Legal impediments to the exercise of criminal jurisdiction in the context of universal jurisdiction jurisdiction in the context of universal jurisdiction

cases

As mentioned above, many legal impediments to the exercise of jurisdiction exist. The four following impediments have been subject to much debate in relation to universal jurisdiction: a) amnesties, b) statute of limitations, c) immunities and d) the principle of ne bis in idem. This section will briefly present three of these impediments due to their particular relevance in the context of universal jurisdiction cases: amnesties, immunities and ne bis in idem.

National laws that grant amnesties following situations of conflict or war are numerous.²⁶ Since there is no generally-accepted rule preventing states in which international crimes have been committed from adopting amnesty laws,²⁷

24 In the USA, the right to a remedy for international crimes is enforced through the ATS.

25 See Art. 7.2 of the Torture Convention and Art. 7 of the 1970 Hague Convention.

26 See Ferdinandusse, Direct Application of International Criminal Law in National Courts (2006), at 200.

27 On this issue, see the interesting discussion in the recent judgement of the ECtHR, Marguš v. Croatia case (Application no. 4455/10), 27 May 2014. With regard to torture, the United Nations Human Rights Committee noted in 1994 in its General Comment No. 20 on Article 7 of the International Covenant that some states had granted amnesty in respect of acts of torture; See also United Nations Human Rights Committee, Concluding observations, Lebanon, 1 April 1997, § 12 and United Nations Human Rights Committee, Concluding observations, Croatia, 30 April 2001, § 11. See also Inter-American Court of Human Rights, Barrios Altos, judgment of 14 March 2001, Merits, involving the question of the legality of Peruvian amnesty law;Inter-American Court of Human Rights, Anzualdo Castro v. Peru, Judgment of 22 September 2009, Preliminary Objection, Merits, Reparations and Costs; Inter-American Court of Human Rights, Gomes Lund et al (“Guerrilha do Araguaia”) v. Brazil, judgment of 24 November 2010, Preliminary Objections, Merits, Reparations and Costs. In the Gelman v. Uruguay case, judgment of 24 February 2011, Merits and Reparations, the Inter-American Court

amnesties often preclude the prosecution of international crimes, at least by the territorial state. Several international and regional courts have adopted the view that amnesties granted for international crimes are prohibited by international law.²⁸ The Rome Statute is very clear on the issue.²⁹ The question of whether domestic courts exercising extraterritorial jurisdiction, including universal jurisdiction, have to recognize such amnesties or pardons is however subject to debate. Domestic legislation is generally silent on this question.³⁰ In our view,

analysed at length the position under international law with regard to amnesties granted for grave breaches of fundamental human rights. Inter-American Court of Human Rights, The Massacres of El Mozote and Nearby Places v. El Salvador case, judgment of 25 October 2012.

28 See ICTY, Furundžija case, judgment of 10 December 1998, § 155: “The fact that torture is prohibited by a peremptory norm of international law has other effects at the inter-state and individual levels.

At the inter-state level, it serves to internationally de-legitimise any legislative, administrative or judicial act authorising torture. It would be senseless to argue, on the one hand, that on account of the jus cogens value of the prohibition against torture, treaties or customary rules providing for torture would be null and void ab initio, and then be unmindful of a State say, taking national measures authorising or condoning torture or absolving its perpetrators through an amnesty law.”; See also The Extraordinary Chambers in the Courts of Cambodia, in the Decision on Ieng Sary’s Appeal against the Closing Order (case no. 09-2007-ECCC/OCIJ (PTC75), 11 April 2011), discussing the effects of the amnesty on prosecution, § 201: “The interpretation of the Decree proposed by the Co-Lawyers for Ieng Sary, which would grant Ieng Sary an amnesty for all crimes committed during the Khmer Rouge era, including all crimes charged in the Closing Order, not only departs from the text of the Decree, read in conjunction with the 1994 Law, but is also inconsistent with the international obligations of Cambodia. Insofar as genocide, torture and grave breaches of the Geneva Conventions are concerned, the grant of an amnesty, without any prosecution and punishment, would infringe upon Cambodia’s treaty obligations to prosecute and punish the authors of such crimes, as set out in the Genocide Convention, the Convention Against Torture and the Geneva Conventions. Cambodia, which has ratified the ICCPR, also had and continues to have an obligation to ensure that victims of crimes against humanity which, by definition, cause serious violations of human rights, were and are afforded an effective remedy. This obligation would generally require the State to prosecute and punish the authors of violations. The grant of an amnesty, which implies abolition and forgetfulness of the offence for crimes against humanity, would not have conformed with Cambodia’s obligation under the ICCPR to prosecute and punish authors of serious violations of human rights or otherwise provide an effective remedy to the victims. As there is no indication that the King (and others involved) intended not to respect the international obligations of Cambodia when adopting the Decree, the interpretation of this document proposed by the Co-Lawyers is found to be without merit.”; See also Special Court for Sierra Leone, Appeals Chamber, Decision on Challenge to Jurisdiction, 13 March 2004, Cases Nos.

