November 27, 2021

Chic Dry Cleaners

Accomplished Law Purveyors

Universal Jurisdiction Offers a Backstop to Human Rights Tribunals

11 min read

Since 2011, Syria has been ravaged by a civil war that has seen numerous atrocities committed against its civilian population, including torture and war crimes. In the face of such abuses, there have repeatedly been calls for accountability. But how can perpetrators be held accountable, and by whom? 

In criminal law, including international criminal law, the state is primarily responsible for seeking and carrying out justice. But the idea that the authoritarian regime of Bashar al-Assad would hold credible trials—especially into his regime’s own conduct—is fantastical at best. 

Another option, then, might be to seek accountability through the International Criminal Court, but Syria is not a party to the Rome Statute, the treaty that established the ICC. In order to bring a case there, the United Nations Security Council would need to make a referral—and that’s an unlikely prospect, given that Russia, which backs Assad’s government, is a permanent member with veto power. A similar challenge faces another method for dealing with mass atrocities, which is to create an ad hoc court like the international criminal tribunals set up to pursue justice for victims of the Yugoslav Wars and the genocide in Rwanda; those were established by the Security Council, and creating one for Syria would also require Russian approval.

Still, accountability is not impossible. Faced with these obstacles at the U.N. level, states and activists have turned to an oft-derided but potentially powerful concept in international law that provides another route to accountability: universal jurisdiction. 

Is pursuing justice using this concept an idealistic fantasy? Or, by reviving universal jurisdiction, are advocates forging a new path to justice?

Universal jurisdiction is a long-standing legal theory that holds that some crimes are so serious that any state may prosecute the offenders, no matter where the crimes were committed. It does not depend on territoriality or nationality as the basis for jurisdiction, because the severity of the crimes—which include war crimes, torture, crimes against humanity and genocide—warrant a shared, or universal, form of jurisdiction. All that matters, at least in theory, is that a state be aware of credible allegations of a crime and be willing to pursue justice for those harmed by it.

In Germany, following this principle, prosecutors have charged a slew of former Assad-regime officials for their roles in committing torture, and its courts have already reached verdicts in some of these cases. Eyad al-Gharib, for one, was found guilty of aiding and abetting in the torture of political prisoners while he was a secret police officer in Syria. In 2020, his was one of 25 ongoing universal jurisdiction cases against Syrian officials, according to TRIAL International.

In an international system where justice is often patchy, dependent on treaty ratifications or the political will of the Security Council, universal jurisdiction may be an important tool for accountability. Yet the concept has often been criticized as being unclear, ineffective or worse. So is pursuing justice using this concept an idealistic fantasy? Or, by reviving universal jurisdiction, are Syrian advocates forging an important, more effective, new path to justice?  

Universal Jurisdiction’s Background

Universal jurisdiction traces its roots back to the ancient world, but was refined by European legal scholars in the 16th and 17th centuries, when states began to prosecute pirates for stealing cargo or attacking other ships on the high seas, regardless of where the pirates or the ships came from or where they conducted their piracy. The motivations for these cases were, of course, very different from the human rights concerns that underpin modern universal jurisdiction cases—economic, rather than moral—but they established the idea that some crimes could be prosecuted wherever they were committed, on universal, rather than territorial or nationality-based, grounds. 

The move to apply the same principle to mass atrocities and gross human rights violations largely came much later, after World War II. The most notable case was perhaps the 1961 trial of Adolf Eichmann, one of the chief organizers of the Holocaust, during which the Israeli Supreme Court explicitly drew an analogy between piracy and human rights violations to spell out its authority to adjudicate the case. Eichmann’s trial, along with the post-WWII military tribunals, was key in establishing universal jurisdiction as a tool for accountability in human rights law.

Police stand by photos of people who disappeared during Augusto Pinochet’s regime, London, Jan. 18, 2000 (AP photo by Alastair Grant).

Another landmark case was the October 1998 arrest of former Chilean dictator Augusto Pinochet. Accused of widespread human rights abuses in Chile, Pinochet was arrested in the U.K. after a Spanish court issued a warrant for his arrest, responding to immense pressure from survivors who had been unable to find justice for their loved ones within Chile’s own legal system. After his arrest, the House of Lords was asked to settle a thorny question: Could a head of state claim immunity for violations of international criminal law? The argument made by Pinochet’s defense team was that they are usually protected from domestic prosecution for crimes carried out “in the course of their duties.” But ultimately, the House of Lords decided that the U.N. Convention Against Torture had established universal jurisdiction in the case of torture regardless of whether it was undertaken in an official capacity. Though the British government ultimately released Pinochet for medical reasons, the ruling was seen by many activists as an encouraging development—a sign that universal jurisdiction was an ascendent concept.

