The right to a remedy

All international and regional human rights instruments provide for the right to a remedy.⁵⁶⁷ Article 2(3) of the International Covenant on Civil and Political Rights obligates states “(a) To ensure that any person whose rights or freedoms as herein recognized are violated shall have an effective remedy” and “(b) To ensure that any person claiming such a remedy shall have his right thereto determined by competent judicial, administrative or legislative authorities.” It has been argued that the obligation to provide a remedy includes an obligation to investigate and prosecute violations of the Convention. Human rights bodies have for instance held that the lack of investigation of acts of torture by state officials constitutes a violation of an individual’s right to an effective remedy.⁵⁶⁸ This obligation to investigate and prosecute serious human rights violators is not limited to state officials but also applies to private individuals.⁵⁶⁹ In its general comment on Article 7 (on the prohibition of torture and cruel, inhuman or degrading punishment), the Human Rights Committee stated:

14. Article 7 should be read in conjunction with article 2, paragraph 3, of the Covenant. In their reports, States parties should indicate how their legal system effectively guarantees the immediate termination of all the acts prohibited by article 7 as well as appropriate redress.

The right to lodge complaints against maltreatment prohibited by article 7 must be recognized in the domestic law. Complaints must be investigated promptly and impartially by competent authorities so as to make the remedy effective. The reports of States parties should provide specific information on the remedies available to victims of maltreatment and the procedure that complainants must follow, and statistics on the number of complaints and how they have been dealt with.

15. The Committee has noted that some States have granted amnesty in respect of acts of torture. Amnesties are generally incompatible with the duty of States to investigate such acts.⁵⁷⁰

566 Ibid., § 89.

567 See Art. 25 of the American Convention on Human Rights.

568 See Naqvi, Impediments to Exercising Jurisidiction over International Crimes (The Hague: T.M.C.

Asser Press, 2009); See ECtHR, Aksoy v. Turkey, 18 December 1996.

569 See Seibert-Fohr, Prosecuting Serious Human Rights Violations (Oxford: Oxford University Press, 2009), at 31-34.

570 Human Rights Committee, General Comment 20, Article 7 (Forty-fourth session, 1992), Compilation of General Comments and General Recommendations Adopted by Human Rights Treaty Bodies, U.N.

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Similarly, the Inter-American Court of Human Rights has interpreted the right to a remedy as including the obligation to investigate and prosecute.⁵⁷¹

On 16 December 2005, the General Assembly adopted the Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law, which state:

In cases of gross violations of international human rights law and serious violations of international humanitarian law constituting crimes under international law, States have the duty to investigate and, if there is sufficient evidence, the duty to submit to prosecution the person allegedly responsible for the violations and, if found guilty, the duty to punish her or him. Moreover, in these cases, States should, in accordance with international law, cooperate with one another and assist international judicial organs competent in the investigation and prosecution of these violations.⁵⁷²

To conclude, the duty of a state to investigate and prosecute serious human rights violations committed within its jurisdiction derives from the duty of the state to “ensure and protect”, and from the right of victims to a remedy provided in human rights treaties. So far, it appears that both international and regional human rights case law has only dealt with the duty of the territorial state to investigate and prosecute. This has led some scholars to conclude that “all that can be derived from human rights treaties for serious violations of human rights is a duty to prosecute on the part of the state of commission”.⁵⁷³

However, one could argue that this duty should extend to cases where a suspect is present in the territory of a state, even when the crime was committed outside its territory. If the custodial state neither prosecutes nor extradites him, it is convincingly arguable that the state is in breach of its duty to prosecute serious human violations under human rights treaties. The development of this argument might be the next step that human rights courts will be willing to take.

Doc. HRI/GEN/1/Rev.1 (1994), at 30; See also Rodriguez v. Uruguay, where the Committee considered that a Uruguayan Law on Amnesty was incompatible with the obligation of state parties to provide effective remedies to the victims of human rights violations, cited in Seibert-Fohr.

