Part I: Universal jurisdiction in international lawinternational law
V. Bases of criminal jurisdiction
2. The active nationality principle and international crimes The principle of active nationality is laid down in the Convention against
Torture. Its Article 5(1)(b) states that “Each State Party shall take such measures as may be necessary to establish its jurisdiction over the offences referred to in article 4 in the following cases: (a) When the alleged offender is a national of that State.” The Genocide Convention does not expressly provide for active and passive nationality jurisdiction (Article VI a contrario). However, at the time of the drafting of the Genocide Convention, this issue was raised by some states.192 The Committee finally adopted an explanatory text inserted into the report, stating that: “The first part of article VI contemplates the obligation of the State on whose territory acts of genocide have been committed. Thus, in particular, it does not affect the right of any State to bring to trial before its own tribunals any of its nationals for acts committed outside the State”.193 However, the legal validity of this statement is questionable.194 It can be understood as the interpretation by a majority of states of Article VI; this interpretation cannot however be binding on states whose delegations opposed it.
In any case, it is today generally agreed that even though Article VI of the Genocide Convention only obliges the territorial State to prosecute and punish
190 See for instance Art. 5(1)(b) International Convention against the taking of hostages.
191 Pocar and Maystre, supra note 178, at 252. On dual criminality and the legality principe, see infra N 571 ff.
192 See for instance the statement of the Swedish delegation: “Since article VI did not require countries to extradite their nationals, the provisions of article VI, under which the accused were to be tried by a competent tribunal of the State in the territory of which the act was committed, constituted no guarantee that the crime would be punished in every case.” (UNSixth Committee, Summary Records of Meetings, 21 September-10 December 1948, at 397). An amendment to Article VI was submitted by India, according to which nothing in the article should affect the right of states to bring to trial before its own tribunals any of its nationals for acts committed outside the State (Report of the Sixth Committee, UN Document A/760 & Corr 2, at 500).
193 Ibid.(emphasis added).
194 N. Robinson, The Genocide Convention: A Commentary (New York: Institute of Jewish Affairs, 1960),
§ 84.
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persons who committed genocide, it does not prevent other states from exercising their competence based on other jurisdictional bases, namely the active nationality principle.195 The Geneva Conventions provide for an obligation of each State to “bring persons, regardless of their nationality, before its own courts”, without especially mentioning the active nationality principle, or any other principle for that matter. The active personality principle is also provided for in a number of treaties against terrorism.196 Some provide an obligation for states to establish jurisdiction over offences committed by their nationals,197 while others simply allow for the exercise of this jurisdictional basis. 198
Generally, civil law countries tend to apply this principle more than common law countries.199 Common law jurisdictions do however provide for this active nationality jurisdiction over international crimes.200 This principle was applied as early as 1902 by the US Court Martial against American servicemen who had fought in the Philippines.201 There were also the famous
“Leipzig Trials” against Germans in 1921-1922 and the trials before the US Court Martial for crimes committed in Vietnam.202
The problems with the active nationality principle are similar to those exposed earlier regarding the territorial principle. When an international crime is committed by a state or military official, the national state is usually reluctant
195 See V. Thalmann, ‘National Criminal Jurisdiction over Genocide’, in P. Gaeta (ed.), The UN Genocide Convention: A Commentary (Oxford: OUP, 2009) 231-258, at 241.
196 See Art. 6(1)(c) International Convention for the Suppression of Terrorist Bombings of 25 November 1997; Art. 7(1)(c) International Convention for the Suppression of the Financing of Terrorism of 9 December 1999; Art. 9(1)(c) International Convention for the Suppression of Acts of Nuclear Terrorism.
197 See for instance Art. 3(1)(b) Convention on the Prevention and Punishment of Crimes Against Internationally Protected Persons; Art. 5(1)(b) International Convention Against the Taking of Hostages; Art. 7(1)(c) International Convention for the Suppression of the Financing of Terrorism of 9 December 1999, which states that “1. Each State Party shall take such measures as may be necessary to establish its jurisdiction over the offences set forth in article 2 when: […] (c) The offence is committed by a national of that State”; Art. 6(1)(c) of the 1988 Rome Convention for the Suppression of Unlawful Acts Against the Safety of Maritime Navigation.
198 See for instance Art. 4(b) of the 1963 Convention on Offences and Certain Other Acts Committed on Board Aircraft.
199 See Akande, ‘Active Personality Principle’, in Cassese (ed.), The Oxford Companion to International Criminal Justice (2009), at 228-229.
200 See for instance Section 51(2)(b) of the UK International Criminal Code Act.
201 G. Mettraux, ‘US Courts-Martial and the Armed Conflict in the Philippines (1899-1902): Their Contribution to National Law on War’, 1(1) Journal of International Justice (2003) 135-150.
