Universal Jurisdiction is a legal principle that allows a foreign state to prosecute an individual in their national courts for a limited number of international crimes regardless of who committed them, where they were committed and against whom (Cali, 2010). The increase in universal jurisdiction proceedings in recent years is promising but there are still fundamental challenges that must be acknowledged to ensure the success of cases. By acknowledging the challenges, solutions can be suggested, more victims of the most egregious international crimes can achieve justice and the impunity gap will continue to be bridged. Several prominent challenges include: the length and complexity of the process, political interference, state willpower to investigate, presence requirements, evidentiary challenges and amnesties or immunities. However, potential solutions have also been suggested such as implementing domestic legislation to account for international crimes and ensuring they are exempt from statutes of limitations, implementing investigative bodies tasked with pursuing universal jurisdiction cases, and increasing efforts to increase coordination, cooperation and collaboration between prosecuting authorities, NGOs, and diaspora.
Customary international law recognises that a state can exercise legal authority or jurisdiction over a number of principles including: The territoriality principle (when an offence occurs in the prosecuting state’s territory), the nationality principle (when the offender is a national of the state), and the passive personality principle (when the victim is a national of the state). However, another principle, commonly referred to as universal jurisdiction has gained traction in the last century (Langer and Eason, 2019). Universal Jurisdiction is a legal principle which enables a foreign state to prosecute an individual in their national courts for a limited number of international crimes regardless of who committed them, where they were committed and against whom (Cali, 2010). It is based upon the notion that some international crimes are so egregious that they affect the international community as a whole. This includes international crimes such as genocide, war crimes, crimes against humanity, torture, enforced disappearances, piracy, hijacking, acts of terrorism and attacks on UN Personnel (Human Rights Watch, 2009).
Universal jurisdiction surfaced as a norm in international post-conflict justice after the Nuremberg trials (Dawson, 2020) and is a particularly relevant tool for victims that wish to prosecute perpetrators from states that are not party to the Rome Statute and therefore cannot be tried at the International Criminal Court (ICC). Whilst cases can be referred to the ICC by the United Nations Security Council (UNSC), they are often blocked from doing so due to permanent members’ veto powers (Nichols and Charbonneau, 2014). In this case, universal jurisdiction offers another path to justice. However, in practice this process has its own inherent challenges and complexities and unfortunately cases are often abandoned due to legal, logistical, political or budgetary difficulties (Grant and Paulet, 2019).
Why is this important?
Universal Jurisdiction is one of the fundamental approaches to transitional justice that often represents the last and only hope for justice for a countless number of victims in states where national authorities are not willing or able to prosecute such crimes (Grant and Paulet, 2019). It also contributes directly to the fight against impunity of the most egregious international crimes, strengthening the rule of international law and reducing the existence of safe havens for international criminals (Grant and Paulet, 2019).
In addition to this, justice has often been viewed as a necessary prerequisite for political reconciliation, positive peace and subsequent development or state-building in many cases (Mochizuki, 2009). It can also help to address underlying grievances which can hinder conflict resolution and perpetuate or create further conflict (Collier and Hoeffler, 2004).
Yet, a countless number of cases are often abandoned due to inherent difficulties and challenges during the process and international crimes have been highlighted as among the most complex to prosecute due to their nature and scale (Grant and Paulet, 2019). For this reason, it is particularly important that the complexities and challenges to pursuing universal jurisdiction are explored so as to create possible solutions and strengthen the process as best as possible.
Length and Complexity of Process
Universal jurisdiction is not a new principle and was first codified into an international treaty following the Second World War. However, it garnered significant attention following the revolutionary case brought against Chilean dictator Augusto Pinochet in 1998. General Pinochet was accused of widespread torture and enforced disappearances during his military regime in Chile in the 1970s, with official reports estimating 3,197 persons were killed and 967 disappeared in the 17 years of this presidency (TRIAL, 2012). This symbolic case was brought by Spanish courts and an extradition request to the UK, subsequently transforming international norms surrounding universal jurisdiction and setting a key precedent for future prosecutions of international crimes under this principle. Whilst Pinochet ultimately died in 2006 without conviction, it is seen as a significant milestone in the fight against impunity and for accountability and transitional justice. Yet, it has also illustrated how elusive achieving justice can be. Opportunities to launch complaints and complete investigations can as evidenced here take several years and even still, suspects can and often do, evade justice.