SCSL-2004-15-AR72(E) and SCSL-2004-16-AR72(E), § 82 and 84.

29 See Alvarez, ‘Alternatives to International Criminal Justice’, in A. Cassese (ed.), The Oxford Companion to International Criminal Justice (Oxford: Oxford University Press, 2009) 25-38, at 37.

30 Art.19(1) (c) Ethiopian Criminal Code provides expressly that extraterritorial jurisdiction can be exercised only if “the crime was not legally pardoned in the country of commission and that

with regard to universal jurisdiction, the problem of amnesties is intrinsically linked to the larger issue of whether obstacles to prosecution created by one state have any binding effect outside its own jurisdiction. If criminal courts asserting universal jurisdiction were to apply the law of the territorial state, this question could be of great relevance. However, as we will see in Part III, chapter 1, this situation does not arise because states generally apply their own criminal law.³¹ Amnesties may, however, play a role when examining the dual criminality requirement, which is a condition to the exercise of universal jurisdiction that is provided for by various pieces of national legislation.³² Furthermore, the recognition of amnesties may also be raised in relation to the ne bis in idem principle if a state asserting universal jurisdiction were to consider the fact that a person subject to a pardon or an amnesty in another state does not constitute a bar to prosecution.³³ Finally, the adoption of amnesty laws may constitute an important indication that the territorial or national state has no intention of bringing the perpetrator to justice.³⁴ This last issue will be discussed in the chapter dedicated to the subsidiarity principle (Part III, Chapter 3).

prosecution is not barred either under the law of the country where the crime was committed or under Ethiopian law”. See Part II.

31 On the issue of application of foreign criminal law, see Part I. It is noteworthy that in the UK Pinochet case, an amnesty had been granted by a military decree of 1978, which granted Pinochet unconditional and total amnesty for all crimes committed between 1973 and 1978. It is interesting to note that neither the defence, nor the Chilean government even raised the existence of the amnesty.

Moreover, the majority of the Lords did not mention it. See Dugard, ‘Dealing with Crime of a Past Regime. Is Amnesty Still an Option?’, 12 Leiden Journal of International Law (1999) 1001-1015, at 1007.

32 This is at least true if one adopts a concrete approach to dual criminality, rather than an abstract one.

Dugard, supra note 31.

33 Some states also expressly provide that amnesties and pardons block universal prosecutions. See for example Ethiopia, supra note 30.

34 See the Swiss Nezzar case. On the contrary, in the Cavallo case, a Spanish court concluded that the fact that the Argentinean Constitutional Court had ruled that the laws granting amnesty to perpetrators of grave crimes committed between 1976 and 1983 were unconstitutional, meant that Argentinean courts were therefore preferred to have jurisdiction. See Spain, Audiencia Nacional, Auto declarando la incompetencia, 20 December 2006 (in Spanish). The Spanish Supreme Court reversed this decision on 18 July 2007, stating that Spain had jurisdiction and that no principle existed according to which Argentina enjoyed priority of jurisdiction. Spain, Tribunal Supremo, Sentencia, N° 329/2007 (in Spanish). However, on 28 February 2008, with the consent of the Mexican authorities, the Spanish government authorized the extradition of Nezzar to Argentina. On 26 October 2011, he was sentenced to life imprisonment by the Argentinean courts.

On a more general note, amnesty laws, especially if they are accompanied by truth commissions,³⁵ raise the delicate issue of whether the requirement to prosecute core international crimes is absolute, namely on the basis of universal jurisdiction, or whether in some cases amnesties are admissible because they contribute to the achievement of peace and reconciliation.³⁶ The question of whether, under the subsidiarity principle, the forum state should consider the territorial state “unable to prosecute” when it does not only adopt amnesty laws but also uses alternative accountability mechanisms – such as a truth and reconciliation commission – rather than criminally prosecuting the suspect falls outside the scope of this study.

The issue of immunities from jurisdiction has been raised in many of the universal jurisdiction cases examined in this study because the claims have involved current or former heads of states, heads of governments or ministers.