571 See Roht-Arriaza, ‘State Responsibility to Investigate and Prosecute Grave Human Rights Violations’, 78(2) California Law Review (1990) 449-513, at 478 and references.

572 United Nations General Assembly, Resolution 60/147 (A/RES/60/147), 16 December 2005.

573 Werle, Principles of International Criminal Law (2nd ed., TMC Asser Press: The Hague, 2009), at 72,

§ 202; see also F. Lafontaine, ‘The Unbearable Lightness of International Obligations: When and How to Exercise Jurisdiction under Canada’s Crimes against Humanity and War Crimes Act’, 23(2) Revue québécoise de droit international, (2011) 1-50, at 15-16, who says that “human rights treaties provide very limited extraterritorial obligations and certainly do not oblige states to repress violations that have occurred on other states’ territories.”

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At the national level, some constitutional courts have held that the refusal to exercise universal jurisdiction may in some cases constitute a violation of the complainants' constitutional right to an effective judicial remedy.⁵⁷⁴

It has also been suggested, albeit rarely, that mandatory universal jurisdiction over core crimes could be deduced from the ICC Statute.⁵⁷⁵ It should be noted that the ICC does not explicitly impose a duty upon states to prosecute international crimes under the universality principle. There is no express provision in the Rome Statute that imposes universal jurisdiction upon states for crimes falling under the Statute. This has led some scholars to conclude that

“the Rome Statute is neutral on the exercise of universal jurisdiction”, although it does not of course prohibit its use.⁵⁷⁶

On the contrary, others have suggested that the Preamble to the ICC Statute contains not only permissive but also compulsory universal jurisdiction.⁵⁷⁷ In paragraph (5) of the Preamble, the contracting parties affirm that “the most serious crimes of concern to the international community as a whole must not go unpunished and that their effective prosecution must be ensured by taking measures at the national level and by enhancing international cooperation”. In paragraph (6), the Preamble provides that “it is the duty of every State to exercise its criminal jurisdiction over those responsible for international crimes”.⁵⁷⁸ This suggests that every state – not just the state party⁵⁷⁹ – has the duty to exercise its jurisdiction. In addition, the purpose of paragraph (6) is to

574 See N. Roht-Arriaza, ‘Guatemala Genocide Cases: Spanish Constitutional Tribunal decision on universal jurisdiction over genocide claims’, American Journal of International Law (2006) 207-213.

575 See C. Hall, The Role of Universal Jurisdiction in the International Criminal Court Complementarity System, at 210-211; Ben-Naftali, ‘The Obligations to Prevent and to Punish Genocide (Art. I and Art.

VI)’, in P. Gaeta (ed.), The Genocide Convention: A Commentary (Oxford: Oxford University Press, 2009) 27-57, at 51.

576 See for instance Schabas, The International Criminal Court: A Commentary on the Rome Statute (Oxford: Oxford University Press, 2010), at 47, and J. Kleffner, ‘The Impact of Complementarity on National Implementation of Substantive International Criminal Law’, 1 Journal of International Criminal Justice (2003) 86-113, at 107; See Observations by Belgium on the scope and application of the principle of universal jurisdiction, § 11.

577 See Hall, ‘The Role of Universal Jurisdiction in the International Criminal Court Complementarity System’, in M. Bergsmo (ed.), Complementarity and the Exercise of Universal Jurisdiction for Core International Crimes (Oslo: Torkel Opsahl Academic EPublisher, 2010) 201-232, at 210-211.

578 ICC Statute, Preamble (5) and (6).

579 Yang, ‘On the Principle of Complementarity in the Rome Statute of the International Criminal Court’, 4(1) Chinese Journal of International Law (2005) 121-132, at 125.

