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

by Gregory Gordon

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.

7 Responses

  1. I agree with Greg.  Although I wholeheartedly support UJ, not requiring presence — so called “absolute” UJ — leads to a grossly inefficient use of judicial resources.  Why go to the trouble of investigating and preparing a case if there is no realistic prospect of ever actually prosecuting it?  (Especially given IL’s justifiable hostility to trials in absentia.)  That problem disappears, however, if a state has the suspect in custody.

    Greg and readers might also be interested in a fascinating situation that arose in New Zealand while I was teaching there.  New Zealand’s ICC incorporation statute provides UJ for all of the major crimes.  New Zealand law permits private prosecutions for all crimes in the NZ penal code.  The net result: a private prosecution was initiated via UJ against a visiting Israeli general suspected of war crimes.  A district judge granted an arrest warrant before the Attorney General stepped in and quashed the private prosecution.  Fascinating stuff that you can read about here.

  2. So, Spaniard authorities stayed the trial of the Bush Six, New Zeeland’s Attorney General overruled the arrest warrant of this Israeli General and we are here talking about how to prosecute African war criminals while avoiding investigations against former US officials at the same time. What is going on? It would seem as if the concept of UJ was becoming evermore one-sided… that you can trial nationals of any country as long as you don’t mess with nationals of any P5 and their allies (because that is bad for politics!)… This is a problem, and one quite difficult to overcome. So my question is, is it solvable?

  3. Although I wholeheartedly support UJ, not requiring presence — so called “absolute” UJ — leads to a grossly inefficient use of judicial resources.  Why go to the trouble of investigating and preparing a case if there is no realistic prospect of ever actually prosecuting it?  (Especially given IL’s justifiable hostility to trials in absentia.)  That problem disappears, however, if a state has the suspect in custody.

    I don’t think that is right. It should equally be possible to prosecute if extradition is likely, and even more if an EAW can be used. And even when extradition is unlikely, it can still be satisfying to stop the b**rds from travelling around the world at will.

  4. I am also not sure I agree with the essence of the post, that is, making an exercise of UJ subject to a presence requirement. While it is certainly much better in the sense of ensuring accountability and  justice than the residence requirement as it is in place now in the UK and, for instance, Belgium, there are arguments that speak in favor of an exercise of UJ even though the suspect is not (yet) present on the territory of the forum state (the state exercising UJ).
    For one, an investigation can be initiated into the suspect’ s alleged international crimes, thereby securing vital evidence that might otherwise be lost and that could be important for a future prosecution. Such evidence, in particular witness and victim testimonies, is usually available even outside the territorial state, especially where massacres, wars etc caused a large number of victims and witnesses to escape the territorial state. The initial investigation therefore is not necessarily dependent on cooperation of the territorial state and taking such statements right after the crimes in question were committed, renders them more credible.

    Such evidence could then either be used for an in absentia trial (an example for in absentia trials is France, which secured two UJ convictions over the past 4 years: in the case of Mauritanian national Ely Ould Dah, convicted for torture in 2005, and Khaled Ben Said, convicted in December 2008 for torture committed in Tunisia ) or, where such trials are not permitted, for future prosecutions – in the forum or other third states or in the territorial state. The latter might well initiate prosecutions, especially after a change of government. As Martin Holterman already said, it might also help authorities to issue an international (or European) arrest warrant, thereby making it more difficult for suspects to travel. The case of Cavallo, who, I believe, was extradited from Mexico to Spain, is one example.
    Second, usually, investigations into allegations of war crimes, genocide and the like do need time, even if it is only initial investigations to issue an arrest warrant and thereby secure the arrest of the suspect upon his or her visit to the forum state.  Strict presence requirements will prevent national police/ prosecution authorities from carrying out such preliminary investigations before a suspect’s actual arrival on the territory and often, suspects will not stay long enough on the territory for such investigations to be concluded.
    Third, while a State may not be required to exercise for UJ in the absence of the suspect, international law neither prevents States from doing so. Norway, Germany, Czech Repulic (and, for the time being, Spain) are some examples where the exercise of UJ even without the suspect’s presence on those countries’ territory is possible.
    A legal threshold of likely presence or anticipated presence as a pre condition for opening an investigation, as included in the German Criminal Procedural Code, could be a way forward. German authorities are obliged to open an investigation into suspects of international crimes where they are present in Germany and where such presence can be anticipated. The prosecution authorities have a (wide) margin of discretion, where such presence can neither be established nor anticipated.  Similarly, in the UK, parties can apply to the District Judge for an arrest warrant of a suspect whose presence is anticipated. That was successfully done in the case of the Israeli General Almog, where police failed to implement the arrest warrant at Heathrow airport. Almog was tipped off and did not leave the plane, but went back to Israel.

