The resurgence of a post-war legal mechanism and its future role in international criminal law.
Tun Khin, president of the Burmese Rohingya Organization UK, with Argentine lawyer Tomas Ojea Quintana outside a federal court in Buenos Aires in 2021.[1]
Russia’s invasion of Ukraine last year invited widespread calls for criminal accountability for President Putin and the actions of his inner circle.[2] Most of the attention has focused on petitions made to the International Criminal Court (ICC), and the court’s subsequent investigations, but another overlooked mechanism exists for holding international criminals accountable: universal jurisdiction.[3]
Centered around the idea that some crimes are so heinous that they affect humanity as a whole, and therefore the duty to prosecute them transcends international borders, universal jurisdiction results when a country’s domestic legislation provides jurisdiction over an international actor it would not have otherwise.[4] Although seemingly contrary to the UN Charter (Art. 2), the international community has accepted the domestic prosecution of such heinous crimes under these limited circumstances.[5]
Despite becoming prominent after the horrors of WWII and the Holocaust, universal jurisdiction made few major appearances throughout the remainder of the twentieth century. A prominent example is the Israeli prosecution of Nazi collaborators and officers under the Punishment Law, which obtained justice for some of the war crimes committed during the Holocaust even after the massacres ended and Germany was in no state to prosecute. [6] Another example involves the UK House of Lords considering extradition of former Chilean dictator Agosto Pinochet to be prosecuted in Spain for crimes against humanity, which would have seen a dictator tried and held accountable despite an amnesty agreement in which he obtained lifelong immunity from prosecution in his native land.[7] In recent years, public outrage over human rights abuses in developing nations, such as the Syrian government’s rocket attacks on its own citizens, led to a plethora of states adopting universal jurisdiction laws. These laws allow victims to seek redress without the hardship of traveling to a forum state, although the number of states applying these laws remains low and application of these laws is mainly concentrated in the EU and Latin America.[8]
That said, there is a globally increasing trend towards domestic prosecutions of international crimes. Frustrated by the veto power of the Security Council, initially rendering it unable to enforce any orders regarding the devastation in Syria, the UN adopted the International, Impartial, and Independent Mechanism for Syria (IIM) in 2016, as well as one for Myanmar three years later.[9] These mechanisms help courts collect evidence and case files against international crimes and have indeed aided in their national prosecution. [10] The IIM alone has supported over 100 investigations, mainly in Europe.[11] In 2022, over 80 charges were filed in several countries.[12] In Europe, the amount of newly opened cases increased by 44% between 2016 and 2021, marking a trend towards employing universal jurisdiction as a prosecutorial method for the international community.[13] Trends are growing in the passage of universal jurisdiction laws as well, such as the U.S.’s Alien Tort Statute (though the Supreme Court has since limited its scope to human rights violations that “touch and concern” U.S. territory).[14]
Cooperation between civil society organizations as well as the increasing number of refugees from Eastern Europe may help explain this trend, which alludes to a main problem of universal jurisdiction in practice – its limited employment. [15] There is a strong argument that the disproportionate use of universal jurisdiction by European countries gives them an unfair advantage over nations that they formerly colonized.[16] Many countries adopting legislation allowing for universal jurisdiction have never prosecuted cases under it.[17] Further, practicality concerns involving countries being unable to compel noncitizen witnesses to travel to them and testify, as well as different definitions of international crimes within domestic universal jurisdiction legislation, could lead to severe inconsistencies in accountability.[18]
Still, the growing framework of mechanisms such as those for Syria and Myanmar has facilitated investigations and prosecutions of international crimes, cementing universal jurisdiction as an alternative path to justice for victims frustrated with the limited powers of traditional international bodies (such as the ICC.) [19] In the context of renewed and increased calls for accountability of the Russian regime following the invasion of Ukraine, it remains to be seen how the trend will continue to unfold, but the increasing use of a renewed avenue towards justice for victims is promising.