Therefore, it has been stressed that patience alongside a clear research strategy must be adopted by all groups involved, ensuring the necessary resources and professionalisation of persons tasked with pursuing cases (FIDH, 2009). For instance, the more successful countries in prosecuting international crimes through universal jurisdiction tend to have their own investigative body or ‘war crimes units’ to dedicate the necessary resources and degree of professionalism needed. Since 2009, Germany has had a specialised body responsible for opening investigation and prosecuting perpetrators including the German Federal Public Prosecutor General (Generalbundesanwalt -or GBA) and the German Federal Criminal Police Office (Bundeskriminalamt) (Rankin, 2019; Paulet 2016). It has since made considerable progress in pursuing international justice including the prosecution of leaders of the Democratic Forces of the Liberation of Rwanda in 2015 and the arrest of more politically challenging cases in the context of the Syrian conflict (Paulet, 2016).
Political Interference & The Debated Decline of Universal Jurisdiction
Universal jurisdiction has also evolved over time and has arguably been curtailed in recent years as various states governments have limited the use of this principle in their national legislation, presenting a challenge in pursuing universal jurisdiction cases. For instance, Spain and Belgium, once considered pioneers with some of the strongest universal jurisdiction mechanisms, have now seen them weakened due to severe political pressure from several powerful states including, inter alia, the U.S, China and Israel (Chevigny, 2006). Indeed Belgium, originally implementing a statute that provided for universal jurisdiction irrespective of any link to its territory, received an influx of political charged claims including that against former president George H.W Bush for crimes committed in Iraq. The U.S Defence Secretary threatened to remove NATO headquarters in Belgium unless legal amendments were made, to which Belgium ultimately complied (Chevigny, 2006). Due to amendments to their universal jurisdiction statute in 2003 Belgium can now only pursue universal jurisdiction in cases where the victim or the accused is Belgian. Spain also saw similar amendments in its universal jurisdiction legislation in 2009 and again in 2014 (Langer and Eason, 2019). This has impacted initial proceedings into the prosecution of former Chinese President Jiang Zemin for genocide and crimes against humanity, as a result of his authorisation of killings in Tibet and promotion of Chinese colonisation there. Whilst, judicial investigations were opened into the crimes reported, they were subsequently closed in 2015 by the Spanish Supreme Court as a result of this change in legislation which made prosecution of Jian Zemin outside of Spanish jurisdiction (TRIAL, 2016).
Thus, it can be seen how universal jurisdiction is vulnerable to political, economic and diplomatic pressures and it has been argued that as a result more powerful states and leaders remain out of reach of international justice (Mudukuti, 2019). Additionally, as evidenced by the restrictions to some states’ domestic legislation the principle has been perceived by some to be in decline (Elis, 2012). These challenges naturally threaten the pursual of universal jurisdiction and the fight against impunity (Paulet, 2016).
Yet, whilst these momentous changes in legislation have led to a growing perception amongst international criminal law academics that it is in decline, it is important to note that empirical research instead shows that this is quite the opposite (Langer and Eason, 2019). Other states have stepped in to fill this ‘gap’ in judicial accountability and universal jurisdiction in practice has in fact been quietly expanding, seen through the growth in trials, frequency by which these trials occur annually and the geographical scope of universal jurisdiction litigation (Langer and Eason, 2019). Additionally, in 2019 universal jurisdiction grew exponentially, with an unprecedented number of cases: 16 currently ongoing prosecution, 11 accused on trial and 200 suspects potentially imminent (TRIAL, 2020a). As figure 1 shows, trials have become more frequent and also a less sporadic occurrence over the years.
State Willpower to Investigate
Another obstacle to universal jurisdiction can be a foreign state’s ability to control whether or not they decide to investigate, prosecute or extradite suspected criminals (Amnesty, 2012). A state’s lack of political will in pursuing such cases can also be compounded by the perception that they are time and resource intensive due to the involvement of a foreign country whereby potential victims, suspects or witness are likely to be foreign nationals (HRW, 2006). Additionally, as evidenced above, a key challenge in pursuing universal jurisdiction cases is their political nature as such cases have the potential to damage diplomatic relations or ties between states, at times irreparably, particularly where the accused is from an influential state (Hershowitz, 2020). Thus, states have preferred to pursue cases from less influential states such as Rwanda, Nepal, Liberia or Chad. Whilst these prosecutions should be celebrated and represent a step towards accountability, others have argued that such investigations remain ‘entirely reserved for political losers’ whereby political winners enjoy impunity (Ibish, 2013).
