[Amina Adanan is a PhD candidate at the Irish Centre for Human Rights, School of Law, NUI Galway.]
In common law and civil law legal systems it is the responsibility of the public prosecutor to determine whether the prosecution of an international crime is pursued. The level of this discretionary power and the considerations to be taken into account in making the decision vary from state to state. As such, the prosecutor plays a significant role in the prosecution of international crimes under the universality principle. Notwithstanding the importance of universal jurisdiction, the regulation of the principle at a domestic level is of crucial significance because it dictates the parameters within which the jurisdiction operates in a particular state. In this context, the role of the national prosecutor in the exercise of universal jurisdiction should be examined at interstate forums and also by academics.
Universal jurisdiction (or the universality principle) grants all states the right to prosecute persons suspected of committing certain human rights abuses regardless of where the crime has occurred and notwithstanding the nationalities of the accused person(s) or victim(s). This right exists in both customary international law and in conventional international law. The list of offences to which the jurisdiction applies is: genocide, war crimes (committed in both international and non-international armed conflict), crimes against humanity, torture and international piracy. The right can be found in a range of sources. The Final Report of the Commission of Experts established pursuant to Security Council Resolution 780 (1992) expressly reaffirmed universal jurisdiction over the crime of genocide and crimes against humanity, as was declared in Attorney General of Israel v Eichmann. The right of states to exercise universal jurisdiction over war crimes committed in non-international armed conflict is recognised in rule number 157 of the International Committee of the Red Cross’ Customary International Humanitarian Law database.
Universal jurisdiction over torture is provided under Article 5(2) of the UN Convention Against Torture (UNCAT), while universality over international piracy is codified in the UN Convention on the Law of the Sea. The grave breaches regime of the Geneva Conventions and Additional Protocol I includes an obligation on the High Contracting Parties to prosecute persons, ‘regardless of their nationality’, who are accused of committing grave breaches, so long as they are present in the territory of the forum state (the prosecuting state). Universality is also inscribed in Article 16(1) of the Second Protocol to the 1954 Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict and in Articles 13(1) and 14 of the Convention on the Safety of United Nations and Associated Personnel. In addition, universal jurisdiction applies to some transnational offences such as the destruction of undersea water cables and currency counterfeiting.
Regardless of the existence of the principle in customary and conventional international law, it is up to each individual state as to whether it legislates for universal jurisdiction and under what conditions it is exercised. For example, some states such as Belgium, the Netherlands, Switzerland and others have legislated for universal jurisdiction over war crimes committed in non-international armed conflict, whereas other states, such as Ireland, have not done so. What is more, some states have gone further than the parameters of international law and legislated for universal jurisdiction over additional offences. For example Belarus and Colombia can exercise universal jurisdiction over the crime of ecocide. It should also be acknowledged that where a state has enacted universal jurisdiction over a said offence, it does not necessarily mean that the law is utilised.
One such obstacle to the initiation of an investigation or trial under universal jurisdiction is prosecutorial discretion. As Judge Daniel D. Ntanda Nsereko notes, in some countries the government may direct the prosecutor, while in other countries prosecutors may act of their own accord. In deciding if an investigation or trial is to be pursued, the prosecutor must take into account a series of considerations such as whether a prosecution is in the public interest and whether evidence can be obtained easily.