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recall that there is a category of international crimes in respect of which states have an obligation to prosecute, even if these crimes do not fall within the jurisdiction of the Court.⁵⁸⁰ Does this include universal jurisdiction? Some argue that the meaning of the phrase “its criminal jurisdiction” is that the jurisdiction is not restricted geographically.⁵⁸¹ It appears that since there was a dispute on whether there is an obligation to proceed on the basis of universal jurisdiction or merely on the basis of territorial and national jurisdiction, the paragraph was deliberately left ambiguous.⁵⁸² On the one hand, one could argue that the Preamble is not as such part of the Statute⁵⁸³ and therefore does not bind state parties, and on the other, that its text does not explicitly and clearly provide for universal jurisdiction.⁵⁸⁴ In our view, it is therefore difficult to deduce the existence of a duty upon states, which is not explicitly laid down, has not been agreed upon and is not legally binding.⁵⁸⁵

In relation to the ICC Statute, the duty of every state to exercise its jurisdiction can also be considered in relation to the principle of complementarity⁵⁸⁶, which is expressed in paragraph 10 of the Preamble and at Articles 1 and 17 of the Rome Statute. Both the preamble and Article 1 state that the ICC “shall be complementary to national criminal jurisdictions”. Article 17 (1)(a) and (b) of the ICC Statute reads as follows:

1. Having regard to paragraph 10 of the Preamble and article 1, the Court shall determine that a case is inadmissible where:

(a) The case is being investigated or prosecuted by a State which has jurisdiction over it, unless the State is unwilling or unable genuinely to carry out the investigation or prosecution;

(b) The case has been investigated by a State which has jurisdiction over it and the State has decided not to prosecute the person

580 Bergsmo and Triffterer, ‘Preamble’, in Triffterer (ed.), The Rome Statute of the International Criminal Code: Observers’ Notes, Article by Article (Münich: Beck, 2008), at 11.

581 See Hall, supra note 576, at 211.

582 Bergsmo and Triffterer, supra note 579, at 11.

583 It should be noted that Art. 31(2) of the Vienna Convention does however state that “the context for the purpose of the interpretation of a treaty shall comprise, in addition to the text, including its preamble and annexes”.

584 Werle, for instance, argues that this only reinforces the duty to punish crimes committed on a State’s territory. See Werle, Principles of International Criminal Law, at 71.

585 See C. Tomuschat, ‘The duty to prosecute international crimes committed by individuals’, in Cremer and Steinberger (eds.), Tradition und Weltoffenheit des Rechts (Springer, 2002) 315-349.

586 The issue of the relationship between the principle of complementarity and the exercise of universal jurisdiction was the subject of a book edited by the Forum for International Criminal and Humanitarian Law. See M. Bergsmo (ed.), Complementarity and the Exercise of Universal Jurisdiction for Core International Crimes (Oslo: Torkel Opsahl, 2010).

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concerned, unless the decision resulted from the unwillingness or inability of the State genuinely to prosecute;

Article 17 of the Statute does not make any differentiation between the different heads of jurisdiction, but merely refers to “a State which has jurisdiction over [a case]”. It appears clear to us that on the basis of this provision, when a state is investigating or has investigated, is prosecuting or has prosecuted a case, based on any form of jurisdiction – including universal jurisdiction – the case may be considered inadmissible before the International Criminal Court. Thus, as a result, a state with no connection over the crime would appear to have priority over the International Criminal Court, making this court a “court of last instance”.⁵⁸⁷ This does not however clarify whether the Rome Statute imposes, encourages or merely allows for the exercise of universal jurisdiction by state parties. It is generally recognized that under the complementarity principle, states are required to exercise national criminal jurisdiction,⁵⁸⁸ and if they do not, they will be considered unable or unwilling to do so. Indeed, the ICC is only meant to supplement national investigation and prosecution. The enforcement of criminal liability for violations of crimes under the Statute thus rests on state parties.⁵⁸⁹ Under the requirement of complementarity, state parties should therefore adopt legislation so as to allow their national courts to have jurisdiction over the crimes prohibited by the Statute.⁵⁹⁰