Whilst in theory many states appear to recognise they can and should exercise universal jurisdiction over international crimes and implement legislation that allow for the prosecution of such, in practice states show far less dedication to the principle. Indeed, the lack of political will to pursue prosecutions through universal jurisdiction has been highlighted as a particularly pervasive challenge (HRW, 2006).
Moreover, academics have argued that the number of completed trials are likely a good indicator of a venue states’ support of and dedication to the principle of universal jurisdiction (Langer and Eason, 2019). Yet as figure 1 shows, only a limited number of states appear dedicated and supportive of the principle as just 16 countries have completed cases between 1971 and 2017. Further, whilst the frequency of which trials occur and the geographical scope of litigation does appear to be increasing, states that appear to be showing dedication to the principle are confined to primarily European or developed Commonwealth countries who have completed the most in recent years.
Research is showing that a growing number of states outside of Western Europe are seeing an emergence of the practice through the initiation of complaints including North America, Latin America and Africa (Langer and Eason, 2019). Yet, again, the majority of complaints continue to be filed in European and developed Commonwealth states (Langer and Eason, 2019). This limits the universality of the principle in practice, as only a narrow number of countries appear to be willing to take action.
Further commitment to the principle must be demonstrated by a broader geographical scope of countries initiating but also completing cases. Since, universal jurisdiction cases are mostly driven by victim and survivor advocacy groups and human rights NGOs (Dawson, 2020), victim diasporas have been highlighted as ‘central dynamos’ of universal jurisdiction and transitional justice (Herik and Reisen 2019, 430; Megret 2015). Thus, there must be collaboration between prosecuting authorities, local NGOs and diaspora within the forum state. Moreover, diaspora from the defendant’s state have the potential to induce civil society activism and incentivise political will from the bottom up in potential forum countries.
Presence Requirements
Another challenge to pursuing universal jurisdiction is the need for the suspect to be present in the state claiming jurisdiction in order to initiate proceedings. Whilst some states can conduct trials in absentia, in most cases state authorities can only open a case when the suspect enters their country (Grant and Paulet, 2019). For instance, in the Netherlands and Germany, investigations can be opened without the suspect present, but the trial cannot be held in absentia. Belgium on the other hand now requires that the suspect is a resident of Belgium to commence investigations as highlighted earlier (Kaleck, 2009).
Yet, many individuals, particularly higher profile suspects are aware of the risks of travelling into states where a universal jurisdiction case may be launched. For example, in the case of Jiang Zemin and before Spain’s change in legislation, the NGO International Campaign for Tibet (ICT), affirmed that whilst investigations into these persons sent a ‘strong signal’ to Chinese Leaders, ‘None of the leaders named, are likely to take the risk of traveling outside the [People’s Republic of China] as they could be arrested for questioning on the crimes they are accused of’ (International Campaign for Tibet, cited in Radio Free Asia 2013; para 4).
Additionally, ‘smaller fish’ and lower profile suspects who are less politically charged and often viewed as easier to prosecute, may also pose challenges, as targeting lower-ranked persons can mean the likelihood and available means they have to travel to states with strong universal jurisdiction mechanisms may be diminished, as it is likely dependent upon their socioeconomic status.
Existence and Awareness of Legislation
Another challenge to pursuing universal jurisdiction is the absence of particular international crimes being explicitly defined in the domestic legislation of the potential forum state. Where an international crime is not defined in domestic law, prosecutors are only able to frame international crimes in terms of their domestic equivalents that amount to an ‘ordinary crime’. Whilst these can still be prosecuted successfully, if convicted, the crime may not carry the same procedural sentence and does not convey the gravity of the crime committed. For instance, Sweden who is often regarded as a state more dedicated to the principle of universal jurisdiction has failed to define both crimes against humanity and torture in their domestic law (Amnesty, 2012), meaning such crimes may only be prosecuted as assault, for example. Indeed, whilst the majority of UN member states recognise the principle and provide for at least one of the four recognised international crimes, this still poses challenges if it is not supplemented with concrete measures to allow for its effective implementation (Paulet, 2016).
