International Justice

CJ354 Endicott College

Tag Archives: universal jurisdiction

Haiti and the Question of Temporal Jurisdiction

In a Huffington Post blog post “Crime Bar: Human Rights Claims Don’t Have Expiration Dates,” the author Katie Shay, the Legal and Policy Coordinator for the International Corporate Accountability Roundtable discusses the case of Jean-Claude “Baby-Doc” Duvalier. Last week a Haitian court ruled that the case against Duvalier would continue, despite his argument that the crimes he committed had happened too long ago for the court to try him. Duvalier was the president of Haiti from 1971 until 1986 and was accused of dozens of extrajudicial executions, detentions of political opponents, and of embezzling over $100 million from the country. In 2011 victims of forced disappearances and torture under the Duvalier regime brought a case against him charging him with corruption and crimes against humanity. At first the charges were dropped when a judge agreed that too much time had passed, but this new ruling overturns the decision stating that there is in fact a legal basis in international law to hold Duvalier. Though this does not mean that Duvalier will be convicted, Human Rights Watch spokesman Reed Brody’s remarks on this case were: “this is a green light. It says, ‘It says Go ahead, there is no legal obstacle to prosecuting these crimes.”

The International Criminal Court (ICC) does not have universal jurisdiction not only is it constrained by which countries it can enter, it cannot exercise jurisdiction over events before July 1st 2002. This blog post gives examples of a number of other instances in which a victim’s ability to bring human rights cases to court has been severely limited. I understand that one cannot simply put everyone on trial, but I wonder if there would be more justice if the temporal guideline on the ICC wasn’t so late. If someone tried to bring the Duvalier case to the ICC they wouldn’t have jurisdiction and would be unable to try the case. One victim of the regime said “I was able to hear people being beaten, dragged in the hallway, and I could hear women screaming as they were forced to have sexual relations with the guards.”  Duvalier is being brought to trial, but there is no guarantee of justice especially because of his close relationship with the current president. This corruption can oftentimes be somewhat mitigated in an international court, but because of the temporal restrictions this case will never be tried beyond the local. It is very possible that the victims would receive a more just trial in an international court, and I wonder whether one day the temporal restrictions of the ICC will be lifted.

Source:

http://www.huffingtonpost.com/katie-shay/crime-bar-human-rights-claims-dont-have-expiration-dates_b_4891403.html

Spanish Universal Jurisdiction

Spanish MPs have moved to block Spanish judges from exercising universal jurisdiction in the domain of human rights abuses. They have indicted two people: Jian Zemin, the former president of China, and Li Peng, former PM of China. There are a couple of big issues with this happening.

The first: if other courts are able to exercise universal jurisdiction, what does this do to the relationship between the ICC and such criminals? In other words, if every court begins exercising universal jurisdiction, would the ICC’s ability to prosecute such crimes diminish? Whilst there are a number of alternate forms of justice available in the international community, such as truth commissions, such a move from other courts would put the ICC almost in a race to indict before other courts. And, lets say both Spanish and Italian courts indicted the same people-who would get priority? Universal jurisdiction is important in upholding human rights because it gets at the idea that there is no hiding from some crimes-even some nations won’t prosecute.

But it’s difficult to see past the idea that this would, in some way, muddle the international justice scene. More voices and more courts doesn’t necessarily seem to add to the credibility of the ICC. If anything, such nations might be better served helping to capture UNSC indictees, rather than pursuing their own cases.

The second issue with this is the process itself, and the corresponding precedents. If Spain is able to pursue such indictments without some kind of international reaction, what stops other nations from following suit? To be sure, they do, and a number of other examples illustrate this-perhaps most notably the British and Pinochet. The ICC was created as a permanent body after Pinochet; part of this would be to ensure due process. The burden of proof (or bringing a case to the ICC) is high, but other courts are inconsistent with one another, with lower burdens of proof, corrupt officials and so forth. This is demonstrated in the ICC’s mandate itself-courts that are unwilling or unable form those nations for which the ICC can pursue cases. If these same nations are able to begin indicting foreign leaders, the net result might be farcical.

The question worth thinking about going forward is the relationship between the ICC and separate courts, and the precedent such a move from the Spanish could result in. Clearly there is a balance to be struck, between universal jurisdiction, defending rights and a slightly problematic precedent. At the same time universally supporting universal jurisdiction seems problematic, and may challenge the primacy of the ICC.

Jurisdiction of the ICC

No Prospect of Trials in Syria

The ongoing conflict in Syria has produced massive atrocities on both sides, as documented in numerous pictures, videos, and other evidence. Despite the proof of crimes, the International Criminal Court is unlikely to prosecute Syrian president Assad. Because Syria is not a signatory to the ICC statute, a trial would require a referral by the United Nations Security Council. Russia, who has a permanent seat on the council, has so far supported Assad and blocked any condemnation of human rights violations. This shows a limitation of the ICC; its jurisdiction is restricted by political considerations, meaning that it is incapable of evenly distributing justice.

