Universal jurisdiction is considered by some to be “one of international law’s most controversial topics”, and given that its practice has only recently been reinvigorated, its standing within the international legal order must be evaluated. This essay discusses the concept of universal jurisdiction in relation to the 1984 Torture Convention; cites significant cases relating to this area and outlines its impact and/or pitfalls on society before concluding that universal jurisdiction is undeniably important in society.
The concept of universal jurisdiction developed significantly following the Second World War, gaining ground through the establishment of the International Military Tribunal and the adoption of new conventions containing explicit or implicit clauses on universal jurisdiction. The idea that in certain circumstances, sovereignty could be limited for heinous crimes was accepted as a general principle. Later on, other international conventions and, to some extent, rules of customary law enlarged the principle’s scope of application.”
The International Community has since then recognized that certain crimes are so inherently odious that they must be treated differently from ordinary delicts. Such crimes are against the universal interest, offend universal conceptions of public policy and must be universally condemned. Therefore the international community is under a duty to bring to justice any individual who commits such crimes. The most important of such international crimes for present purposes is torture which is regulated by the International Convention Against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment.
The concept of universal jurisdiction acknowledges that certain crimes such as torture, which are considered harmful to all states and their subjects require the authority of all states to punish, irrespective of the location of the crime or the absence of a link between the state and the parties or the act in question. There is no authoritative definition of ‘universal jurisdiction.’ However, a ‘practicable’ definition describes universal jurisdiction as: “the ability of the prosecutor or the investigating judge of any state to prosecute persons for crimes committed outside the state’s territory which are not linked to that state by the nationality of the suspect or the victim or by harm to the state’s own national interests.”
Universal jurisdiction is intended to overcome jurisdictional gaps in the international legal framework by ensuring that individuals accused of international crimes like torture do not remain beyond the reach of the law; that they can be investigated and punished in any jurisdiction, and at any time. Given the nature of international crimes, it is evident that the international legal order “has a fundamental interest in upholding the integrity and credibility of the [international legal] system by prosecuting those who violate its basic injunctions.”
It is strongly linked to the idea that certain international norms are erga omnes, i.e. owed to the entire world community, as well as the concept of ‘jus cogens’ that certain international law obligations are binding on all states and cannot be modified by treaty. One of the consequences of the jus cogens character bestowed by the international community upon the prohibition of torture is that every state is entitled to investigate, prosecute, and punish or extradite individuals accused of torture, who are present in a territory under its jurisdiction.” MODERN EVOLUTION OF UNIVERSAL JURISDICTION:
The modern evolution of universal jurisdiction may be looked at in terms of two components. Foremost, universal jurisdiction obligations under the Torture Convention and secondly, its implementation at legislative and judicial levels. Torture is widely recognized as an international crime for which individuals or states have responsibility at international level. In certain contexts, torture can constitute a war crime or a crime against humanity giving rise to universal jurisdiction.
Outside of these circumstances, individual acts of torture are recognized as also giving rise to universal jurisdiction. The Torture Convention did not create a new international crime, it redefined it. It has to date been ratified by 146 states including all 47 member states of the Council of Europe.
The preamble evidences the universal scope of the prohibition of torture, which grounds itself in the “recognition of the equal and inalienable rights of all members of the human family” and “universal respect for, and observance of, human rights and fundamental freedoms” necessitating “the struggle against torture and other cruel, inhuman or degrading treatment or punishment throughout the world.”
The Convention’s principal aim was to strengthen enforcement of the existing international ban on torture, not to outlaw it because “the Convention is based upon the recognition that [torture is] already outlawed under international law.” The Torture Convention outlaws the intentional infliction of severe pain and suffering ‘by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity.’ Because no international element is required the Convention basically protects the right of citizens to be free from torture by their own public authorities.
The Torture Convention requires the criminalization of all instances of torture. It has also been at the forefront of combating impunity for serious international crimes, especially in terms of the arrangement of provisions on universal jurisdiction and duty to prosecute in Articles 5 and 7. Article 5 obligates state parties to establish jurisdiction over torture when committed in its territory, by one of its nationals, or against one of its nationals (if the State feels it appropriate) or in any case in which the accused is present on its territory and it does not extradite him or her.
The State party in Article 7 is then obliged if it does not extradite the person, to submit the case to its authorities for prosecution. Whereas previously states were entitled to take jurisdiction in respect of the offence wherever it was committed, they were now placed under an obligation to do so. These provisions reflects the principle aut dedere aut punire, designed to ensure that torturers do not escape by going to another country and also the principle of aut dedere, aut judicare (extradite or prosecute) principle, which requires that states either prosecute or extradite an alleged torturer. SIGNIFICANT CASES ON UNIVERSAL JURISDICTION:
In justifying its use of universal jurisdiction the Court in Eichmann held that international crimes “are grave offences against the law of nations itself”. The universality principle was later confirmed in Demjanjuk where an American Court held that universal jurisdiction is “based on the assumption that some crimes are so universally condemned that the perpetrators are the enemies of all people. Therefore, any nation which has custody of the perpetrators may punish them according to its law applicable to such offenses.”
