Public International Law/International Criminal Law/Domestic Prosecution of International Crimes





Author: Raghavi Viswanath "Required knowledge: International criminal courts and jurisdiction; International Law and Domestic Law" "Learning objectives: To understand the ways in which domestic courts apply international criminal law; to understand universal jurisdiction and its applications"

Introduction
Given the jurisdictional and budgetary constraints faced by the ICC, not all cases that trigger international criminal law can be tried by the ICC alone. This is why the Rome Statute rests on the principle of complementarity, whereby the ICC can only be invoked once domestic recourses have been exhausted. Domestic courts try cases using different jurisdictional routes: such as active nationality, passive nationality, territory, and even when the effects of some crimes are felt within their territory. These modes are discussed at length in the jurisdiction chapter. States now also recognize certain crimes over which any State court - regardless of nationality or territory - can exercise jurisdiction. This mode of jurisdiction is called universal jurisdiction. This chapter maps such routes for domestic activation of jurisdiction over international crimes.

A.     Complementarity
The ICC rests on the principle of complementarity. By application of this principle, the ICC's jurisdiction can only be triggered once it is reasonably established that domestic courts are unable or unwilling to try the case. According to this principle, States enjoy the first right (and the first obligation) to prosecute individuals charged with war crimes, genocide, crimes against humanity, and aggression.[1] Of course, this means that the requirements of national legal jurisdiction – whether nationality or territory or effects – would have to be met (as discussed in the Jurisdiction chapter).

B.      Universal jurisdiction: History and rationale
Compared to the route of transferring cases to the ICC, domestic courts can exercise universal jurisdiction over certain crimes. Universal jurisdiction allows the prosecution of certain crimes by any state, unconnected to the commission of the crime, the place it occurred, the accused or the victim because the conduct is of universal concern.[2] Universal jurisdiction does not replace domestic prosecutions of crimes recognized under domestic law but simultaneously having an equivalent in the Rome Statute. It elevates certain crimes because of their seriousness and ensures that impunity is eliminated for such crimes. It is also implicit in this rationale that powerful States actively shield their senior officials who commit core crimes, this would hold them back from prosecuting such actors[3].

Universal jurisdiction was conceived as a way out of such conflicts of interest. Universal jurisdiction was first recognized for the crime of piracy. Ever since, a longer list of crimes can now trigger universal jurisdiction. The 1948 Genocide Convention, for instance, enjoins all State parties to punish and prosecute perpetrators of genocide. The 1984 Convention against Torture codifies universal jurisdiction for the crime of torture. Crimes against humanity,[4] apartheid,[5] and enforced disappearance[6] have also been added to this list.

Many scholars laud universal jurisdiction for creating a globalized jurisprudence, involving transnational networks.[7] This does not mean that universal jurisdiction is not political. This is evident in the statistics compiled by TRIAL International annually. Although universal jurisdiction has acquired much traction in terms of geographical reach (almost 92 States initiated universal jurisdiction cases in 2021-22), these prosecutions are concentrated on crimes committed mostly in the Global South. The African Union has been vocal in its opposition to such exercise of jurisdiction. It has instead adopted a Model Law calling on African States to legislate on universal jurisdiction and prosecute “international crimes, trafficking, and terrorism crimes”.[8] This addition of terrorism and trafficking departs from the internationally recognized list of crimes warranting universal jurisdiction.

C. Sources of universal jurisdiction
When seen from a positivist lens, the validity of exercises of universal jurisdiction rest majorly on the source which confers such jurisdiction. At least three sources of universal jurisdiction have emerged in case law so far.

I. Domestic statute
In the trial of Anwar R in 2022 before the Koblenz Higher Regional court, the applicants invoked the 2002 International Criminal Code (VStGB), which vests the Office of the Federal Prosecutor with the authority to try individuals accused of committing international crimes anywhere in the world.[9] Similarly, in the trial of Colonel Lama in the UK in 2016 on two counts of torture, the English court also derived jurisdiction from Section 134 of the Criminal Justice Act.[10] Although both trials were met with varying degrees of interest and coverage, one challenge that both courts encountered is the validity of universal jurisdiction sanctioned by a domestic law. In other words, is it defensible for a domestic law to empower a domestic court to sanction a national of a different State for a crime committed in the territory of a different State? In this framing, universal jurisdiction seemingly pushes the boundaries of sovereignty.

