Universal Jurisdiction: A European Opportunity?

Alan Vincenzo Gendusa, Europe's World, June 12, 2007

International Criminal Court chief prosecutor Luis Moreno Ocampo talks to the press in Cairo, Egypt after meeting with Secretary General of the Arab League Amr Mussa at the institution's headquarters on May 27, 2007. (Photo: Cris Bouroncle / AFP-Getty Images)

The recent Iraq war has raised a number of questions among scholars of international law about the universal jurisdiction of international crimes by individuals. In recent years, many observers have focused on "if" and "how" it might be possible to judge high-placed officials of the states involved, regarding alleged war crimes and crimes against humanity.

Regrettably, many non-governmental organizations have focused on Europe's most important ally, the United States. Because of its detention policies at Guantanamo and abuses at the Abu Ghraib jail in Iraq, the Bush administration has been the subject of strong criticism. The situation was aggravated after Congress's approval of the Military Commissions Act and when in mid-November last year the Center for Constitutional Rights along with other organizations applied to Germany and requested the Federal Prosecutor there to open criminal investigations and prosecutions against a number of high United States officials.

The importance of this development, to the principle of universal jurisdiction has drawn the attention of international relations scholars. So far the debate seems mainly focused on the tools of international law during armed conflicts and much less on those concerning the legality of the use of armed force, although in theory, the latter should take priority.

There has so far been a lack of analysis of when and whether it is opportune to invoke the universal jurisdiction principle when pursuing those responsible for crimes of aggression. This might lead us to partially prevent further international crimes and give effectiveness to the judicial protection of the whole international community (and, more importantly, also of simple individuals) from the consequences stemming from the illegal use of force. The question is also whether universal jurisdiction could yet become a valid means for enhancing Europe's role in international politics.

The fight against individual international crimes began immediately after World War II with the allies' controversial Nuremberg and Tokyo tribunals. It continued with the ad hoc creation of the International Criminal Tribunals for the prosecution of crimes in former-Yugoslavia and Rwanda. But it was only with the International Criminal Court (ICC) that was set up in Rome in 1998 that the international community succeeded in establishing a definitive institutional response to war crimes and the like. Article 5 of the Rome Statute summarizes them as the crime of genocide, crimes against humanity, war crimes and the crime of aggression.

The ICC was founded, however, with a number of limitations. For instance, it cannot prosecute citizens of non-member states (the United States, China and Russia, for example) unless they have committed the crime on the territory of a member state; or unless their state voluntarily accepts the jurisdiction of the ICC; or when alleged criminals have been referred to the prosecutor by the UN Security Council acting under Chapter VII of the Charter of the United Nations. And, the ICC cannot undertake prosecution on the basis of the crime of aggression, because the member states have not yet formulated a shared definition of this crime. So although the ICC is the most appropriate forum for handling crime of this sort, it has been forced to delay implementing its functions for at least seven years in the hopes that during this period the states will have drawn up an agreement.

Defining aggression is something that clearly is subject to external conditions, notably political factors, as the crime can only be committed by the leaders of a country. A clear example is to be found in the reports of the "Special working group on the crime of aggression," whose duty it is to draft an amendment to the Statute of Rome on this matter. But a 1974 resolution of the United Nations General Assembly, (which is not legally binding) provided a bottom-line definition that was taken up by the International Court of Justice (ICJ) in its famous 1986 judgment on Nicaragua v. the United States. In Article 1 it stated: "Aggression is the use of armed force by a State against the sovereignty, territorial integrity or political independence of another State, or in any other manner inconsistent with the Charter of the United Nations, as set out in this Definition".

The substance of this seems never to have been questioned. Debate has usually concerned secondary aspects. For instance, whether or not the sending or the support of armed bands, groups or mercenaries can also be considered aggression. A particular matter for discussion has been whether these irregular forces can be attributed to a state only when it exercises a "high level of control" (as the ICJ ruling quoted here spoke of) or when the state exercised overall control of organized hierarchical groups, as the International Criminal Tribunal for former-Yugoslavia found in the Tadic case of 1999.

