Universal jurisdiction

From Palepedia

Universal jurisdiction is a legal concept built around the idea that certain crimes (notably, war crimes such as genocide) are too serious to be subject to the boundaries and limitations such as jurisdiction and are therefore prosecutable by any or the nation regardless of where they were committed, who committed them, or against whom they were perpetrated. It is closely related to the legal concept of jus cogens, which states that certain internationally agreed upon legal obligations are binding upon all nations and states.

Universal jurisdiction has been most often applied to war crimes falling under the Genocide Convention, which is considered by legal experts to be a "customary law", or one that applies to anyone and everyone—even nations or parties that haven't signed or aren't party to the convention. Importantly, the International Court of Justice, also known as the World Court, has likewise ruled that the laws against genocide are universal and no nation can ever be exempted for acts of genocide.[1]

Given the difficulties in pursuing justice for Israeli war crimes in supranational courts (see ICC investigations into Israel and ICC's jurisdiction in Palestine), proponents of Palestinian freedom and justice have historically often turned to universal jurisdiction in an attempt to prosecute individuals they accuse of complicity in war crimes committed against the Palestinian people.

Universal jurisdiction by country[edit | edit source]

A number of parties to the Genocide Convention have, in addition to agreeing to the Genocide Convention at the state level, also fully or partially codified laws against war crimes and genocide into their own criminal justice system.

As an example, Austrian law makes carrying out acts of genocide punishable by imprisonment for life, and punishes conspiring to commit genocide with imprisonment anywhere from one to ten years.[2] In this context, the Austrian law would generally apply in cases where Austrian law has jurisdiction (e.g. a crime committed on Austrian territory or an extra-territorial crime committed by an Austrian national outside of Austria). Other states, however, have adopted legal language that also encompasses actions taken outside of their territory or by non-nationals, giving them the right to arrest, try, and subsequently punish individuals that have taken part in gross crimes against humanity on a worldwide basis, a concept known as "universal jurisdiction".

Countries like the United States and Israel have been extremely critical of the concept of universal jurisdiction and have pressured other countries into changing their laws — while not coincidentally being home to a number of former officials wanted for war crimes investigations by quite a few countries around the world, including Henry Kissinger, Ariel Sharon, and Ehud Barak.[3]

Argentina[edit | edit source]

While many previous Argentine governments have fought against universal jurisdiction in cases of war crimes and genocide (in the context of foreign governments like Spain attempting to extradite Argentinian military officials),[4][5] the 1994 Argentine constitution recognizes its universal jurisdiction to prosecute and punish crimes against humanity, genocide, and war crimes. In 2007 Argentina legislated Law 26.200 which incorporated both the Geneva Convention and the Rome Statute into law with no statute of limitations, covering these and other ICC violations.[6]

In 2021, a UK human rights group Burmese Rohingya Organisation (BROUK), representing six displaced Rohingya Muslim women who testified remotely from Bangladesh, successfully petitioned an Argentine court to open an investigation into the allegations of war crimes and genocide carried out by the Burmese army in their ethnic cleansing of the Rohingya people.[7] Argentine courts also previously took up other war crimes cases under the principle of universal jurisdiction in the past, including the case of crimes committed by ex-dictator Francisco Franco in Spain and those by the Falun Gong movement in China.[7]

While the prior Argentine government has been no friend to fascist regimes, in November 2023 right-wing politician and self-declared "Israel fanatic" Javier Gerardo Milei won Argentina's most recent presidential election and has already pledged his staunch support for Netanyahu's approach in the 2023 Israel war on Gaza, promised to move the Argentine embassy to Jerusalem, and has scheduled a trip to Israel before he even takes office in December.[8]

Belgium[edit | edit source]

In 1993, Belgium became the first state to adopt a law with "universal jurisdiction" for crimes of genocide, giving it the right to charge, prosecute, and punish anyone, anywhere for committing acts of genocide. This law was repealed ten years later in 2003, primarily due to pressure from the United States, with, among other things, US Secretary of Defense Donald Rumsfeld threatening to remove NATO headquarters from Brussels if the law was not rescinded. With the replacement law, Belgium now only has jurisdiction to prosecute crimes committed on Belgian soil, by Belgian nationals, or against Belgian nationals.[9]

