Universal Jurisdiction Revisited: An alternative to the International Criminal Court?

On July 1, the International Criminal Court (ICC) turned ten years old. This milestone prompted much analysis and some mixed reviews of the court's performance. The ICC recorded its first verdict in March 2012, but there are serious concerns about its procedure and efficiency, patchy international endorsement, and perceived bias. These challenges will be compounded by funding issues and an increased workload as the court faces an uncertain role in the legal fallout from a slew of recent internal conflicts—especially Syria. (Click here to see the Ethics & International Affairs interview with Antonio Franceschet on the ICC's ten-year anniversary).

The International Court of Justice and the UN Human Rights Commission have called for Syrian President Bashar Al-Assad to face trial at the ICC. The New York Bar Association recently wrote a letter to the UN Security Council urging it to refer Syria to the ICC: "Because Syria is not a signatory to the Rome Statute, any crimes committed by the Syrian government…threaten to go unpunished absent Security Council action."  There must be a Security Council mandate to refer a case to the ICC, as was the case with Gaddafi and Libya, but Russia and China continue to block this route.

So, the UN Commission of Inquiry on Syria is preparing for other options: It handed a confidential list of senior Syrian officials suspected of ordering crimes against humanity to the UN for possible future prosecution—whether by an international court, a Syrian court, or national bodies using universal jurisdiction.

Universal Jurisdiction

Universal jurisdiction is a doctrine under public international law in which states' national courts claim jurisdiction over crimes committed in other countries, with the rationale that some crimes, like torture and genocide, are crimes against all of humanity. Universal jurisdiction was originally used to hold pirates and slave traders accountable for crimes, but the concept extends now to human rights abuses—and the tribunals at Nuremberg extended the principle to include war crimes and crimes against humanity committed by Nazi officials.

When the ICC was established in 2002, the possibility of national courts claiming universal jurisdiction seemed a promising alternative to the court's potential weaknesses. A seminal article on the subject by Kenneth Roth, executive director of Human Rights Watch, had appeared in Foreign Affairs in 2001. It began with the line: "Behind much of the savagery of modern history lies impunity." Roth pointed to the successes of international justice, citing war crimes tribunals established in Cambodia, Sierra Leone, and the former Yugoslavia as evidence that universal jurisdiction had an important role to play in international justice. It could provide redress for victims and also act as a potential deterrent against abuse by future leaders. National courts taking on universal jurisdiction, he said, would make sure the worst offenders were punished even when there was no recourse to international tribunals.

Roth's rather optimistic article was a retort to "The Pitfalls of Universal Jurisdiction" by Henry Kissinger, which had appeared in the preceding issue of Foreign Affairs. Kissinger argued that universal jurisdiction violates the basic principles of international relations—sovereignty—and that it would create "a universal tyranny of judges" seeking politically motivated trials. His key point: State officials must retain immunity. Roth countered that Kissinger was wrong to believe that universal jurisdiction was a "new" concept as applied to heads of state and senior officials:

[T]he exercise by U.S. courts of jurisdiction over certain heinous crimes committed overseas is an accepted part of American jurisprudence, reflected in treaties on terrorism and aircraft hijacking dating from 1970. Universal jurisdiction was also the concept that allowed Israel to try Adolf Eichmann in Jerusalem in 1961.

The Pinochet Case

A case often associated with universal jurisdiction is that of former Chilean dictator Augusto Pinochet, though it was not technically an example of universal jurisdiction at all. In 1998, Pinochet was arrested in London on a Spanish warrant, requesting his extradition for the murder of Spanish citizens while in power between 1973 and 1990. He was placed under house arrest, facing 94 charges of torture in addition to the murder charges. Spain then sought extradition under EU law. (The Roth and Kissinger pieces appeared not long after this high-profile case.)