Under international law, immunities include immunity from criminal jurisdiction.³⁷ With regard to core crimes and torture, it is today generally recognized that functional immunities are unavailable;³⁸ however, the debate is still ongoing.³⁹ The issue of personal immunities is more complicated, especially before domestic courts. Domestic legislation is often silent on the issue of immunities. Some states expressly provide for the non-application of their law to persons who enjoy immunity.⁴⁰ On the contrary, others have abrogated the

35 The South African Promotion of National Unity and Reconciliation Act 1995 establishes a “Truth and Reconciliation Commission” and a “Committee on Amnesty” and provides a mechanism whereby amnesty shall be granted to persons who have revealed the truth.

36 See Naqvi, Impediments to Exercising Jurisdiction over International Crimes (2009), at 132 ff. It should be noted that the question of whether amnesties even further peace and reconciliation is subject to debate.

37 See Frulli, ‘Immunities of Persons from Jurisdiction’, in A. Cassese (ed.), The Oxford Companion to International Criminal Justice (2009), at 368-369.

38 Ibid.; The most famous case is the 1999 UK decision which denied Pinochet immunity for acts of torture in the extradition proceedings.

39 See Akande and Shah, ‘Immunities of State Officials, International Crimes, and Foreign Domestic Courts’, 21(4) European Journal of International Law (2010) 815–852, at 836.

40 Such a provision is for instance included in the Criminal Code of the United Arab Emirates, which provides at its Art. 25 that “Without prejudice to the provision in the first paragraph of Article (1), this law shall not apply to persons who enjoy immunity in accordance with international conventions or international law or domestic laws, within the territory of the United Arab Emirates.” Likewise, the Netherlands International Crimes Act provides that “criminal prosecution for one of the crimes referred to in this Act is excluded with respect to: (a) foreign heads of state, heads of government and ministers of foreign affairs, as long as they are in office, and other persons in so far as their immunity 23

impact of immunities in respect to charges of genocide, crimes against humanity and war crimes.⁴¹ Generally speaking, immunities, and especially personal immunities, constitute an impediment to the exercise of national jurisdiction.⁴² Thus, with regard to universal jurisdiction, the recognition of claims of immunity by current or former officials constitutes a serious obstacle to its exercise. As Dupuy rightly points out, “even though the problem of the immunity from jurisdiction of those responsible for policy and that of universal jurisdiction are quite distinct, the widened acceptance of the latter principle will, to a great extent, reduce the field of application of the former”.⁴³ Indeed, unlike other general impediments to prosecution, immunities have often led to the dismissal of universal jurisdiction cases. Nevertheless, criminal complaints based on universal jurisdiction have been launched against persons who enjoyed such immunities. Regretfully, this situation has paradoxically

is recognised under customary international law; (b) persons who have immunity under any Convention applicable within the Kingdom of the Netherlands.”; See Section 6 of the Netherlands International Crimes Act, available online at http://iccdb.webfactional.com/documents/

implementations/pdf/Netherlands_International_Crimes_Act_2003.pdf (last visited 1 August 2017).

41 This is for instance the case of Niger, which provides at Art. 208.7 of its Penal Code that “L’immunité attachée à la qualité officielle d’une personne n’empêche pas l’application des dispositions du présent chapitre”. See Code Pénal du Niger (2003) tel qu’amendé par la loi no. 2008-18, available in French online at http://www.icrc.org/applic/ihl/ihl-nat.nsf/0/3e747f82e6028e32c1257084002f7245/$FILE /Niger%20%20Criminal%20Code%202008%20fr.pdf (last visited 1 August 2017); This is also the case of South Africa. Section 4(2) of the South African Implementation of the Rome Statute of the International Criminal Court Act 2002, available online at http://www.justice.gov.za/legislation/

acts/2002-027.pdf (last visited 1 August 2017), provides that “Despite any other law to the contrary, including customary and conventional international law, the fact that a person - (a) is or was a head of State or government, a member of a government or parliament. an elected representative or a government official; or (b) being a member of a security service or armed force, was under a legal obligation to obey a manifestly unlawful order of a government or superior, is neither- (i) a defence to a crime; nor (ii) a ground for any possible reduction of sentence once a person has been convicted of a crime”.

42 See Cassese et al., Cassese’s International Law (3rd ed., Oxford: Oxford University Press, 2013), 318 ff. and Naqvi, Impediments to Exercising Jurisdiction over International Crimes (2009), 221 ff. See for example, the decision of the Court of Cassation in a decision of 13 March 2001 in the Ghaddafi case. The case concerned Gaddafi’s alleged complicity in terrorism for the bombing of an aircraft, which caused the death of 156 passengers and 15 crew members, including French citizens. The Cour de cassation held that in absence of any contrary international provision binding the parties concerned, international customary law prohibits the prosecution of heads of state in office before the criminal courts of a foreign state.