Under the now-repealed Belgian "universal jurisdiction" law, charges were filed in cases pertaining to the Rwandan Genocide, the killing of two Belgian priests in Guatemala, [note 1] Hissène Habré in Chad, and Israeli Prime Minister Ariel Sharon for his role in the Sabra and Shatilla massacre.[9] While a number of countries recognize(d) universal jurisdiction for war crimes and genocide, Belgium was one of the few willing to use it to actively prosecute war criminals regardless of political consideration, at least for some time.[10]

In 2001, 23 survivors of the Sabra and Shatilla massacre brought charges of war crimes and genocide against Israeli Prime Minister Ariel Sharon, along with other individuals, for his role in the killings, [11] claiming "all the constituent elements of the crime of genocide, as defined in the 1948 Convention and as reproduced in article 6 of the ICC Statute and in article 1§1 of the law of 16 June 1993, are present".[12] However the Belgian Court of Cassation (the supreme court of Belgium), ruled on February 12, 2003 that under customary international law (laws that de defacto apply internationally), acting heads of state cannot be brought before a criminal tribunal by another country.[13][14] This ruling agreed with a decision made a year earlier by the International Court of Justice in the matter of Congo v. Belgium, another case where charges of genocide were brought under Belgium's universal jurisdiction law.[15] The ICJ did find, however, that even leaders of state could have genocide charges leveled against them, but in the context of an international (rather than foreign national) criminal tribune (such as at the ICC).

Canada[edit | edit source]

As in Belgium and many other countries, Canadian law permits criminal charges (generally and in cases of war crimes or genocide) to be brought against individuals that are nationals of Canada, employed by Canadian nationals, committed a crime against a Canadian national or a national of a country Canada is allied with, or if the individual subsequently sets foot on Canadian soil.[16]

In November 2023, a Canadian human rights attorney announced his intention to file charges against Canadian Prime Minister Justin Trudeau, alleging that his administration's support for Israel's slaughter in Gaza during the 2023 Israel War on Gaza were in violation of the war crimes provisions codified into Canadian law pursuant to the Rome Statute.[17][18]

Denmark[edit | edit source]

In 2001, Amnesty International and Danish MP Soren Sondergaard called on the Danish government to arrest Israel's former head of Shin Bet (Israel's General Security Service) and newly appointed ambassador to Denmark Carmi Gillon on charges of torture and crimes against humanity, including the shaking to death of Palestinian prisoner Abd Al-Samad Harizat in 1995. Gillon also stated in an interview with the Danish Jyllands Posten that he had been involved in over 100 cases of torture of Palestinian prisoners and made statements seen as advocating for the reintroduction of such torture policies. According to Amnesty, in May 1997 the UN found that the interrogation methods Israel does not deny employing would "constitute torture as defined in article 1 of the [Geneva Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment]."[19][20][21] Denmark resisted the calls for his arrest, citing diplomatic immunity, but Amnesty quoted the Rome Statute (to which Denmark is a signatory), Article 27, Section 1:

This Statute shall apply equally to all persons without any distinction based on official capacity. In particular, official capacity as a Head of State or Government, a member of a Government or parliament, an elected representative or a government official shall in no case exempt a person from criminal responsibility under this Statute..."

Finland[edit | edit source]

Finland has also incorporated laws against war crimes and genocide (or conspiring to commit genocide) into its criminal code, and considers violations of such to fall under its universal jurisdiction (prosecutable when committed by anyone, anywhere) – but with the provision that an investigation into these crimes cannot be initiated without a direct order from the country's top Prosecutor General,[22] making it difficult for private parties to obtain an arrest warrant in most cases. A Rwandan refugee was prosecuted and jailed for his complicity in the Rwandan Genocide under this provision in 2010.[23]

Germany[edit | edit source]

Since 2002, German prosecutors can similarly exercise universal jurisdiction under the Völkerstrafgesetzbuch (Code of Crimes against International Law, abbr. VStGB) into cases of genocide (§ 6 VStGB), crimes against humanity (§ 7 VStGB), and war crimes (§§ 8-12 VStGB).[24] While these laws had previously been used to successfully prosecute individuals for their role in the Bosnian Genocide in cases where the defendants had specific connections to Germany,[25][26][27] the universal jurisdiction law enabled the Thai human rights group Fortify Rights to petition the federal government to investigate Myanmar military officials for genocide and other war crimes for the ethnic cleaning of the Muslim Rohingya between 2016 and 2017.[28] As of 2023, there were over 100 such cases being investigated under German's universal jurisdiction law.[28]

