By:

USMAN HAMEED *
LL.M (Sheffield UK)

INTRODUCTION:

The international crimes are crimes of most serious concern to international community. The international crimes can be prosecuted both before national courts as well as international criminal tribunals. Recently the principle of universality has evolved which empowers any state to bring to justice the authors of international crimes. The jurisdiction of international criminal tribunals is spelt out in the instrument of their creation. The states are generally reluctant to exercise universal jurisdiction hence the international criminal tribunals are more appropriate forums to prosecute the perpetrators of international crimes.

In this paper at the out set international crime and state jurisdiction will be discussed Secondly the exercise of universal jurisdiction by state courts will be discussed. Thirdly the exercise of jurisdiction by international courts will be considered. Fourthly merits and demerits of international adjudication will be considered and finally the conclusions will be made.

INTERNATIONAL CRIMES:

The International crimes are offences against the whole international community.

They give rise to the personal criminal responsibility of the accused as opposed to state responsibility even if the crime is committed under the directions of government. Usually the international crimes involve widespread and systematic violations of fundamental rights of a population on racial, religious, ethnic and political grounds. A person accused of international crimes cannot claim immunity. The international crimes comprise of serious violations of customary rules meant to protect dignity of mankind as a whole hence they bind all nations and individuals alike. Since repression of these crimes is in the interest of all nations, any state is empowered to prosecute and punish the person accused of international crimes. Under the customary law the international crimes entailing individual criminal responsibility include piracy, war crimes, crimes against humanity, genocide, torture, terrorism and aggression. The conventional laws also include drug trafficking and illicit arms trade amongst international crimes but they are not recognized as international crimes under customary international law. (1).c

HOW STATES CAN EXERCISE JURISDICTION OVER INTERNATIONAL CRIMES:

Traditionally the individuals were subject to the jurisdiction of the state in which they lived. At that time violation of international rules was generally attributed to the state of nationality of the offender. In case the offender happened to be a state official he or she was immune from criminal proceeding. After the emergence of international crimes as an independent category of offences the principle of individual criminal responsibility was established. Now states can exercise jurisdiction over international crimes on following four bases:

• Nationality of the accused or active nationality.
• Place of commission of crime or territorial state.
• Nationality of the victims or passive nationality.
• Universality principle

It has been observed that states are generally not inclined to prosecute foreigners for committing crimes against foreigners in the territories of other states. It is so because the international crimes are mostly committed with encouragement of governmental authorities and states do not want to spoil their diplomatic relations by interfering in the domestic affairs of each other. Moreover as most of the persons accused of international crimes are government officials the states of their nationality do not cooperate with prosecuting states in extradition and collection of evidence. Similarly the assumption of jurisdiction by the victims’ state is also regarded unusual because due to public sentiments involved it is difficult for judges to remain impartial.

Usually the territorial state and state of nationality of accused are considered as appropriate forums of trial because it is easy for those two forums to collect evidence and in this way inviolability of sovereignty is also ensured. (2)

THE UNIVERSALITY PRINCIPLE:

More recently the universality principle has evolved in relation to exercise of jurisdiction over international crimes. As international crimes are crimes of common concern to whole international community, under the universality principle ‘any state is empowered to prosecute and punish the accused regardless of nationality of accused or victim and place of the commission of offence.’ This principle finds support in both customary as well as conventional international law. In customary law Piracy is considered as an attack on freedom of high seas and pirates are regarded as enemies of mankind therefore any state is entitled to prosecute them. In 1927 the Permanent Court of International Justice observed in the Lotus Case (France v. Turkey) that “‘States are tree to exercise criminal jurisdiction over acts performed outside their territory whenever no specific international limitation restrict their freedom”. In line with PCIJ ruling in the Lotus Case when Israel arrested and prosecuted Eichman in 1962 in the exercise universal jurisdiction it was not challenged by any other state. At the level of treaty law the exercise of universal jurisdiction is warranted in grave breaches of Geneva Conventions 1949, the 1984 torture convention and in treaties regarding terrorism. These treaties are not confined to prosecuting the accused; they also oblige the states to extradite the accused to a state concerned if they are not themselves willing to prosecute. The rationale of universal jurisdiction is two fold:

1- The international crimes are crimes of such a serious magnitude that they deserve to be prevented by all states.

