The presence of an alleged offender in a forum state: a prerequisite for the exercise of universal jurisdiction

Размещено на http://www.allbest.ru/

THE PRESENCE OF AN ALLEGED OFFENDER IN A FORUM STATE: A PREREQUISITE FOR THE EXERCISE OF UNIVERSAL JURISDICTION

universal jurisdiction offender

Kateryna Gaidei

The article contains the comprehensive analysis on to which extent the presence of an alleged offender in the territory of a forum state constitutes a prerequisite for the exercise of universal jurisdiction under current international law. The difference between universal jurisdiction and its form in absentia is investigated through the inquiry of respective provisions of international treaties and customary law along with the corresponding national practice of different states.

When talking about universal jurisdiction one has to bear in mind that until this very moment, there is `no generally accepted definition of universaljurisdiction in conventional or customary international law' in the words of Judge Van Den Wyngaert Case Concerning Arrest Warrant of 11 April 2000 (Democratic Republic of Congo v. Belgium), Merits, Judgment of 14 February 2002, [2002] ICJ Rep., at 3, Judge ad hoc Van den Wyngaert, Dissenting Opinion, para. 44.. The lack of precise definition and scope of the notion may explain the lasting discussion on the matter. In the most general sense universaljurisdiction can be specified as `jurisdiction to define and prescribe punishment for certain offences recognized by the community of nations as of universal concern[...], even where none of the bases ofjurisdiction [such as the principle of territoriality, nationality and the protective principle] is present' Restatement (Third) of the Law of Foreign Relations of the United States. (1986). American Law Institute, Vol. 1, 14 May 1986, §1-488, paras. 402, 404.. It follows therefrom that the only connection between the crime and the prosecuting state that may be required in frames of the concept of universaljurisdiction is the physical presence of an alleged offender within the jurisdiction of that state Final Report on the Exercise of Universal Jurisdiction in Respect of Gross Human Rights Offences. (2000). Committee on International Human Rights Law and Practice, London Conference, ILA Report, 2.. In practice, the factor of the presence of a suspect in the territory of a prosecuting state may drastically change the nature and characteristics of universal jurisdiction Inazumi, M. (2005). Universal Jurisdiction in Modern International Law: Expansion of National Jurisdiction for Prosecuting Serious Crimes under International Law. Antwerpen: Intersentia, 27.. Therefore, the issue of whether the exercise of universal jurisdiction should be subject to the presence of a suspect in the territory of a forum state, or it is permissible even in the absence of a person needed, so called `universal jurisdiction in absentia', has attracted broad debate among state high officials and international law scholars. The article is thus aimed at providing a comprehensive analysis on to which extent the presence of an alleged offender in the territory of a forum state constitutes a prerequisite for the exercise of universal jurisdiction under existing international law.

Generally, there is no commonly accepted understanding regarding the issue of the presence of a suspect in the territory of a state intending to prosecute such individual. However, exactly this element of the exercise ofuniversaljurisdictionjustifies the existence of two approaches to universal jurisdiction, which are universal jurisdiction as such and universaljurisdiction in absentia. Thus, some claim that the traditional explanation of universaljurisdiction is that some crimes are regarded as so heinous that every state has a legitimate interest in their repression Case Concerning Arrest Warrant of 11 April 2000 (Democratic Republic of Congo v. Belgium), Merits, Judgment of 14 February 20o2, [2002] ICJ Rep., at 3, Judges Higgins, Kooijmans and Buergenthal, Joint Separate Opinion, paras. 41, 54.. Others insist that in general and in order to exercise universaljurisdiction a state has to meet the requirement of the presence of a suspect within its territory Cassese, A. (2003). Is the Bell Tolling for Universality? A Plea for a Sensible Notion of Universal Jurisdiction. Journal of International Criminal Justice, Vol. 1, No. 3, 592.. However, both approaches imply the absence of any nexus between the committed crime and a prosecuting state. The latter is sometimes called `ordinary' Inazumi, M. (2005). Universal Jurisdiction in Modern International Law: Expansion of National Jurisdiction for Prosecuting Serious Crimes under International Law. Antwerpen: Intersentia, 101., or `conditional' Chadwick, M. (2009). Modern Developments in Universal Jurisdiction: Addressing Impunity in Tibet andBeyond. International Criminal Law Review, Vol. 9, 366., or `custodial' Universal Jurisdiction: The Duty of States to Enact and Enforce Legislation. Amnesty International. <http://www.amnesty.org/en/library/asset/IOR53/017/2001/en/3c6e7c7b- d8ef-11dd-ad8c-f3d4445c118e/ior530172001en.html> (2014, March 15). universal jurisdiction. The former is known as `pure universal concernjurisdiction', or `true' Yee, S. (2011). Universal Jurisdiction: Concept, Logic, and Reality. Chinese Journal ofInternational Law, Vol. 10, 508., or `pure' O'Keefe, R. (2004). Universal Jurisdiction: Clarifying the Basic Concept. Journal of International Criminal Justice, Vol. 2, Issue 3, 755., or `absolute' Chadwick, M. (2009). Modern Developments in Universal Jurisdiction: Addressing Impunity in Tibet andBeyond. International Criminal Law Review, Vol. 9, 366. universal jurisdiction, or universal jurisdiction in absentia (the term is used though without indication of a definition in the ICJ Arrest Warrant Case), or «full» universaljurisdiction.