A potential solution lies in the concept of universal jurisdiction; a court from another state could try President Assad for severe human rights abuses. However, the likelihood of this occurring in such a politically charged situation, particularly when the universal jurisdiction laws of many nations carry restrictions, is low.

A Case for Transnational Justice

Law, in theory, should adapt to fit the magnitude of crimes committed.  Such was the case with the Nuremberg Trials after World War II, and with the creation of the International Criminal Court in 2000.  After periods of crime beyond what the world had previously seen, international forces came together to make retributive justice fit the scope atrocity the world had seen.  However, there is a type, or a system, of crime that international transitional justice systems still don’t really have the capacity to cope with– transnational crimes.

During the Cold War, the United States pursued policies and supported regimes worldwide that pushed forward anti-communist ideology.  In Latin America, this policy manifested itself in support of brutal military dictatorships that systematically “disappeared” all dissidents. In certain cases, such as in Chile, the United States even played an instrumental role in orchestrating military coups, overthrowing left-wing regimes.  The United States took part in Operation Condor, a transnational, covert intelligence operation through which left-leaning subversives were eliminated, no matter where in the Western Hemisphere they fled.

The current legal framework does not necessarily allow for prosecution of those involved in  Operation Condor.  As it stands, jurisdiction is based on the state.  A crime must have been committed on a state’s soil, against a citizen of that state, or by a citizen of that state, in order to establish jurisdiction within that state.  Universal jurisdiction is, of course, important, because it allows third party states to prosecute, but this, too has its problems.  First, it is very difficult to establish universal jurisdiction because universal jurisdiction only applies to atrocity crimes.  Second, it is still assumes prosecutions should take place in states’ courts, under a states’ systems.  This is why a system of transnational justice is necessary.  Those who planned and executed Operation Condor were not persecuting a particular state, but rather a particular ideology.  International crime crosses national borders.  Transnational crime transcends them.

If the crime is transnational, shouldn’t the justice process be, too?

US Supreme Court Rejects Trial for Argentine Victims

The U.S. Supreme Court came to the unanimous decision yesterday that it would not allow car company DaimlerChrysler Corp. to be prosecuted in the state of California.  Victims of abuse under the Argentine military dictatorship of 1976-1983 brought this suit against DaimlerChrysler, claiming the Argentine military carried out disappearances and torture with DaimlerChrysler’s knowledge and material assistance.  Victims argued that because Mercedes Benz, a subsidiary of DaimlerChrysler Corp., did extensive business in the state of California, they had the grounds on which to prosecute in that state.  The Supreme Court, however, saw things differently.  Justice Ginsberg argued in the official decision that neither Daimler nor Mercedes Benz is “at home” in California, because they are not incorporated there.  Additionally, Justice Sotomayor claimed that U.S. courts did not have the legal grounds on which to prosecute a foreign company for a foreign crime committed against foreigners.

ruth bader ginsbergDonde_Estan_La_Verdad_Sigue_Secuestrada_JDUS Chysler Cerberus

What is so interesting about this case is not that it was rejected by the U.S. Supreme Court– indeed, the court’s legal reasoning seems sound.  Instead, it is interesting that this case was brought under the assumption of U.S. jurisdiction, rather than taking advantage of universal jurisdiction.  The notion of Universal jurisdiction states that when an atrocity crime has been committed– war crimes, crimes against humanity (including disappearances like those in Argentina), or genocide– perpetrators can be prosecuted anywhere in the world, regardless of where, against whom, and by whom the crime was committed.  So, it seems strange that the victims would attempt to argue U.S. jurisdiction, rather than focus on proving atrocity crimes were committed, and therefore be granted universal jurisdiction.

Should We Use Universal Jurisdiction?

One of the main arguments against any international involvement in another state is the state’s sovereignty. The possibility of actions being driven by political interests also counts as a forceful argument against a single-state involvement in another state. To counter these arguments and to be able to act in the extreme cases that require another state or actor’s involvement, international organizations have set up another organization to deal with such cases or have authorized multilateral actions.