[1] Photo: Juan Mabromata, https://www.rfa.org/english/news/myanmar/rohingya-argentina-06072023162250.html. [2] Richard Dicker & Alina Pucko, New trends in international justice, Opinio Juris (2022), http://opiniojuris.org/2022/05/23/new-trends-in-international-justice. [3] Id. (discussing the attention given to the International Criminal Court in the media following the Ukraine invasion); Ukraine, Int’l Crim. Ct. (2022), https://www.icc-cpi.int/situations/ukraine (detailing the investigations arising out of demand for increased criminal accountability following the Ukraine invasion). [4]What is Universal Jurisdiction?, Ctr. for Just. & Accountability, https://cja.org/what-we-do/litigation/legal-strategy/universal-jurisdiction/#:~:text=What%20is%20Universal%20Jurisdiction%3F,crimes%2C%20genocide%2C%20and%20torture (last visited Sep 22, 2023). [5] Charter of the United Nations, United Nations 3 (1945), https://treaties.un.org/doc/Publication/CTC/uncharter.pdf (barring the UN from interfering in matters that are within a state’s domestic jurisdiction); See What is Universal Jurisdiction?, supranote 4 (discussing the increasing acceptance of the use of universal jurisdiction to prosecute war crimes among UN members). [6] Fred Brandfron, Judging Eichmann: History, Judgment, and Hannah Arendt’s Eichmann in Jerusalem, 42 Am. Poetry Rev. 17, 21 (2013), https://www.jstor.org/stable/24592225. [7] UK HOUSE OF LORDS: IN RE PINOCHET, 38(2) Int'l Legal Materials 430, 432 (March 1999), http://www.jstor.org/stable/20698890. [8] Factsheet: Universal jurisdiction, Ctr. for Const. Rts. (2015), https://ccrjustice.org/home/get-involved/tools-resources/fact-sheets-and-faqs/factsheet-universal-jurisdiction. [9] See Dicker & Pucko, supra note 2. [10] Id. [11] Id. [12] Universal Jurisdiction Annual Review 2023, TRIAL Int'l 13 (2023), https://trialinternational.org/wp-content/uploads/2023/04/TRIAL_UJAR_2023_DIGITAL_21_04_Version2.pdf. [13] New investigations on core international crimes increase by 44% since 2016, Eurojust (May 23, 2022), https://www.eurojust.europa.eu/news/new-investigations-core-international-crimes-increase (highlighting the statistics of prosecutions of non-EU nationals for international crimes) [hereinafter Investigations on Core International Crimes]; Universal Jurisdiction Annual Review 2023, supra note 12, at 12 (discussing the increased use of universal jurisdiction in the European Union and worldwide). [14] What is Universal Jurisdiction?, supra note 4. [15] See Investigations on Core International Crimes, supra note 13 (discussing the increasing number of claims filed by Eastern European refugees in the EU); See Universal Jurisdiction Annual Review 2023, supra note 12, at 12 (detailing the limited use of universal jurisdiction in countries outside the EU and Latin America). [16] See Factsheet: Universal Jurisdiction, supra note 8. [17] The scope and application of the principle of universal jurisdiction - seventy-first session - sixth committee (legal) - UN general assembly, United Nations (2016), https://www.un.org/en/ga/sixth/71/universal_jurisdiction.shtml. [18] Harmen van der Wilt, “Sadder but wiser”?: NGOs and Universal Jurisdiction for International Crimes, 13 J. Int’l Crim. Just. 237, 242 (2015) (detailing the difficulties in criminal procedure for some cases filed under universal jurisdiction laws); Universal Jurisdiction: A preliminary survey of legislation around the world - 2012 update, Amnesty Int'l 12 (October 9, 2012), https://www.amnesty.org/en/documents/ior53/019/2012/en/ (highlighting how differing definitions of crimes in different countries can theoretically lead to varying levels of accountability for the same conduct). [19] See Factsheet: Universal Jurisdiction, supranote 8.
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