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Board of Directors Chair, William D. Zabel President, Tom A.
Bernstein Chair Emeritus, Marvin E. Frankel
M. Bernard Aidinoff Joseph L. Brand Raymond Brown Lynda Clarizio
Craig Cogut
Daniel Doctoroff Mitchell F. Dolin Donald Francis Donovan A.
Whitney Ellsworth Kenneth R. Feinberg
R. Scott Greathead Martina A. Hone Robert D. Joffe Lewis B.
Kaden Kerry Kennedy Cuomo
Philip A. Lacovara Jo Backer Laird R. Todd Lang Li Lu Barbara A.
Schatz
Steven R. Shapiro George A. Vradenburg III Sigourney Weaver
National Council Chair, Talbot D Alemberte
Robert Bernstein Jeffrey L. Bleich Derek Bok David Brink James
J. Brosnahan Benjamin Civiletti
William K. Coblentz Lloyd Cutler Michael I. Davis Robert F.
Drinan, S.J. Jerome B. Falk, Jr. Larry A. Hammond
Mark Harrison Donald Hubert Helene Kaplan John W. Keker Paul
Liebenson Samuel R. Miller
Patrick G. Moran Steven A. Nissen Duane C. Quaini Bruce Rabb
Randall S. Rapp Calvin P. Sawyier
Chesterfield Smith W. Reece Smith Jerold S. Solovy Rose Styron
Stephen D. Susman Michael W. Zavis
Executive Director, Michael Posner
Universal Jurisdiction: Meeting the Challenge through NGO
Cooperation
Report of a Conference Organized by the Lawyers Committee for
Human Rights
With the assistance of the Human Rights Program
School for International and Public Affairs, Columbia
University
Wednesday 3 April Friday 5 April 2002
New York City
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Universal Jurisdiction: Meeting the Challenge through NGO
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ii Lawyers Committee for Human Rights
Table of Contents
Part One:
Introduction.........................................................................................................
1 Part Two: Summary of Issues
.............................................................................................
3 Part Three: Law
Reform......................................................................................................
5
A. ICC implementation and other opportunities
.............................................................. 5 1.
Overview
.............................................................................................................
5 2. Specific
Approaches............................................................................................
6
B. Universal jurisdiction filters
.....................................................................................
8 1. Presence requirement:
.........................................................................................
9 2. Political or other
control....................................................................................
11 3.
Immunities.........................................................................................................
12 4. Hierarchy of jurisdiction
...................................................................................
14
C. Further hurdles to the successful adoption of universal
jurisdiction ......................... 16 Part Four:
Casework..........................................................................................................
17
A. Standards and criteria in choosing cases
...................................................................
17 B. Specific obstacles to bringing cases and succeeding with
cases ............................... 19 C. Corporations as
defendants: northern big
fish...........................................................
22
Part Five: Public education
...............................................................................................
25 A. Information clearinghouses & website development
efforts..................................... 25 B. Mechanisms and
focus areas for public education
.................................................... 26
Part Six: Regional Group Discussions
..............................................................................
30 A. Africa Group:
............................................................................................................
30 B. Asia
Group:................................................................................................................
31 C. Latin America
Group:................................................................................................
32 D. United States Group
..................................................................................................
36
Part Seven: ConclusionIntensifying and harmonizing future work
.............................. 39 ANNEX A: REFERENCE MATERIAL
.....................................................................................
41 ANNEX B: LIST OF PARTICIPANTS
......................................................................................
43 ANNEX C: ARGENTINE CASE LAW
.....................................................................................
50
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Universal Jurisdiction: Meeting the Challenge through NGO
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1 Lawyers Committee for Human Rights
Universal jurisdiction: Meeting the Challenge through NGO
Cooperation
Report of a Conference Organized by the Lawyers Committee for
Human Rights1
With the assistance of the Human Rights Program School for
International and Public Affairs, Columbia University2
Part One: Introduction The meeting Universal Jurisdiction:
Meeting the Challenge through NGO Cooperation, convened by the
International Justice Program of the Lawyers Committee for Human
Rights, with the support of the Ford Foundation and the assistance
of the Human Rights Program at Columbia Universitys School for
International and Public Affairs, took place from 3-5 April 2002 in
New York City. This was the fourth in an informal series of
meetings that was first prompted by the 1998 arrest of former
Chilean President Augusto Pinochet, and followed similar meetings
in Geneva, London, and Paris.3 These meetings have aimed to provide
a forum for exchange of information, ideas and strategies, and for
enhancing cooperation among organizations committed to making
universal jurisdiction over crimes under international law an
effective legal reality. The need for such a forum, and for
concerted action in this area, has only become more apparent with
the passage of time. The Rome Statute of the International Criminal
Court, which will enter into force on 1 July 2002, has created an
important window of opportunity for law reform as governments
review national law for compliance with ICC obligations and to
ensure that international crimes can be prosecuted domestically.
Taking advantage of this opportunity requires capacity, awareness
and coordination on the part of non-governmental organizations
(NGOs). In turn, a broader base of national legislation will make
it all the more vital that national, regional and international
NGOs act intensively and in coordination, both within and across
borders, to ensure the best possible development of the resulting
jurisprudence. Cases that have recently engaged courts in West
Africa, Latin America, Europe and elsewhere demonstrate this need.
Our conference brought together leading organizations and lawyers
for victims in the international justice field for two and a half
days of discussion immediately in advance of the ninth session of
the United Nations Preparatory Commission (PrepCom) for the ICC,
which took place between 8 19 April 2002, and which saw the deposit
of those
1 This report was produced by Bruce Broomhall, Director,
International Justice Program, at [email protected] or
1-917-44-8388; Carol Pollack, Fellow, International Justice
Program, at [email protected]; and Lee Che Leong, Program
Assistant, International Justice Program, at [email protected]. A
number of participants also contributed comments. 2 Contact Peter
Danchin, Human Rights Program, School of International and Public
Affairs, Columbia University, at [email protected] or
1-212-854-6224. 3 The Geneva meeting took place in May 1999 and was
organized by the International Council on Human Rights Policy; the
London meeting was convened by Redress in September 1999; and FIDH
(the Fdration internationale des ligues des droits de lhomme)
organized the Paris meeting in May 2000.
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Universal Jurisdiction: Meeting the Challenge through NGO
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2 Lawyers Committee for Human Rights
ratifications needed to trigger the entry into force of the ICC
Statute.4 Our discussions were broad enough to encompass the
subject of universal jurisdiction, but also had a practical and
legal emphasis intended to meet our needs as organizations engaged
in making universal jurisdiction effective in practice. The
conference agenda was divided into four major themes: law reform,
casework, public education (including raising awareness among
judges, prosecutors, policy-makers, and NGOs), and information
exchange (including development of databases). A final session on
the third morning allowed organizations with a regional and country
focus (on Africa, Asia, Latin America, and the United States) to
meet separately in order to focus on issues and details particular
to the geographical area of greatest interest to them. A broader
aim of this meeting was to contribute to the development of
networks among organizations and lawyers for victims, in order to
facilitate our ongoing work. As a result, we encouraged the
participation of organizations from around the world that have a
sustained history of involvement in this area, or which show
potential for such involvement in the future. It has been our hope
that the conference would assist in the identification of major
needs among NGOs, especially in Africa, Asia and Latin America, as
a precondition to the accomplishment of our objectives, in
particular through working towards the creation of effective
global, regional and sub-regional networks on universal
jurisdiction. We also hoped that in the course of the conference
participants would develop new strategies with which to better
promote the development of universal jurisdiction through law
reform, casework and education/awareness-raising. This report aims
to provide a reference point for these needs and strategies and,
crucially, to stimulate coordinated efforts to implement these
aims.
4 See Secretary-General Addresses Preparatory Commission for
International Criminal Court as it Concludes Ninth Session, U.N.
Press Release L/3003 (19 April 2002); Rome Statute of the
International Criminal Court to Come into Force; Treaty Event to be
Held at UN Headquarters on 11 April, U.N. Press Release
L/T/4365/Rev.1 (1 April 2002).
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Part Two: Summary of Issues
A. Maximizing the legitimacy of universal jurisdiction 1.
Increasing the capacity of courts in Africa, Asia and Latin America
to try perpetrators
from these and other regions. 2. Increasing the incidence of
northern courts trying northern perpetrators. 3. Developing links
between northern actors and atrocities in Africa, Asia and
Latin
America.