The Pinochet case also demonstrated how reliant universal jurisdiction is on domestic institutions, in addition to international human rights law. Domestic courts are the ones that try these cases, after all, and although universal jurisdiction does not depend on national legislation, having laws on the books is helpful. Amnesty International estimates that 163 countries allow universal jurisdiction over at least one crime under international law, although these estimates might be inflated. Deciding to take on one of these cases is often a matter of prosecutorial discretion; even if such cases are technically possible, that does not mean they are always pursued.

The Current State of Play

Today there are approximately 150 suspects under arrest or facing trial under universal jurisdiction in approximately 18 countries. This marked increase—just four years ago the number of cases was nearer to 30 in approximately a dozen countries—has been very encouraging to its proponents, but the truth is, in the grand scheme of things, universal jurisdiction cases are still uncommon and face significant hurdles.

Many of the current cases focus on the Syrian Civil War and the persecution of the Rohingya people in Myanmar. For the latter, human rights groups in Argentina have petitioned the state to seek justice for the Rohingya by opening a criminal investigation into senior Myanmar officials, including State Counsellor Aung San Suu Kyi. Their efforts could lead an Argentine court to consider Myanmar’s guilt for genocide. Such a case would be difficult to bring in the ICC because Myanmar, like Syria, is not a party to the Rome Statute and the violence that could constitute a genocide has not crossed borders. Here, universal jurisdiction is being used to complement other forms of accountability; the Argentine petition actually follows the recommendation of the U.N.’s Fact-Finding Mission on Myanmar, which encouraged states to pursue cases like this in their own legal systems.

However, the case has been slow-moving. It was initially dismissed by a lower court for violating the ICC’s principle of complementarity, which holds that the international court cannot take a case until national legal instruments are exhausted, but also that domestic courts should not pursue cases already being pursued by the ICC. The Argentine court was concerned that a domestic case on Myanmar could duplicate a pending ICC case that is considering Myanmar’s guilt involving crimes against humanity, made possible because the refugee flows caused by those crimes have crossed international borders into Bangladesh, which is a party to the ICC. A federal appellate court in Argentina has since ruled, in June 2020, that the case might be able to proceed depending on the scope of the ICC’s investigation. But the back-and-forth highlighted a significant tension that emerges when universal jurisdiction moves from theory to practice: its uneasy relationship with other systems of justice. 

Even if universal jurisdiction cases are technically possible, that does not mean they are always pursued.

Prosecutors, like those in Argentina, may be unwilling to pursue universal jurisdiction due to a lack of clarity in international law about when it can be invoked. It’s good practice, generally speaking, to minimize the risk of double jeopardy, and doing so could help the development of the ICC in the long term—but it also slows efforts to hold perpetrators accountable. Some cases could be needlessly deferred by prosecutors and courts acting with an abundance of caution, leaving advocates waiting in the sidelines for the outcome of an international trial.

Meanwhile, there have been far more investigations into crimes committed in Syria—and these are perhaps more promising. Of the roughly 25 Syrian cases underway, four have already resulted in convictions, and another three are already at the trial stage. These cases have largely been possible because of the number of Syrian refugees that fled to Europe. Cases in both Sweden and Germany have depended on evidence and testimony provided by refugees. Perpetrators—including Eyad al-Gharib—are likewise available for prosecution because they, too, have fled to Europe. Having witnesses, evidence and the alleged perpetrators close at hand provides a unique opportunity for universal jurisdiction. More often, most usable evidence is still in the state where the crimes were allegedly committed, and sometimes perpetrators even avoid traveling to states where they could be subject to prosecution, making it difficult for even highly motivated states to move ahead with their cases. 

The Outlook for Universal Jurisdiction

What, then, is the state of universal jurisdiction? Has it lived up to its promise, providing accountability where victims have run out of other options? Or is it a chimera of international justice, promising accountability but delivering something that falls far short? 

Universal jurisdiction, undoubtedly, faces steep challenges. The decision to pursue a case depends on political will, meaning prosecutors and courts must be willing to take on the challenge of pursuing justice for crimes committed far afield. And states must be willing to allow prosecutions, even though they could provoke a political backlash from the government on trial. With regard to the latter, in some cases, states have proven themselves to be hesitant to apply universal jurisdiction principles broadly, fearing that doing so many endanger their foreign policy options.

