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Universal Jurisdiction Fault Lines and the Immunity of State Officials: A Salutary Warning Before Perdition

Document Cited in Related
Vincent
Date01 November 2018
DOI10.3366/ajicl.2018.0248
Published date01 November 2018
Pages548-564
Author

   ‘Jurisdiction is the means of making law functional.’1

 INTRODUCTION

It is generally accepted that criminal jurisdiction is a crucial manifestation of a state's sovereignty. Nonetheless, the exercise of universal jurisdiction (UJ)2 also raises important questions about the relevance of principles such as sovereign equality of states,3 non-intrusion into domestic affairs and even the principle of separation of powers within democratic states, as rulings of domestic courts become a factor in inter-state relations. As exemplified in the jurisprudence of international courts, there is acceptance that international relations and international cooperation between states require an effective process of communication between states.4 It is also important that states are able to negotiate with each other freely and state officials charged with the conduct of such activities are able to perform their functions without harassment by other states.5 When put together, all these clearly suggest that universal criminal jurisdiction (UCJ) is where international law, international politics and other considerations may be on a collision course.

According to Franck, many states accept in theory UCJ that allows any state to prosecute certain crimes committed anywhere in the world.6 This long-held position according to Grotius allows state jurisdiction over ‘gross violations of the law of nature and of nations, done to other states and subjects.’7 However, for many years piracy was the only recognised UCJ crime, not because of its egregious turpitude but because it is committed outside the territorial jurisdiction of all states. Not surprisingly, taking advantage of UCJ has been problematic. Investigations in Belgium, largely on complaints by advocacy groups, became a sore point until Belgium was forced to repeal its UCJ statute.8 Critics charged that Belgium's courts had become the tool of political interests. The opposition was largely the fear that UCJ would lead to politicised prosecutions.9 But supporters of UCJ can rightly retort that the real politicised abuses in such cases are the crimes politicians commit under the guise of state sovereignty, which state officials have mischievously appropriated to themselves.10

It must be emphasised that ordinary criminal law is a product of continuity, while pure international criminal law (ICL) is a product of the discontinuity of upheaval and political rift.11 Unavoidably, then, the trials may become imbued with political undertones; and sometimes the requirements of politics and those of criminal justice may collide.12 For sure politics is broad, partial and forward-looking while criminal justice is supposed to be narrow and impartial.13 That is why criminal trials are backed by punishment to simply assert the realm of law against the claims of politics.14 It is only when this objective is achieved can one project a normative vision that might compete with the Westphalian orthodoxy. To achieve this, it is necessary that there is in place a global legal system affirming the ethical and political primacy of the international legal system as civitas maxima (supreme state), recognising all members of the human community as its subjects.15

Also of particular interest in the UCJ equation is the conduct of international relations. As the International Court of Justice (ICJ) rightly pointed out, there is ‘no more fundamental prerequisite for the conduct of relations between states than the inviolability of diplomatic envoys and embassies.’16 In other words, immunities are necessary for the maintenance of a system of peaceful cooperation, constructive engagement and coexistence among states.17 In a world in need of increased global cooperation, the immunity of state officials is especially important, and the need for circumspection in curtailing the scope of this immunity cannot therefore be overemphasised.

This article examines the prospect of recourse to UJ in the prosecution of state officials for international crimes at the national level.18

 UNDERSTANDING UNIVERSAL JURISDICTION

According to Morris, the monumental contribution of the Nuremberg and Tokyo Trials is the acceptance that national courts may in deserving cases exercise criminal jurisdiction over crimes against international law on the basis of universal justice (UJ).19 Understandably, this development has led to a backlash against the use of UJ and may be contributing to the growing perception of UJ as a means by some states to undermine the interest of others.20

True, the term ‘UJ’ appears to have been coined by Cowles in 1945.21 Notwithstanding the origin, the bottom line that cannot be wished away is that the term UJ more often than not is a jurisdictional basis of last resort which a number of national criminal justice systems provide for when core international crimes cannot be prosecuted on the basis of the principle of territoriality (in the state where the crimes occurred), active nationality (in the state of the alleged perpetrator) or passive nationality (in the state of the victim). In its pure form, UJ enables the prosecution of core international crimes committed in a foreign state by a foreign citizen against foreign victims, when neither has a personal link to the forum state. It is for this reason that Blakesley sees jurisdiction as the means of making law responsive. Accordingly, he explained that, regardless of the locus delicti (the scene of crime) and the nationalities of the victim and the suspect, UJ means that the national courts of a state may exercise criminal jurisdiction over crimes against international law. Scharf, Detter and Hans are also in support of the principle of universality. To them the principle recognises that certain crimes are of such an appalling and obnoxious nature that all states have a responsibility or a legitimate interest to take action.22

The concept of UJ has evolved alongside the international human rights movement as part of a growing refusal to accept impunity for authors of gross violations of human rights.23 This development deserves some mention here, since it has been the basis for the increase in cases involving African state officials, in which the question of immunity of foreign state officials has arisen.24 The principles which traditionally ascribe jurisdiction to a state are based upon an affiliation of the alleged perpetrator or the victim within the territory, the nationality or the security of the state. The principle of universality, however, provides that there are certain crimes of such a horrifying nature that they pose an affront to all states, and as such all states have an interest in bringing their perpetrators to justice.25

The phenomenon of UJ would appear to be a black sheep in the criminal jurisdiction family. For unlike other jurisdictional bases that are characterised by some sort of link between the crime and the prosecuting state, UJ is defined by the very absence of it. The rationale for this legal concept is closely intertwined with the idea that certain crimes are by their very nature so extreme and horrendous that they are perceived to be crimes against humankind. It is therefore assumed that the prosecution of these crimes is in the interest of the international community, and a state that takes such an initiative acts on behalf of humanity and not out of its own national interest. Thus UJ remains laced with the potential of becoming one of the major innovators of international criminal law, because the more effective it is, the greater states’ dependence on it.

 THE HISTORICAL BASES FOR UNIVERSAL JURISDICTION

The development of UJ legal parameters as they relate to international crimes by international and national institutions has known historical ebbs and flows. A major impetus was received after the Second World War. In the 1950 Wagener case, the Italian Supreme Military Tribunal considered the laws and customs of war and said that:

Due to their highly ethical and moral content, the laws and customs of war have a universal character, not a territorial one … The solidarity among nations, aimed at alleviating...

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