2- The universal character of these crimes vests in every state the authority to try and punish the accused (3).

In its Judgment in the Genocide case (Bosnia v. Yugoslavia) the ICJ observed that territorial restrictions do not apply to rights and obligations which are ergo omens (4)

CONDITIONAL UNIVERSALITY:

It is argued by some writers that universal jurisdiction can only be exercised if the accused is present on the territory of prosecuting state. This is called conditional universality. The main reason for conditional universality is the fact that trial in the absence of accused is neither recognized in the domestic legal system of majority of states nor it is allowed under the statutes of international tribunals. It is commonly believed that trial in absentia deprives the accused of his fundamental right of fair and impartial hearing. Furthermore even if the accused is convicted subsequent to an absentia trial, the state of his nationality may not be willing to surrender or extradite him. In such case the whole purpose of the trial will be defeated because the enforcement of judgment will become impossible. Hence it is important for the exercise of universal jurisdiction that accused should be in custody of prosecuting state. Nevertheless more widely accepted view is that all pre trial proceedings can be conducted in the absence of accused including issuance of warrants and collection of evidence but trial itself can only begin once the accused is present on the territory of prosecuting state. (5)

IMMUNITY FROM JURISDICTION:

A Person accused of international crimes cannot claim exemption from the exercise of jurisdiction by foreign states on the ground that alleged crimes were committed in performance of his official functions and he is immune from criminal proceedings. There are two kinds of immunities in international law .Functional immunity and Personal immunity Functional immunity means a state official is immune from criminal proceedings if he commits a crime in the exercise of his official functions.

This immunity is related to acts done in the service of state and it continues even after the relinquishment of office by the state official. Under the statutes of ICC, ICTY and ICTR functional immunities have been cancelled. Personal immunity is available to current Heads of states, foreign ministers and diplomatic agents. It terminates as soon as the office is relinquished. This immunity applies to acts done by state officials in private as well as official capacity (6).

According to the facts of Case Concerning Arrest Warrant (if 11 ApriI2000(Congo V Belgium) an investigating judge of a Belgian Court issued a warrant for the arrest of an incumbent foreign minister of Congo and circulated the same to other countries. The warrant was issued on the charges of instigating ethnic massacre of Citizens of Congo in the territory of Congo. The issuance of warrant was challenged by Congo in the International Court of Justice on the ground that it was in violation of sovereign equality of states. The ICJ observed in its judgment that a foreign minister is a representative of his state and his acts are considered as acts of his state. In case he is arrested during his official or private visit abroad, he will be prevented from performing his official functions and his arrest may also spoil the diplomatic relations between the two states. Therefore while in office, heads of states and foreign ministers are completely immune from criminal proceedings during their private or public visits abroad. (7)

Although the states are barred from exercising universal jurisdiction against a person enjoying immunity from criminal responsibility, nevertheless House of Lords in R v: Bow Street Metropolitan Stipendiary Magistrate. exp Pinochet Ugarte Case (2./ March 1999) has drawn a distinction between the immunity enjoyed by an incumbent head of state and a former head of state. According to the judgment’ an incumbent head of state enjoys complete immunity from criminal proceedings abroad whereas a former head of state enjoys immunity pertaining to only those acts which are done in performance of his official functions. The limited immunity available to a former head of state does not extend to acts done in private capacity during his stay in office. The offences alleged against ex General Pinochet of Chile included torture which could not be regarded as official function of a head of state, therefore Pinochet being a former head of state is not immune from criminal proceedings for ordering torture during his stay in office (8).