B. Increasing the capacity of NGOs in Africa, Asia and Latin
America 1. Organizing training missions to educate and mobilize
judges, academics, prosecutors
and NGOs. 2. Ensuring that effective training materials exist in
all relevant languages. 3. Identifying increased resources for
African, Asian and Latin American NGOs.
C. Continuing to promote legislative reform 1. Supporting the
drafting of implementing legislation for the Rome Statute of
the
International Criminal Court. 2. Promoting the adoption of
universal jurisdiction legislation, keeping in mind concerns
regarding such filters as presence requirements, political or
other forms of control, immunities and hierarchies of
jurisdictions.
D. Developing resources for universal jurisdiction litigation 1.
Building the capacity of African, Asian and Latin American actors
to bring universal
jurisdiction cases. 2. Developing transnational networks of
lawyers with wide areas of specialization. For
example, with respect to actions against corporations and
efforts to seize assets of perpetrators, forming alliances with
lawyers in environmental and corporate law, where significant
expertise in trans-boundary action exists (e.g. in creditors
remedies law).
3. Developing financial resources for the cases and for
education and capacity building work.
E. Developing a universal jurisdiction global network and
regional networks 1. Compiling data on universal jurisdiction laws,
cases, news and advocacy and making
this information available both physically and electronically.
With regard to website publications, keeping in mind the issues of
defamation and access to information laws. Identifying translation
and interpretation resources that can be incorporated into website
and training materials.
2. Building and improving civil society capacity to track
defendants. 3. Taking stock of available jurisdiction, rules of
procedure, etc. Where there are
universal jurisdiction laws, civil society should share
strategies regarding how to bring them to life.
4. Maintaining multiple copies of evidence stored in different
locations. 5. Working to ensure security of investigators, victims
and witnesses.
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Universal Jurisdiction: Meeting the Challenge through NGO
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4 Lawyers Committee for Human Rights
F. Areas for future focus 1. Civil remedies. 2. Suits against
corporations and their assets. 3. Protection, storage and handling
of evidence. 4. Protection of witnesses 5. Funding cases, and the
fair distribution of funding. 6. Data compilation and legal issues
related to information access and storage,
especially in Europe. 7. Concerted creative thinking regarding
barriers to universal jurisdiction prosecutions. 8. Areas of
overlap between international criminal justice and
counter-terrorism
measures, and how to turn counter-terrorism initiatives to our
advantage (for example, as credit card companies track potential
terrorists, so might they track international criminals).
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Part Three: Law Reform
A. ICC implementation and other opportunities
1. Overview The Rome Statute of the International Criminal Court
has 139 signatories and, as of 11 April 2002, 66 ratifications. It
will enter into force on 1 July 2002. Under the Rome Statute, the
International Criminal Court will have jurisdiction over genocide,
war crimes and crimes against humanity committed by the nationals
or on the territory of its States Parties. Its jurisdiction is
complementary to national jurisdictions, which will have primary
responsibility for investigating and prosecuting Rome Statute
crimes. Unless states cede cases to it or are inactive, the Court
will defer to proceedings undertaken by national authorities,
unless it is clearly shown that the state is unwilling or unable to
proceed genuinely. Under the regime of the Rome Statute, then,
ending impunity for the most serious crimes will be achieved
primarily through the justice systems of states, and only
secondarily through the Court, with the indispensable assistance of
states. The Courts effectiveness therefore relies on the successful
incorporation of the Rome Statute into national law to enable both
national prosecution of international crimes and effective
cooperation with the Court. Because of the international impetus
that the International Criminal Court currently enjoys, and because
of the incentive the Rome Statute provides to domestic law reform,
it is widely believed that the process of Rome Statute
implementation provides an unparalleled opportunity for law reform
aimed at building the capacity of national systems to address the
most egregious crimes, including through universal jurisdiction.
Rome Statute implementation is, however, currently in its early
days. To date only Canada, New Zealand and the United Kingdom have
adopted comprehensive implementing legislation (facilitating both
domestic prosecution and cooperation with the ICC), although a
number of others (including Finland, France and Switzerland) have
adopted legislation on cooperation alone. In addition, a number of
countries are known to be in either the late (Argentina, Australia,
Belgian, Germany, South Africa) or the early (Senegal) stages of
developing implementing legislation. The process of adopting
implementing legislation creates an ideal opportunity for
governments to adopt universal jurisdiction over ICC crimes. While
the Rome Statutes complementarity principle creates an incentive to
prosecute only those crimes committed by the nationals or on the
territory of States Parties, universal jurisdiction will frequently
be necessary if impunity is not to result from the limited
resources of the ICC or from the unwillingness or inability of the
primary states to take action. A number of counties have responded
to this argument by adopting
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6 Lawyers Committee for Human Rights
(Belgium, Canada, New Zealand) or proposing (Argentina, Germany,
South Africa) universal jurisdiction over Rome Statute crimes. It
is hoped and expected that a number of other governments from an
array of regions and legal systems will follow suit. It was
understood at the conference that such a result depended in
significant part on the intensification and effective coordination
of NGO efforts to this end. Participants also sounded a cautionary
note regarding the possibility of countries ratifying the ICC with
the intention of using the Court as a means to resist or reduce the
exercise of universal jurisdiction. For example, it was noted that
there is currently a Belgian proposition to restrict use of
universal jurisdiction, and perhaps to restrict the competence of
Belgian courts essentially to cases that cannot be heard by the ICC
the reverse of complementarity.5 Overall, participants agreed that,
in addition to creating strategies for the promotion of universal
jurisdiction, it is also necessary to be prepared to challenge any
tendency on the part of governments to use the ICC as an excuse to
forego domestic legislation on universal jurisdiction.
2. Specific Approaches
Participants outlined existing approaches and suggested new ones
for ensuring that NGOs take maximum advantage of the opportunities
presented by Rome Statute implementation around the world.
a. Education and capacity building. Many governments, including
their prosecutors and investigating judges, as well as NGOs in
Africa, Central and Eastern Europe, Latin America and Asia are
relatively unfamiliar with the International Criminal Court and the
subject of universal jurisdiction. NGO collaboration in organizing
education missions have improved understanding of the concepts and
helped to mobilize local NGOs on both issues. Missions have been
led in recent months in countries throughout Asia, Africa, Latin
America, Central and Eastern Europe and the Former Soviet Union,
organized in most cases by the NGO Coalition for the ICC (CICC) and
its Steering Committee members,6 working in collaboration with
national and regional organizations. Education and capacity
building are necessary precursors to the adoption of ICC
implementing legislation and universal jurisdiction in countries
where informed support for international justice is not already
well developed. b. Building on existing universal jurisdiction
laws. According to research undertaken by Amnesty International,
approximately 125 countries currently have
5 Decision in the Yerodia Case, JUDICIAL DIPLOMACY, CHRONICLES
AND REPORTS ON INTERNATIONAL CRIMINAL JUSTICE, April 16, 2002,
(visited April 24, 2002) . 6 Amnesty International, Asociacin Pro
Derechos Humanos, ELSA International, Federation Internationale des
ligues des droits de lHomme , Human Rights Watch, International
Commission of Jurists, No Peace without Justice, The Lawyers
Committee for Human Rights, Parliamentarians for Global Action,
Rights & Democracy, Womens Caucus for Gender Justice, World
Federalist Movement.