The reason why some scholars can regard universal jurisdiction in absentia as a purified form of universal jurisdiction is that it also can be considered as a kind of actio popularis1. Universal jurisdiction in absentia allows all the states constituting the international community and interested in ending impunity for gross violations of human rights to prosecute and punish alleged perpetrators, notwithstanding the total lack of any nexus between them and the crime. It thus allows acting in the interest of the whole international community, what makes universal jurisdiction in absentia an action for the good of the international society. Judges Higgins, Kooijmans and Buergenthal, for instance, in the aforementioned Arrest Warrant Case in their Joint Separate Opinion seemed to regard universal jurisdiction in absentia as the original form of universal jurisdiction by reference to the Lotus principle (which is however disputable) and denying the presence of the suspect as its prerequisite.

Therefore, universaljurisdiction in absentia is quite widely understood as a form ofjurisdiction whose lawfulness is to be considered in its own right and thus as distinct from universal jurisdictionper se. However, the question may arise, as on what grounds it is possible to distinguish so called ordinary universal jurisdiction and universal jurisdiction in absentia. Some may claim that the difference between them is simply temporal, precisely at which stage the presence of a suspect must be obtained Inazumi, M. (2005). Universal Jurisdiction in Modern International Law: Expansion of National Jurisdiction for Prosecuting Serious Crimes under International Law. Antwerpen: Intersentia, 102. Ibid.. Others may find the underlying difference in the fact that ordinary universaljurisdiction is recognized only for a state in which a suspect is present, and universal jurisdiction in absentia is attributable to virtually any state in the world since it requires no nexus between the crime and the state claimingjurisdiction. Moreover, some scholars may even argue that the distinction between the two is meaningless, since a state which initially only has universal jurisdiction in absentia, may eventually obtain ordinary universaljurisdiction by obtaining the custody of a suspect who is located abroad as the result of its arrest warrant or extradition request. Finally, for some the major difference is that the two have different rationales and status under treaty and customary international law, i.e. different legal status and the realm of their acceptance among states. The last point is worth more comprehensive studying.

As to the incorporation in conventional international law ordinary universal jurisdiction, based on the requirement of the presence of a suspect in a prosecuting state, has much firmer position. If interpret the principle aut dedere autjudicare as implying applicability of universal jurisdiction, then most of contemporary relevant treaties and conventions prescribes application of universal jurisdiction (e.g. Arts. 49, 50, 129, 146 and 85(1) of 1949 Geneva Conventions and Additional Protocol I respectively; Art. 7 of the UN Convention against Torture). Moreover, the exercise of universal jurisdiction comprises not merely a right but rather more - an obligation upon states where a suspect is present and provide such states with discretion in deciding whether to extradite a person or exercise jurisdiction itself. In contrast, universal jurisdiction in absentia is not explicitly prescribed by any existing international convention (the major exceptions may be found only in 1949 Geneva Conventions). Moreover, Judge Guillaume in the same Arrest Warrant Case in his Separate Opinion proclaimed that `[u]niversaljusrisdiction in absentia is unknown to international conventional law' Case Concerning Arrest Warrant of 11 April 2000 (Democratic Republic of Congo v. Belgium), Merits, Judgment of 14 February 2002, [2002] ICJ Rep., at 3, President Guillaume, Separate Opinion, para. 9..

Therefore, universal jurisdiction in absentia is of the exclusive character, since its exercise is not a direct consequence of the expansion of national jurisdiction under conventional international law. Though, such jurisdiction was recognized, for instance, by the U.S. courts in the Demjanjuk Case and by the German Federal Supreme Court in the Sokolovic Case, universal jurisdiction in absentia is not widely recognized by states and, thus firmly supported in neither conventional nor customary international law. The only factor, which promotes its exercise, is the recognition of the interest of the international community. So in most of their domestic laws and practices states are reluctant to expand theirjurisdiction beyond that which they are obliged to do under specific treaties or conventions and consequently to enact the relevant legislation.