Again, legislation can vary from country to country and diverse challenges can evolve as a result of this. For instance, as highlighted by reports of the Secretary-General and cited in Amnesty International’s 2012 report, statutes of limitations may apply in some cases, whereby limits are placed on the amount of time that can pass to bring legal action. This is particularly relevant in cases where international crimes must be prosecuted as ordinary crimes as such criminal charges are typically subject to the statutes of limitations. This has impeded justice in countries such as Denmark for example, where prosecutors have been unable to pursue several universal jurisdiction cases due to the 10-year statute of limitations (HRW, 2006).
Therefore, it has been recommended that states make the necessary changes to their domestic legislation that account for international crimes and ensure they are exempt from statutes of limitations which limits the amount of time to bring legal action. NGOs have suggested this could be accomplished by making it part of legislation they implement as part of state adoption of the ICC for example (HRW, 2004).
Evidentiary Challenges
International crimes can also be particularly complex to prosecute through universal jurisdiction due to evidentiary challenges. Rules of evidence again vary by country so require a good understanding and knowledge of foreign countries’ legislation and evidentiary thresholds by prosecutors. Yet whilst generally evidentiary thresholds are somewhat similar in many countries, particularly Europe, the rules of admissibility of evidence can differ extensively and evidence must be gathered without knowing which court will ultimately examine it (Grant and Paulet, 2019). This is due to the opening of trials being dependent on both the will of a state to initiate proceedings and the suspects’ movements making it unpredictable to know where a future trial may take place.
Additionally, generally all courts require as much detail as possible such as the location of the crime, date and time of incidents, name and description of the offender, documents and videos. This can be especially challenging to obtain as crime scenes, victims, suspects, witnesses and documentary evidence may be present in several different countries (Crawford, 2019). Also, anonymity and safety are often especially pertinent considerations given the severity of the crimes. Due to the extraterritorial nature of proceedings, witnesses or victims wishing to testify are likely to face very real threats to both themselves and their families due to the political contexts in which they occur. Yet, the capacity of authorities to protect witnesses in their territorial state is often limited and can prevent or complicate relevant testimony.
For instance, in The Iraqi twin brothers Case, two 23 year old Iraqi nationals and alleged Islamic State (IS) fighters entered Finland as asylum seekers in 2015 and were arrested by the National Bureau of Investigation (NBI) for the alleged involvement in the Speicher massacre[1]. They were charged with war crimes, murder and aggravated assault committed with terrorist intent (Grant and Paulet, 2019). However, as reported by the state prosecutor in Finland, evidentiary challenges arose from the various issues with witness statements. Video calls had to be used for some witnesses that were testifying from Iraq often with poor signal that dropped for extended periods of time and were difficult to hear (Grant and Paulet, 2019). Additionally, other issues surrounding the anonymity of the witnesses threatened fair trial standards (Grant and Paulet, 2019). As a result, the Iraqi twin brothers were acquitted due to lack of evidence, granted compensation for their pre-trial detention and allowed to reside in Finland (Grant and Paulet, 2019). An appeal for this judgement recently dismissed all charges against the two twins earlier this year (YLE, 2020).
There are also often obstacles in accessing the crime scenes as prosecuting state authorities require an official laissez-passer and may not be granted such permissions to conduct investigations in another country’s territory. As a result, forensic evidence as one example, is often scarce (Grant and Paulet, 2019).
Yet, one possible solution to some of these evidentiary challenges is the key role of civil society who have successfully served as the eyes and ears of the judiciary in many successful cases (TRIAL, 2018). Taking lessons from Germany’s recent investigations into alleged crimes against humanity in Syria since 2011, non-state actors have played a vital complementary role in a state’s ability to prosecute. Whilst Germany has a fairly broad universal jurisdiction legal framework, they have not been granted permission to conduct investigation within Syria. Thus, The Commission for International Justice and Accountability (CIJA), a group of non-state actors, has helped fill evidentiary gaps and prepare case briefs to aid German investigations (Rankin, 2019). This has included collecting documentation (over 800,000 documents) and preparing criminal complaints.