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laws that provide for universal jurisdiction to one extent or
another.7 For example, in Africa alone, universal jurisdiction
covering certain conduct amounting to war crimes exists in Algeria,
Botswana, Burundi, Cameroon, Cote dIvoire, the Democratic Republic
of the Congo, Egypt, Ethiopia, Gambia, Ghana, Kenya, Lesotho,
Malawi, Mauritius, Nigeria, Seychelles, Sierra Leone Swaziland,
Tanzania, Uganda and Zimbabwe. Other African states are expected to
provide for universal jurisdiction in their legislation
implementing the Rome Statute, including Angola, Senegal and South
Africa. In promoting the adoption of universal jurisdiction for
international crimes, existing laws can serve as important and
practical examples of what such legislation signifies. Such
examples demonstrate to governments that universal jurisdiction is
already part of their legal traditions and can facilitate
understanding of the concept. c. Encouraging the establishment of
inter-ministerial committees to examine the issue of implementing
legislation in specific countries. Such focal points can be an
important first step in concentrating expertise, disseminating
information and building momentum within a government, and have
been established in Argentina, Ghana, Senegal, South Africa, and a
number of other states in Latin America and Europe. Participants
recognized, however, that more is needed than simply the
establishment of such processes; rather, ongoing input and
encouragement must be provided by civil society in order to ensure
a steady progress of work and a commitment to clear results within
a defined schedule. d. Mobilizing support for the criminalization
of international crimes in domestic law. Some states, including
most recently France, have made progress on legislating with
respect to their obligation to cooperate with the ICC, but have
neglected the complementarity side, which would ensure that
domestic authorities are able to prosecute crimes within the full
scope of ICC jurisdiction. Ensuring a commitment to the domestic
criminalization of Rome Statute crimes is the first step in
securing support for the provision of universal jurisdiction with
respect, in particular, to these crimes. The process for securing
such a commitment will vary from one state to another, but in
general requires that NGOs work together to identify the most
effective ways to reach out to opinion leaders in government, the
parliament, the media and the wider public.
e. Support the drafting of implementing legislation. This is
easiest either where government drafters and NGOs work together
(for example, in the context of an experts workshop, such as that
held in Dakar, Senegal, in October 2001) on preparing legislative
recommendations. Where governments work alone, NGOs should
encourage circulation of a consultation draft, such as that
produced by Australia, Switzerland, Argentina, the United Kingdom
and others, in order to give input to the drafters prior to the
tabling of the bill before the respective parliament. Where
universal jurisdiction has not been included in draft
legislation,
7 See, e.g., AMNESTY INTERNATIONAL , UNIVERSAL JURISDICTION: THE
DUTY OF STATES TO ENACT AND IMPLEMENT LEGISLATION, AI INDEX: IOR
53/002-018/2001, CHAPTER 4, PARTS A AND B. (2001). This report is
obtainable either from: http:/www.amnesty.org or from
[email protected], as a CD ROM.
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NGOs can encourage its addition. For example, Argentinas first
draft ICC implementing legislation did not include universal
jurisdiction, but this was included in the final draft, after a
joint statement by Amnesty International and Human Rights Watch to
the drafting committee. Where such consultation prior to
introduction of the bill is not possible, NGOs must either appear
before parliamentary committees, issue public recommendations, or
recruit friendly parliamentarians or other proxies to support their
proposed changes.
B. Universal jurisdiction filters The well known recent
experience in Belgium has shown the enormous potential of national
processes to provide justice for victims of gross violations of
human rights and humanitarian law.8 The Belgian experience,
however, has given rise to concerns both in Belgium and in other
countries about the resource and political implications arising
from the exercise of universal jurisdiction. The recent decision of
the International Court of Justice in the Congo v. Belgium case may
restrict Belgiums future action against certain foreign officials,
and may be used as an excuse by other states to refrain from
following Belgiums lead in making universal jurisdiction an
effective reality.9 Participants agreed that NGOs must turn their
minds to the issues and concerns raised by the experiences of
Belgium and of other states, and by universal jurisdiction
legislation more generally, in order to maximize momentum towards
the effective national implementation of universal jurisdiction,
and to minimize any chilling effect that may have been caused by
reactions to such experiences.10 The following were identified as
key factors to be considered in the formulation of any principled
but politically sustainable universal jurisdiction package.11
8 Investigations, prosecutions or agreements to extradite based
on universal jurisdiction have also occurred in a number of other
countries since the Second World War, including Australia, Austria,
Canada, Denmark, France, Germany, Mexico, Paraguay, Senegal,
Switzerland, the United Kingdom and the United States. 9 This
reaction has already occurred in Belgium itself through the 16
April 2002 decision in the Yerodia case, which found that the
Belgian universal jurisdiction law applies only when the accused is
found in Belgium. Decision in the Yerodia Case, supra n.5. If this
decision is affirmed on appeal, it will affect ongoing universal
jurisdiction cases in Belgium, such as the Sabra-Shatila case
against Ariel Sharon, and an amendment currently under discussion
at the Ministry of Justice that aims to limit the scope of Belgian
universal jurisdiction legislation: ibid. See also SABRA-SHATILA,
MAJOR PROPOSITION OF LAW TO AMEND THE GENOCIDE ACT IS MISLEADING
AND A FIRST CLASS FUNERAL FOR THE SHARON CASE (visited 3/28/02) .
10 A major concern in responses to the Belgian experience has been
the absence of a presence requirement for proceeding with cases
under Belgian law; however, setbacks unrelated to the Belgian
experience or to any presence requirement issue have arisen in
universal jurisdiction cases in other countries, including
Argentina, Mexico, Spain and the United Kingdom. 11 This section is
derived from a brief discussion paper presented to the meeting by
LCHR, as well as from responses the discussions of the meeting
itself.
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1. Presence requirement: The law of different states varies on
the question of whether the physical presence of an accused in the
territory of a state is a precondition to the exercise of universal
jurisdiction. New Zealand, for example, has no presence
requirement, and Germany is prepared to follow suit.12 Belgian
universal jurisdiction legislation does not currently require the
presence of the accused in order to initiate proceedings and
adjudicate his or her rights. However, the 16 April 2002 decision
in the Yerodia case, which found that universal jurisdiction
applies only when the accused is found in Belgium, may result in
the legislative imposition of a presence requirement.13 The
legislation of Canada and the draft legislation of South Africa
make universal jurisdiction conditional on the presence of the
accused within their territory, although experts have disagreed
regarding whether or not these states legislation allows for the
opening of investigations in anticipation of later presence.14
International law does not require states to ensure that the
accused is present in order to initiate universal jurisdiction
proceedings. As Judges Higgins, Kooijmans and Buergenthal stated in
their joint separate opinion in the ICJs Democratic Republic of
Congo v. Belgium case, [i]f the underlying purpose of designating
certain acts as international crimes is to authorize a wide
jurisdiction to be asserted over persons committing them, there is
no rule of international lawwhich makes illegal co-operative overt
acts designed to secure their presence within a State wishing to
exercise jurisdiction.15 NGOs generally support the right of the
accused to be present at trial and seldom promote trials in
absentia. However, the due process right to be present during trial
is distinct from the law defining the legitimate exercise of
jurisdiction, which does not require presence when proceedings
first commence.
The presence of the accused before trial is not required by
international law. Indeed, the Geneva Conventions of 1949 expressly
permit states to request the extradition of
12 New Zealand, International Crimes and International Criminal
Court Act 2000, Part 2 8(c)(i), (ii), (iii), (1 October 2000);
Belgium, Loi relative la rpression des violations graves de droit
international humanitaire (10 February 1999), (23 March 1999)
Moniteur blege, s.7.; Germany, Draft of an Act to Introduce the
Code of Crimes against International Criminal Law (CCAICL
Introductory Act) Articles 1 and 3, (28 December 2001). However,
the German draft legislation would require that extradition be
likely to occur and some of the factors to be considered in making
this determination would include the suspects links to Germany. 13
Decision in the Yerodia Case, supra n.5. 14 Canada, Crimes Against
Humanity and War Crimes Act, Statutes of Canada 2000, c. 24; South
Africa, International Criminal Court Bill Part 2, 4.(2(a-d)) (4
July 2001). See also AMNESTY INTERNATIONAL, supra note 7, at
Chapter 4, Part A, 40-41. 15 Case Concerning the Arrest Warrant of
11 April 2000 (Congo v. Belg.), 2002 I.C.J. (Joint Separate Opinion
of Judges Higgens, Kooijmans and Buergenthal) at para. 58 .
Similarly, the Princeton Principles of Universal Jurisdiction state
that a judicial body may try accused persons on the basis of
universal jurisdiction, provided the person is present before such
judicial body. PROGRAM IN LAW AND PUBLIC AFFAIRS, PRINCETON
UNIVERSITY, THE PRINCETON PRINCIPLES ON UNIVERSAL JURISDICTION
(2001), at 28 . That language does not prevent a state from
initiating the criminal process, conducting an investigation,
issuing an indictment or requesting extradition, when the accused
is not present: ibid., at 32.
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suspects outside the country. Nevertheless, states are drawn to
a strict presence requirement because it serves as a filter that
prevents their jurisdiction from becoming a litigation magnet.
However, because it is based on the location of the accused and not
on other circumstances of the case, a strict presence requirement
is also a blunt instrument, imposing an imperfect limit on the
exercise of universal jurisdiction and creating disadvantages by
restricting the power to open an investigation to the point at
which it can be proven that a suspect is within the territory of
the state exercising universal jurisdiction. There will be cases in
which a country will want to commence proceedings and issue
warrants and extradition requests prior to the presence of the
accused in its territory. For example, the country may be aware
that the suspect is likely to visit it on a short stay and will
wish to be able to act before that person leaves. Indeed, it may
sometimes be the case that the international community will favor
extradition and trial in another country, as in the case of persons
suspected of grave breaches of the Geneva Conventions, which would
be precluded by a strict presence requirement.