Israel[edit | edit source]

Despite being one of the strongest critics of other countries' universal jurisdiction laws for cases of war crimes or genocide and even formally bringing its complaints about such laws to the UN,[29] Israel itself has laws against war crimes and genocide on the books and recognizes its right under universal jurisdiction to try foreigners for committing such war crimes anywhere in the world without a statue of limitations and considers anyone committing a crime against Jews anywhere in the world to have broken Israel law and prosecutable under Israeli jurisdiction.[30] This right was exercised to have Adolf Eichmann "extradited" to Israel (he was arrested in Argentina in a secret Mossad operation), where he was tried for war crimes and genocide, found guilty, and hanged June 1, 1962.[31]

Spain[edit | edit source]

In addition to provisions adopted in the Spanish Código Penal (Penal Code) outlawing war crimes including genocide,[32][33] from 2005 to 2009, the Spanish legal system is also empowered to investigate and prosecute such acts when committed by foreigners on foreign soil under universal jurisdiction.[34] In June 2003, this provision was used to bring charges of genocide and terrorism against former Argentine naval officer Ricardo Miguel Cavallo, for which he was successfully extradited from Mexico.[35][36] However in 2009, Spain passed a new law restricting this universal jurisdiction only to cases "involving Spanish victims, suspects who are in Spain, or some other obvious link with Spain".

The broad repeal of Spain's universal jurisdiction for crimes of war and genocide came in response to an attempt by pro-Palestinian organizations to charge Israeli officials with war crimes as a result of Israel's 2002 assassination of Al-Qassam Brigades commander Salah Shehadeh. The charges were filed against former IDF chief of General Staff Lieutenant General Dan Halutz, Israel's Minister of Industry, Trade and Labor Binyamin Ben-Eliezer, Israel's Strategic Affairs Minister Moshe Ya’alon, Israel's former National Security Council head Giora Eiland, former public security minister Avi Dichter, former OC Southern Command Major General Doron Almog and Ministry of Defense official Brigadier General Michael Herzog. After Israeli government pressure, the law was repealed in 2009 and put to rest after the repeal was upheld by the Spanish Supreme Court in 2010.[37] This has prevented Spain from filing genocide and war crime charges against other countries too, not only Israel.[38]

United Kingdom[edit | edit source]

The United Kingdom is a signatory to the ICC's Rome Statute and incorporated laws against genocide and other war crimes into its legal system and per UK law, the most severe of these violations come under the fold of universal jurisdiction where offenders could be charged and arrested regardless of their nationality or where the crimes took place. There are handbrakes on the UK version of universal jurisdiction, namely, the consent of the UK attorney general is required before any such criminal proceedings can take place. Magistrate consent is required to begin investigations into war crimes or acts of genocide, but until 2011 it was possible to obtain arrest warrant before getting consent from the Crown.[39]

The UK's universal jurisdiction over war crimes was used several times by various groups to obtain arrest warrants for various Israeli officials regarding war crimes committed in occupied Palestine over the years, before it was significantly handicapped in 2011 in response to Israeli pressure.

2005 warrant for the arrest of Doron Almog[edit | edit source]

In 2005, lawyers obtained an arrest warrant for former IDF general Doron Almog for the destruction of 59 civilian residences in Gaza in advance of his visit to the UK. He was secretly informed of his pending arrest and he did not disembark from the El Al plane (British police were quoted saying El Al had refused them permission to board and they feared getting into a gunfight with Israeli air marshals routinely present on El Al flights.[40] Almog later thanked El Al for being "loyal" and helping him avoid arrest).[41] [42] Israel raised a "diplomatic storm" over the incident; Israeli Foreign Minister Silvan Shalon called the close call an "outrage", leading UK Foreign Secretary Jack Straw to apologize. John O' Connor, former head of Scotland Yard's flying squad, later signaled his support for the arrest warrant, saying "All they needed to do was to stop the plane from taking off and negotiate through the Foreign Office," continuing that he felt the arrest had been "written off", and adding "British justice is in the dock."[40]