However, in this respect, it is unclear what bases of jurisdiction are envisaged and in particular if these include universal jurisdiction.⁵⁹¹ The argument has been made by some scholars and in some judgments that the Rome Statute also places a duty on state parties to establish and exercise universal jurisdiction.⁵⁹² According to the radically opposite view, states should only exercise universal jurisdiction when the territorial state has not done so (subsidiarity or horizontal complementarity) and where the ICC does not exercise its jurisdiction (vertical complementarity).⁵⁹³ In other words, the

587 See N. Roht-Arriaza, The Pinochet Effect: Transnational Justice in the Age of Human Rights (Philadelphia: University of Pennsylvania Press, 2006), at 201. The relationship between universal jurisdiction and ICC jurisdiction will be discussed in Part III, Chapter 3, infra N 777 ff.

588 See Yang, supra note 578; See also the discussion in B. L. Krings, ‘The Principles of ‘Complementarity’

and Universal Jurisdiction in International Criminal Law: Antagonists or Perfect Match?’, 4(3) Goettingen Journal of International Law (2012) 737-763.

589 See O. Triffterer (ed.), The Rome Statute of the International Criminal Code: Observers’ Notes, Article by Article (Münich: Beck, 2008), at 13; Yang, supra note 578, at 122.

590 Yang, supra note 578, at 123-124.

591 See Kleffner, ‘The Impact of Complementarity on National Implementation of Substantive International Criminal Law’, 1 Journal of International Criminal Justice (2003) 86-113, at 106.

592 See for instance France, Cour d’appel de Paris, Chambre d’accusation, 20 October 2000.

593 See Kleffner, supra note 590, at 109.

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exercise of universal jurisdiction is subsidiary to the exercise of the jurisdiction of the ICC. It should be noted that several states do provide, in their national law, for courts to have universal jurisdiction if no international criminal court can prosecute the suspect.⁵⁹⁴

To conclude, it appears difficult to infer a duty to prosecute under the universality principle based on the ICC Statute. The best middle ground is probably that the ICC Statute allows for the exercise of universal jurisdiction and perhaps even encourages it. Indeed, the principle that the ICC assumes jurisdiction only when states fail to do so provides an incentive for states to assume jurisdiction for crimes committed abroad.⁵⁹⁵

The aut dedere aut judicare obligation, which can be found in many treaties, illustrates the existence of a consensus within the international community on the fact that perpetrators should not go unpunished irrespective of the place where they are located after the commission of their crime.⁵⁹⁶ The existence of such a duty to prosecute or extradite obliges states to establish and exercise universal jurisdiction if the suspect is present on its territory (“obligatory conditional custodial universal jurisdiction” as we referred to it above) and will not be extradited.⁵⁹⁷ In treaty law, such a duty to extradite and prosecute is only set out with respect to grave breaches of the Geneva Conventions, torture and enforced disappearances.⁵⁹⁸ With respect to genocide, one could infer such a duty from Article 5 of the Genocide Convention.⁵⁹⁹ As for crimes against humanity and war crimes other than grave breaches, “there is little to rely upon in treaty law”.⁶⁰⁰

594 This is the case of France for instance. See Chapter III on double-subsidiarity infra N 6752 ff.

595 See Cassese et al., ‘The Rome Statute: a tentative assessment’, in Cassese et al. (eds), The Rome Statute of the International Criminal Court: A Commentary (Oxford: OUP, 2002) 1901 ff, at 1906.

596 See ‘Observations by Belgium on the scope and application of the principle of universal jurisdiction’,

§ 9.

597 On the duty of states to prosecute or extradite, see R. Roth ‘Extradition, Surrender, Transfer’, in Kolb and Scalia (eds), Droit international penal (2^nd ed., Basel: Helbing Lichtenhahn, 2012) 573-578; P.

Akhavan, ‘Whither National Courts? The Rome Statute’s Missing Half Towards an Express and Enforceable Obligation for the National Repression of International Crimes’, 8 Journal of International Criminal Justice (2010) 1245-1266, at 1258 ff.