202 See A. Cassese, International Criminal Law (2nd edition, Oxford: Oxford University Press, 2008), at 337, n. 3.
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to prosecute. As it has been put by one commentator, “offending state leaders cannot be expected to punish themselves”.203 The result, again, might be that the offender may enjoy immunity or be covered by an amnesty law.
Jurisdiction based upon the nationality of the victim (passive nationality or passive personality principle) is also relied upon by states, although it is more controversial than the territorial or active national principles. Put simply, with this principle, states can exercise jurisdiction over crimes committed abroad against their nationals. The rationale behind this principle is (i) the need to protect nationals abroad; and (ii) a mistrust in the exercise of jurisdiction by the territorial state.204 As with the active nationality principle, states generally require “double incrimination”, i.e. that the offence is punishable both in the territorial state and in the victim’s state who wishes to exercise jurisdiction.
The passive nationality principle is somewhat controversial under international law and some English-speaking states have even claimed that it is in fact contrary to international law.205 Some argue that this principle creates legal uncertainty, because people are not necessarily aware of the victim’s nationality206 and are exposed to the application of laws without being able to determine which laws apply to their conduct.207 In our view, this objection is somewhat difficult to sustain in the case of core international crimes because one can hardly argue that the law does not prohibit such serious violations of human rights; moreover, the double incrimination requirement addresses this concern. However, this principle may raise issues with respect to the principle of foreseeability of penalties.
203 F. Malekian, International Criminal Law: The Legal and Critical Analysis of International Crimes, vol.
I, (Uppsala: Malekian, 1991), at 301.
204 See Cassese, International Criminal Law (2008), at 337, n. 2.
205 Akehurst, ‘Jurisdiction in International Law’, 46 British Yearbook of International Law (1975), 145-257, at 163. See the critiques of Mann, ‘The Doctrine of Jurisdiction in International Law’, 111 Recueil des Cours (1964) 1-162, at 39.
206 D. Ireland-Piper, ‘Prosecutions of Extraterritorial Criminal Conduct and the Abuse of Rights Doctrine’, 9(4) Utrecht Law Review (2013) 68-89.
207 See Akande, ‘Passive Personality Principle’, in Cassese (ed.), The Oxford Companion to International Criminal Justice(2009), at 451. Pocar and Maystre, ‘The Principle of Complementarity: A Means Towards a More Pragmatic Enforcement of the Goal Pursued by Universal Jurisdiction’, in M. Bergsmo (ed.), Complementarity and the Exercise of Universal Jurisdiction for Core International Crimes (Oslo:
Torkel Opsahl Academic EPublisher, 2010) 247-303, at 258.
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It is also argued that this basis of jurisdiction is not suitable for certain crimes like crimes against humanity or torture. With regard to crimes against humanity, Cassese argues:
[b]y definition, these are crimes that injure humanity […] regardless of the nationality of the victim. As a consequence, their prosecution should not be based on the national link between the victim and the prosecuting state. This is indeed a narrow and nationalistic standard for bringing alleged criminals to justice, based on the interest of a state to prosecute those who have allegedly attacked one of its nationals. The prosecution of those crimes should instead reflect a universal concern for punishment; it should consequently be better based on such legal grounds as territoriality, universality or active personality. It follows that, as far as such crimes as those against humanity, torture and genocide are concerned, the passive nationality principle should only be relied upon as a fallback, whenever no other state (neither the territorial state, nor the state of which the alleged criminal is a national, or other states acting upon the universality principle) is willing or able to administer international criminal justice.208
The same can be said for the crime of genocide. Conversely, this ground of jurisdiction may be more appropriate for crimes like terrorism, where the victims are often selected based on their nationality and where the state of nationality has a particularly strong interest in preventing such crimes.209
The principle is neither provided for in the Genocide Convention, nor in the Geneva Conventions (at least not expressly). It is laid down in the Convention Against Torture at its article 5(1)(c). However, unlike for other jurisdictional bases, the Convention specifies that the state party can exercise this passive personality jurisdiction “if that state considers it appropriate”. The Convention thus merely allows states to exercise passive personality jurisdiction over torture, but does not oblige them to do so.210 A number of other conventions “allow”
states to exercise jurisdiction on the basis of this principle. This is, for instance, the case with the 1963 Convention on Offences and Certain Other Acts Committed on Board Aircraft,211 the International Convention Against the
208 Cassese, International Criminal Law (2008), at 337-338, note 3.
209 Akande, supra note 207, at 452.
210 See the differences between the provisions allowing states to exercise jurisdiction and those imposing the exercise of jurisdiction in Gaeta, ‘Les règles internationales sur les critères de compétence des juges internationaux’, in Cassese and Delmas-Marty (eds), Crimes internationaux et juridictions internationales (Paris: Presses Universitaires de France, 2002) 191- 213, at 197 ff.
