When is it okay to Apply Universal Jurisdiction under International Law?

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INTRODUCTION

Jurisdiction refers to the power of a state under international law to regulate or influence people, property, circumstances. Jurisdiction reflects the sovereignty, equality, and non-intervention principle of a country. It is an established rule in international law that a State has jurisdiction over its territory. Although it refers to State’s power to exercise its jurisdiction, there are some situations that call for universal jurisdiction. The use of universal jurisdiction will be elaborated in cases below.

1. Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v. Belgium)

On 11 April 2000, Belgium issued an international arrest warrant against Mr. Yerodia. At that time, Yerodia was the Congolese Foreign Minister. Belgium issued a warrant based on universal jurisdiction. In the arrest warrant, Belgium accused Jerodia of inciting racial hatred through his speeches. These speeches, allegedly, incited the population to attack Tutsis in Rwanda, which resulted in many deaths.

This warrant suspects that Yerodia committed grave breaches of the 1949 Geneva Conventions and Additional Protocols and crimes against humanity. Belgium sent arrest warrants to Interpol and circulated to all countries, including to Congo. The warrant called on all countries to arrest, detain, and extradite Yerodia to Belgium. After Belgium issued a warrant, in November 2000, Yerodia became Minister of Education. By the time the verdict was issued, he did not hold the post of Minister in the Congo.

Belgium states that crimes against humanity apply to everyone regardless of immunity. Belgium also brought several cases to support this argument, such as Pinochet case and Qaddafi case.

The circulation of arrest warrants violates Belgian international obligations to Congo. Belgium failed to respect, and violated, the inviolable immunity of Yerodia that was enjoyed by Yerodia under international law. In its decision, ICJ also sees that immunity is regulated in customary international law. In addition, the Court also sees that this immunity is enjoyed by the Minister of Foreign Affairs in order to perform its duties effectively. Although hate speech is strictly prohibited in international law, ICJ then rejects the argument by stating the following.

“It (the Court) has been unable to deduce from this practice that there exists under customary international law any form of exception to the rule according immunity from criminal jurisdiction and inviolability to incumbent Ministers of Foreign Affairs, when they are suspected of having committed war crimes or crimes against humanity…The Court has also examined the rules concerning the immunity or criminal responsibility of persons having an official capacity contained in the legal instruments creating international criminal tribunals, and which are specifically applicable … It finds that these rules likewise do not enable it to conclude that any such an exception exists in customary international law in regard to national courts.”

2. Eichmann case (Israel and Argentina, 1960)

Other case that might be considered in this case is Eichmann case. On May 23, 1960, Israeli Prime Minister David Ben Gurion announced that Adolf Eichmann had been found. Eichmann has used a pseudonym in Argentina and was taken to Israel without the knowledge or consent of the Government of Argentina. He was arrested by the Israeli commando team at Suarez on May 11 and taken to Israel on an El Al plane. Upon arriving in Israel, Eichmann was indicted for "crimes against the Jews" and "crimes against humanity" as set out in the Nazis and Nazi Collaborators Law of August 1, 1950. This law is retroactive and extraterritorial, so it raises two important questions:

1. Would Eichmann still be tried even if he was forcibly taken to Israel?

2. Could Israel prosecute Eichmann, who wass not an Israeli citizen, for crimes committed outside Israeli territory against non-Israeli citizens at the time of the crime?

First, the territorial integrity of a sovereign state should not be violated. If Eichmann was forcibly taken by the agents of the Government of Israel, then it is a violation of international obligations. Under customary international law, Israel should make reparations in the form of Eichmann's return to Argentina. However, Israel actually has the right to prosecute Eichmann in this case based on the following reasons.

Since the end of World War II, Argentina announced his willingness to surrender for trial each axis or fascist war criminals who sought refuge in the territory. In exchange for this willingness, Argentina is granted UN membership. Explicitly, Argentina agrees that war criminals should be prosecuted, so that when Argentina takes the case before the Security Council, the Security Council sees that Israel is doing according to Argentina's international obligations. The Security Council then gave a solution that Israel should publicly apologize for its actions to Argentina. Argentina's acceptance of this solution then means that Argentina has legitimately abandoned its right to Eichmann's return.