In light of the above considerations, it is felt that presence
can be a factor in deciding whether to commence universal
jurisdiction proceedings, but should not be determinative. It
should be seen as one of several factors, such as appropriateness
of the forum and the likelihood of obtaining presence through
extradition.
It is possible that where presence is required under
international law, broad interpretations can be promoted to yield
the needed result. For example, both the South African ICC
implementing legislation bill and the Canadian implementing
legislation permit the exercise of jurisdiction over individuals
who allegedly committed crimes outside the states respective
territories, but who are later present in their territories.
Interpretations of such laws could be promoted in order that they
be read to allow the opening of investigations in anticipation of
later presence, e.g. through extradition. With respect to the
Canadian legislation, this reading has been supported by some
domestic voices.16 However, several of the government officials
connected with the drafting of the Canadian provision have claimed
that there would be no jurisdiction to open an investigation if a
suspect was not present in Canada.17 Also, it may be that the
burden of proving that the accused is present in the territory can
be shifted in some circumstances from the victims (or parties
civiles).18 Ultimately, NGOs will have to work to ensure that
judicial authorities accept favorable interpretations (notably
through submission of amicus curiae briefs).
16 AMNESTY INTERNATIONAL, supra note 7, at CHAPTER 4, PART A.
40-44. 17 See Id. 18 In France, for example, the burden of proof of
showing the defendants presence in French territory has, for some
time, been impermissibly placed on petitioners, rather than on
prosecutors or investigating judges. However, in a relevant
development, this burden of proof was changed to a burden of going
forward during the course of procedures for the Derouiche case, the
criminal complaint for which was filed in France in November 2001
on behalf of 6 Tunisian victims of torture. In this case, the
Prosecutor of Paris simply required plaintiffs to show some
evidence that the accused was in the territory. The burden then
passed to the investigating judge to make further determinations
regarding the defendants presence.
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2. Political or other control Legislation in common-law
jurisdictions such as Canada, South Africa and the United Kingdom
requires the consent of the Attorney General, a government minister
as well as a law officer, to commence proceedings with respect to
Rome Statute crimes (including under universal jurisdiction).19
This contrasts with the situation in Belgium where the decision to
proceed is initially in the hands of investigating magistrates
(juges dinstruction) alone. An intermediary stance is taken by New
Zealand, which requires Attorney General consent, but which allows
the investigation and detention of individuals charged with the
crimes set out in the Rome Statute prior to its receipt.20
An Attorney General consent requirement would undoubtedly
provide a degree of comfort to national authorities considering the
inclusion of universal jurisdiction in their national law. Indeed,
one proposed amendment to Belgiums law suggests an analogous
requirement.21 Attorney General consent typically gives rise,
however, to serious problems.
In particular, Attorney General discretion often includes facts
of national interest, which are not necessarily consistent with the
interests of justice. In certain states, such as the United Kingdom
and Canada, the situation is made less accessible to potential
plaintiffs by the fact that the discretion of the Attorney General
is not subject to explicit criteria or judicial review. The dual
position of the Attorney General as a government minister and a law
officer gives rise to a potential conflict of interest,
particularly in politically sensitive cases, and creates the
appearance of a lack of impartiality and independence.
From an NGO perspective, the discretion whether to proceed is
probably better placed in the hands of independent legal officials.
Amnesty International insists that that there be no political
interference in decisions to investigate or prosecute. Amnesty goes
on to state that decisions to start or stop an investigation or
prosecution of grave crimes under international law should be made
only by the prosecutor, subject to appropriate judicial scrutiny
which does not impair the prosecutors independence, based solely on
legal considerations, without any outside interference.22 Where
states insist upon Attorney General discretion, such discretion
19 Canada, Crimes against humanity and war crimes act, s.9(3);
South Africa, International Criminal Court Bill 2001, Part
2(3)-(6). 20 New Zealand, International Crimes and International
Criminal Court Act 2000, Part 2, Section 13. 21 This proposed
amendment would eliminate the public prosecutors ability to
initiate penal proceedings or ask for additional proceedings in
instances in which a defendant is granted a form of immunity called
privilege of jurisdiction. Indictments against individuals
benefiting from the privilege of immunity would be controlled by
the Prosecutor General. SABRA-SHATILA, supra, note 9. 22AMNESTY
INTERNATIONAL, UNIVERSAL JURISDICTION: 14 PRINCIPLES ON THE
EFFECTIVE EXERCISE OF UNIVERSAL JURISDICTION principle (1999). The
Amnesty report continues: Decisions to start, continue or stop
investigations or prosecutions should be made on the basis of
independence and impartiality. As Guideline 14 of the UN Guidelines
on the Role of Prosecutors makes clear, Prosecutors shall not
initiate or continue prosecution, or shall make every effort to
stay proceedings, when an impartial investigation shows the charge
to be unfounded. Moreover, Guidelines 13 (a) and (b) provide that
decisions to initiate or
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should at least be made subject to explicit criteria and
judicial review, and should follow the approach taken by New
Zealand, in which investigations can be initiated prior to Attorney
General consent.
Moreover, civil law based systems will not support political
controls of the same sort as are tolerated in common law
jurisdictions, as these would be seen as interfering with the
separation of powers between the executive and the judiciary (the
Attorney General, who makes the decision in common law
jurisdiction, being typically an elected member of parliament as
well as a member of the governing cabinet). This strengthens the
argument that any discretion that exists under national law be
exercised by judicial officials, and that such discretion be
structured to take into account only legitimate factors that are
consistent with international law (including the duty to extradite
or prosecute under the Geneva Conventions, the Convention Against
Torture, etc.) and to be maximally transparent and subject to
review.23 Whether exercised by judicial officials or the Attorney
General, there may be a need in some countries for NGOs to outline
the workings of any such a discretion (that is, what factors it is
to consider and how it is to be reviewed), if governments are to
attain a sufficient comfort level to proceed with the
implementation of universal jurisdiction in a way that does not
involve undue political controls. However, in many civil law
countries, where there is sufficient evidence to prosecute a
suspect, the prosecutor has no discretion to refuse to prosecute,
as such a refusal would lead to impunity for criminals.
3. Immunities Since the Nuremberg Charter in 1945, it has been
well accepted that immunities for high officials are not applicable
with respect to international tribunals. This has been illustrated
by the Milosevic case before the ICTY; it was also upheld by the
Pinochet case.24
continue prosecutions should be free from political, social,
religious, racial, cultural, sexual or any other kind of
discrimination and should be guided by international obligations of
the state to bring, and to help bring, perpetrators of serious
violations of human rights and international humanitarian law to
justice, the interests of the international community as a whole
and the interests of the victims of the alleged crimes: ibid.,
Principle 7. 23 Under a draft German law, it is the State
Prosecutor who will consider whether or not to defer to
prosecutions before an international court or by a state on whose
territory the offence was committed, whose national is suspected of
its commission or whose national was harmed by the offense. The
State Prosecutor will also have discretion over whether to bring
proceedings against individuals that allegedly committed crimes
outside of Germany or on foreign ships or aircraft, and who are
unlikely to be found within Germany territory. Germany, Draft of an
Act to Introduce the Code of Crimes against International Criminal
Law (CCAICL Introductory Act) Article 3(5), (28 December 2001).
However, the State Prosecutor does not have such discretion to
refuse to prosecute in cases not based on universal jurisdiction.
24 As stated, for example, by Lord Slynn of Hadley, [t]here isno
doubt that States have been moving towards the recognition of some
crimes as those which should not be covered by claims of State or
Head of State or other official or diplomatic immunity when charges
are brought before international tribunals. Regina v. Bartle and
the Commissioner of Police for the Metropolis and others Ex Parte
Pinochet (on appeal from a Divisional Court of the Queen's Bench
Division, 25 Nov. 1998). Lord Lloyd of Berwick also stated that
international tribunals provide the answer to those who say, with
reason, that there must be a means of bringing such men as Senator
Pinochet to justice. There is. He may be tried.before the
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Article 27 of the Rome Statute and relevant constitutional
amendments (Colombia, France, Portugal) or national implementing
legislation, (Canada, New Zealand and the UK) will allow countries
to surrender their own heads of state and other officials to the
ICC in response to requests for cooperation, reinforcing the
Milosevic precedent. However, NGOs will have to seek to ensure that
ICC jurisprudence recognizes no immunities when States Parties are
asked to surrender the officials of other States Parties to the
Court.