This sentiment was also roundly endorsed by the Spanish Constitutional Court in Guatemalan Generals: “The international … prosecution which the principle of universal justice seeks to impose is based exclusively on the specific characteristics of the crimes which are subject to it, where the damage transcends the specific victims and affects the International Community as a whole.”
The landmark Pinochet cases taken in the United Kingdom and Spain signalled a revitalisation of the principle of universal jurisdiction in relation to the Torture Convention. While Article 5(1)(c) of the Torture Convention gives Chile the authority and the discretion to try Pinochet, Article 5(2) of the Torture Convention requires the U.K. to extradite the General for this trial. The UK Supreme Court had to decide whether General Pinochet could be extradited to Spain to face trial for acts of torture he allegedly committed whilst acting as Argentina’s head of state. Pinochet submitted that he was immune from prosecution because he was always acting in his official capacity.
According to Lord Hutton: “the alleged acts of torture by Senator Pinochet were carried out under the colour of his position when international law expressly prohibits torture as a measure which a state can employ in any circumstances whatsoever and has made it an international crime” Lord Millet added that: “international law cannot be supposed to have established a crime having the character of a jus cogens and at the same time to have provided an immunity which is coextensive with the obligation it seeks to impose.”
Lord Browne-Wilkinson noted that with respect to immunity, though “it is a basic principle of international law that one sovereign state does not adjudicate on the conduct of a foreign state”, and that an incumbent head of State will enjoy personal immunity while in office, there can be “no immunity from prosecution for the charges of torture…” The Law Lords’ decision appear to support the proposition that functional immunity cannot extend to international crimes like torture.
The Court concluded that Pinochet could not claim immunity because torture, as defined by the Torture Convention, was not a function of the state. Pinochet was the first trial wherein the former Head of State of a foreign country was held accountable for acts of torture allegedly committed while in office. Despite eventual release of General Pinochet due to ill health, this vindication of universal jurisdiction is a watershed event in international law (with some scholars considering it one of the most important events in judicial history since the Nuremberg trials of Nazi war criminals).
This Pinochet precedent is a significant step in the path toward an international legal norm that shows that international law is not a set of agreements that can be ignored, but a vital mechanism for the protection of individuals and respect of human rights. Legally, this increased emphasis on morality over sovereignty is demonstrated in each step that has been taken by “idealistic” human rights advocates this century.
More recently, UK has sentenced Zardad to 20 years imprisonment on several counts of torture committed in Afghanistan, Belgium, France and Spain have also concluded successful universal jurisdiction prosecutions. Finally, the most significant case following the Pinochet Precedent is that of Chad’s former dictator, Hissene Habre. Here, the Committee Against Torture found that, by not exercising universal jurisdiction, Senegal was in breach of its obligations with respect to the Convention against Torture.
This is a hugely significant finding as “it is the first time that breaches of the universal jurisdiction obligations of CAT have been found in an individual complaint.” This case unequivocally confirms that, consequent to Articles 5(2) and 7, CAT contains an individual right with respect to universal jurisdiction. The Committee also noted that, “the obligation to prosecute the alleged perpetrator of acts of torture does not depend on the prior existence of a request for his extradition.” This case confirms, explicitly, that a State Party is under an obligation to exercise universal jurisdiction with respect to the international crime of torture. IMPACT AND PITFALLS OF UNIVERSAL JURISDICTION
The principle of universal jurisdiction constitutes a long-established component of international law. Crimes which provide the bases for universal jurisdiction are universally recognised and condemned. Its importance is seen in the fact that it offers the only currently available legal mechanism capable of combating impunity and upholding victims’ rights; it must be regarded as an essential component in the international legal framework. It also provides an effective judicial remedy for victims of international crimes.
Universal jurisdiction is presented as a stepping stone on the road to universal justice, whereby the protections of international law may be extended to all individuals without discrimination. However, it has been criticized for infringing state sovereignty. International crimes involve a clash of the respective sovereignty of two or more States, each having some jurisdictional connection through territory, the nationality of the perpetrator, the nationality of the victim or some other direct interest which has been or could be harmed by the crime.