2009 warrant for the arrest of Ehud Barak[edit | edit source]

In September 2009, lawyers for the UK human rights group Palestine Solidarity Campaign obtained an arrest warrant from a district judge for Ehud Barak, then the Israeli Defense Minister, for war crimes committed in Gaza in 2008. While normally no hearings would then take place until the subject of the warrant has been arrested, in this case the UK Foreign Office was informed and a hearing was held during which Queen's Counsel Clare Montgomery made the case for his arrest. District Judge Daphne Wickham agreed that a strong enough case was made for the charges and arrest warrant, but held the view that Barak had diplomatic immunity, saying "I am satisfied that under customary international law, Mr Barak has immunity from prosecution as he would not be able to perform his functions efficiently if he were the subject of criminal proceedings in this jurisdiction."[42]

2005 warrant for the arrest of Tzipi Livni[edit | edit source]

Later in 2009, in advance of her visit to the UK that December, an arrest warrant was obtained for Israel's former Foreign Minister Tzipi Livni for her role in the 2008 Israel war on Gaza in which over 1400 civilians were killed. She cancelled her visit in response, claiming it was due to scheduling problems.[43]

2011 universal jurisdiction limitation after Israeli complaints[edit | edit source]

The UK has faced heavy pressure from Israel to put an end to its universal jurisdiction laws. After narrowly avoiding arrest in 2009, Livni told the BBC "What needs to be put on trial here is the abuse of the British legal system. This is not a suit against Tzipi Livni, this is not a lawsuit against Israel. This is a lawsuit against any democracy that fights terror," and added "It's about time to put terrorists on trial and not those who try to stop terror." Israeli Prime Minister Benjamin Netanyahu rebuked the UK ambassador to Israel and called the situation an "absurdity," saying in a statement "We will not accept a situation in which [former Israeli Prime Minister] Ehud Olmert, [Defence Minister] Ehud Barak, and Tzipi Livni will be summoned to the defendants' chair. We will not agree to have Israel Defence Force soldiers, who defended the citizens of Israel bravely and ethically against a cruel and criminal enemy, be recognized as war criminals. We completely reject this absurdity taking place in Britain."[43]

UK Foreign Secretary David Miliband said in response that Israel was a "close friend" of the UK's and that he was eager to "avoid this sort of situation arising again". "Israel is a strategic partner and a close friend of the UK. We are determined to protect and develop these ties. Israeli leaders - like leaders from other countries - must be able to visit and have a proper dialogue with the British government. The procedure by which arrest warrants can be sought and issued without any prior knowledge or advice by a prosecutor is an unusual feature of the system in England and Wales. The government is looking urgently at ways in which the UK system might be changed in order to avoid this sort of situation arising again."[43]

On September 15, 2011, British law was amended to require the consent of the UK's Director of Public Prosecutions before an arrest warrant could be issued in cases of universal jurisdiction brought forward by individuals and private parties.[44]

Notes[edit | edit source]

  1. Given that the victims were Belgian nationals, this charge could still be prosecuted under the new law.

References[edit | edit source]