43 Dupuy, ‘Crimes et immunités’, cited in M. Delmas-Marty Mireille, ‘The ICC and the Interaction of International and National Systems’, in Cassese et al. (eds), The Rome Statute of the ICC (Oxford:

OUP, 2002), at 1920.

contributed to the recent modifications in state legislation, which have resulted in a narrowing of the exercise of universal jurisdiction.

Indeed, the issue of immunities in universal jurisdiction cases has become the subject of much debate, particularly following Belgium’s adoption in 1999 of a law expressly stating that immunity attached to a person’s official status does not prevent prosecution;⁴⁴ this, inter alia led to the filing of complaints against Ariel Sharon, then Prime Minister of Israel, Amos Yaron, then Director General of the Israel Defence Ministry,⁴⁵ former US President George Bush and other senior American leaders, including Dick Cheney and Colin Powell, in respect to violations of the Geneva Conventions, committed during the first Gulf

44 My translation of Art. 5(3) of the Loi relative à la répression des violations graves de droit international humanitaire, 10 February 1999: “l’immunité attachée à la qualité officielle d’une personne n’empêche pas l’application de la présente loi.”; In 2003, following the filing of private complaints in Belgium against Israeli leader Ariel Sharon and others, as well as against US military and political leaders including George W. Bush, Belgium amended its laws as a result of direct political and economic pressure from the United States. With regard to immunities, Article 5(3) of the Law modifying the 16 June 1993 Act Concerning Punishment for Grave Breaches of International Humanitarian Law”

provided as follows: “International immunity attaching to the official capacity of a person does not preclude the applicability of this Act, other than within the limits established by international law”.

After passage of all these amendments, Israel sent its ambassador back to Belgium.⁴⁴ However, this new law was not enough to satisfy U.S. officials. In June 2003, they announced that American officials may stop attending NATO meetings in Belgium, “because of a law that allows ‘spurious’ suits accusing American leaders of war crimes”. More importantly, Rumsfeld said the United Stated would withhold any further funding for a new NATO headquarters in Belgium, stating that “Belgium appears not to respect the sovereignty of other countries”. Belgium modified its law again. With regard to immunities, the August 2003 Act inserted a new Art. 1bis, §2 in the Titre préliminaire du Code de procedure pénale, which states “In accordance with international law, the following persons are immune from criminal prosecution: foreign heads of state, heads of government and ministers of foreign affairs, while in office, and other persons whose immunity is recognised by international law; persons who enjoy full or partial immunity on the grounds of a treaty which is binding on Belgium”.

45 In June 2001, 23 Lebanese and Palestinian victims filed an application under the same 1993 law against Ariel Sharon, then Prime Minister of Israel and Amos Yaron, then Director General of the Israel Defence Ministry, alleging that the defendants had committed war crimes at the Palestinian refugee camps of Sabra and Shatila during the 1982 invasion of Lebanon by Israel. In a decision of 12 February 2003, the Court of Cassation considered that the case against Sharon should indeed be dismissed but on immunity grounds, essentially holding that Sharon could face trial after he left office. See Cassese,

‘The Belgian Court of Cassation v. the International Court of Justice: The Sharon and others Case’, 1 Journal of International Criminal Justice (2003) 437-452. The case was finally dismissed on immunity grounds. See Belgium, Cour de cassation, Arrêt, 12 February 2003, English version available in 42(3) International Legal Materials (May 2003) 596-605.

war in 1991.⁴⁶ The issuance by a Belgian magistrate of an international arrest warrant against Yerodia Ndombasi, then Foreign Minister of the Democratic Republic of Congo, in application of this law, also led to the famous ruling of the ICJ in the Arrest Warrant case. In its decision, the ICJ held that the arrest warrant constituted a violation of Belgium’s legal obligations towards the Congo in so far as it failed to respect the immunity from criminal jurisdiction and the inviolability that the incumbent Minister for Foreign Affairs of the Democratic Republic of the Congo enjoyed under international law.⁴⁷ It is noteworthy that the Congo had challenged the legality of Belgium’s arrest warrant on two separate grounds, namely on the basis of Belgium’s claim to exercise universal jurisdiction and on the alleged violation of the immunities of the Minister of Foreign Affairs, then in office.⁴⁸ Interestingly, the ICJ chose not to address the issue of universal jurisdiction, thereby confirming that immunities and universal jurisdiction are indeed two independent legal concepts. The approach of the ICJ is nevertheless questionable and was rightly criticized by a number of judges who pointed out that “a court's jurisdiction is a question which it must decide before considering the immunity of those before

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