This clash of sovereignty must be resolved in some manner between these States, having regard to their particular connection to the crime. It has also been criticized for being expensive, time-consuming, and inefficient. Canadian Munyaneza trial has taken nearly two years and cost millions (13 witnesses flown in from Rwanda and trial had to move to France, Rwanda and Tanzania). Furthermore, in relation to legitimacy and accountability, it grants all States equal standing and interest in prosecuting international crimes, but as a matter of practice some States have a greater interest in particular cases.
The State within whose territory the crimes were committed, States whose nationals are the perpetrators, States whose nationals are the victims and States whose other direct interests were harmed are the most affected by a crime and are usually the most interested in responding to it. They are also likely to have a more proximate connection to the crime through one of the traditional jurisdictional links. A moral and legal question arises when more proximate States make a decision not to prosecute an alleged offender but distant States decide to do so based on universal jurisdiction.
The decision not to prosecute may be for socially justifiable reasons, such as to secure a peaceful transition from a repressive government to a more liberal one in exchange for an amnesty for former political and military leaders. This was the background to the Pinochet proceedings in England.
Generally, prosecutions based on universal jurisdiction also face controversies because of the lack of direct accountability of the judiciary of the prosecuting State to the societies of the more proximate states. The judges of a prosecuting State are not drawn from the proximate State’s own society, nor are they appointed or elected by the government or people of that State. This means that decisions based on universal jurisdiction are not legally reviewable by the proximate State’s legal and political system and may not make sense from a cultural perspective to the people of the proximate State.
To ameliorate these problems, one practical solution is to apply something similar to the principle of complementarity that operates between some international judicial bodies and States. The State(s) most-directly connected to the accused or the crime would have primary responsibility to investigate an accused and determine whether to proceed with a prosecution or not. Other States would not seek to intervene except where the State(s) with the primary responsibility maliciously seeks to exonerate an alleged offender.
Some developments in Europe (including at least one court case) have followed these principles, deferring to the State in whose territory the alleged crime was committed and whose nationals were most directly-affected by it as the more competent forum in which to hear criminal matters. In conclusion, the principle of universal jurisdiction has been, and continues to be, a significant tool in the legal practitioner’s tool box and an essential means for achieving justice for international crimes.
States should improve their capacity to investigate and prosecute gross human rights offences like torture on the basis of universal jurisdiction by establishing specialised machinery for this purpose and also by amending the law on criminal procedure, e.g. by widening the admissibility of written evidence. Also, the Committee against Torture should consistently ensure that states parties have not only established universal jurisdiction in law but exercised it in practice and actually co-operate with each other in investigating relevant cases.
The duty of States to enact and implement legislation (London September 2001), Introduction, p.1 Section II. Universal Jurisdiction over torture http://www.amnesty.org/en/library/asset/IOR53/002/2001/en/be2d6765-d8f0-11dd-ad8c-f3d4445c118e/ior530022001en.pdf (accessed at 8 january, 2011). [ 7 ]. Georges Abi-Saab, (2003) The Proper Role of Universal Jurisdiction, 1 Journal of International Criminal Justice 3, 596, 597. [ 8 ]. Prosecutor v Furundzija, ICTY, Case No. IT-95-17/1-T, 10 December 1998, para153. [ 9 ]. Ibid. Para 153
[ 10 ]. Ibid. para153.[ 11 ]. J. H. Burgers and H. Danelius,(1988) The United Nations Convention Against Torture: A Handbook on the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment, Dordrecht: Martinus Nijhoff, 1988. Pg 1 [ 12 ]. Torture Convention, supra note 22, preamble.
[ 13 ]. The chairman-rapporteur of the Working Group established by the U.N. Commission on Human Rights who drew up the Convention, and an author of the initial drafts of the Convention. J. H. Burgers and H. Danelius, The United Nations Convention Against Torture: A Handbook on the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment, Dordrecht: Martinus Nijhoff, 1988 pg, 1 [ 14 ].
Definition of Torture as seen in Article 1 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, opened for signature Feb. 4, 1985, S. Treaty Doc. No. 100-20 (1988), 1465 U.N.T.S 85 [ 15 ]. Article 4 of the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, opened for signature Feb.
4, 1985, S. Treaty Doc. No. 100-20 (1988), 1465 U.N.T.S 85 Thus, article 4 requires States to ensure that all acts of torture are criminal offenses, subject to appropriate penalties given their “grave nature. [ 16 ]. Nowak, Manfred. & McArthur, Elizabeth. (2008) The United Nations Convention Against Torture. A Commentary. New York City: Oxford University Press, Pp. 600 [ 17 ]. Article 5 of The Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, opened for signature Feb. 4, 1985, S. Treaty Doc. No. 100-20 (1988), 1465 U.N.T.S 85 [ 18 ]. Ibid, Articles 6, 7 and 12 of the Torture Convention [ 19 ]. J.