  1. "United Nations Office on Genocide Prevention and the Responsibility to Protect". United Nations. Retrieved 2023-11-24. The ICJ has also stated that the prohibition of genocide is a peremptory norm of international law (or jus cogens) and consequently, no derogation from it is allowed.
  2. "Österreichiches Recht: Völkermord § 321" [Austrian Law: Genocide Article 321] (in Deutsch). Prevent Genocide International. Retrieved 30 January 2017.
  3. "Analysis: New trend toward universal jurisdiction". All Things Considered. National Public Radio. 2001-08-08. Retrieved 2023-11-27 – via ProQuest.
  4. "RELUCTANT PARTNER: The Argentine Government's Failure to Back Trials of Human Rights Violators". Human Rights Watch. December 2001. Retrieved 2023-11-27.
  5. "RELUCTANT PARTNER: The Argentine Government's Failure to Back Trials of Human Rights Violators — Chapter VIII. TRANSNATIONAL JUSTICE". Human Rights Watch. December 2001. Retrieved 2023-11-27.
  6. "Argentina and the Rome Statute". Parliamentarians for Global Action. Archived from the original on 2023-11-27. Retrieved 27 November 2023.
  7. 7.0 7.1 "Argentina court to investigate Myanmar war crimes against Rohingya Muslims". The Guardian. Agence France-Presse. 2021-11-29. Retrieved 27 November 2023.
  8. Chambers, Bala (2023-11-23). "'Fanatic of Israel': What drives Javier Milei's obsession with Jewish nation". TRT World. Retrieved 27 November 2023.
  9. 9.0 9.1 "Belgium: Universal Jurisdiction Law Repealed". Human Rights Watch. 2003-08-01. Retrieved 2023-11-25.
  10. Hurst, Lynda (2003-06-29). "Belgium reins in war-crime law ; U.S. threats finally sink 'universal jurisdiction' suits Anti-war activists used court to sue American leaders". Toronto Star. pp. F04. Retrieved 2023-11-27 – via ProQuest.
  11. "The Case Against The Accused". indictsharon.net, the website of the International Campaign for Justice for the Victims of Sabra & Shatila. 2001. Archived from the original on 2 February 2002. ...Ariel Sharon, former Israeli defense minister and Israel's current prime minister, as well as other Israelis and Lebanese with war crimes...
  12. "The complaint against Ariel Sharon Lodged in Belgium on 18 June 2001" (PDF). indictsharon.net. June 2001. Archived from the original (PDF) on 9 June 2003.
  13. "Belgian Court of Cassation (English translation of Belgian Supreme Court Decision- unauthorised)" (PDF). indictsharon.net. 12 February 2003. Archived from the original (PDF) on 25 July 2004.
  14. Chibli Mallat, Michael Verhaeghe, Luc Walleyn and Laurie King-Irani The February 2003 Decision of the Belgian Supreme Court Explained on the website of [indictsharon.net], 19 February 2003
  15. Osbor, Andrew (14 February 2002). "Sharon cannot be tried in Belgium, says court". Brussels: The Guardian. Archived from the original on 16 January 2014.
  16. Crimes Against Humanity and War Crimes Act Archived 14 May 2013 at the Wayback Machine, Foreign Affairs and International Trade Canada, gc.ca.
  17. Lorne Gunter (2023-11-25). "GUNTER: Hamas slaughter warrants Israeli actions". Toronto Sun. Retrieved 2023-11-25. Yavar
  18. Alan Ibrahim [@Dhambaalka] (November 23, 2023). "A group of people are initiating a criminal lawsuit against the government and any institutions or individuals in #Canada that helped or participated in #Israel's war crimes in #Gaza according to #Canadian and international laws. People should do the same in every country" (Tweet) – via Twitter.
  19. "Israel/Denmark: Amnesty International Calls On Denmark To Fulfill Its Obligations". Middle East News Online: N/A. 2001-08-14. Retrieved 2023-11-26 – via ProQuest. After the death of a detainee, 'Abd al-Samad Harizat, in April 1995 from a brain haemorrhage as a result of violent shaking, the ministerial committee which oversees the GSS were reportedly divided as to whether to allow an extension of the "exceptional dispensation" granted to the GSS to use "increased physical pressure". The GSS, then headed by [Carmi Gillon], argued strongly that such means were necessary.
  20. Hockstader, Lee (2001-07-29). "Israeli's Torture Remarks Cause Diplomatic Uproar". The Washington Post. Archived from the original on 2023-11-27. Retrieved 2023-11-26 – via ProQuest.
  21. "Israel/Denmark: Amnesty International calls on Denmark to fulfill its obligations under the UN Convention against Torture" (Press release). Amnesty International. 2001-07-14. Archived from the original on 2023-11-26. Retrieved 2023-11-26.
