Global Policy Forum

By Paul Chevigny

Universal jurisdiction in international criminal cases may be an idea whose time has finally come. The germ of the idea is that some crimes are so heinous that they give rise to a duty in every nation to prosecute if the opportunity arises. The very name "crimes against humanity" captures the notion of an offense to every nation, and a corresponding obligation to take action. Although the concept is old, and had been offered as one of the justifications for the Nuremberg trials of World War II war criminals from 1945 to 1949, it came to the fore after the widespread collapse of dictatorships, especially in Latin America, during the 1980s. The cry was for "an end to impunity," and the hope was that universal jurisdiction would help to bring torturers and murderers to justice. Time out of mind, deposed oppressors have sought amnesty in their own country, or have fled into asylum on neutral ground. It often seemed that the worst criminals were the most likely to escape justice.

Universal jurisdiction for international crimes, which would obligate governments to prosecute the perpetrators of crimes against humanity wherever they were found, could be used to punish mass killers who had fallen from power, and might even motivate some rulers to put a stop to massive crimes. While the government of the country where the atrocities occurred might be too weak or compromised to prosecute, some government without a history of complicity in the crimes, could reach out and punish an international criminal.

For fifteen years, nations have begun to experiment with universal jurisdiction. In 1999, Amnesty International reported some twenty-four nations that had adopted universal jurisdiction for serious international crimes such as genocide, among them Spain and Belgium, both of which were shortly to appear notably on the international stage. There have been scattered prosecutions over the years.

The high tide for universal jurisdiction ran between 1998, with the case in Britain against Chilean ex-dictator Augusto Pinochet, and 2002 when the International Criminal Court (ICC) finally garnered enough parties to begin its operations. The Court is not strictly an example of universal jurisdiction, but instead supplements it with a transnational tribunal for the worst international crimes. The claim in its statute that the Court's jurisdiction is "complementary" to that of nations emphasizes its underlying purpose to drive the nations to prosecute criminals in the places where the crimes were committed, and avoid the embarrassment of having the cases prosecuted in the Court or in a foreign jurisdiction.

At this point , we have experimented enough with universal jurisdiction to step back and think about how useful it is and may be, whether it promises some real measure of justice, or whether it is an elaborate dream of the human rights lawyers. Indeed, many reservations have been registered, but the benefits of universal jurisdiction clearly outweigh the drawbacks. To be sure, it seems strange to those who have experience of ordinary domestic prosecutions to see a magistrate or prosecutor intervene in a dispute which is, at first glance, none of their business. The Pinochet case itself is a good example. If Chile, which is a democratic nation peopled by the victims of Pinochet's regime, did not want to prosecute him in 1998, why should a magistrate in Spain have interfered? And beyond that, why should Britain be constrained to honor Spain's request for extradition in such a matter? It looks like an elaborate way to revive a case that is dead in the place where it originated.

Of course the international lawyers have answers to these "naive" reactions; the fact that Chile granted amnesty as a way to break the grip of Pinochet ought not to be enough to shield him from justice for international crimes. But the naive reactions contain the seed of the most general protest against universal jurisdiction: the influence of politics. A prosecutor or investigating magistrate within a nation, even when the official has institutional independence, operates within the strictures of local law and politics. He answers to appeals courts, to other officials, and to statutory obligations. An official outside the country may indeed be disinterested concerning the affairs of the nation where the crime occurred, but that very freedom gives rise to its own problems. He may respond to pressures from international politics, from the complainants or from another source. He does not have the familiar controls of discretion; it seems possible to open the courts to a case from abroad when the same case from within would be fraught with difficulty.

To be sure, the political pressures on international prosecutions are multifarious and difficult to control. Take the case of Belgium which, until recently, had a statute providing for jurisdiction over international crimes, whether there was any connection to Belgium or not. One result was that its courts became a haven for politically radioactive claims against national leaders, claims that had no chance in the country where the events took place. Complainants sought to prosecute Ariel Sharon for abuses in Lebanon, and former president George H.W. Bush for a bombing in Baghdad during the first Gulf War. U.S. Defense Secretary Donald Rumsfeld, who does not mince words, threatened to withdraw NATO headquarters from Brussels unless the law was amended, and the result was that the Belgian parliament weakened the jurisdiction to the point where it is available only if the victim or the accused is Belgian.

In this story, politics distorted the process at every turn. No doubt politics motivated the filing of some of the charges in the first place, and may have distorted the plaintiffs' perception of the merits of the claim. But much more baldly, politics intervened to crush the cases, and to eviscerate the jurisdictional statute.

A similar, although less disastrous history has dogged the International Criminal Court. Many of the drafters, including the United States, were so afraid of opening up the Court to complaints, that its jurisdiction has been limited. Thus the Court can prosecute a case when the accused is found within the territorial jurisdiction of a party to the treaty, or the crime occurs under the jurisdiction of a party. Not satisfied with that, the United States has refused to participate in the Court, and has gone on to engineer bilateral agreements with many nations to ensure that United States nationals will not be sent to the Court in cases where they commit international crimes on foreign soil.