CONDITIONS FOR THE EXERCISE OF UNIVERSAL JURISDICTION:

The exercise of universal jurisdiction by state courts is subject to the fulfillment of certain conditions. According to R. V Bow Street Metropolitan Stipendiary Magi.5Irate, ex p Pinochet Ugarte Case (House (if Lords, 24 March 1999) a Spanish Court exercising universal jurisdiction issued a warrant for the arrest of ex General Pinochet the former head of state of Chile on the charges of torture and hostage taking in the territory of Chile. The accused was arrested on his visit to U.K. Subsequently Spain sought extradition of accused. The House of Lords observed in appeal that .following conditions must be satisfied for extradition:

1. The alleged act must be a crime under the laws of both, the extraditing state and the prosecuting state. (Principle of double criminality)
2. The alleged act must not be legal at the time of commission or the accused must not genuinely believe it to be legal. {Principle of legality)
3. The alleged act must violate a superior rule of international law (.Jus Cogens). (9).

UNIVERSAL JURISDICTION AND STATE PRACTISE:

Although some international conventions do encourage the states to prevent and punish international crimes by exercising universal jurisdiction yet the state practise is not consistent in this regard. A few states like Belgium and Spain have granted universal jurisdiction to their courts by making legislation to this effect, nevertheless majority of the states believe that they are not under legal obligation to prosecute or extradite the persons accused of international crimes. Hence necessary opinion juris is lacking. Moreover states do not like to interfere in the domestic affairs of each other. In view of this, it can be argued that customary law has not yet evolved making it obligatory for states to prevent and punish international crimes by exercising universal jurisdiction (9 a).

IMPEDIMENTS ON THE EXERCISE OF UNIVERSAL JURISDICTION BY NATIONAL COURTS:

Usually the State courts have to face following common problems in the exercise of universal jurisdiction over international crimes:

• If a person accused of international crimes never enters the prosecuting state the judge will have to investigate a large number of complaints about which he can do nothing.
• Trial in the absence of accused will be criticised for violating the fundamental rights of accused.
• The state of nationality may refuses to cooperate and extradite the accused.
• Where accused is a state official mere issuance of arrest warrant without caution may lead to international dispute.
• Where more than one state start criminal proceedings against the same accused for same crime, there can be a great risk of inconsistent rulings.
• Where the trial involves a high ranking state official, due to political nature of the case the judge can be politicised.
• As international crimes are generally committed by individuals with the encouragement and support of territorial state, such state may not cooperate in collection of evidence.(l0)

It is emphasized that the exercise of universal jurisdiction is useful where international crimes are committed by low ranking defendants not high ranking state officials. With regard to low ranking defendants, the collection of evidence and issuance of warrant even in their absence will facilitate their subsequent arrest. Low r811king defendants are not well known persons and usually no national feelings are associated with their arrest. Hence it is more than likely that state of nationality will cooperate in the arrest of offender (11).

EXERCISE OF UNIVERSAL JURISDICTION BY INTERNATIONAL TRIBUNALS:

It has been argued by Rolings that “a distinction must be drawn between individual and system criminality”. The individual criminality refers to the solitary acts of individuals whereas system criminality pertains to the criminal acts encouraged and supported by the government. The international criminal tribunals are best fitted to exercise jurisdiction over system criminality because it involves appraisal and condemnation of the whole system of government including the highest authority of a state (12).

ICTY, ICTR AND ICC:

The international criminal tribunals for former Yugoslavia (1993) and Rwanda (1994) were established under the binding resolutions of Security Council in exercise of Chapter (vii) enforcement powers and the statute of International Criminal Court was adopted in the 1998 Rome Conference under a multilateral treaty.

PRIMACY OF ICTY& ICTR:

The statutes of ICTY & ICTR provide that the tribunals shall have concurrent jurisdiction along with national courts to try a person accused of international crimes but the tribunals shall have primacy over national court. The tribunals can request a national court to defer to the competence of international tribunal. The ICTY & ICTR can assert primacy in the following cases:

1. When the trial before a national court will belittle the seriousness of an international crime.
2. When the national court proves to be unreliable and the trial is a sham to save the accused from international criminal responsibility.
3. When the case is closely related to the other cases being tried by ICTY or ICTR.

