Rebirth of Universal Jurisdiction?
Yuna Han discusses the increase of universal jurisdiction cases.
Cross-posted from Ethics and International Affairs blog
In March of this year, five NGOs – TRIAL International, the European Center for Constitutional and Human Rights, the International Federation for Human Rights, REDRESS, and Fundación Internacional Baltasar Garzón – released their annual joint report on universal jurisdiction, which is a “legal principle allowing or requiring a state to bring criminal proceedings for certain crimes irrespective of the location of the crime and the nationality of the perpetrator or the victim”, particularly in the case of serious international crimes (such as crimes against humanity, genocide, war crimes, or torture). The report was cautiously optimistic, noting a 30% increase in universal jurisdiction cases worldwide. This increase in universal jurisdiction cases comes at the heels of what very much looked like the inevitable decline of the principle—since the dramatic arrest of Augusto Pinochet in London in 1998, activist states like Spain and Belgium have become more skeptical about opening universal jurisdiction cases, and have amended their legislations to restrict the jurisdictional ambit of universal jurisdiction cases. States have generally been cautious about opening universal jurisdiction cases, fearing economic and diplomatic repercussions. Some cases have led to diplomatic pressures from the state of origin of the perpetrators—in fact, in 2015 several Spanish cases against Chinese officials had to be dropped after persistent pressure from China, and restrictions to both Spanish and Belgian universal jurisdiction is argued to be in response to demands from other states such as the US.
Universal Jurisdiction and Syria
What then explains the increase in universal jurisdiction cases? One possible answer is that the increase in domestic prosecution for international crimes is a result of the current refugee crisis and the increasingly globalized recruitment of armed combatants, particularly in the context of the Syrian civil war. According to the TRIAL report, in 2016 alone, five countries have opened cases regarding international crimes committed in Syria using the principle of universal jurisdiction. In fact, there is reason to believe that the stream of universal jurisdiction cases will continue to increase at least in the short-to-medium term. In 2017, the German attorney general has issued an international arrest warrant against an individual who was identified as an ISIS leader for crimes of genocide and war crimes committed in 2014 against the Yazidi religious minority. Furthermore, since 2012, the German federal prosecutor’s office has launched “structural investigations” to gather evidence on the Syrian conflict generally, rather than on crimes committed by specific suspects, paving the way for future prosecutions. Given that Germany is not only where many victims, witnesses, and potential suspects of war crimes, crimes against humanity, and genocide are now present, but also one of the few countries in the world that continue to implement a principle of “pure” universal jurisdiction, or legislation that allows its prosecutors and courts to investigate, prosecute, and pass verdicts on international crimes without specific links to Germany or German nationals, such efforts by the German judiciary to prosecute international crimes are significant. Finally, the Independent International Commission of Inquiry on the Syrian Arab Republic (IIIM), established 2011 by the Human Rights Council, aims to establish facts and circumstances and identify specific responsible individuals for future criminal prosecutions. Given that the prosecution by the International Criminal Court (ICC) is effectively barred by the fact that Syria is not party to the Rome Statue, and referral by the UN Security Council is politically unlikely, the IIIM’s mandate seems most likely to result in further universal jurisdiction cases in other countries.
“Global Enforcer” to “No Safe Haven”
This recent resurgence in universal jurisdiction seems to substantiate Maximo Langer’s argument that the concept of universal jurisdiction for serious international crimes is moving away from the “global enforcer” model, in which states exercise jurisdiction because they conceive of their domestic courts as part of a global effort to prevent and punish core international crimes, to the “no safe haven” model, in which states exercise jurisdiction to avoid becoming refuge for perpetrators of core international crimes. However, while Langer argues that this shift is in part a result of the diffuse nature of the structure of international criminal justice and perverse incentive on the part of the states to eschew politically “high-cost” defendants, the recent developments regarding the Syrian cases in third-state domestic courts suggest an alternative trigger for the rise of the “no safe haven” model. Domestic prosecution through universal jurisdiction in the Syrian cases seems to reflect the diffuse and global nature of conflicts. The German federal prosecutors’ effort in prosecuting international crimes committed in the context of the Syrian conflict, for example, is in part due to the influx of Syrian and Iraqi refugees. Furthermore, the international recruiting efforts of groups such as ISIS created the issue of “foreign fighters” for many European states. In other words, the issue of universal jurisdiction and domestic prosecution of core international crimes was—quite literally—delivered to the doorsteps of some states by individuals from conflict zones. This was arguably the case for almost all universal jurisdiction cases to some degree. The current context of acute refugee crisis and cross-border recruitment of combatants, however, strengthens the connection between the individualization of responsibility for mass violence as promoted by international criminal justice, and the individualisation of conflict dynamics resulting from international recruitment efforts of armed groups and terrorist organisations.
This reactive model of “no safe haven” cases emerging out of the Syrian conflict highlights two sets of major political and normative questions. First are the questions arising from possible “clustering” of individual jurisdiction cases as an unintended effect of broader socio-economic developments such as global migration trends, radicalization patterns, and recruitment trends of armed groups and terrorist organizations. Following such patterns, certain countries may be host to a great majority of potential universal jurisdiction cases, raising the issues of equitable distribution of burden amongst different states, and potential backlash from both the domestic public and other states. The second set of issues arises from the lack of coordination behind the reactive “no safe haven” approach to universal jurisdiction, particularly with regards to ongoing conflict. One recurring debate with respect to the Syrian civil war, particularly regarding the government and President Assad, is whether proposals for criminal accountability should be tabled in order to facilitate political dialogue to reach a peace agreement. Notwithstanding the obvious cynical political interests that promote such view in this current context, the argument that sequencing criminal accountability may incentivize warring parties to reach a negotiated settlement more easily is an oft-cited theory in scholarly literature. The potential efficacy of sequencing, however, relies on the meditator or negotiating parties’ ability to credibly commit to pushing back criminal trials to a later date, or even postpone it indefinitely—a promise that will ring hollow if third party states continue to prosecute “no safe haven” model cases. Similar concerns can be raised about mechanisms such as the IIIM, which, if effective, can arguably signal strong possibility of universal jurisdiction cases in the future.