The two examples, in Belgium and the ICC, prompt the question whether the push to universal jurisdiction is worth the effort. It is easy to pass the question off by saying that the jurisdiction, where it is effective, is only in its infancy, and it is too early to tell where it is going. The United States, for example, may find it advisable, sometime in the not too distant future, to be more hospitable to international institutions. I agree that it is early; even the Pinochet precedent in Britain is still new and surprising. Nevertheless, the question is whether the problems that are appearing at the present time are likely to continue to weaken the usefulness of the jurisdiction.

Where the scope of a nation's version of universal jurisdiction is wide, it seems that politics often drives the filing of claims that can find no other home. This danger is small in the ICC, partly because its jurisdiction is so limited, but also because the prosecutor and the judges are chosen by the treaty parties and may be disciplined by them. The political culture of the international community controls their discretion in somewhat the same way that national political culture controls national courts and prosecutors. In a place like Belgium, however, under the statute as it was before it was amended, such controls on the filing of claims were much weaker. In one case, Belgium sought to extradite the Congolese Minister of Foreign Affairs for speeches that allegedly incited to race-hatred in the Congo. Given Belgium's dark history in the Congo, such a complaint would at least have opened the country to a charge of colonialism. In any case, the World Court avoided a possible embarrassing international incident by holding that an incumbent minister of foreign affairs was immune from the Belgian process. This was a result that itself contributed to limiting the potential effectiveness of universal jurisdiction

The principal potential problem, however, is less with the process of filing and administering complaints than it is with the process of thwarting them. Whatever the character of the cases, and whatever the character of the tribunal, whether national or international, the politics of the powerful intervenes to cut off cases, regardless of their merits, and finally to cut down the scope of the jurisdiction. The experience of Belgium, and of United States opposition to the ICC are powerful examples.

The two sets of problems are interlocking. Where jurisdiction is very wide, it will act as a magnet for complaints, regardless of their merit, leading to arguments that complaints are rooted in political vendettas. On the other hand, international power politics will tend to narrow the jurisdiction and to cut off complaints, which will lead to arguments that meritorious complaints are being stifled. In the final analysis, is the dilemma likely to make a feeble mockery of the institutions of universal jurisdiction?

Universal jurisdiction is not destined to be a mockery, for some of the same reasons that we do not think that domestic jurisdiction in criminal cases, for all its limitations, is a mockery. Domestic criminal jurisdiction, at its best, aspires to be free of politics and discrimination, but of course it is not; cases are pressed or dismissed because of bias, whether overt or unconscious. At its worst, it is a state instrument of oppression. Interest in universal jurisdiction has grown in recent years partly because of the biases in domestic jurisdiction. The limitations of international criminal jurisdiction cannot mean that it must disappear, any more than we expect domestic jurisdiction to disappear.

Recent events in the ICC provide some hope that universal jurisdiction may be applied to good effect.. Its prosecutor has begun to investigate the international crimes in Darfur, in the Sudan, an action for which even the United States has expressed approval. And the government of the Congo has turned over a warlord, Thomas Lubanga, for his alleged crimes against humanity, after the government was able to capture him. A cynical view of these cases suggests that they have gained what strength they have through politics. The international community, including the United States would love to be seen to do something about Darfur, providing it does not have to risk troops. And Lubanga is one of the losers in the conflict in the Congo; justice for him will be victors' justice. But if the tribunal is one that is fairly chosen, these are not fatal objections to the jurisdiction.

Compare the situation with domestic criminal jurisdiction. Defendants escape domestic criminal justice because of influence and wealth; others are subjected to it because of poverty. Those are fair grounds for criticism of criminal justice systems, which should strive to eliminate the disparities. But we are still relieved to see that the criminal justice system punishes some of the guilty, even if it fails to punish others. We are thankful for the cases when, for reasons that are themselves social and political, social and political forces do not impede criminal justice. A system does not lose all legitimacy because it cannot do justice in all the cases, because no system does so.

International criminal jurisdiction, for all its failings, is going to compensate for some of the weaknesses of domestic criminal jurisdiction; it is going to act in some cases where local social and political forces prevent a domestic prosecution. That will be a net gain, even if international prosecution is not possible in many cases and perhaps not even in the ones we would most like to see prosecuted.

Just because they are complementary to the domestic system, the workings of international justice can create a dialogue, however limited, that increases the possibility that justice may be done. In the Pinochet case, the British authorities finally avoided the act of extradition because of the defendant's alleged illness; but the courts recognized that the crimes were heinous enough to support extradition. That finding is one element that has driven Chile to undertake its own case against Pinochet. There universal jurisdiction has served one of its principal purposes: to make it clear to the nations that they should take responsibility for crimes on their soil.