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Global Policy Forum - International Justice The doctrine of universal jurisdiction allows national courts to try cases of the gravest crimes against humanity, even if these crimes are not committed in the national territory and even if they are committed by government leaders of other states. The concept is not new, though states have shown an increasing willingness to enlarge the zone of their jurisdiction and to prosecute or extradite those in high places. The case of Chilean dictator Augusto Pinochet signalled changing international norms in the late 1990s. Brought by a magistrate in Spain and involving an extradition request to the United Kingdom, this case never came to trial, but it had a very broad legal impact. As a result of the precedents of the Pinochet case, other leaders who have committed well-documented crimes have been pursued, including former US Secretary of State Henry Kissinger and Prime Minister Ariel Sharon of Israel. Kissinger has restricted his international travel, because he is wanted in so many jurisdictions either for trial or as a prosecution witness. Belgium currently has the broadest universal jurisdiction laws and cases there are testing new possibilities for the doctrine. Universal Jurisdiction
This page analyses the concept of universal jurisdiction and follows the legal and political battles over attempts to invoke it.
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Archive
The Case For Universal Jurisdiction (September/October 2001)
Kenneth Roth responds to Henry Kissinger' s criticisms of universal jurisdiction by stressing the importance of an international system of justice. He also points out the necessity for the US to embrace it, “even if it means that Americans, like everyone else, might sometimes be scrutinized”. (Foreign Affairs)
This Amnesty International paper discusses the scope of universal jurisdiction and the absence of immunity for heads of state over certain crimes under international law. This analysis is in direct reference to the House of Lords case to decide on Augusto Pinochet’s extradition to Spain. Also included is an excellent summary of legislative provisions invoking universal jurisdiction in countries around the world.
2008
Rwanda: Parliament to Discuss Universal Jurisdiction (May 16, 2008)
The Rwandan parliament will discuss the issue of universal jurisdiction, following a Spanish judge’s indictment of forty Rwandan army officers on charges of genocide. President Paul Kagame questions the rights of foreign nations’ to prosecute crimes committed in Rwanda in 1994, since few countries offered help in ending the genocide and some even “abetted it.” The President claims that universal jurisdiction is a ploy powerful countries use to “accord themselves the right to extend national jurisdiction to indict weaker nations.” (New Times - Kigali)2007
Rumsfeld Flees France, Fearing Arrest (October 29, 2007)
Four human rights groups have filed a complaint in France charging former US Defense Secretary Donald Rumsfeld with “ordering and authorizing” torture of detainees at Abu Ghraib and Guantanamo Bay. Commentators suggest that Rumsfeld was in France attending a meeting when he allegedly fled to Germany to avoid arrest. According to this AlterNet article, under international law French authorities are obliged to investigate the complaint and will likely pursue Rumsfeld across the border. This comes as a stark reminder to the US that its own war criminals cannot escape accountability for breaches of human rights.Rumsfeld Charged with Torture in French Court (October 29, 2007)
Leading human rights groups file an indictment against former US Secretary of Defense Donald Rumsfeld for authorizing the torture of prisoners in US custody. The charges against Rumsfeld were made in France and based on the Convention against Torture, which is endorsed by both the US and France. The plaintiffs say that there is enough evidence against Rumsfeld to prove the accusations in court. (OneWorld)The Inefficiency of Universal Jurisdiction (July 2007)
According to this paper, under traditional judiciary laws, negotiations between countries directly affected by a crime are faster than negotiations amongst those that are indirectly affected. The increasing popularity of universal jurisdiction, a policy which considers all states to have a stake in any international crime, decreases the international legal system’s efficiency. This inefficiency, caused by numerous parties attempting to reach a consensus, leads countries to “hold out by threatening prosecution” and “block optimal deals.” (University of St. Gallen Law School)War Crimes Trial First Test of Canadian Legislation (March 25, 2007)
In the first case invoking Canada’s Crimes Against Humanity and War Crimes Act, a judge will decide on the fate of a Rwandan national accused of committing atrocities, including murder and rape, during the 1994 genocide. The law, which Parliament passed in October 2000, allows Canadian courts to prosecute individuals regardless of when and where the alleged war crimes took place. The case demonstrates the increasing impact of the concept of universal jurisdiction on legislative procedures around the world. (Montreal Gazette)2006
*Run, Rummy, Run (December 8, 2006)
In November 2006, human rights lawyers led by the Center for Constitutional Rights (CCR) filed a legal complaint against former US Defense Secretary Donald Rumsfeld and other high-ranking officials implicated in the Abu-Ghraib and Guantanamo Bay prison abuse scandals. CCR Vice President Peter Weiss explains the lawsuit against Rumsfeld and his cohorts based on the concept of universal jurisdiction.*The Limitations of Universal Jurisdiction (March 2006)