The direction in which international law develops with respect
to immunities of non-State Parties sought by the ICC, or with
respect to immunities before national courts exercising universal
or other forms of jurisdiction, will depend on a number of factors
and is very much under development at present.
Not least among these is the reception of the recent judgment of
the ICJ in the Democratic Republic of the Congo v. Belgium case.
According to this judgment, an incumbent foreign minister enjoys
absolute immunity under customary international law, as well as
inviolability protecting him or her from any act of authority by
another State that would hinder him or her in the performance of
duties during the duration of office, although no state practice or
opinio juris was cited as evidence of such a rule. The same
reasoning cited by the ICJ in support of such a rule is likely to
apply to heads of state and heads of government who, like foreign
ministers, represent the State in international affairs and must
travel to carry out their duties.25
Other aspects of the Democratic Republic of the Congo v. Belgium
decision are equally problematic, particularly with respect to
whether former officials enjoy immunities for crimes committed
while in office, and whether crimes under international acts are
considered official or private acts. While these are partially
matters of judicial interpretation, the law reform opportunity
presented by the process of ICC implementation will provide many
opportunities to educate parliamentarians and others about
rationale for the progressive recognition at international law of
an exception to immunities with respect to former officials accused
of international crimes. In addition, NGOs can hope to see further
progress in the adoption of constitutional amendments and laws that
facilitate the surrender, in spite of immunities, of a States own
officials to the ICC, although law reform efforts aimed at
narrowing the immunity of officials from other states is likely to
meet stiff resistance in some places. Participants were in
agreement on the need to seize upon both the law reform and the
educational potential of the ICC implementation opportunity with
respect to the laws of immunity.
International Criminal Court when it is established, orbefore a
specially constituted international court: ibid. 25 Pieter H.F.
Bekker, World Court Orders Belgium to Cancel an Arrest Warrant
Issued Against the Congolese Foreign Minister, ASIL INSIGHTS,
February 2002 ; see also Katie Nguyen, Belgian Court sets May 15
for Sharon Hearing, Reuters, March 6, 2002.
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4. Hierarchy of jurisdiction In circumstances where more than
one state is prepared to initiate proceedings, when should one
state defer to the jurisdiction of another?
It is generally considered that justice is best served when
genuine and fair trials occur in a jurisdiction that is the
territorial state of the crime, or the national state of the
accused or of the victims. A report by the International Council on
Human Rights Policy stated, [n]ational prosecutions are clearly
better able to deter ongoing abuses and combat impunity within the
country where abuses are occurring. They have a much more direct
ability to support the rule of law and restore faith in the legal
system. Finally, national prosecutions will likely be most
effective in eliciting a real dialogue concerning past crimes, and
in facilitating social healing and reconciliation. From a practical
standpoint, prosecution of crimes where they occurred is preferable
for a number of reasons, including the availability of evidence and
witnesses.26
Unfortunately, the judicial systems of states in which egregious
international crimes are being committed are often in no position
to perform legitimate investigations and prosecutions of
perpetrators who are often officials of their own military, police,
and government.
One approach to the issue of hierarchy is to allow states with
direct connections to the crimes in question to have primary
jurisdiction over a case, but to proceed with trials in other
jurisdictions where a state is incapable of conducting a trial, or
is unable or unwilling to proceed genuinely. A step towards this
approach is taken by Germany in its International Criminal Code,
which adds to its Code of Criminal Procedure to allow public
prosecutors to dispense with proceedings in instances where the
offence is being prosecuted before an international court or by a
state on whose territory the offence was committed, whose national
is suspected of its commission or whose national was harmed by the
offence.27 Regrettably, the German draft legislation does not
require that the proceedings in the other state be fair and
genuine. Indeed, it does not make clear the criteria to be
considered by the prosecutor in exercising his or her discretion.
Where states wish to include provisions allowing for deference to
other jurisdictions, NGOs should encourage states to make explicit
the criteria, such as that the state in question prosecute in a
timely manner and that a fair trial be granted, to be used in
making determinations. A related, but more controversial, question
is whether national discretion should take into account the
potential impact of the case where the country in question is in
the process of transitioning to democracy, or the existence of
truth commission and other transitional justice mechanisms.
26 PEGGY HICKS, INTERNATIONAL COUNCIL ON HUMAN RIGHTS POLICY,
THINKING AHEAD ON UNIVERSAL JURISDICTION: REPORT OF A MEETING
HOSTED BY THE INTERNATIONAL COUNCIL ON HUMAN RIGHTS POLICY 6-8 1999
24 (1999) . 27 Germany, Draft of an Act to Introduce the Code of
Crimes against International Criminal Law (CCAICL-Introductory
Act), 28 December 2001, Article 3(5)(4).
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Another approach would be to consider the first state to open a
criminal investigation of a given suspect as having priority over
other national jurisdictions, and as retaining that priority
provided it acts promptly and genuinely. The basis of this
approach, favored by Amnesty International, is the assumption that,
if other states have not promptly opened a criminal investigation,
then they can be presumed to have no serious intention of doing so,
and should defer to the forum state. NGOs will need to give serious
consideration to the question of hierarchy of jurisdictions, both
with respect to the desirability and contents of any international
legal rule of subsidiarity (such as that hinted at by Judges
Higgins, Buergenthal and Kooijmans in their joint separate opinion
in the Democratic Republic of Congo v. Belgium case),28 and with
respect to the terms on which the courts of one state could
legitimately defer jurisdiction to another.29
The problems of establishing overly-rigid criteria for priority
are illustrated by the decision of the Spanish Audiencia Nacional
regarding Guatemala, in which the court found that the absence of a
formal amnesty for genocide and torture, as well as the limited
amount of time that had passed since peace accords had been signed,
meant that the Guatemalan courts were not presumed to be unable or
unwilling to hear the cases at home. It was unclear what further
evidence or how much passage of time the court would have required
to go forward. The simplest solution to these problems would be to
proceed unless a prosecution was actually being diligently
prosecuted (in accordance with international standards of fair
trial) for the same crimes in the territorial or another
jurisdiction.
28 Case Concerning the Arrest Warrant of 11 April 2000 (Congo v.
Belg.), 2002 I.C.J. (Joint Separate Opinion of Judges Higgens,
Kooijmans and Buergenthal) at para. 59 . The decision stated that
[a] State contemplating bringing criminal charges based on
universal jurisdiction must first offer to the national State of
the prospective accused person the opportunity itself to act upon
the charges concerned. 29 The Princeton Principles on Universal
Jurisdiction, for example set out the following criteria for
consideration where there exist competing jurisdictions for a
case:
1. multilateral or bilateral treaty obligations; 2. the place of
the commission of the crime; 3. the nationality connection of the
alleged perpetrator to the requesting state; 4. the nationality
connection of the victim to the requesting state; 5. any other
connection between the requesting state and the alleged
perpetrator, the crime, or the
victim; 6. the likelihood, good faith, and effectiveness of the
prosecution in the requesting state; 7. the fairness and
impartiality of the proceedings in the requesting state; 8. the
fairness and impartiality of the proceedings in the requesting
state; 9. convenience of the parties and witnesses, as well as the
availability of evidence in the requesting
state; and 10. the interests of justice.
THE PRINCETON PRINCIPLES ON UNIVERSAL JURISDICTION, supra, n.15,
at 32, Principle 8.
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C. Further hurdles to the successful adoption of universal
jurisdiction
In lobbying and advocating universal jurisdiction to
governments, NGOs must be prepared to encounter and address
obstacles to the successful implementation of universal
jurisdiction.30 In addition to the factors considered in section B
above, obstacles are presented where:
1. Legislation provides universal jurisdiction for ordinary
domestic crimes, but not for crimes under international law, or
legislation includes some, but not all, international crimes. 2.
Definitions of international crimes in existing legislation are not
consistent with international law. 3. Legislation allows for
inappropriate defenses, such as superior orders. 4. Countries
recognize amnesties and similar measures of impunity granted by
other states to perpetrators of international crimes, or have
statutes of limitation that preclude prosecution. 5. National law
provides inadequate procedures to secure justice and insufficient
fairness protections. For example, if legislation mandates that
relevant cases be considered by military courts or if criminal
procedure codes provide inadequate arrest procedures.