II. International treaty law
When confronted with the limitations of domestic law, courts and applicants typically resort to international treaty obligations. In 2011, the Brussels Criminal Court arrested Ernest Gakwaya and Emmanuel Nkunduwimye and opened the trial against them for sexual crimes committed during the 1994 genocide in Rwanda.[11] The trial and the 2003 Belgian Criminal Code are both grounded in Belgium’s obligations under the Genocide Convention. The landmark trial of Gibril Massaquoi for war crimes and crimes against humanity committed in Sierra Leone and Liberia during the 1991-2002 civil war[12] also invokes the Finish Criminal Code and Finland’s obligations under the 1949 Geneva Conventions.[13]

However, citing international treaty obligations to support universal jurisdiction is not as common as one would expect. Case in point is the trial of former General Pinochet by the UK House of Lords for his alleged crimes in Chile and Argentina during his 1973-1990 dictatorship. Although the case was an instance of universal jurisdiction, the Court did not place any emphasis on whether Chile has ratified the Convention against Torture.[14]

III. Customary law
It is not surprising that international treaties suffer from gaps. The corpus of war crimes, for example, is quite large. However, the 1949 Geneva Conventions do not prescribe universal jurisdiction for the full list of war crimes. The deficiencies of treaty law are best illustrated by the Eichmann case. The 1961 trial of Adolf Eichmann, the Head of Section (Referant) for Jewish Affairs in Nazi Germany, on counts of war crimes, crimes against humanity, saw the Supreme Court of Israel invoke universal jurisdiction because of its customary law status. The Court also eschewed the exclusive reliance on treaty law for evidence of universal jurisdiction.[15] The ICJ’s Arrest Warrant decision also stressed the importance of customary bases for universal jurisdiction.[16] That said, customary law sources for universal jurisdiction are not all that common because it is often not in States’ interests to encourage universal jurisdiction. As a result, it is difficult to pin down opinio juris for universal jurisdiction for certain crimes in order to take recourse to the customary law route.

[1] Article 17, Rome Statute of the International Criminal Court (2002).

[2] Kenneth C Randall, ‘Universal Jurisdiction Under International Law’ (1988) 66 Texas Law Review 785, 788 as cited in Steven W Becker, ‘Universal Jurisdiction: How Universal Is It? A Study of Competing Theories’ (2002–3) 12 Palestine Yearbook of International Law 49, 50; Roger O’Keefe, ‘Universal Jurisdiction: Clarifying the Basic Concept’ (2004) 2(3) Journal of International Criminal Justice 735.

[3] Comments From Kenya, The Scope and Application of the Principle of Universal Jurisdiction: The Report of the Sixth Committee A/64/452-Res64/117 (2018).

[4] Charles Jalloh, Universal criminal jurisdiction, A/73/10 (2018), https://legal.un.org/ilc/reports/2018/english/annex_A.pdf.

[5] Convention against Apartheid (1973).

[6] Convention against Enforced Disappearance (2006).

[7] A. M. Slaughter, A New World Order (2004) 150.

[8] African Union (Draft) Model National Law on Universal Jurisdiction over International Crimes exp/min/Legal/vi, adopted at Twenty-First Ordinary Session of the Executive Council, 9–13 July 2012, Addis Ababa Ethiopia.

[9] https://www.justiceinitiative.org/litigation/federal-prosecutors-office-v-anwar-r

[10] R v. Kumar Lama, Case no. 2013/05698 (Central Criminal Court, London, 2016).

[11] https://trialinternational.org/wp-content/uploads/2022/03/TRIAL_International_UJAR-2022.pdf.

[12] https://trialinternational.org/latest-post/gibril-massaquoi/

[13] Chapter 1, Section 7 of the Criminal Code of Finland, 39/1889, amendments up to 766/2015 included, Translation from Finnish by Ministry of Justice, Finland (hereinafter CC); Asetus rikoslain 1 luvun 7 §:n  soveltamisesta (unofficial translation: Decree on the Application of Chapter 1, Section 7 of the Criminal Code), 16.8.1996/627, 1996.

[14] R v. Bow Street Stipendiary Magistrate and Others, Ex parte Pinochet (No. 3), [1999] 2 All ER 97.

[15] Supreme Court of Israel 336/31, Attorney General v. Eichmann, 36 ILR 28.

[16] Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v. Belgium), Judgment, 14 February 2002, ICJ Reports (2002) 3, Joint Separate Opinion of Judges Higgins, Kooijmans and Buergenthal, at 63.