On the other hand, contemporary conventional international law contains wordings that conventions do `not exclude any criminal jurisdiction exercised in accordance with internal law' (Art. 4(3) of the UN Convention against Torture). This means that the lack of evidence of universal jurisdiction in absentia in conventional international law does not lead to the conclusion about the prohibition of suchjurisdiction under international law either.

Concerning its position in customary international law, both support and opposition of universal jurisdiction in absentia can be found. In favour of the former A. Cassese, for instance, points out two rationales for universal jurisdiction in absentia: the first is the extreme extent of gravity and magnitude of the crime; and the second is compliance with the principle of sovereign equality of states and non-interference in the internal affairs of the state where the crime has been prepared Cassese, A. (2001). International Law. Oxford: Oxford University Press, 292.. However, what remains questionable is state acceptance and opinio juris on these rationales. Except for the support, there are also strong arguments as to the opposition of universaljurisdiction in absentia. The law and practice of states prove the tendency to limit universaljurisdiction to cases in which a suspect is present on their territory, e.g. Canada, France, Switzerland and Denmark. Moreover, for the states allowing universal jurisdiction in absentia, its actual exercise may provoke some opposition from the states involved in the case (this is exactly what happened to Belgium after the aforementioned Arrest Warrant Case, when Belgium amended its domestic law towards abolishing universaljurisdiction in absentia). In the stream of this argumentation, A. Cassese also criticizes the approach of understanding universal jurisdiction as tantamount to universal jurisdiction in absentia. He claims that `it would be contrary to the logic of current state relations to authorize any state of the world to institute criminal proceedings (commence investigations, collect evidence, and lay out charges) against any foreigner or foreign state official allegedly culpable of serious international crimes.' Cassese, A. (2003). Is the Bell Tolling for Universality? A Plea for a Sensible Notion of Universal Jurisdiction. Journal of International Criminal Justice, Vol. 1, No. 3, 592.. Furthermore, the possible arbitrariness in determination of a forum state may also cause concerns of rights' protection of a suspect. In contrast to the ordinary universal jurisdiction, in case of exercising universal jurisdiction in absentia suspects cannot foresee which state will claim jurisdiction. Therefore, they will neither be able to know which state will issue an arrest warrant in the future, and thereby to which state they may be extradited, nor under which national law they will be prosecuted, what kind of punishment may be imposed, and in which state they will have to serve sentence.

National practice on the matter of inclusion a condition of the presence of a suspect on the exercise of universaljurisdiction also differs from state to state. Overall, it is possible to evidence `renaissance' of universaljurisdiction during recent years in domestic criminal legislation of different states Lowe, V., Staker, C. (2010). Jurisdiction. In Evans, M.D. (ed.), International Law (Chapter 11). Oxford: OxfordUniversity Press, 327.. After the Rome Statute's adoption and because of its consequent ratification and implementation numerous states have amended their domestic criminal legislation concerning prosecution of the core crimes including provisions on universal jurisdiction. At the current stage, approximately more than a half of the total number of existing states has incorporated certain provisions prescribing universal jurisdiction in their national criminal legislation. Most of them spread the scope of the universality principle over the grave breaches of the four Geneva Conventions and the crime of torture only Beigbeder, Y. (2005). International Justice against Impunity: Progress and New Challenges. Leiden, the Netherlands: Martinus NijhoffPublishers, 52..

As to the requirement of the presence of a suspect for the exercise of universal jurisdiction, belonging to the group of states allowing application of universal jurisdiction without establishing strict prerequisites concerning the presence of a suspect in the territory of the corresponding state, are - among others - Germany, Greece, Finland, Luxembourg, the UK. The domestic criminal legislation of Germany can be used as an illustration in this regard.

German criminal legislation, in particular the Code of Crimes against International Law (29 June 2002), Section 153f allows for universal jurisdiction, with various conditions. This normative act establishes universaljurisdiction over genocide, crimes against humanity, and war crimes. Before the adoption of the aforementioned Code, exercise of extraterritorial jurisdiction in Germany was limited to the requirement of the presence of a suspect or his/her permanent residence in Germany. However, according to the provisions of the aforementioned Code, the latter requirement was annulled. Nevertheless, the public prosecutor has discretion to decide whether to initiate criminal trial or not if a suspect is not present in the territory of Germany and there are reasonable concerns as to the possibility of acquiring of custody of such person, according to para. 1, Section 153f of the German Code of Crimes against International Law.