Secondly, Israel has the right to prosecute Eichmann for crimes committed outside Israeli territory against non-Israeli citizens at the time of the crime even though he is not an Israeli citizen. Although the acts committed by Eichmann constitute a crime laid down in the Genocide Convention, the Convention clearly explains that such action shall be tried in a court of law in which the crime is committed or tried by an international tribunal having jurisdiction over it. It can be seen from here that the Genocide Convention underwent jurisdictional limitation.

Israeli national law also regulates the crime of Genocide in the Crime of Genocide Act adopted in 1950. The law states that a person committing crimes set forth in this Act outside of Israel may be tried and punished in Israel as if he did so in the territory of Israel. However, this Act is only "prospective in operation" and does not reach up to the actions taken before it takes effect. Therefore, the Genocide Convention cannot be enforced because the limitation of jurisdiction and Israeli law cannot be applied because of prospective in operation.

Then, how could Israel have the right to prosecute Eichmann? As previously described, Argentina has abandoned its claim to Eichmann. Here, Israel has universal jurisdiction to prosecute Eichmann. When viewed from the perspective of where the crime happened, then Germany should have jurisdiction. However, the approval of Germany and the Soviet Union over the trial of Eichmann in Israel is considered to have abandoned his right to try Eichmann. Therefore, Israel has universal jurisdiction to try Eichmann.

3. Questions relating to the Obligation to Prosecute or Extradite (Belgium v. Senegal, ICJ, 2009)

After the end of the World War, maxim aut dedere aut judicare emerged, which means that the State must try or extradite the person who violates the jus cogens in its territory. After the election of Hissène Habré as President of Chad, he committed many human rights violations listed in the Convention Against Torture (UNCAT), and customary international law. On September 19, 2005, Belgium finally issued a warrant in absentia to capture Habré. Later Senegal also filed the case before the African Union where the African Union declared that Senegal should prosecute and ensure that Habré was tried.

The problem then arose between Belgium and Senegal because Senegal did not prosecute Habré. Senegal assumed that by bringing the case to the African Union, it had performed the duties of aut dedere, aut judicare. Therefore, in his demands, Belgium wanted the Court to decide that Senegal was obliged to try Habré and if it could not do so, Belgium asked Senegal to extradite Habré. Belgium also said that Senegal violated Article 5 (2), Article 6 (2), and Article 7 (1) of UNCAT.

Article 5 (2) requires the adoption of domestic regulations to implement universal jurisdiction. Seeing that Senegal has failed to enforce the Article, ICJ then ruled that Senegal also automatically violated Articles 6 (2) and Article 7 (1). For this action, the Court stated that Senegal is obliged to make reparations.

CONCLUSION

State jurisdiction applies only territorially. However, there are circumstances in which universal jurisdiction can be undertaken, such as gross human rights violations as outlined in Questions relating to the Obligation to Extradite or Prosecute and Arrest Warrant. A state's jurisdiction to try a person can also be removed as it did in the Eichmann Trial.

REFERENCES

1. Bassiouni, M. Cherif, Edward M. Wise. 1995. Aut Dedere, Aut Judicare: The Duty To Extradite Or Prosecute In International Law. Dordrecht: Martinus-Nijhoff Publishers

2. Eric Engle, “Extradite or Prosecute? Belgium v. Senegal”, Berkeley Journal of International Law, 2011, <http://bjil.typepad.com/publicist/2011/05/extradite-or-prosecute-belgium-v-senegal.html#_edn1>

3. Hans W. Baade, “The Eichmann Trial: Some Legal Aspects”, Duke Law Review, Vol. 1961:400, 1961

4. Robinson, Nehemiah. 1960. The Genocide Convention, A Commentary. Institute of Jewish Affairs

5. Shaw, Malcolm N. 2008. International Law, 6th edition. New York: Cambridge University Press

6. Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v. Belgium), Judgment, I.C.J. Reports 2002

7. Questions relating to the Obligation to Prosecute or Extradite (Belgium v. Senegal), Judgment, I.C.J., 2012