Article 39 of the United Nations Charter states that the Security Council shall determine when an act of aggression has occurred. But it must also go without saying that no political body could be willing or capable of addressing all such issues correctly, and that is why the role of judges becomes so crucial. And that is particularly because it is usually from a state-determined act of aggression that so much international crime stems, along with all the subsequent questions surrounding the responsibility of individuals.

According to general international law, individual international crimes therefore constitute grave violations of peremptory norms, and do damage to the international community as a whole. Their seriousness makes it possible to attribute a number of extraordinary characteristics that also involve the responsibility of the individual, as opposed to that of the state. Prosecution has not to be initiated within a maximum period of time after the events of the crime (no period of prescription) and, more importantly, can be pursued through universal jurisdiction. The latter is the possibility for every national jurisdiction to prosecute an individual, of whatever nationality, without any connection between the elements of the crime (such as the authors, victims or place of the crime) and the territory of judging state.

It is thanks to the principle of universal jurisdiction that an individual can be prosecuted for an international crime by any foreign national jurisdiction. And in the case of these sorts of crimes, all the immunities normally employed by sovereign state bodies are void. Except the immunity ratione personae (the personal immunity that impedes foreign prosecution for some particular persons during their time in office), which falls only regarding an international criminal court. It follows that an individual or a state body can be put on trial by a foreign jurisdiction only when his or her mandate has come to an end, and of course when he or she is physically present on the territory of the judging state.

Whatever the crime in question, universal jurisdiction bridges all the judicial gaps left by the International Criminal Court. The effective application of universal jurisdiction by any single state therefore becomes a very important tool, especially if also applied against a crime of aggression as it becomes a further deterrent against the illegal use of force. In short, it acts as a brake on the political freedom of action that humankind's anarchic international system inevitably allows.

The application of universal jurisdiction by a country's judiciary may however require it to also adopt other internal norms, even when its national law has been adopted to conform with general international law. Italy, for example, does so through article 10 of its Constitution. Belgium, Spain and Germany have already taken care of this, but although establishing such norms complies with an unquestionable moral duty, it may at the same time impose limitations on a country's political freedom of action.

It is in this perspective that the European Union's actions are decisive because a supranational entity is capable of harmonizing the internal laws of its member states and then of overcoming the political discretion they might have had.

The EU's Council of Ministers adopted a common position on the International Criminal Court in 2003 and in the following year it went on to approve an action plan. The result was much greater coordination between member states, notably through an increase in information exchanges. In April of last year a cooperation agreement was signed between the EU and the ICC, but although the EU has clearly shown its strong support for both the principles and activities of the new court it nevertheless seems to lack the decisiveness that would facilitate the use of universal jurisdiction as a complementary tool to the ICC.

The question now is to what extent universal jurisdiction against all individual international crimes, including that of aggression, offers the EU a very real opportunity to make a mark on international politics. By behaving more concretely on this issue Europe could do much to deepen the political cohesion that is still lacking among many of its 27 members, and at the same time could send the international community as a whole a powerful message, about the need to enhance perceptions of civilian power. The creation of a European judicial system that is based on the effective use of universal jurisdiction, together with the authority of the Rome Statute, could exert a real deterrent impact in international relations. If it did so it would arguably be more politically efficient than any of the CFSP's other attempt at external projection.

In his article The European road to security, Matthew Evangelista explained how in the 1980s the European approach to security contributed significantly to the end of the Cold War. This approach is not over and has always been centered on the rule of law, yet as Human Rights Watch's latest World Report points out, Europe is nowadays punching well below its weight. According to that NGO's analysis, recent developments in international politics have actually led to a lack of leadership in the defense and promotion of international law, and in particular of human rights. No single country can exercise this role better than Europe, says Human Rights Watch. But adds that whenever the EU should be moving as a single entity, "its effort to achieve consensus among members has become so laborious that it yields a faint shadow of its potential".

To fight international criminals more effectively, it would be enough to allow European judges to operate independently from the political powers. It is the European judicial system that therefore needs reform. If we Europeans can achieve that, we will see positive external results all over the world. Universal jurisdiction could well offer Europe the opportunity it needs to strengthen its "soft power" role, while at the same time achieving a welcome harmonization of the foreign policies of the EU's member states.

Alan Vincenzo Gendusa is a scholar in International Relations at the University of Bologna. This article was originally published in Europe's World.

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