Exploring the boundaries of international law
Exploring the boundaries of international law

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Exploring the boundaries of international law

4.3.5 Universality

A few crimes are considered so serious that it is in the interest of all states to proscribe them. Certain crimes have traditionally been regarded as universal crimes and the jurisdiction to try them is international.

Examples of universal crimes, piracy and hijacking, war crimes, crimes against humanity and genocide.

The scope and application of universal jurisdiction is uncertain. Although states recognise the universality principle, there are few cases where states are prepared to assert jurisdiction where there is no connection with the proscribed act or the individual accused of committing it. For instance, in recent years Kenya has been reluctant to try suspected Somali pirates who commit acts of piracy on the high seas. Kenyan domestic jurisdiction extends only to acts of piracy in territorial waters. Although the UN Convention on the Law of the Sea (UNCLOS) 1982 allows states to arrest pirates wherever they are operating and bring them to trial in the state’s domestic judicial system, it requires states to enact the appropriate domestic legislative provisions in order to do so. Courts in several European states have asserted jurisdiction on this basis over the officials of foreign governments accused of torture and crimes against humanity in other states and this has the potential to cause political and diplomatic tension.

Example of crimes against humanity: General Pinochet

In 1998, General Pinochet, the former military dictator of Chile, was arrested in London on an arrest warrant issued in Spain on charges of torture and genocide committed in Chile during his rule in the 1970s.

The UN and the European Parliament supported the extradition request. The government of Chile was ambivalent to the situation as it highlighted the divisions within their political elite. The UK government, while condemning the Pinochet regime was loath to upset the Chilean government, in view of the UK’s lucrative arms trade with the country and in the light of Chile’s support against the Argentinian invasion of the Falklands in 1982.

The attempt to hold Pinochet accountable eventually failed in 2000 when the UK government decided not to proceed with the extradition and released Pinochet on the grounds of ill health.

One of the controversial issues in the Pinochet case was whether such an approach violated the immunity of foreign government officials when travelling abroad. Pinochet was a former head of state, but in Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v Belgium) ICJ Rep 2002, 11 the ICJ held that an arrest warrant issued by the Belgian authorities against the Minister of Foreign Affairs of the DRC for war crimes and crimes against humanity did not respect his immunity from criminal jurisdiction under international law. This case and other similar prosecutions in Belgian courts caused considerable controversy, and under international pressure Belgium repealed the provisions of its domestic legislation that made such prosecutions possible.

The application of universal jurisdiction in these cases gives rise to some complex questions, some of which are highlighted in the next activity.

Activity 6

Read Orentlicher, D. F. (2004) ‘Whose Justice? Reconciling Universal Jurisdiction with Democratic Principles’, Georgetown Law Journal, vol. 92, no. 6, pp. 1057–1134 [Tip: hold Ctrl and click a link to open it in a new tab. (Hide tip)] .

This is a long article and for the purposes of this activity you need only read Section I. Then consider the nature of the issues raised by the author in that section of the article.

Comment

The author reviews the increasing use of universal jurisdiction and considers the concerns of those sceptics and positivists who question whether foreign courts should be passing judgment on crimes committed in another state as it risks increasing international tensions and internal discontent. The author also highlights the concerns of those who argue that universal jurisdiction has the potential to cause diplomatic controversy as, by indicting foreign officials, it in effect censures the behaviour of their governments. She also considers the argument that, in exercising universal jurisdiction the prosecutors and courts of the state concerned lack democracy and accountability as they are not accountable to the state of the indicted foreign official. Therefore, the application of universal jurisdiction intrudes into the internal governance of the foreign state. While not adopting these views as her own, the author concedes that they highlight the paradox that the application of universal jurisdiction is a means of enforcing human rights laws but that international human rights laws also uphold the right of societies to govern themselves.

The use of universal jurisdiction by states highlights the lack of international judicial bodies with jurisdiction over the individual. The Nuremberg, Tokyo and the Yugoslavian and Rwandan War Crimes Tribunals are notable exceptions, but they are ad hoc bodies, established to deal with events that occurred during particular conflicts. Hence the significance of the creation of the ICC in 2002 with general jurisdiction over individuals accused of serious international crimes.

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