The second group of states, which does not allow commencement of domestic criminal proceedings based on unconditional universal jurisdiction (thus requiring the presence of a suspect in the territory before the start of criminal proceedings) comprises the following states: Canada, France, Austria, Italy, the Netherlands, Portugal, etc. Therefore, as an example, Dutch legislation can be analysed.

Previously application of universal jurisdiction in absentia was allowed under the Dutch legislation (Wartime Offences Act (Wet Oorlogsstrafrecht) (1952), Art. 3(1) and (3)), however, recently it was amended by the corresponding requirement of the presence of a suspect (International Crimes Act, adopted 19 June 2003, entered into force 1 October 2003). Under the current criminal domestic legislation of the Netherlands, the presence of a suspect in Dutch territory is a pre-condition for exercising most of the prosecutions based on the universality principle. Moreover, this condition is applicable to the very first stage of commencement of investigation. Thus, this is the example of the traditionally Western European restrictive perception on universal jurisdiction.

However, the most peculiar and interesting examples of states having prescribed and actually invoked universaljurisdiction several times are Belgium and Spain. In Belgium, the national criminal law of which used to be considered as one of the most far-reaching concerning the incorporation of provisions on universaljurisdiction, it has nevertheless been subject to changes provoked by certain political circumstances Reydams, L. (2003). Universal Jurisdiction. International and Municipal Legal Perspectives. Oxford etc.: OxfordUniversity Press, 179.. On 16 June 1993, the Parliament of Belgium adopted the Law in accordance with the relevant clauses of the four 1949 Geneva Conventions and Additional Protocol I, prescribing possibility of prosecution over individuals alleged in committing international crimes irrespectively of place where it happened. On the basis of these provisions, in 2001 and 2002 several complaints were brought before the Belgian courts against the high officials of certain states, such as the Israeli Prime Minister Ariel Sharon, the Ivory Coast President Laurent Gbagbo, his predecessor Robert Guei and his Minister of Interior, the President of Iraq Saddam Hussein, the President of Cuba Fidel Castro, the Palestinian leader Yasser Arafat, the President of Iran Ali Akbar Hashemi Rafsanjani, and against the former Presidents of Chad, Mauritania and Chile. The respective cases were suspended on the ground of invocation of immunities of the persons concerned. Nevertheless, in response to such measures taken by Belgian courts, Israel made a note of protest addressed to Belgium and withdrew its Ambassador from the latter. Noteworthy, such a note of protest can be regarded as evidence of state practice against universal jurisdiction. Nonetheless, the turning point which led to the amendment of the corresponding Belgian criminal law was the submission of case against high officials of the US, including the former President George

W. Bush, Defense Secretary Donald Henry Rumsfeld, State Secretary Colin Powell, General Tommy Franks and the British Prime Minister Tony Blair. In response to this event the US Defense Secretary and simultaneously one of the alleged perpetrators, Mr Rumsfeld warned the Belgian Government that the headquarters of the NATO could be withdrawn from Brussels. As a result, in April 2003, the corresponding amendments were taken, and the right to initiate proceedings based on universal jurisdiction was left to the public prosecutor exclusively. While Israel was satisfied with the made amendments, the US demanded further essential changes of the Law on the universality principle. The US refused the further financing of the NATO headquarters in Brussels and made a promise not to allow the US state officials to come to Belgium until the necessary amendments of Belgian domestic criminal law would be taken. As a result, the Belgian legislation on the universality principle was restricted by the requirement of the presence of a suspect in the territory of Belgium in the same year of 2003, not only following the demanding requests made by the US Beigbeder, Y. (2005). International Justice against Impunity: Progress and New Challenges. Leiden, the Netherlands: Martinus NijhoffPublishers, 54. but also after thejudgment in the `unfortunate' Arrest Warrant Case against Belgium.

Similarly to Belgium, Spanish national criminal law initially allowed application of universal jurisdiction even in case of the absence of a suspect in the territory of Spain (Art. 23.4 of the Organic Law on Judiciary Power (336), promulgated on July 1, 1985). There were also several complaints against Fidel Castro, other Cuban leaders, political leaders of Guatemala brought before the Spanish courts as well as several arrest warrants against several Argentinean officers issued by the Spanish Judge Baltasar Garzon Ibid, 55.. However, recently in 2009, the requirement of the presence of a suspect in Spanish territory amended the corresponding normative act of Spain; therefore, nowadays the exercise of universal jurisdiction in absentia in Spain is also not possible.