The U.S. Supreme Court, for example, has adopted an increasingly restrictive understanding of universal jurisdiction, at least in civil cases. This trend was typified by its ruling in the 2013 case Kiobel vs. Royal Dutch Petroleum, in which it dismissed charges against the latter for alleged human rights violations in Nigeria. The decision, which dramatically limited the scope of the U.S. Alien Tort Statute, which in theory allowed certain universal jurisdiction cases, made particular reference to the fact that the case could interfere with U.S. foreign policy. Similarly, the U.K. and Spain have deferred to foreign policy priorities in restricting the application of universal jurisdiction, as has Belgium, which faced considerable political pressure over its cases against former Israeli Prime Minister Ariel Sharon and former U.S. President George W. Bush.

Demonstrators outside the International Court of Justice in The Hague, Netherlands.

Demonstrators outside the International Court of Justice in The Hague, Netherlands, Dec. 10, 2019 (AP photo by Peter Dejong).

Still, politics doesn’t interfere with every universal jurisdiction case. It’s possible, after all, that a government’s political goals align with those of the prosecution. Deeper concerns about the nature of universal jurisdiction are harder to shake. Critics have cautioned that universal jurisdiction may be applied, not in the pursuit of international justice, but to serve the interests of powerful Western states. In particular, some have warned that the concept has allowed former European colonial powers to unjustly target former colonies with investigations, in a form of “selective justice.” The arrest of former Rwandan spy chief Karenzi Karake on a warrant from a Spanish court in 2015, for instance, led to condemnation from the African Union, which broadly critiqued the application of universal jurisdiction by European states to cases across Africa. Others still have said that Germany’s cases against European nationals that enlisted in the Islamic State had unjust gender dynamics, as prosecutors pursued different charges for male defendants than for female ones.

Again, some of these challenges are caused by a lack of legal clarity on universal jurisdiction’s scope and definition, which opens the way for states to politicize its use. Furthermore, while the question of whether former officials can benefit from functional immunity for the most serious international crimes has been settled as a matter of custom reflected in the Pinochet case, there remain questions about the relationship between universal jurisdiction and immunity for heads of state or diplomats. Domestic law on the matter differs between states, adding to the confusion. 

While universal jurisdiction undoubtedly has its challenges—unclear definitions, limited application and the risk of polarization among them—it is important to keep an eye on its positives. The number of cases remains quite low, but there has been a notable increase in recent years, including many of outside the Global North, in Argentina as well as South Africa, challenging the view that universal jurisdiction is a tool employed by the North against the South.

Work has to be done, particularly through the U.N., to clarify the definition of universal jurisdiction so that prosecutors and courts can pursue these cases with greater confidence.

Work has to be done, though, particularly through the U.N., to clarify the definition of universal jurisdiction so that prosecutors and courts can pursue these highly meaningful cases with greater confidence. The European Parliament, along with groups like Amnesty International, have pointed out that a strong universal jurisdiction regime would also require strengthening anti-impunity norms, an effort that would itself require political will. In the absence of more clarity, states should continue to support international justice mechanisms broadly, and explicitly connect their support to the broader questions of international justice. 

Domestically, states can increase their support for universal jurisdiction investigations by establishing dedicated war-crimes units and by sharing best practices, as well as evidence, with other states pursuing similar cases. Similarly, while Security Council politics often limits advocates’ options, states can push other U.N. bodies, like the Human Rights Council, to establish information-gathering mechanisms that can provide evidence for universal jurisdiction cases, as it did for Myanmar and Syria. Missions like these often rely on cooperation with NGOs that do their own information gathering—and these cooperative processes linking states, NGOs and international institutions may well be the future of universal jurisdiction.

Ultimately, international justice is imperfect. Issues involving political will, institutional limits and the sheer scope of atrocities often mean that important and well-meaning institutions struggle to offer justice in all but a small number of cases. Universal jurisdiction helps address these shortcomings, providing an important way for domestic systems to reinforce international ones. Although far from a perfect mechanism, and one that has been buffeted by political pressure and steep practical challenges alike, it is an important one that the international community should continue to promote, through careful and deliberate engagement, in the years ahead.

Kyle Rapp is a Ph.D. candidate in political science and international relations at the University of Southern California. He also holds a master of science in human rights from University College Dublin. In Fall 2021, he will be a visiting research fellow at the Amsterdam Center for International Law. His research focuses on the strategic use of international law in international relations and has previously been published or is forthcoming in the Review of International Studies and the Journal of Human Rights.

Copyright © All rights reserved. | Newsphere by AF themes.