Globalising Justice: From Universal Jurisdiction to Mixed Tribunals
| Author | Chandra Lekha Sriram |
| DOI | 10.1177/016934410402200102 |
| Date | 01 March 2004 |
| Published date | 01 March 2004 |
| Subject Matter | Part A: Article |
GLOBALISING JUSTICE: FROM UNIVERSAL
JURISDICTION TO MIXED TRIBUNALS
CHANDRA LEKHA SRIRAM*
Abstract
This article examines the burgeoning phenomenon of what is called globalised or
externalised justice, wherein prosecutions for past atrocities take place far from the
original locus of the crime, through the exercise of universal jurisdiction or the work of
ad hoc tribunals. It first examines some of the pitfalls that come with the externalised
justice of universal jurisdiction. In particular, doing justice far from the locus of the
original crime may fail to serve many of the putative goals of prosecutions. It then
examines the experience of mixed tribunals, which are developed in part as a remedy to
some of the flaws of externalised justice, by holding proceedings at home, with greater
local participation. The essay examines the work of the Special Panel for Serious
Crimes in East Timor in some depth, as well as the early development of the Special
Court for Sierra Leone. It finds that many of the flaws of distant justice are not entirely
remedied by the use of mixed tribunals.
1. INTRODUCTION: DISTANT JUSTICE, AND LOCAL JUSTICE
WITH DISTANT ROOTS
This article examines the expanding phenomenon of globalised justice,
considering the possible virtues and vices of the exercise of universal
jurisdiction and mixed tribunals. It begins by examining universal jurisdic-
tion, and argues that while generally holding rights abusers and war
criminals accountable is a good thing, current approaches to externalied
justice, where prosecutions take place far from the locus of the crime, have
significant flaws. It then examines the experience of the mixed tribunal and
attendant externally-driven accountability and reconciliation mechanisms
in East Timor, asking whether mixed tribunals are promising alternatives to
distant justice, and considers what lessons might have been learned for the
nascent special court in Sierra Leone and the projected trials in Cambodia. I
argue that the flaws of distant justice practiced through the exercise of
universal jurisdiction, such as the potential failure to take account of local
needs, inconsistency in practice and perceived illegitimacy, may not be
entirely addressed through the creation of mixed tribunals.
PART A: ARTICLES
Netherlands Quarterly of Human Rights, Vol. 22/1, 7-32, 2004.
#Netherlands Institute of Human Rights (SIM), Printed in the Netherlands. 7
* Former Senior Associate, International Peace Academy, New York, USA; Lecturer, University
of St. Andrews, School of International Relations, St. Andrews, Scotland.
8
2. UNIVERSAL JURISDICTION: EXTERNALISING JUSTICE
1
‘Under the principle of universal jurisdiction a state is entitled or even
required to bring proceedings in respect of certain serious crimes,
irrespective of the location of the crime, and irrespective of the
nationality of the perpetrator or the victim.’
2
It can be exercised only in a very limited number of cases. These include war
crimes, crimes against humanity, genocide, and torture; it is sometimes said
to include slavery and for historical reasons encompasses piracy.
The cases brought against Augusto Pinochet Ugarte in Spain and the
cases filed against Israeli Prime Minister Ariel Sharon and former US
President George H.W. Bush in Belgium are only the most famous examples
of the use of universal jurisdiction to seek to obtain custody of a defendant
for crimes committed far from the nation and court seeking to try him or
her. These proceedings, as well as a few others, served to generate a great
deal of political, as well as legal, dispute, and as is well known pressure from
the US compelled Belgium to alter its legislation, and the Bush and Sharon
cases, among others, were dismissed.
3
Chandra Lekha Sriram
1
A comprehensive overview of the history, rationale, and contemporary application of
universal jurisdiction is presented in: Macedo, Stephen (ed.), Universal Jurisdiction: National
Courts and the Prosecution of Serious Crimes, University of Pennsylvania Press, Philadelphia
(forthcoming 2003). See also The Princeton Principles on Universal Jurisdiction, Princeton
University Program in Law and Public Affairs, Princeton, 2001.
2
International Law Association, Committee on International Human Rights Law and Practice,
Final Report on the Exercise of Universal Jurisdiction in Respect of Gross Human Rights Offenses
(2000), p. 2. On the infringement upon sovereignty, see Roth, Brad R., ‘Liberalism, Anti-
Sovereigntism and Excesses in the Drive Against Impunity’, Finnish Yearbook of International
Law, Vol XII (2001). See also Bartolomei, Maria Luisa, ‘Universal Jurisdiction versus National
Sovereignty – Implementing Human Rights in a Global World – Some examples from Latin
America’, paper presented at the annual conference of the Law and Society Association,
Budapest, 2001.
3
See Cherif Bassiouni, M., ‘The History of Universal Jurisdiction and Its Place in International
Law’, and Hays Butler, A., ‘The Growing Support for Universal Jurisdiction in National
Legislation’, in: Macedo (ed.), op.cit. (note 1). See also Sriram, Chandra Lekha,
‘Contemporary practice of universal jurisdiction: disjointed and disparate, yet developing’,
6International Journal of Human Rights, Fall 2002, pp. 49-76; Sriram, Chandra Lekha,
‘Universal Jurisdiction: Problems and Prospects of Externalizing Justice’, Finnish Yearbook of
International Law, Vol. XII (2001), pp. 53-77. The Belgian case against Sharon was dropped on
the grounds that a case could only be carried out against persons found on Belgian territory.
‘War Crimes Charges Against Sharon Dropped’, The New York Times, 26 June 2002, at
www.nytimes.com; ‘Belgian court ruling throws doubt on Sharon trial’, Ha’aretz, 16 April
2002, at www.haaretzdaily.com/hasen/, but more recently the prospect of the case going
forward once Sharon leaves office was revived. See Human Rights Watch, ‘Belgium: questions
and answers on the ‘‘anti-atrocity’’ law’, February 2003, at www.hrw.org, and ‘Belgian Court
Dismisses War Crimes Cases’, Reuter, 25 September 2003, at www.nytimes.com.
To continue reading
Request your trial