30 This report describes such obstacles only briefly. For fuller
treatment, see AMNESTY INTERNATIONAL, supra n.7 at CHAPTER 14
(2001), pages 142.
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Part Four: Casework A. Standards and criteria in choosing
cases31 Conference participants discussed the following factors as
key ones in determining whether or not to pursue a case:
1. Likelihood of a successful outcome: Given the controversial
nature of universal jurisdiction cases, it is important to consider
(1) whether a case can be won (that is, the likelihood of
conviction or award of a judgment in favor of the plaintiffs), and
(2) whether the case has the potential to result in the development
of harmful jurisprudence. Participants agreed that there are
sometimes good reasons to pursue cases even where victory is
uncertain or even unlikely (see below), but also recognized that
building a base of positive precedents could be invaluable in
promoting universal jurisdiction.
It was also noted that success should not be judged solely on
the basis of the outcome of a case. For example, some participants
considered that universal jurisdiction has succeeded insofar as
universal jurisdiction cases have imprisoned alleged perpetrators
in their own countries, for fear of arrest abroad, and have
provided victims with a sense of public vindication by providing a
forum for public testimony and by marginalizing their
tormentors.
2. Availability of evidence: Cases are most likely to succeed
where they are well documented and where prosecutors are able to
access evidence. Universal jurisdiction cases present unique
challenges to the gathering of evidence because prosecutors are
often far removed from the place of the crime and have limited
access to witnesses. Therefore, the ability to obtain adequate
evidence will depend largely on the cooperation of local
authorities, which often may not be forthcoming, or on the ability
of the prosecutor to investigate the crime him or herself. The
success of a number of cases in European courts through the 1990s
depended on the presence in the forum state of eye-witnesses
willing to testify, although more recent experience involves
creative forms of cooperation including jury visits to examine
massacre sites, visits by investigating magistrates to take
testimony from victims, and other evidence-gathering visits.32
31 For a list of criteria compiled during other conferences and
by other NGOs, see Hicks, supra n.26 at 22-36; Bruce Broomhall,
Towards the Development of an Effective System of Universal
Jurisdiction for Crimes under International Law35 New Eng. L. Rev.
399, 416-418; THE PRINCETON PRINCIPLES ON UNIVERSAL JURISDICTION,
supra n.15 at 42-54; AMNESTY INTERNATIONAL, supra n.7 at 1631. 32
For example, as indicated by Menno Kamminga in the International
Law Association report on universal jurisdiction, in order to
reduce reliance on oral testimony at trial, a Belgian investigating
magistrate has conducted extensive rogatory missions to Rwanda,
Togo and Ghana when investigating crimes comitted in Rwanda. A
Swiss court has visited Rwanda to visit the site of the crimes and
to collect statements from witnesses unwilling or unable to come to
Switzerland. MENNO T. KAMMINGA, INTERNATIONAL LAW ASSOCIATION,
LONDON CONFERENCE (2000), FINAL REPORT ON THE EXERCISE OF UNIVERSAL
JURISDICTION IN RESPECT OF GROSS HUMAN RIGHTS VIOLATIONS 17 (2000)
(available at:
"http://www.ila-hq.org/pdf/Human%20Rights%20Law/HumanRig.pdf")
(citing Damien Vandermeersch, La rpression en droit belge des
crimes de droit international, 68 International Review of Penal Law
1093, 1121-1122
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3. Identification of a likely forum state: Participants agreed
that efforts would be well spent identifying fora that have
universal jurisdiction over particular crimes and that are likely
to accept a case, and then to build the case with a view to the
legal requirements of that jurisdiction. This raises issues of the
need to raise awareness of universal jurisdiction and related
issues of international law among the public in general, and among
judicial and prosecutorial authorities in particular and to
identify local experts and partners, especially in such potential
forum states.
4. Educational value of the case: Even where a case is unlikely
to result in conviction or a favorable judgment, it may merit
prosecution if it has educational value (and will not create bad
law). For example, while plaintiffs have yet to win a civil lawsuit
against multinational corporations in United States courts, past
cases have established that foreign nationals can use U.S.
legislation to prosecute corporations for human rights violations.
Similarly, while the House of Lords decision in the Pinochet case
did not ultimately result in his extradition to Spain, the decision
provided support for the argument that former heads of state do not
enjoy immunity for torture and, by extension, certain other
egregious crimes. These cases have clarified important questions of
law. Even where cases do not affect the law, they may have value in
educating the public on the crime at issue, drawing sympathy to the
victims and opprobrium to the alleged perpetrator.
5. Deterring ongoing violence and sending a message: Even where
cases may not be won, they may, through the attention they
generate, focus the international spotlight on an ongoing situation
and perhaps spur international action in response. Given that
deterrence is one of the major goals of criminal prosecution
generally, and universal jurisdiction specifically, the possibility
of increasing political pressure and even of stopping ongoing
crimes weighs very much in favor of pursuing litigation. At the
same time, the unclear prospects of universal jurisdiction at
present make this effect more than a little uncertain (witness the
ongoing violence in Israel and the Occupied Territories,
notwithstanding investigations of both Prime Minister Sharon and
Palestinian Authority leader Yassar Arafat by Belgian magistrates).
Those participants that engage in litigation against multinational
corporations indicated that their decisions to take on certain
cases often involved considerations of whether litigation could
actually stop corporations from condoning, tolerating, or
participating in local terrorism and torture.
6. Support of victims: Participants agreed that a prerequisite
for cases should be that local civil society, victims, and refugee
communities are involved and supportive. Some participants stressed
that the wishes of the victims should be the most important of all
considerations and that, even where cases are unlikely to be won,
or where
(1997); Jugement en la cause Fulgence Niyonteze, Tribunal
militaire de division 2, Lausanne, Apr. 30. 1999). Similarly, in
the Habr case, currently pending in Belgium, a Belgian
investigating magistrate visited Chad in order to gather evidence:
see Pierre Hazan, Enqute belge sur les crimes d'Hissne Habr: Le
juge Fransen a entendu au Tchad des victimes de l'ex-tyran
Libration, 8 Mars 2002.
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political considerations do not favor prosecution, a case should
be pursued if litigation is desired by the victims. Other
participants, however, expressed serious reservations about this
suggestion.
7. Ability to protect victims and witnesses: Given the
instability of countries in which egregious crimes are frequently
committed, victims, witnesses and NGOs that promote universal
jurisdiction cases may find themselves at risk. Any attempts to
bring universal jurisdiction cases must take into consideration at
every stage the security of the individuals involved.
8. Maintaining a balance: Throughout the conference,
participants emphasized that, to increase support for universal
jurisdiction, cases must be brought in a fair and balanced way
against perpetrators from both north and south,33 and against
perpetrators who committed their crimes in the name of both left-
and right-wing causes.
It was argued that, for universal jurisdiction to be seen as
legitimate, jurisdictions in the north would need to prosecute
their own (i.e. northern actors), as well as southern ones. Some
participants felt it preferable to have universal jurisdiction
cases in countries that are not politically connected to the crime
in question, and argued that universal jurisdiction appears
(neo-)colonialist when northern countries contribute to atrocities
in the south (through e.g. Cold War support for southern
dictatorships) and then prosecute southern, but not northern,
perpetrators for related crimes in the same countries. It was also
considered necessary that the north recognize its historical links
with the atrocities committed in the south.
The need was also widely recognized to promote the adjudication
of universal jurisdiction cases in southern courts. While
disappointed that the case was not ultimately adjudicated in
Senegal, participants expressed approval regarding the filing of
the complaint against Habr in Senegal, and stressed that work
should be undertaken to ensure that other southern jurisdictions
are able and willing to undertake such cases. This need to develop
potential southern jurisdictions for action was felt by many to be
one of the major needs of work in this area in the immediate
future.
B. Specific obstacles to bringing cases and succeeding with
cases
1. Lack of political motivation: While specific legal obstacles
to the successful prosecution of crimes under international law,
such as amnesty laws, must be addressed in certain jurisdictions
(notably in Latin America), the use of universal jurisdiction
legislation is more widely hindered by inaction and lack of
political will. The problem of impunity typically exists not
because individuals have been pardoned,
33 While the terms north and south can be applied in too rigid a
fashion to what are complex international relationships, they were
used as a convenient shorthand throughout the conference, and are
used in the same spirit in this report.
