all courts of the whole world.
[3] According to Wikipedia, from – http://en.wikipedia.org/wiki/Universal_jurisdiction
[4] Princeton principles of Universal Jurisdiction is collected from the book, “Universal Jurisdiction: National Courts and the Prosecution of Serious Crimes Under International Law” edited by Stephen Macedo. Page – 21
[5] Executive Director of Amnesty International USA, said in Amnesty USA under international justice
[6] According to Wikipedia, http://en.wikipedia.org/wiki/Private_jurisdiction
[7] As a preliminary point, it is important to distinguish between prescriptive extraterritorial jurisdiction,
in which states seek through national legislation to regulate activities in foreign states on the basis of
their own national norms, for example, by attempting to impose national antitrust law on foreign
companies and individuals, and adjudicative universal jurisdiction in which each state may act “in the
capacity of a guardian of international law and an agent for its enforcement”, Attorney-General of
Israel v. Eichmann, 36 Int’l L. Rep. 277, 304 (Israel Sup. Ct. 1962), to investigate and prosecute
conduct defined as crimes under international law such as genocide, crimes against humanity, war
crimes and torture.
[8] Amnesty International plans to publish a comprehensive global review of state practice in al 192 UN
member states concerning universal civil and criminal jurisdiction in 2008.
[9] GA Res. 40/34, 29 Nov 1985.
[10] Rome Statute of the International Criminal Court, adopted by the United Nations Diplomatic
Conference on the Establishment of an International Criminal Court, Rome UN Doc A/CONF.183/9*,
17 July 1998, as corrected by the process-verbaux UN Doc C.N.577.1998.TREATIES-8, 10 November
1998, and UN Doc C.N.604.1999.TREATIES-18, 12 July 1999, Art. 75. Its reach is potentially
universal as the Security Council can refer a situation involving crimes in any state to the Prosecutor.
[11] UN Comm’n Hum. Rts Res. E/CN.4/2005/35, 13 April 2005; GA Res. A/RES/60/147, 16 Dec 2005.
[12] UN Comm’n Hum Rts Res E/CN.4/2005/81, 15 April 2005.
[13] Situation of the Democratic Republic of the Congo, Decision on the Applications for Participation in
the Proceedings of VPRS 1, VPRS 2, VPRS 3, VPRS 4, VPRS 5 and VPRS 6, Case No. ICC-01/04,
Pre-Trial Chamber I, 17 January 2006, para. 115.
[14] UN G.A. Res. A/RES/61/177, 20 December 2006, Art. 24. The Convention has been signed by at
least 59 states.
[15] See Human Rights Committee, General Comment No. 31, UN Doc. CCPR/C/21/Rev.1/Add.13 (no
suggestion that the right to a remedy under the ICCPR is geographically restricted).
[16] 1907 Hague Convention IV Respecting the Laws and Customs of War on Land, reprinted in Adam
Roberts & Richard Guelff, Documents on the Laws of War 67 (Oxford: Oxford University Press 3rd ed.
2000); Hisakazu Fujita, Isomi Suzuki and Kantato Nagano, War and the Rights of Individuals,
Renaissance of Individual Compensation, Nippon Hyoron-sha Co. Ltd. Publishers (1999), expert
opinions by Frits Kalshoven 31; Eric David 49; Christopher Greenwood 59.
[17] Conclusions and recommendations (Canada), 34th Sess., 2-20 May 2005, UN Doc CAT/C/CR/34/CAN, 7 July 2005, paras. 4 (g); 5 (f).
[18] Christopher Keith Hall, The duty of states parties to the Convention against Torture to provide procedures permitting victims to recover reparations for torture committed abroad, Eur. J. Int’l L. (forthcoming 2007).
[19] Discussed on the book Universal jurisdiction on international law.
[20] Online journal written by Darren Hawkins who talks about piracy.
[21] According to Wikipedia, http://en.wikipedia.org/wiki/Universal_jurisdiction#Further_reading