598 Schabas, The International Criminal Court: A Commentary on the Rome Statute (Oxford: Oxford University Press, 2010), at 45.

599 Ibid.

600 Ibid. and see Roth, ‘The Extradition of Génocidaires’, in Gaeta (ed.), The UN Genocide Convention: A Commentary (Oxford: Oxford University Press, 2009) 278-309, at 308.

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In legal commentary, it has been suggested that the duty to prosecute or extradite has become a rule of customary international law⁶⁰¹, although this remains somewhat controversial.⁶⁰² The precise content of this duty is similarly challenged. Even the proponents of the existence of such a duty, such as Bassiouni, admit that “it has not been expressed with sufficient specificity to indicate whether prosecution and extradition are alternative or coexistent duties”.⁶⁰³ He does nevertheless conclude that “the doctrine usually expressed is that the international obligation to extradite or prosecute would be construed as a co-existent duty provided that national law permits it”.⁶⁰⁴

If such a duty exists, it would bind states regardless of whether they are parties to a treaty and would thus constitute a source of mandatory universal jurisdiction. The Draft Code of Crime against the Peace and Security of Mankind envisaged such a duty.⁶⁰⁵ Likewise, in Blaskić, the ICTY Appeals Chamber held that “courts of any State are under a customary-law obligation to try or extradite persons who have allegedly committed grave breaches of international humanitarian law”, but did not develop the argument further.⁶⁰⁶ Support for the existence of such duty can also be found in the Principles of Co-operation in the Detection, Arrest, Extradition and Punishment of Persons Guilty of War Crimes and Crimes Against Humanity which inter alia provide that “1. War crimes and crimes against humanity, wherever they are committed, shall be subject to investigation and the persons against whom there is evidence that they have committed such crimes shall be subject to tracing, arrest, trial and, if found guilty, to punishment”.

Bassiouni concludes that “the duty to prosecute or extradite is clearly established in convention and customary ICL and state practice with respect to [crimes against humanity]”. He supports this affirmation by claiming that the inclusion of crimes against humanity in the national laws of fifty-five states

601 See Van Steenbergher, ‘The Obligation to Extradite or Prosecute Clarifying its Nature’, 9 Journal of International Criminal Justice (2011) 1089-1116, 1094-1107; Bassiouni, Crimes Against Humanity:

Historical Evolution and Contemporary Application (Dordrecht, Boston, London: M. Nijhoff, 1992), 270-271; Bassiouni and Wise, Aut Dedere Aut Judicare: The Duty to Extradite or Prosecute in International Law (Dortrecht: Martinus Nijhoff, 1995),at 24.

602 See Seibert-Fohr, Prosecuting Serious Human Rights Violations (Oxford: Oxford University Press, 2009), at 259.

603 Bassiouni, Crimes Against Humanity: Historical Evolution and Contemporary Application (1992), at 271.

604 Ibid.

605 Art. 8 of the Draft Code of Crimes Against the Peace and Security of Mankind (1996) states that “each State Party shall take such measures as may be necessary to establish its jurisdiction over the crimes set out in articles 17, 18, 19 and 20, irrespective of where or by whom those crimes were committed.”

606 ICTY, Blaskić, Appeals Chamber, Judgment on the Request of the Republic of Croatia for Review of the Decision of Trial Chamber of 18 July 1997, 29 October 1997, § 29.

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“clearly evidences that the international obligation finds a concomitant application in the internal law and practice of a large number of states”.⁶⁰⁷

In its 2011 report on the obligation to extradite or prosecute, the International Law Commission stated that “the obligation aut dedere aut judicare as a rule of customary international law, noting that its acceptance was gaining prominence at least in respect of certain crimes”.⁶⁰⁸

At present, the existence of a general duty on the part of all states to prosecute

At present, the existence of a general duty on the part of all states to prosecute