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but rather because of a simple inability or lack of political
will to try them. It was noted that, even where there are no
political constraints to the exercise of universal jurisdiction,
there are often financial constraints. In order to facilitate the
bringing of universal jurisdiction cases, as well as getting
countries to expend the financial resources required by such cases,
a starting basic point for civil society is to inspire the
necessary political will to enact effective legislation, where it
does not exist, and then to put it into practice. 2. Lack of
understanding regarding universal jurisdiction/need for capacity
building: Many NGOs around the world are not acquainted with the
concepts of the ICC and universal jurisdiction. In order to succeed
with universal jurisdiction cases, organizations must have a better
understanding both of the significance of such cases and the
practical aspects of pursuing them. NGOs must work together to
ensure that national organizations are equipped to prosecute
visiting suspects and must know what jurisdictions are potentially
available for a given crime. To address this, civil society must
educate itself about the universal jurisdiction that exists
throughout the different regions and build a network that can help
to bring such legislation to the notice of judiciaries and civil
society, particularly in southern regions.
3. Lack of financing: Universal jurisdiction cases can be very
expensive, as, for example, were the Pinochet extradition hearings
in the United Kingdom (although the costs of lawyers in the U.K are
much higher than in many other states). Fear that expenses will be
similarly high will deter many countries from initiating universal
jurisdiction cases even when the cost of litigation in their own
countries is likely to be much less than in the United Kingdom. In
addition to the expenses upon governments, victims and their
organizations can face insurmountable obstacles through the costs
of legal representation, travel, and other matters. To address the
latter in particular, some participants raised the possibility of
NGOs setting up some form of joint financing or a standing trust
fund to support casework.
4. Collection and preservation of evidence: Absence of evidence
or access to evidence in a country that wishes to exert universal
jurisdiction can impede successful litigation. In part because of
lack of cooperation from the countries where the crime took place,
many universal jurisdiction cases have been based on the
availability of witness testimony in the forum jurisdiction. NGOs
have to weigh carefully the adequacy of such evidence, and the
likelihood of obtaining corroborating evidence, before proceedings
are launched.34 In addition, one participant raised the possibility
of recruiting volunteer legal services to identify and gather
testimony from, for example, immigrant and refugee communities in
potential forum jurisdictions. Attention then needs to be given to
the proper recording, preservation and storage of evidence in a
manner appropriate for use in criminal proceedings.
34 Supra, n.32.
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5. Problems with existing legislation: See discussion of
legislative barriers in Part III. In instances where legislation
provides universal jurisdiction for ordinary domestic crimes, but
not for crimes under international law, NGOs and victims will have
to take creative approaches to litigation, for example, where
states maintain unfavorable statutes of limitations or fail to
adopt adequately defined doctrines of command responsibility. 6.
Immunities: In many instances it will be difficult to prosecute
officials due to the immunities accorded to them by domestic or
international law. For example, both domestic35 and international
courts36 have recognized the immunity of incumbent heads of state
or foreign ministers. This raises the questions of whether it is
advisable (for the reasons listed above) to proceed with a cases
against sitting leaders and officials regardless of the likelihood
of failure, or whether it is better to focus on small fish, with
the aim of building up jurisprudence over time.
It is worth noting that, even where immunities are recognized,
there may be opportunities to erode the protection they afford. For
example, in the recent Mugabe case, brought in a United States
District Court, petitioners were not able to proceed with their
claim against Zimbabwean President Mugabe due to his immunity as
head of state. They were, however, able to proceed with their claim
against the ZANU-PF political party. The U.S. court gained
jurisdiction over this party after petitioners served process on
President Mugabe, in his personal capacity as head of the party. In
light of recent international and national law on the issue,
proponents of universal jurisdiction cases against incumbent
officials must work together to develop strategies on how best to
press for relatively progressive judicial interpretations of the
international law of immunities.
35 R.. v. Bow Street Metropolitan Stipendiary Magistrate and
others, ex parte Pinochet Ugarte (Amnesty International and others
intervening) (No. 3), [1999] 2 All E.R. 97 (H.L.). On 13 March
2001, the Cour de Cassation ruled that Mouammar Ghadaffi, as head
of state of Libya, was entitled to immunity from the jurisdiction
of French courts for alleged involvement in the terrorist bombing
of a civilian aircraft: see Salvatore Zappal, Do heads of state in
office enjoy immunity from jurisdiction for international crimes?
The Ghaddafi case before the French Cour de Cassation (2001) 12
E.J.I.L. 595. On 30 October 2001, a United States court of first
instance dismissed a suit, alleging torture and other crimes,
against the current President and Foreign Minister of Zimbabwe,
accepting a Suggestion of Immunity from the U.S. Department of
State: Tachiona et al. v. Mugabe et al., Decision and Order, 31
October 2001 (00 Civ. 6666 [VM], unreported) (U.S. Dist. Ct.,
S.D.N.Y.). 36 Case Concerning the Arrest Warrant of 11 April 2000
(Congo v. Belg.), 2002 I.C.J. (Feb. 14). This case concerned
Belgiums issuing of an international arrest warrant against the
Foreign Minister of the Congo. It is ruling, the ICJ held that
sitting foreign ministers and, by implication, heads of state and
heads of government, enjoy absolute immunity. This decision was
based on customary international law. The Court listed several
examples of exceptions to immunity. Among these was the option of
prosecuting former officials for acts undertaken during office in a
private capacity. A concurring opinion by Judges Higgens, Kooijmans
and Buergenthal adds that it is increasingly recognized that grave
international crimes cannot be regarded as official acts.(Case
Concerning the Arrest Warrant of 11 April 2000 (Congo v. Belg.),
2002 I.C.J. (Feb. 14) (Joint Separate Opinion of Judges Higgens,
Kooijmans and Buergenthal, para 85).
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C. Corporations as defendants: northern big fish
There was widespread agreement among participants regarding the
need to pursue accountability of northern corporations and the
officials that encouraged their activities, as these corporations
were identified as major sources of support for ongoing oppression
by governments in Africa, Asia and Latin America. Southern
governments are frequently unwilling to impose or effectively
enforce conditions on foreign corporations. Consequently, action by
authorities and courts in the jurisdiction of origin was seen as
highly useful by conference participants.
1. United States cases
U.S. courts seem to have accepted that corporations can be sued
in U.S. courts for human rights violations committed abroad. Some
participants characterized such civil jurisdiction as universal
jurisdiction; others preferred to reserve that term to describe
criminal jurisdiction. Current U.S. cases include:
a. Jota, et al. v. Texaco: A civil action suit brought under the
Alien Tort Claims Act against Texaco for its pollution of the
Ecuadorian Amazon and the effects of this pollution on Ecuadorian
and Peruvian indigenous and campesino populations.
b. Doe v. Unocal: This case charges UNOCAL with corporate
complicity in the use of slave labor, murder, rape and forced
relocation of villagers by the Burmese Military.37 c. Wiwa v. Royal
Dutch Petroleum: This case charges Royal Dutch Petroleum Company
and Shell Transport and Trading Company with complicity in human
rights abuses in Nigeria.38
d. Bowoto v. Chevron: This case charges Chevron with corporate
complicity in a series of three machine gun attacks upon unarmed
environmental protesters and people in their homes in
Nigeria.39
e. Gurab v. Federal Laboratories: A suit filed against the
manufacturers of CS gas, a "riot control" weapon used by Israeli
troops, by the families of two Palestinians killed by the
gas.40
f. Manzanarez v. Chentex: A suit against a Nicaraguan garment
factory, its Taiwanese parent, and their American subsidiary, for
allegations of violence, arrest, and other union busting
tactics.41
37 Center for Constitutional Rights: . 38 See id. 39 See id. 40
See id. 41 See id.
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2. French cases:
Sherpa Project. The purposes of this project are to organize new
types of procedures to bring corporations to justice for a range of
abuses, including human rights violations; to determine how to
freeze money stolen by heads of state and government officials, and
to better use legislation on money laundering for human rights
purposes; and to try to invent new types of proceedings against
international institutions. The Project is attempting to arrange a
network of lawyers with various specializations (for example,
corporate law, international law, tax law) to help with desired new
types of proceedings. It is also addressing the issue of security
for victims and witnesses.
On March 22nd, 2002, the Sherpa Project initiated civil
proceedings against the French Rougier Group, a corporation
exploiting resources in Cameroon, and its Cameroonian affiliate.
The charges against the company condemn it for the illicit
pillaging of forest resources to the detriment of Cameroonian
populations.