NYU law professor Paul Chevigny considers the pros and cons of universal jurisdiction – a legal construct that allows courts in any country to pursue high international crimes committed outside their territory by persons not their own citizens. The author identifies some weakness, especially the problem of frivolous cases and its opposite, overly-narrow jurisdiction. He concludes that universal jurisdiction, while not a legal panacea, provides an important advance in law and a warning to future violators.Charges Sought Against Rumsfeld Over Prison Abuse (November 10, 2006)
For the second time since 2004, the Center for Constitutional Rights intends to bring criminal charges against former US Defense Secretary Donald Rumsfeld for his alleged role in prisoner abuse at the US-run Abu Ghraib and Guantanamo Bay detention facilities. Under the doctrine of universal jurisdiction, the US-based organization can pursue its case in Germany, even though the crimes took place in other countries. The lawsuit demonstrates the international community’s growing discontent with those “at the top of the chain of command” escaping prosecution for crimes against humanity. (Time)Senegal Agrees To Try Hissene Habre (July 2, 2006)
Encouraged by a panel of legal experts, the African Union (AU) has asked Senegal to put exiled Chadian ruler Hissene Habre on trial for alleged crimes against humanity during his eight-year rule. Human Rights Watch reports that while welcoming Senegal’s acceptance to try Habre, victims of the alleged atrocities promise to seek a binding ruling from the International Court of Justice if Dakar does not fulfill this commitment.Senegal Pressed To Ensure Habre Faces Charges (June 29, 2006)
At the July 2006 African Union summit, a group of jurists will present their recommendations on whether to try former Chadian leader Hissene Habre in an African court or send him to Belgium to face charges of mass murders and torture in reference to his 1982-1990 rule. Human rights groups urge Senegal, which granted the exiled leader asylum, to prosecute Habre to reflect the country’s commitment to justice rather than impunity. (Reuters)Universal Jurisdiction in Europe: The State of the Art (June 2006)
Case studies in this report reveal persistent gaps in the capacity of several European courts to try alleged perpetrators of grave international crimes. National courts encounter challenges such as inadequate resources and insufficient domestic support to pursue such cases. Human Rights Watch encourages EU member states and other governments to maintain a hard line against impunity for crimes against humanity.AU Legal Panel Winds up Closed-Door Talks on Fate of Hissene Habre (May 25, 2006)
An African Union (AU)-appointed group of lawyers has ended deliberations on whether and how to put Hissene Habre on trial for human rights offences allegedly committed during his 1982-1990 rule. The AU had set some standards the panel needs to meet, for example, “priority for an African mechanism” and easy access to the trial for witnesses and alleged victims. However, a prominent Chadian lawyer doubts the AU’s competence in handling the case and criticizes the government of Senegal, where Habre lives in exile, for not sending the former Chadian ruler to Belgium where judges can prosecute him under the universal jurisdiction law. (Integrated Regional Information Networks)Spanish Court Looks at Tibetan Genocide Claims (March 2, 2006)
A Spanish court agreed to hear a Tibetan genocide case against China. In doing so Spain has become one of few countries to exercise the legal principle of universal jurisdiction, but this article argues there is growing support for this practice. The Chinese embassy in Madrid dismisses the case as “absurd” and the likelihood of the Chinese authorities coming before the court slim. Tibetan victims are satisfied that the case will bring attention to their suffering. (Christian Science Monitor)AU Balks at Habre Extradition, asks African Jurists to Study Case (January 25, 2006)
The African Union has avoided a decision regarding the extradition of former Chadian leader, Hissene Habre to Belgium under universal jurisdiction laws. Instead it has requested a group of African jurists to advise them on the matter. Much disagreement exists about extradition versus trying Habre in Africa. However victims who have already been waiting 15 years for justice, want a trial sooner rather than later.(Integrated Regional Information Networks)Spanish Court Agrees to Consider Genocide Complaint Filed Against China by pro-Tibet Group (January 11, 2006)
A Spanish court has agreed to consider a lawsuit against China over its treatment of Tibet, under its powers of universal jurisdiction. The lawsuit involves former Chinese President Jiang Semin, former Prime Minister Li Peng and five military and security officials. In September 2005 Spain’s Constitutional Court ruled, allowing lower courts to probe genocide crimes, even if no Spanish citizens were among the victims. Spain first invoked the principle of universal jurisdiction in 1998. (Free New Mexican)2005
Hissene Habre: Senegal’s Albatross, Litmus Test for Africa (November 28, 2005)
After living in exile in Senegal since 1990, former Chadian President Hissene Habre was arrested for crimes against humanity that occurred under his regime. Senegalese police arrested Habre after Brussels requested his extradition under Belgian universal jurisdiction laws. The complexity of international involvement in the case makes the outcome difficult to predict. Regardless, the case will set an important precedent for international criminal law, amnesty, and universal jurisdiction in Africa. (AngolaPress)Spain Asserts Right to Try Genocide Crimes Committed Abroad (October 6, 2005)
In “an extraordinary advance that should be copied by all countries,” Spain’s Supreme Court asserted its right to try individuals under the principle of universal jurisdiction. Overturning a 2003 decision that blocked Spain from taking action against the perpetrators of human rights violations in Guatemala, the Court now affirmed the necessity of bringing international criminals to justice, regardless of their citizenship or where they committed their crimes. (Agence France-Presse)In Rare Case, Dutch Try Two Afghan Ex-Generals (September 29, 2005)