211 See Art. 4(B) of the 1963 Convention on Offences and Certain Other Acts Committed on Board Aircraft.
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Taking of Hostages,212 the 1999 International Convention for the Suppression of the Financing of Terrorism,213 the International Convention for the Suppression of Terrorist Bombings,214 the Convention on the Safety of United Nations and Associated Personnel,215 and the International Convention for the Suppression of Acts of Nuclear Terrorism.216 Other conventions do not explicitly mention this principle but expressly state that the “Convention does not exclude any criminal jurisdiction exercised in accordance with national law”.217
Although this principle is established as a basis for jurisdiction in a number of domestic legislative acts,218 such as in Mexico, Brazil and Italy, some states do not provide for this form of jurisdiction or they limit it. The United States, for instance, does not recognize this principle, except in cases of terrorism.
According to the Restatement of the Law, “The principle has not been accepted for ordinary torts or crimes, but it is increasingly accepted as applied to terrorist and other organized attacks on a state’s nationals by reason of their nationality”.219
In domestic case law, the most famous example of passive personality jurisdiction over international crimes is probably the Eichmann case, where Israel sought to assert jurisdiction on behalf of the Jewish victims. The problem was that the victims were not Israeli nationals at the time Eichmann committed his crimes, seeing as the state of Israel did not exist. The Court held that because Israel was a nation of Jews, it had a nexus to the crimes committed by Eichmann.
It thus relied on an expanded notion of the passive personality principle. The court also concluded that Israel had jurisdiction on the basis of the protective principle (see below) and the universality principle.
The passive nationality principle has often been used in cases of war crimes, particularly after the cessation of hostilities by the victorious state against the former enemies.220 Courts have also relied on this principle to prosecute torture.
This was true, for instance, in the case of Alfredo Astiz, an Argentine officer who
212 According to Art. 5(1)(d) of the International Convention against the taking of hostages, “Each State Party shall take such measures as may be necessary to establish its jurisdiction over any of the offences set forth in article 1 which are committed […] with respect to a hostage who is a national of that State, if that State considers it appropriate.”
213 Art. 7(2)(a) of the International Convention for the Suppression of the Financing of Terrorism of 9 December 1999.
214 Art. 6(2)(a) of the International Convention for the Suppression of Terrorist Bombing.
215 Art. 10(2)(b) of the Convention on the Safety of United Nations and Associated Personnel.
216 Art. 9(2)(a) of the International Convention for the Suppression of Acts of Nuclear Terrorism.
217 See for instance art. 6(1)(c) of the 1988 Rome Convention for the Suppression of Unlawful Acts Against the Safety of Maritime Navigation.
218 See for instance Art. 13 of the Israeli Penal Code.
219 Restatement, para 402, Comment g., at 240.
220 Cassese et al., Cassese’s International Criminal Law, at 277.
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had tortured two French nuns in Argentina and was convicted in absentia in France and sentenced to life imprisonment.221 Other cases have been brought before Italian courts for crimes committed against Italians in Argentina.222
The protective principle allows for the extraterritorial exercise of jurisdiction where the offence in question is directed at the security or essential national interests of the state. This principle is well established in the Western world.223 When state interests, namely national security and state property, are attacked outside of its territory, it is considered that the interests of the state have been harmed and that it has the jurisdiction to prosecute the authors of the offence.
Given that the content of the notion of “national interests” is not entirely clear and that it is therefore up to each state to determine what its relevant interests are,224 the principle is open to abuse.225 In practice, these interests are generally related to offences against national security, peace, national emblems, attacks on the constitutional order, treason, espionage and offences against national defence.226 The jurisprudence of the US courts has also considered “national interests” under the protective principle as including acts which do not necessarily have an actual effect within the US territory.227
The protective principle is neither provided for in the Genocide Convention, nor in the Geneva Conventions. It is rather generally provided for in relation to terrorist offences, including in the 1963 Convention on Offences and Certain Other Acts Committed on Board Aircraft,228 the 1998 International
221 Cour d’Assises de Paris, In Re Alfredo Astiz, Judgment No. 1893/89, 16 March 1990.
222 See Rome Court of Assizes (Corte di assise), Suàrez Masòn and others, 6 December 2000; see Lutz and Sikkink, ‘The Justice Cascade: The Evolution and Impact of Foreign Human Rights Trials in Latin America’, 2 (1) Chicago Journal of International Law (2001), at 21, 23.