Thus, the role of civil society and non-state actors must not be overlooked as not only do they have more flexibility to enter states than prosecuting state authorities, they can collect and protect evidence of atrocities that can be later validated by official actors who have the ability to investigate and prosecute. Moreover, they facilitate the active representation of victims when trials take place in geographically and culturally distant prosecuting states (Grant and Paulet, 2019).
Recognition of Amnesties and Immunities
Another challenge to universal jurisdiction is the recognition of amnesties and other measures of immunity (Amnesty 2012). One such amnesty is that afforded to incumbent state officials, Heads of States and Governments, Foreign Ministers and Diplomatic and Consular agents whereby they enjoy temporary immunities from civil and criminal jurisdiction from other states (Gunaratne, 2012). This was supported by the Arrest Warrant case[2] in 2002 whereby an arrest warrant issued by Belgian authorities against the Minister for Foreign Affairs of Congo, Abdulaye Yerodia Ndombasi, was deemed a violation of international law as he was entitled to diplomatic immunity (Gunaratne, 2012; Halberstam 2002).
Cases have subsequently been influenced by the reasoning of the Arrest Warrant case which has since had problematic consequences for the coherence of international law (Nouwen, 2005). In some cases, reliance on the decisions of the Arrest Warrant case has been taken further than what it actually supports and has been interpreted to grant immunity to former state officials. For example, complaints lodged in 2003 including inter alia, crimes of genocide, crimes against humanity and torture named among others, former Chinese President Jiang Zemin (Kaleck et al, 2007). One of the reasons cited as to why German prosecutors decided not to prosecute Jian Zemin and to close the case in 2005 included that he still enjoyed immunity (HRW, Kaleck et al, 2007). The federal prosecutor’s office asserted that sitting and former heads of state and government have immunity in extraterritorial states’ courts ‘at least for actions during their time in office’ (Kaleck et al 2007; 107). This broad interpretation has been highlighted as contradicting the majority of existing literature and case law (Kaleck et al 2007).
Yet, as highlighted by Human Rights Watch, political considerations rather than legal may be behind such decisions when determining whether particular suspects are entitled to immunity (HRW, 2006) which relates back to the challenge of a state’s will to prosecute.
Conclusions and Recommendations
Pursuing universal jurisdiction is fraught with inherent complexities and challenges to successfully prosecute individuals for international crimes. Considerations regarding which countries have the strongest universal jurisdiction mechanisms for each particular context, the number of diaspora able to incentivise investigations in a host country, the track records regarding a state’s willingness to prosecute and varying evidentiary standards and complications are a few of the key matters that must be considered when pursuing a case. Regarding challenges, there is clearly a need for a high level of structured coordination, cooperation and collaboration between different actors of various specialisms within the whole process, to have the greatest chance of success. Additionally, it has been recommended that:
- States implement their own investigative body or war crimes unit, such as that seen in Germany, to ensure the professionalisation of persons tasked with pursuing cases and ensuring the necessary resources are dedicated to cases.
- There are efforts taken to increase links and coordination between prosecuting authorities, local NGOs and diaspora within the forum state and territorial state.
- The role of diaspora and activism must also be recognised as a way of incentivising political will of states to investigate cases.
- States make the necessary changes to their domestic legislation that account for international crimes and ensure they are exempt from statutes of limitations which limits the amount of time to bring legal action.
Overall, whilst an arduous and often convoluted process which does not always lead to a favourable outcome, universal jurisdiction represents the only hope of justice for countless victims and has been shown to slowly pace the way for future cases, and therefore contribute directly to the fight against impunity, strengthening the rule of international law and reducing the number of safe havens for individuals who have committed the most egregious international crimes. Such justice is also exceedingly important for political reconciliation and has been highlighted by scholars as a prerequisite to positive peace and subsequent development and state-building in many cases and helps address grievances that can initiate or perpetuate conflict.
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[1] The Speicher massacre refers to the killing of at least 1,600-1,700 young and unarmed recruits of the Iraqi army (TRIAL, 2016)
[2] Judgement by the International Court of Justice (ICJ), February 2002, Case concerning the arrest warrant of 11 April 2000 (Democratic Republic of Congo v. Belgium 2002)
By The European Institute for International Law and International Relations.