Taking another step in broadening the application of universal jurisdiction, the Netherlands has brought to trial two former senior officials of the 1980s Khad secret police force in Afghanistan, who are accused of torture and war crimes. In response to a spike in asylum seekers in the 1990s, Amsterdam established a special war crimes investigation unit, solely to determine how many asylum-seekers were themselves former perpetrators of persecution. The investigation unit in turn presents cases to be prosecuted under a combination of Dutch laws, the Geneva Conventions and the 1984 UN Convention Against Torture. (New York Times)Former Afghan Warlord Sentenced in Britain in Landmark Case (July 20, 2005)
Under the UN Convention against Torture, a British court convicted a fugitive Afghan warlord of crimes committed during Afghanistan’s civil war. Establishing a precedent that upholds the principle of universal jurisdiction, the verdict proves that “there is no hiding place for torturers around the globe.” (Eurasianet)Give Rumsfeld the Pinochet Treatment, Says US Amnesty Chief (May 25, 2005)
In an unusually outspoken speech, Executive Director of Amnesty International USA William Schulz sharply criticized Washington's failure to address US officials and top officers' responsibility in torture cases. Schulz called on the Pentagon to allow an independent investigation and urged foreign governments to arrest any US official who enters their territory – including President George W. Bush, Defense Secretary Donald Rumsfeld and former CIA Director George Tenet – for trial on prisoner treatment that violates the Geneva Conventions and the UN Convention against Torture. (Inter Press Service)A Groundbreaking Sentence in Spain (April 30, 2005)
The Spanish National Court’s sentencing of former Argentine navy commander Adolfo Scilingo was a “significant affirmation of the principle of universal jurisdiction,” reports the Japan Times. The verdict proved that “national borders do not prevent the prosecution of those guilty of crimes against humanity” and will pave the way for similar trials in the near future.Argentinean Officer Jailed by Spain for ‘Dirty War’ Crimes (April 20, 2005)
Spain’s National Court has sentenced former Argentinean naval officer Adolfo Scilingo to 640 years in jail for crimes against humanity. The ruling marked the first time a national court has convicted an individual for war crimes committed in another country. Even though Scilingo will only serve 30 years under Spain’s penal code, human rights groups hailed the verdict as a “vindication” for the principle of universal jurisdiction. (Independent)The Right Court to Judge Darfur Atrocities (February 3, 2005)
The International Commission of Inquiry on Darfur raised the possibility of prosecuting Sudan’s war criminals in other states’ courts as an alternative to the International Criminal Court or another ad hoc criminal tribunal. One of the drawbacks to this universal jurisdiction approach is the fact that the defendants must appear in court. In addition, the News and Observer questions whether the UN would willingly share its evidence with other countries.Spain Tries Former Argentinean Officer for Genocide (January 14, 2005)
Spain’s national court is prosecuting former Argentinean officer Adolfo Scilingo for crimes against humanity committed under Argentina's military junta in the 1970s. Arrested in 1997, Scilingo is the first person being tried in Spain under the doctrine of universal jurisdiction. Former Chilean dictator Augusto Pinochet was indicted by a Spanish court on similar charges, and although that case did not go to trial, it paved the way for action against Scilingo. (Guardian)2004
Lawsuit Against Rumsfeld Threatens US-German Relations (December 14, 2004)
Under German legislation that allows for universal jurisdiction, New York’s Center for Constitutional Rights and Berlin’s Republican Lawyers’ Association filed a lawsuit against US Defense Secretary Donald Rumsfeld and other officials liable for the Abu Ghraib prison scandal. The Pentagon warns that “frivolous lawsuits” would put the countries’ relations at risk, and Rumsfeld threatens to boycott the annual Munich security conference if the lawsuit advances. (Deutsche Welle)Can Ottawa Act Against Mugabe? (November 5, 2004)
Accountability Commission Zimbabwe hopes Canada will indict Zimbabwean President Robert Mugabe for human rights violations, citing universal jurisdiction under the Canadian Crimes Against Humanity and War Crimes Act. The Canadian government says there needs to be a Canadian victim or connection in the case, but supporters cite International Criminal Court obligations and the precedent of Liberian President Charles Taylor’s trial in Sierra Leone as reasons to proceed. (Globe and Mail)The Ripple Effect of the Pinochet Case (May 24, 2004)
The 1998 detention of former Chilean dictator Augusto Pinochet in London and the resulting legal proceedings against him sparked movements against impunity in Chile and Argentina. Activists should continue to utilize international mechanisms such as universal jurisdiction to reinforce domestic efforts to hold human rights violators accountable for their crimes. (Institute for Policy Studies)US Should Not Fear Transnational Justice (January 12, 2004)
As the concepts of transnational justice and universal jurisdiction gain international popularity, the Bush administration increasingly fears politically motivated prosecutions of US officials and citizens. The San Francisco Chronicle argues these fears should not serve as an excuse to immunize those who commit gross human rights violations.
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