223 Hallevy, A Modern Treatise on the Principle of Legality in Criminal Law, at 121.
224 Ibid., at 121.
225 Ireland-Piper, ‘Prosecutions of Extraterritorial Criminal Conduct and the Abuse of Rights Doctrine’, 9(4) Utrecht Law Review (2013) 68-89, at 77.
226 See for instance Art. 4(1) and 265 to 278 of the Swiss Penal Code and Art. 113-10 of the French Criminal Code. Relevant offences might also include the forging of coins, banknotes or official state papers.
227 Bantekas and Nash, International Criminal Law (3rd ed., Routledge: New York, 2007), at 84 and the references.
228 Art. 4(C) of the 1963 Convention on Offences and Certain Other Acts Committed on Board Aircraft stipulates that “A Contracting State which is not the State of registration may not interfere with an aircraft in flight in order to exercise its criminal jurisdiction over an offence committed on board except in the following cases: […] (c) the offence is against the security of such State.”
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Convention for the Suppression of Terrorist Bombings229 and the 2000 International Convention for the Suppression of Financing of Terrorism.230 It is noteworthy that these treaties merely allow states to exercise jurisdiction based on the protective principle.
In the Eichmann case, Israel also asserted its jurisdiction on the basis of the protective principle. According to the Court: “the extermination of European Jewry which was carried out with intent to annihilate the Jewish people was directed not only against those Jews who were exterminated, but against the entire Jewish People [...] This crime very deeply concerns the vital interests of the State of Israel, and pursuant to the “protective principle”, this State has the right to punish the criminals.”231 Critics of this judgment alleged that the protective principle is designed to protect an existing state and could not apply as the state of Israel did not exist at the time of the commission of the crimes.
This principle will be examined under Chapter 2.
Finally, some scholars also distinguish another jurisdictional basis: the representation principle (compétence de représentation or competence déléguée;
stellvertretende Strafrechtspflege) also known as the principle of vicarious administration of justice.232 Under this principle, the custodial state – the state on whose territory the offender is found – prosecutes an offence on behalf of
229 Art. 6(2) states that “A State Party may also establish its jurisdiction over any such offence when: […]
b) The offence is committed against a State or government facility of that State abroad, including an embassy or other diplomatic or consular premises of that State; or […] d) The offence is committed in an attempt to compel that State to do or abstain from doing any act.”
230 Art. 7(2) states that “A State Party may also establish its jurisdiction over any such offence when: […]
(b) The offence was directed towards or resulted in the carrying out of an offence referred to in article 2, paragraph 1, subparagraph (a) or (b), against a State or government facility of that State abroad, including diplomatic or consular premises of that State; c) The offence was directed towards or resulted in an offence referred to in article 2, paragraph 1, subparagraph (a) or (b), committed in an attempt to compel that State to do or abstain from doing any act.”
231 Judgment, The Trial of Adolf Eichmann, § 35, available online at http://www.nizkor.org (last visited 1 August 2017).
232 See for instance J. Meyer, ‘The Vicarious Administration of Justice: An Overlooked Basis of Jurisdiction’, 31 Harvard International Law Journal (1990) 108-116; See also Ryngaert, Jurisdiction in International Law, at 21.
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another state, following an extradition request.233 The exercise of this jurisdiction is generally subjected to the condition that the offence is one for which extradition is permissible but that extradition is denied or otherwise impossible.234 A further distinction is made between cases where the state has requested representation (“compétence de representation”) and cases where it has not and the state’s consent is therefore implied (sometimes known as
“compétence de substitution”).235 The representation principle is not widely used; indeed, most states do not provide for this jurisdictional basis. They exercise jurisdiction only when another state makes a request and when this request is based on a treaty, providing an aut dedere aut judicare/prosequi obligation.236 This principle is mostly known in Europe. It is for instance provided for in France,237 Germany,238 Austria239 and Switzer-
233 This is the general “aut dedere aut judicare” provision. See infra Section III, C.
234 See Meyer, The Vicarious Administration of Justice: An Overlooked Basis of Jurisdiction, at 115; See also Art. 7 (1)(c) of the Swiss Penal Code.
235 See Cassani and Roth, ‘Le juge suisse au service de la communauté des peuples ? réflexions à propos des nouveaux articles 3 à 8 CP’, in Donatsch et al. (eds), Strafrecht, Strafprozessrecht und Menschenrechte : Festschrift für Stefan Trechsel zum 65. Geburtstag (Zürich : Schulthess, 2002) 449-475, at 464 ff.
236 See B. Swart, ‘La place des critères traditionnels de compétence dans la poursuite des crimes
236 See B. Swart, ‘La place des critères traditionnels de compétence dans la poursuite des crimes