3. Comparative approaches:
It was noted that, in the U.K., there have been civil claims,
not filed as human rights abuses, but as negligence claims. The
corporate defendants have tried to dismiss claims saying that they
should be filed in the country where relevant subsidiaries are
located, while the petitioners have argued that the cases should be
brought in the U.K., to which profits were repatriated. A House of
Lords decision held that the U.K. is the proper jurisdiction to
hear such civil claims. There has also been some work exploring
possibilities for similar work in the Netherlands.
4. Relationship of corporate cases to environmental law:
It was noted that corporate cases tend to be situated in a
context in which there are widespread abuses of economic, social
and cultural rights. These cases are frequently based not on
universal, but on nationality jurisdiction, owing to the presence
of the corporations headquarters or other business office in the
jurisdiction in question. Because many corporate cases implicate
both human rights and environmental concerns, coordination between
groups and attorneys working on both issues may provide fruitful
experience and be informative as to new approaches to litigation
and advocacy. Participants noted that ELAW may provide a model
worth looking at, and may be an organization with which it is worth
establishing coordination. ELAW is a network of public interest
attorneys, scientists and other environmental advocates around the
world that focus on domestic and cross-border environmental
advocacy and litigation, and which has experience in environmental
litigation regarding corporate accountability. For example, one
relevant case, currently before Peruvian courts, was brought
against Bayer for the pesticide poisoning of children. More
information about the organization and environmental litigation
involving corporations is available at www.elaw.org.
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5. Complications in bringing corporate cases
Attempts to bring suit against corporate human rights offenders
can be complicated by the protection afforded to such companies by
the countries in which they operate. For example, one participant
noted that Guatemala tries to protect Korean sweatshops from
domestic litigation. In general, lawsuits are made much more
difficult when governments themselves argue that corporations have
not violated internal laws. There also exists the concern that
corporate headquarter states, such as the United States, will apply
pressure to developing countries where corporations violate
international and/or domestic human rights and environmental laws.
These concerns, as well as the availability of class actions and
punitive damages, may make it more attractive to bring cases
against U.S. corporations before U.S. courts. Participants noted
the difficulty of proving connections between corporate
control/leadership and the occurrence of a particular event. In the
case of UNOCAL control is not difficult to prove, as it is the U.S.
corporation, and not a subsidiary, that is active in Burma.
However, corporate control has been more complicated in cases
involving corporate subsidiaries, such as in the Nigeria/Shell and
Ecuador/Texaco cases.
Participants also noted that corporations do not like to reach
settlements in international human rights and environmental cases
for fear of the implications for other, similar situations
involving violations in other parts of the world.
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Part Five: Public education
A. Information clearinghouses & website development
efforts
1. Redress and the Center for Justice and Accountability:
Redress and the Center for Justice and Accountability (CJA) are in
process of developing a Universal Jurisdiction Information Network
(UJ Info). The idea for this project was developed in part through
input received at past universal jurisdiction conferences. The
website is intended to be a resource for universal jurisdiction
advocates around the world. It will not put forward the position of
any particular organization, but rather will simply present and
provide links to available universal jurisdiction information.
Discussions have already taken place with the other projects
described below concerning coordination of their work.
The project currently has two components. The first of these is
a listserve, already in operation, which sends news of universal
jurisdiction developments worldwide to those registered, and allows
civil society to exchange information, documents, and strategies.
The second component is the website itself, which will provide
users with centralized information on universal jurisdiction,
including legislation, cases, advocacy and educational materials,
and current and upcoming events on universal jurisdiction. The site
will also allow users to identify contacts for specific types of
cases or, for example, to identify lawyers that have worked on
universal jurisdiction cases in particular jurisdictions. The
target audience for the web site is broad, and includes civil
society, academics, prosecutors, investigators, judges, domestic
police, Interpol, torture treatment centers, government legal staff
and others seeking to educate themselves or perform research on
universal jurisdiction.
Participants discussed the need to develop regional and national
networks or focal points to coordinate and monitor universal
jurisdiction development and progress, and to contribute to UJ Info
itself. UJ Info explained that interested parties could contribute
by sharing information that they have on latest developments on the
listerve, providing legislation, case documents and their own
writings on universal jurisdiction to the website and/or
translating needed materials. Many participants heavily emphasized
the need for high quality translation. The project is primarily in
English at this time, but CJA and Redress are working on setting up
materials in other languages, although this process may be slow
given budgetary constraints and the high costs of
translation.42
2. World Organization against Torture: The World Organization
against Torture, with the help of Yale Universitys Human Rights
Center and several Washington, DC law firms, is developing a
universal jurisdiction website that focuses on legal issues raised
by various types of universal jurisdiction legislation and cases.
The site reflects work that the World Organization against Torture
is doing on universal jurisdiction
42 This site is available at: www.u-j.info
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and criminal accountability, and contains a compilation of the
most important legal issues presented by relevant cases. In
particular, the site contains extensive information regarding the
issue of immunities in the Sharon case. It is anticipated that the
site will also soon contain a database on United States universal
jurisdiction cases.43
3. Asser Institute: The Asser Institute, an academic institution
based in The Hague, is developing a website that will consist of 2
databases: one on universal jurisdiction and one on international
humanitarian law. Both databases will focus on primary materials,
such as legislation and cases. The Institute also intends to
publish materials that will consist of primary resources as well as
analytical pieces.44
4. Amnesty International: At the time of the Pinochet
litigation, Amnesty began to compile information on universal
jurisdiction for torture and other grave international crimes. The
project grew and currently contains several thousand pages of
legislation, cases, press reports and articles. It was decided to
set up a database for it, and the information was given to the
Asser Institute for this purpose.
5. Notre Dame University: The Center for Civil and Human Rights
at the University of Notre Dame intends to create a physical,
rather than virtual, accountability resource center comprised of,
for example, truth commission reports. It will also contribute to
an online database.45
B. Mechanisms and focus areas for public education Participants
outlined goals and strategies regarding how to best educate the
public about universal jurisdiction.
1. Developing a network, making use of what already exists
a. The Coalition for an International Criminal Court and its
networks of NGOs. Participants felt that the CICCs current networks
could serve as important resources for communication, for the
establishment of new projects, and for identifying new participants
from every region. At the same time, CICC member organizations may
not have sufficient resources to bring cases on top of work that
they are already doing to promote the ICC. Capacity building for
universal jurisdiction will be different than it has been for the
ICC, where the main strategy has been awareness raising and
lobbying. In the case of universal jurisdiction, the issue is not
just to lobby but also to respond to cases and to act in court.
43 This site is available at: www.criminalaccountability.org 44
This site is available at: www.asser.nl/vr/query.htm. This site
explains their project, but does not yet contain the planned
databases. 45 Notre Dames information will be available at:
www.universaljurisdiction.org.
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b. The International Bar Association. Given the IBAs wide
membership, participants considered that it could perhaps help with
universal jurisdiction education and training.
c. Southern hubs or southern coordination mechanisms for
communications in particular regions. Regional, sub-regional and
national coordinating points may be best able to distribute
information and resources on universal jurisdiction, as well as to
assist with local education efforts and project coordination. Such
hubs should then be integrated into international networks (the
CICC, UJ-info, etc.) in order to disseminate their experience more
broadly and to seek support when needed.
d. University resources. Universities with specialties in
international human rights and humanitarian law can provide
excellent resources and training and can assist in project
coordination for universal jurisdiction proponents at various
stages of their careers. For example, a participant from the
University of Notre Dame noted that the universitys Center for
Civil and Human Rights has a specific accountability project (not
limited to transitional justice) which consists of teaching,
research and fellowships at Notre Dame for individuals interested
in international accountability, and internship funding for
individuals that wish to work for NGOs on accountability issues or
for the ICTY or ICTR.
Notre Dame also offers an LLM program and a doctoral program on
international human rights law. The university matches its LLM
students with accountability projects, and participants were
encouraged to discuss their research needs with the Notre Dames
human rights center.
e. Smaller regional and inter-regional collaborations on
specific cases. For example, Japanese and Peruvian NGOs can
coordinate and inform each other on the issue of Fujimori.
2. Creating databases and making them widely available.
a. Electronic databases: Participants agreed that the web-based
databases mentioned in the preceding section would contribute
substantially to capacity building and education efforts. The need
for dissemination of basic information, of strategies, of
legislation, cases, and events was stressed, as was the need to
have such resources well translated into as many languages as
possible.
Europe-based participants sounded a note of caution regarding
the publication of information about individuals on Internet sites.
Under European Union law, the basis of the information may need to
be disclosed to its subject, and the potential for defamation suits
must be considered. In general, Internet and defamation law must be
considered with respect to dis