    Another possibility could be a clear defined and transparent margin of discretion of the relevant prosecution authorities/ judges in charge of the decision whether or not to open an investigation based on UJ even in cases where the suspect is not present. 

  5. Another fascinating post from Professor Gordon.  I would just add three points.

    1.  We (at Aegis, together with friends from and Redress, Justice and Hickman & Rose) have just spent many months, tens of reports, draft bills and brieing papers, hundreds of lobby meetings, and thousands of emails trying to persuade the UK Government to a) retrospectively apply jurisdiction before 2001; b) move from a requirement that a suspect be ‘resident’ to being merely ‘present’.

    We succeeded with a) but failed with b) – though discussions are ongoing.  Objections basically centre upon the Foreign Office’s desire to avoid politically embarrassing arrests (like New Zealand, in the UK an ordinary citizen can go to a Magistrate’s court to obtain an arrest warrant without the approval of the central prosecuting authority – which would be ended by Sir Ken Macdonald’s proposal), and the Home Office’s desire to avoid the costs associated with monitoring, arresting, or prosecuting people visiting the UK rather than resident.

    Arguing that the UK should adopt pure UJ – no presence requirement – would have had us laughed out of the room.  In any countries without good UJ laws it will be a steep struggle to persuade politicians to enact laws which don’t require a presence requirement.  The Belgian, and now the Spanish, experiences were examples that, whether we like it or not, no politician would wish to follow.  I suspect that over the next decades OECD countries will gradually coalesce around politically constrained UJ laws – with most requiring presence, and many having a political safety belt to prevent the prosecution of ‘our misdemeanours’ – while allowing the pursuit of ‘their crimes’.  It might be nice if it were otherwise … but it’s unlikely.

    2.  The experience of lobbying a government on UJ laws has led me to wonder whether perhaps rather than fixating on allowing in absentia investigations / presence / residence we should focus also/instead upon the gravity of the alleged offence.  The UK Goverment’s refusal to countenance presence throws the Kabuga baby out with the American GI bathwater…

    Canada has some case selection criteria – as described by Terry Beitner – which do allow for some cases to be taken on where there is a clear public interest in pursuing one of the big fish – and a connection to Canada.  Perhaps there is scope for this approach to be extended?  Thoughts?

    3.  Progress in the enforcement of international criminal law will require progress on eroding immunities (of various kinds) for atrocity crimes; retospective application of jurisdiction (esp for Rwandan genocide suspects); setting up specialist war crimes units; introduction of new laws to cover crimes against humanity (see Durbin’s proposals for the US); understandings about witness protection; and financing of universal jurisdiction trials in less developed countries (see Habre in Senegal).  There’s a lot to do!

  6. Thanks for the feedback from everyone.  It is a tough call but, as I’ve suggested elsewhere, we can’t let the perfect be the enemy of the good.  I agree with Nick that it could be helpful to have gravity factor into the analysis.  In the end, I believe it would behoove the international community to adopt a UJ Convention and clean up some of the mess.

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