An example of the gap between universal jurisdiction in international law and its exercise on a national level can be seen in states’ regulation of access to the jurisdictional principle. In some states it is possible for an individual or a group to initiate proceedings in respect of the extraterritorial crime. In fact, some of the most prominent examples of universal jurisdiction cases commenced in this manner. However, this legal mechanism is quickly becoming a thing of the past with many states closing off this means of judicial access. In Belgium, the consent of the Federal Prosecutor is required for the initation of an investigation into international crimes under Article 16 (2) of the Law on Grave Breaches of International Humanitarian Law (August 2003). Prior to 2003 it was possible for individuals to commence such proceedings. Equally, in the United Kingdom, the consent of the Director of Public Prosecutions is required in order for an arrest warrant to be issued against persons accused of having committed grave breaches of the Geneva Conventions under Section 153 of the UK Police Reform and Social Responsibility Act 2011. Prior to the enactment of the UK legislation it was possible for a judge to issue such an arrest warrant upon receipt of a petition by an individual. These legislative changes are the result of the deterioration in international relations with states whose nationals were the subject of universal jurisdiction proceedings. In some states, such as Australia and Canada, prosecutorial discretion in respect of international crimes is not a new phenomenon.
There is little doubt that the exercise of universal jurisdiction will negatively impact the forum state’s bilateral relations with the state of nationality of the accused when the latter does not support the prosecution. This reality has been noted by some states participating in the discussion on the scope and application of the principle of universal jurisdiction taking place at the Sixth Committee of the UN General Assembly. Thus, on the one hand, it is to be expected that an official linked to the executive should decide important matters that are likely to have repercussions for the forum state’s international relations. In many states, the executive has traditionally regulated foreign policy matters. Moreover, the preservation of prosecutorial discretion may provide an incentive for states to sign up to future international treaties that contain a clause providing for the exercise of universal jurisdiction over a particular crime.
However, on the other hand, prosecutorial discretion raises a series of significant issues concerning international criminal justice. First, it begs the question as to whether the obligation to prosecute or extradite that applies to grave breaches of the Geneva Conventions and Additional Protocol I and to torture (as provided in the respective conventions) is fulfilled. The enactment and exercise of universal jurisdiction over these offences is a fundamental element of the obligation to prosecute in both the Geneva Conventions and Additional Protocol I and in UNCAT. Second, concerns arise in respect of the right of victims of serious violations of international law to have access to justice as guaranteed by the Updated Set of Principles for the Protection and Promotion of Human Rights Through Action to Combat Impunity.
Third, the reality is that political considerations are a factor in the decision making process of a national prosecutor and this consideration will result in the exercise of universal jurisdiction being biased in support of the interest of powerful and influential states. In practical terms, relations with powerful trading allies are likely to be taken into consideration in determining whether or not a case should proceed. In 2014, pressure placed on the Spanish Government by the Chinese authorities, after an arrest warrant was issued by a Spanish judge for alleged international crimes committed in Tibet, resulted in significant restrictions to the Spanish law on universality. An exception to this proposition is the ‘US torture case’ in Germany. Here, the German Federal Prosecutor initiated a ‘monitoring procedure’ into alleged torture committed by US officials against persons while in CIA detention and overseas facilities, following the publication of the US Senate Select Committee on Intelligence Report on CIA Detention. (The monitoring procedure is still pending). Indeed, it is often said that universal jurisdiction operates in favour of the interests of influential states, predominantly from the Global North. The recent prosecution of Hissène Habré by Senegal and the ‘Zimbabwe Torture Docket’ case in South Africa may be cited against this contention. However, the reality of realpolitik is that the nationals of certain states will not be tried under the universality principle.
Universal jurisdiction is a rationale-based jurisdiction. The rationale for the exercise of universal jurisdiction is that the offences to which the jurisdiction applies are so heinous that they impact the whole of humanity. The principle fills an important void where there is no prospect of a domestic prosecution in the territorial state or in the state of nationality of the accused (often these are the same). Nonetheless, cases where the interests of the state of nationality of the accused align with the interests of the forum state are the cases most likely to proceed. Adding foreign policy considerations into the mix eschews the original rationale for universal jurisdiction. During the discussion at the Sixth Committee, some states have called upon the creation of guidelines on the exercise of universal jurisdiction. In the event of any such guidelines being formulated, it is imperative that the role of the prosecutor be examined in the deliberations. In particular, a balance must be struck between prosecutorial discretion and the need to prevent impunity for the worst atrocities.