H. Burgers and H. Danelius,(1988) The United NationsConvention Against Torture: A Handbook on the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment, Dordrecht: Martinus Nijhoff, 1988. Pg 1 [ 20 ]. Bottini, Gabriel (2004) ‘Universal Jurisdiction after the Creation of the International Criminal Court’ 36 International Law and politics 503 [ 21 ]. The State of Israel v. Eichmann, Cr.C. (Jm) 40/61, 45 P.M. 3, part II, (1961) para 12. [ 22 ]. Demjanjuk v. Petrovsky. 776 F.2d 571, §582. Quoted in Monroe Leigh, Demjanjuk v. Petrovsky. 776 F.2d 571, 80 American Society of International Law 3, 656, 658 (1986). [ 23 ]. Ibid
[ 24 ]. Guatemala Genocide, Judgment No. STC 237/2005 (Tribunal Constitucional Sept. 26, 2005), available at http://www.tribunalconstitucional.es/Stc2005/STC2005-237.htm. [ 25 ]. Quoted in Anthony J. Colangelo, Double Jeopardy and Multiple Sovereigns: A Jurisdictional Theory, SMU Dedman School of Law Legal Studies Research Paper Number 00-19, p.21. [ 26 ]. Bruce Broomhall, Towards the Development of an Effective System of Universal Jurisdiction for Crimes Under International Law, 35 New England Law Review 2, 399, 399 (2001). [ 27 ]. Previously referred to as the House of Lords
[ 28 ]. R v Bow Street Metropolitan Stipendiary magistrate, ex parte Pinoche Ugarte (no.3) (1999) 2 All ER 97(165) [ 29 ]. Ibid at (180)[ 30 ]. Ibid.[ 31 ]. Lord Hope of Craig head, ibid.[ 32 ]. Andrea Bianchi, Immunity versus Human Rights: The Pinochet Case, 10 European Journal of International Law 2, 237, 237 (1999). [ 33 ]. Rv Zardad  EWCA Crim 279 Torture has been regarded as a “crime of universal jurisdiction” since a House of Lords ruling 1999 in the case of the former Chilean dictator Augusto Pinochet. That means that crimes that took place in Afghanistan between 1991 and 1996 are within the jurisdiction of our courts. Afghanistan and the UK are both parties to the UN torture convention and are bound either to extradite or to prosecute. [ 34 ]. Human Rights Watch, Universal Jurisdiction in Europe: The State of the Art, Volume 18, No. 5(D), June 2006, p.3. [ 35 ]. Guengueng v. Senegal, Communication No. 181/2001, CAT/C/36/D/181/2001, May 19, 2006. Often referred to as the “AfricanPinochet” [ 36 ]. Hereinafter referred to as CAT
[ 37 ]. Sarah Joseph, Committee against Torture: Recent Jurisprudence, 6 Human Rights Law Review 3, 571, 577 (2006). [ 38 ]. Guengueng v. Senegal, Communication No. 181/2001, CAT/C/36/D/181/2001, May 19, 2006. §6.3. [ 39 ]. R v Desire Munyaneza (2009) QCCS 2201
[ 40 ]. Anthony J Colangelo, (2009) ‘Universal Jurisdiction as an International “False Conflict” of Laws’ 30 Michigan Journal of International Law 881, 900-901; compare Diane F Orentlicher, ‘Whose Justice? Reconciling Universal Jurisdiction with Democratic Principles’ (2004) 92 Georgetown Law Journal 1057, 1115-1118 [ 41 ]. Amnesty arrangements are often criticised because they conflict with international criminal law and international human rights law which require States to prosecute and punish those convicted of the sorts of crimes typically committed by political and military leaders during the terms of repressive governments. [ 42 ].
Diane F Orentlicher, ‘Whose Justice? Reconciling Universal Jurisdiction with Democratic Principles’ (2004) 92 Georgetown Law Journal 1057, note 32 at 1089-1103 [ 43 ]. The International Criminal Court for example has jurisdiction over a criminal matter only where the relevant State is genuinely unable or unwilling to, or otherwise delegates its jurisdiction over a particular matter to the ICC, Rome Statute of the International Criminal Court, opened for signature 17 July 1998, 2187 UNTS 90, article 17 (entered into force 1 July 2002) [ 44 ]. Antonio Cassese, ‘Is the Bell Tolling for Universality? A Plea for a Sensible Notion of Universal Jurisdiction’ (2003) 1 Journal of International Criminal Justice 589, 593-594; [ 45 ]. Orentlicher, above, note 32 at 1129-1132 and also see 1112-1115.