Should Mere Presence in the Forum State Be Enough to Trigger Universal Jurisdiction?

Related to my post yesterday about the presence requirement for invoking universal jurisdiction (with respect to the UK’s new genocide law amendment), QC Ken Macdonald (visiting professor at the London School of Economics) has proposed in The Times an interesting possible solution to deal with what I would call the “Colin Powell” (or, per Macdonald, “Henry Kissinger”) dilemma:

Of course a law can easily be crafted to protect our national sense of decency, while at the same time avoiding vexatious and foolish litigation at the expense of a batch of ageing Henry Kissingers. Indeed, we already have laws that allow us to arrest visiting torturers and hostage takers. They have been applied sensibly and haven’t led to diplomatic meltdown. Why should we be able to prosecute visiting torturers but not war criminals and génocidaires? The simple device of requiring the Director of Public Prosecutions to consent to the instigation of proceedings would prevent abuses and ensure that only appropriate cases can be brought.

It bears pointing out that a mere presence requirement certainly does not represent the most liberal version of universal jurisdiction. I believe this passage from the Joint Separate Opinion of ICJ Judges Higgins, Kooijmans and Buergenthal in the Democratic Republic of the Congo v. Belgium case provides some helpful context with respect to the UK law:

But a State is not required to legislate up to the full scope of the jurisdiction allowed by international law. The war crimes legislation of Australia and the United Kingdom afford examples of countries making more confined choices for the exercise of jurisdiction. Further, many countries have no national legislation for the exercise of well recognized forms of extraterritorial jurisdiction, sometimes notwithstanding treaty obligations to enable themselves so to act. National legislation may be illuminating as to the issue of universal jurisdiction, but not conclusive as to its legality. Moreover, while none of the national case law to which we have referred happens to be based on the exercise of a universal jurisdiction properly so called, there is equally nothing in this case law which evidences an opinio juris on the illegality of such a jurisdiction. In short, national legislation and case law — that is, State practice — is neutral as to exercise of universal jurisdiction.

It should be noted that some municipal jurisdictions, such as Spain, permit initiation of cases even if the defendant is not physically present in the forum state (although that may be changing — more on that in a later post). Certain versions of this type of UJ have not even required a nexus with the territory, perpetrator or victim (Belgium’s old universal jurisdiction statute is a prominent example of that). And those jurisdictions have also permitted private citizens to initiate criminal actions against would-be defendants. I have argued elsewhere (including as part of a presentation I made at a London UJ conference last year), that this is going too far. But I do not consider “mere presence” to be problematic – especially if a public official countenances initiation of the prosecution. Macdonald provides a compelling conclusion:

The consequences of his failing to do so [providing for a mere presence UJ trigger] are frankly unappealing. According to a report in The Times in 1999, the individual suspected of supplying, on an industrial scale, most of the machetes used in the Rwandan slaughters [Félicien Kabuga] stopped over in Britain on holiday. If the law is not changed, this unusual tourist is safe to return at any time. Recent research by the Aegis Trust has also carefully documented the scores of suspected war criminals who are believed to be present in the UK. They include suspects from Iraq and Zimbabwe, warlords from Somalia and Afghanistan, and suspected génocidaires from Rwanda. As you would expect, since they cannot be prosecuted here, these men calmly arrive for a wide variety of reasons. Some come for medical treatment and others to do business but, unsurprisingly, they take care to avoid residency. They’re not stupid and they know that they risk nothing more alarming than deportation — where that is even possible. But all too often it isn’t and we find ourselves caught in a devil’s trap. We cannot prosecute these men because they’re not UK residents, but our courts won’t deport them either in case they face mistreatment on their return. Certainly the human rights of suspects must be respected, but the dilemma becomes very stark in the face of atrocity crime. They end up living among us while their victims wait for justice. If the Government opposes the Carlile amendments, our message to war criminals will be a good deal less stern than Washington’s. And the people who have committed these ghastly crimes will continue to haunt us. But an important part of making the world a safer place for innocent people is to make it a lot less safe for their tormentors. Our law should stop providing comfort to international criminals.