During our discussion of universal jurisdiction, I saw some parallels between universal jurisdiction and humanitarian intervention. They both involve violation of state sovereignty and the risk of political interests involvement, and there are existent multilateral alternatives. There is a general criticism against unilateral intervention based on the arguments I mentioned above, while multilateral intervention – e.g. through United Nations-authorized force – is viewed as more legitimate. The argument against universal jurisdiction runs similarly with the argument against unilateral intervention. Whether the magistrate state believes that the state of the accused has the capability to hold the person accountable or not, “the consolidation of law, domestic peace, and representative government in a nation struggling to come to terms with a brutal past has a claim” to the process of accountability (Kissinger, 91). Universal jurisdiction can also be the legal principle “used as weapons to settle political scores” (Kissinger, 88). Lastly, international tribunals and the International Criminal Court have been set up to create a more “internationally agreed procedure” to punish those responsible for atrocities (Kissinger, 95). Therefore, as there is a good argument against unilateral humanitarian intervention, I think there is a good argument against exercise of universal jurisdiction, at least based on these simple parallels.

However, there is a good argument for unilateral intervention in certain cases, and maybe there are cases that require the exercise of universal jurisdiction by a third-party state as the lesser of two evils. Amnesty International, in its website, states that through universal jurisdiction “the governments will ensure that their countries cannot be used as safe havens by the worst criminals.” Is there any instance where unilateral approach – universal jurisdiction – is preferable to the multilateral approach? Are there cases where we cannot hold individuals responsible for their atrocities without universal jurisdiction?

Works Cited

Periodicals

Kissinger, Henry A. “The Pitfalls of Universal Jurisdiction.” Foreign Affairs 80.4 (2001): 86-96. Print.

Web sites, e-sources

Amnesty International. N.p., n.d. Web. 14 Oct. 2012. <http://www.amnesty.org/en/international-justice/issues/universal-jurisdiction&gt;.

Neo Colonialism and Lengths of Imprisonment

The article below concerns Belgium’s use of universal jurisdiction and it’s release of four Rwandans who allegedly had a part in the genocide in 1994. They had all been released due to rulings that there was not enough evidence to hold them in custody, and the article questions whether the international courts should hold prisoners for so long during on going investigations.

The first thing that I want to address that this article does not mention, however, is Belgium’s use of universal jurisdiction on this particular case. First, wouldn’t this come into conflict with the ICTR? And two, is there any controversy  since Belgium is the country that colonized Rwanda and had a major part in turning Hutus and Tutsis against one another through allocation of political power? Perhaps I am just listening to my gut here, but is this right when one looks at the broader picture?

Now to the subject matter of the article itself. The questions that it brings up for me is is it just to keep prisoners for so long without a trial? Of course, because of the scale and magnitude of the crimes it takes much longer to gather evidence and witnesses, but is there some way that prisoners can be monitored or given more freedom prior to trial? As the article describes, prisoners in Belgium had to pay bail and are not allowed to leave the country. Could this become an option in International Courts, as it would make them appear more fair and geared toward a balanced trial? Or are having such high profile prisoners too great a danger on this level?

http://www.rnw.nl/international-justice/article/belgium-gives-lesson-international-courts

Unilateral Jurisdiction

In one of our past lectures we learned about the idea of Universal Jurisdiction, or the authority of a governing body to take legal action against those whose alleged crimes may not have taken place within their jurisdiction.  Critics of the idea argue that it violates individual states sovereignty, and that any state could possibly construct universal jurisdiction tribunals.  The linked article discusses a Spanish judge named Baltasar Garzon, who was known for exercising universal jurisdiction from his home country.  While article primarily covers his recent personal legal problems, Garzon was made famous by calling for an investigation into the Bush Administration’s actions over Guantanamo Bay.

While an investigation never gained any traction, the idea of universal jurisdiction and the legality of Garzon’s action was in question.  Was their any legal basis for his actions, and if he did issue warrants, was anyone going to take them seriously?

http://www.nytimes.com/2012/02/10/world/europe/baltasar-garzon-prominent-rights-judge-convicted-in-spain.html?_r=1&scp=2&sq=baltasar%20garzon&st=cse

US and Universal Jurisdiction

I know that today in class we talked a lot about universal jurisdiction and I did some research and found the answer to the US and its stance on universal jurisdiction.  What I found was that the US does not exercise universal jurisdiction.  The article that I read states that the US “is concerned that the exercise of universal jurisdiction by other states may result in politically motivated prosecutions of US citizens by foreign courts.”  This stance seems to come in handy especially in consideration with Iraq since complaints of war crimes were filed against George W. Bush, Donald Rumsfeld and George Tenet.  It is convenient for political purposes but I’m wondering what your own personal take on it is.  Should the US exercise universal jurisdiction or not?

What I read came from the American Non-Governmental Organizations Coalition for the International Criminal Court.  It is a question/answer type document about universal jurisdiction and the ICC which I think may be good just for some all around general information.  The link is: http://www.amicc.org/docs/Universal%20Jurisdiction%20Q&A.pdf