  22. "Criminal Code" (PDF) (in suomi). Ministry of Justice of Finland. Retrieved 2017-03-23.
  23. "Ruandalaispastorille elinkautinen joukkotuhonnasta" [Rwandan pastor gets life sentence for genocide]. Yle Uutiset (in suomi). 2012-03-30. Archived from the original on 2012-03-31.
  24. Federal Republic of Germany (2022-10-12). "The scope and application of the principle of universal jurisdiction" (PDF). New York: Permanent Mission of the Federal Republic of Germany to the United Nations. Retrieved 2023-11-25.
  25. Germany v. Nikola Jorgić (Federal Constitutional Court, Germany, 4th Chamber of the Second Senate 2000-12-12).Text
  26. Germany v. Novislav Djajic (Court of Appeal of Bavaria, Germany 1997-05-23).Text
  27. Germany v. Maksim Sokolovic (Federal Constitutional Court, Germany, 4th Chamber of the Second Senate 2001-02-21).Text
  28. 28.0 28.1 Andrea Maria Pelliconi; Francesca Sironi De Gregorio (2023-03-07). "New universal jurisdiction case filed in Germany for crimes committed in Myanmar before and after the coup: On complementarity, effectiveness, and new hopes for old crimes". EJIL: Talk!. Retrieved 2023-11-25.
  29. Rachel Oberman (2015-10-20). "The Scope and Application of the Principle of Universal Jurisdiction" (PDF). New York: Permanent Mission of Israel to the United Nations. Retrieved 2023-11-26.
  30. Izenberg, Dan (2003-02-14). "Israel also claims universal jurisdiction". Jerusalem Post. Retrieved 2023-11-26 – via ProQuest. Shahar told The Jerusalem Post that the types of crimes that Israel has taken the liberty to prosecute on the basis of international agreements include genocide, torture, and apartheid. [..] Israel also passed legislation making it responsible for the protection of every Jew anywhere in the world, whether or not the Jew in question wanted or requested such protection. According to this law, anyone committing a crime against a Jew anywhere in the world breaks Israeli law and is liable to punishment by the Jewish State.
  31. Liu, Wenjing (2022). "Eichmann in Jerusalem: A Study of the Legitimacy of Jurisdiction Based on Universal Interests". Beijing Law Review. 13 (3): 496–506. doi:10.4236/blr.2022.133031.
  32. "Artículo §607 del Codigo Penal" [Article §607 of the Penal Code] (in español). Prevent Genocide International. Retrieved 31 January 2017.
  33. Wilson, Richard (1996). "Spanish Criminal Prosecutions Use International Human Rights Law to Battle Impunity in Chile and Argentina". Ko'aga Roñe'eta. III. derechos.org. Retrieved 31 January 2017.
  34. "Spain may judge Guatemala abuses". BBC News. 2005-10-05. Archived from the original on 2008-07-24. Retrieved 24 July 2008.
  35. Daly, Emma (30 June 2003). "Spanish Judge Sends Argentine to Prison on Genocide Charge". New York Times. Retrieved 30 January 2017.
  36. "Profile: Judge Baltasar Garzon". BBC. 7 April 2010. Retrieved 30 January 2017.
  37. Dan Izenberg (2010-04-19). "Universal jurisdiction victory in Spain but battle goes on". The Jerusalem Post. Retrieved 2023-11-25.
  38. "Spanish court shelves Tibet human rights case against China". Madrid: phayul.com. Deutsche Presse-Agentur. 26 February 2010. Archived from the original on 8 September 2012. Retrieved 6 September 2010.
  39. Arabella Thorp (2010-03-25). "Parliamentary Standard Note SN/IA/5422" (PDF). UK House of Commons Library. Retrieved 2023-11-26.
  40. 40.0 40.1 Dominic Casciani (2008-02-19). "Police feared 'airport stand-off'". BBC News. Retrieved 26 November 2023.
  41. Vikram Dodd; Conal Urquhart (2005-09-13). "Investigation urged after Israeli officer avoids arrest". the Guardian. Nes Ziona, Israel. Retrieved 2023-11-26.
  42. 42.0 42.1 Rozenberg, Joshua (December 2009). "Modern Lawfare". Standpoint Magazine. Archived from the original on 2015-04-14.
  43. 43.0 43.1 43.2 "UK ponders law change after Tzipi Livni arrest warrant". BBC News. 2009-12-15. Retrieved 26 November 2023.
  44. Kenneth Clarke, KC. "Universal Jurisdiction" (Press release). UK Ministry of Justice. Retrieved 2023-11-26. New changes to the law in the Police Reform and Social Responsibility Act will not affect this right and those accused of these grave crimes will still be brought to justice if there is sufficient evidence against them. However, as of today, the consent of the Director of Public Prosecutions will now be required before an arrest warrant is issued in universal jurisdiction cases brought by individuals.