Pinochet's attorneys argued that he was entitled to immunity—as both a Chilean "life senator" (a post he created for himself) and under the State Immunity Act 1978. The UK House of Lords (now the Supreme Court) disagreed, arguing that some crimes, like torture, trumped this immunity. Margaret Thatcher called for Pinochet's release. Eventually, British home secretary Jack Straw intervened, and ruled Pinochet could return to Chile in March 2000 on health grounds—to widespread condemnation. Later, Pinochet was stripped of his immunity in Chile and died under house arrest, but he was never prosecuted.

Pinochet's arrest was a watershed in international law—a real attempt at holding a head of state accountable across borders. In practice these cases are challenging because, like other aspects of international criminal law, they require cross-border cooperation. In 2007, former Peruvian dictator Alberto Fujimori was extradited from Chile to Peru for human rights abuses. In December 2009, a court in London issued an arrest warrant for Israeli politician Tzipi Livni for alleged war crimes in the Gaza Strip during Operation Cast Lead (2008–2009), but revoked it because she hadn't entered Britain. Some Israeli military officials that year canceled trips to the United Kingdom for fear of arrest. The Center for Constitutional Rights, a nonprofit based in the United States, has filed a war crimes case against Donald Rumsfeld in Germany, and there are various groups campaigning to get Tony Blair, George W. Bush, and Dick Cheney indicted.

In international criminal law, it is hard not only to prove guilt, but also to find consensus on who deserves to be indicted. The Eichmann and Barbie cases, in which former Nazi party officials were arrested (in Argentina and Bolivia, respectively) and extradited, laid some groundwork for the Pinochet case, but there were big differences. As Professor Richard Falk notes in his chapter "Whither Universal Jurisdiction," which appeared in the book Universal Jurisdiction edited by Stephen Macedo, there was an intense moral and political consensus about the Holocaust that did not apply to Pinochet's dictatorship, nor to any cases since.

Consensus is also lacking in Syria's case. Live footage, social media saturation, and citizen journalism mean the world has witnessed the most recent and violent chapters of dictatorship in ways that were not possible in Pinochet's Chile. But more people bearing witness to Syria's struggles has not, so far, led to more decisive action. There is still no Security Council consensus and thus no ICC case. Human rights groups, meanwhile, have been collecting evidence for a possible future trial as more details of atrocities are revealed.

Syria: What are the options?

As ICC prosecutor Luis Moreno-Ocampo has said, Assad and other Syrian officials on the UN list could only be indicted if they travel to a state that is party to the Convention against Torture. There is another way—a human rights expert told Reuters in March that:

[I]t is possible for an ICC member state to refer the Syrian case to the court, which would allow the prosecutor to look into the situation there. If the prosecutor found dual-nationality suspects with passports from ICC members, those individuals could theoretically be indicted.

Assad's wife, Asma, holds a British passport, so she could be indicted if the ICC suspected she was linked to war crimes—but this wouldn't work for Assad or anyone else unless they also held dual citizenship.

Even if the Security Council were to refer the case to the ICC, an arrest warrant might not be the answer either. As Hilary Clinton said, Assad may fit the definition of a war criminal, but "such a step often makes it difficult for a leader to step down." If an individual can be prosecuted under international criminal law, they will of course seek to avoid it—and there is a big chance that if Assad ever steps down, immunity is likely to be the only bargaining chip the international community has. Justice often takes a backseat to stability.

In Chile, Hugo Gutierrez, the prosecuting attorney for Pinochet's role in the Caravan of Death case (in which a special army carried out at least 75 killings) noted that prosecuting Pinochet had become subordinate to the country's political concerns: "Our country has the degree of justice that the political transition permits us to have," he wrote. The Truth and Reconciliation Commission in South Africa gave apartheid leaders amnesty in exchange for information. South African judge Richard Goldstone, who was instrumental in dismantling apartheid from within and later became UN Chief Prosecutor for the tribunals in Rwanda and the former Yugoslavia, wrote that international justice is often "a political compromise more than a moral imperative."

Getting Assad to give up his power is not perfect justice, but it might be the only justice available.

[PHOTO CREDIT: Munira Mohammed (CC).]

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Tags: justice, law, reconciliation, rights, truth, war

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