In conclusion, despite the lack of extensive conventional incorporation and support among states application of even the most innovative and disputed form ofjurisdiction, such as universaljurisdiction in absentia, is not prohibited under international law unless it clashes with its other rules or principles. As the logic flows if universal jurisdiction is permissible, then its exercise in absentia is permissible too, though which question remains without an answer is whether the latter is desirable. Notwithstanding some former state practice, the future application of the «full» universal jurisdiction remains highly doubtful, especially considering the possibility of trials in absentia because of the use of «full» universaljurisdiction. The legal frameworks andjurisprudence of existing international and internationalized criminal courts and tribunals indicate prohibition and avoidance of international criminal trials in absentia. Moreover, in principle, in frames of international criminal proceedings, trials in absentia are not accepted (ICCPR, Art. 14(3); ICTY Statute, Art. 21(4)(d); ICTR Statute, Art. 20(4)(d); ICC Statute, Arts. 63, 67(1)(d)).

Thus, the issue on whether the presence of a suspect in the territory of a forum state is strictly required for the exercise of universaljurisdiction under existing international law will remain unresolved and unsure until either a corresponding case comes to an international tribunal, or an international treaty, or a recognized series of guidelines is accepted Chadwick, M. (2009). Modern Developments in Universal Jurisdiction: Addressing Impunity in Tibet and Beyond. International Criminal Law Review, Vol. 9, 393.. Now a prerequisite of the presence of an alleged offender for initiating criminal investigations based on universal jurisdiction remains highly welcomed and favourable for guaranteeing legitimacy of further court trial and safeguarding friendly relations between states concerned Coombes, K. (2011). Universal Jurisdiction: A Means to End Impunity or a Threat to Friendly International Relations. The George Washington International Law Review, Vol. 43, 459.. What is clear at the moment is that universaljurisdiction, including its form in absentia, is envisaged to serve the interests of the international community as a whole by replacing impunity with accountability, thus being an extremely important tool of fostering progressive development of international law towards human rights andjustice. This demonstrates the urgent need in further development and improvement of international law and national legislation provisions on universaljurisdiction exercise, including the requirement of the presence of a suspect in the territory of a forum state.

Bibliography

1. Case Concerning Arrest Warrant of 11 April 2000 (Democratic Republic of Congo v. Belgium), Merits, Judgment of 14 February 20O2, [2002] ICJ Rep., at 3, President Guillaume, Separate Opinion; Judges Higgins, Kooijmans and Buergenthal, Joint Separate Opinion; Judge ad hoc Van den Wyngaert, Dissenting Opinion.

2. Beigbeder, Y. (2005). International Justice against Impunity: Progress and New Challenges. Leiden, theNetherlands: MartinusNijhoffPublishers.

3. Cassese, A. (2001). International Law. Oxford: Oxford University Press.

4. Cassese, A. (2003). Is the Bell Tollingfor Universality? A Pleafor a Sensible Notion of Universal Jurisdiction. Journal of International Criminal Justice, Vol. 1, No. 3, 589.

5. Chadwick, M. (2009). Modern Developments in Universal Jurisdiction: Addressing Impunity in Tibet and Beyond. International Criminal Law Review, Vol. 9, 359.

6. Coombes, K. (2011). Universal Jurisdiction: A Means to End Impunity or a Threat to Friendly International Relations. The George Washington International Law Review, Vol. 43,419.

7. Final Report on the Exercise of Universal Jurisdiction in Respect of Gross Human Rights Offences. (2000). Committee on International Human Rights Law and Practice, London Conference, ILA Report.

8. Inazumi, M. (2005). Universal Jurisdiction in Modern International Law: Expansion of National Jurisdiction for Prosecuting Serious Crimes under International Law. Antwerpen: Intersentia.

9. Lowe, V., Staker, C. (2010). Jurisdiction. In Evans, M.D. (ed.), International Law (Chapter 11). Oxford: OxfordUniversityPress, 313.

10. O'Keefe, R. (2004). Universal Jurisdiction: Clarifying the Basic Concept. Journal ofInternational Criminal Justice, Vol. 2, Issue 3, 735.

11. Restatement (Third) of the Law of Foreign Relations of the United States. (1986). American Law Institute, Vol. 1, 14 May 1986, §1-488.

12. Reydams, L. (2003). Universal Jurisdiction. International and Municipal Legal Perspectives. Oxford etc.: Oxford University Press.

13. Universal Jurisdiction: The Duty of States to Enact and Enforce Legislation. Am nesty International. <http://www.amnesty.org/en/library/asset/IOR53/017/2001/ en/3c6e7c7b-d8ef-11dd-ad8c-f3d4445c118e/ior530172001en.html> (2014, March 15).

14. Yee, S. (2011). Universal Jurisdiction: Concept, Logic, and Reality. Chinese Journal ofInternational Law, Vol. 10, 503.

Размещено на Allbest.ru