In Prosecutor v. Dusko Tadic (1995) the ICTY requested the German authorities to defer the trial to the competence of ICTY on the ground that it was not in the interest of justice if some of the co accused of the same crime were to be judged by national courts and other by ICTY. The German authorities complied with immediately and had the accused surrendered. (13)

COMPLEMENTARITY OF ICC:

Under the statute of ICC the Court is subsidiary and complementary to the national courts. National Courts enjoy priority in the exercise of jurisdiction. The ICC is barred from exercising jurisdiction in following cases:

1. Where a national court asserts jurisdiction over an international crime and under the domestic law such court has jurisdiction to try the accused.
2. Where the accused has been convicted or acquitted by the national courts after a fair trial.
3. The case is not of sufficient gravity to justify action by the ICC.

The ICC can override the national jurisdiction in the following cases

1. Where the national court is unable or unwilling to try the accused.
2. Where the case is of sufficient gravity to justify the exercise of jurisdiction by the ICC.

A state may be regarded as unwilling when proceedings are taken by the national court to shield the accused, there is an unjustifiable delay in the trial of accused or proceedings of national court are not impartial and independent. A State is Unable to try the accused when due to collapse of judicial system the state is not in a position to detain the accused, collect evidence and carry out criminal proceedings. A state may also be Unable to try the accused when it cannot proceed due to legislative impediments such as amnesty law.

Under the ICC statute all cases may be tried by the national courts irrespective of the status of the offender and the magnitude of crime. The ICC only comes into picture when the national courts are unable or unwilling to try the accused. (14)

COMPARISON:

It has been argued that the international tribunals should have primacy over national courts. Where the trial is conducted by the territorial state the judges do not remain impartial due to public sentiments against the accused. Similarly where the trial is conducted by the state of accused’s nationality and the crime is committed with the support of government, the national courts are unable to prosecute the accused unless a change of government takes place. (15)

INTERNATIONAL TRIBUNALS AND UNIVERSAL JURISDICTION:

It has been suggested by Daniel D. Natenda that the international community does have the power to establish international tribunals vested with universal jurisdiction over international crimes. The individual states are agents of international community and if they are competent to exercise universal jurisdiction it is quite logical thC1t the international community being their principle is equally competent to do the same.

The allied powers acted on the same principle when they set up International military tribunal at Nuremberg to try the major Nazi war criminals. The allied powers invoked the universal jurisdiction that anyone of them individually could have invoked. (] 6)

The international tribunals for former Yugoslavia and Rwanda established under the Security Council resolutions are not vested with universal jurisdiction. They cannot try a person accused of international crimes regardless of the place of commission of crime and nationality of the accused. It is specifically provided in their respective statutes that they can only try the offences committed by Yugoslavian and Rwandan Citizens during a specific time against their own countrymen and the neighboring states.

In case of ICC, Contrary to the universality principle article 12(2) of ICC Statute provides that the court can only exercise jurisdiction where either the state of offender’s nationality or the state where crime is committed is party to the ICC statute. The only way court can exercise jurisdiction when these states are not parties to the statute is either of them making a declaration under article 12(3) accepting the exercise of jurisdiction by the court.(17)

CRITICISM ON INTERNATIONAL TRIBUNALS:

The exercise of jurisdiction by international tribunals has been subjected to criticism. It has been argued that the Charter of International Military Tribunal at Nuremberg was drafted by the allied powers in exercise of their sovereign powers after the surrender of Germany; likewise the judges and prosecutors were also appointed by the victorious states therefore the tribunal was not independent and it dispensed victor’s justice. Nevertheless it is submitted that the contributions of IMT in the development of international law should not be understated. The tribunal broke state monopoly over international crimes and developed new rule of not recognizing immunity in case of international crimes. The most notable achievement of the tribunal is awarding customary law status to repression of crimes against peace and humanity. Similarly ICTY and ICTR have also been criticised for rendering selective justice as their jurisdiction was limited over crimes in Yugoslavia and Rwanda. It is alleged that The Security Council exceeded its powers in establishment of tribunals and the tribunals are administering justice in a biased manner. In response to this criticism Cassese states ‘it is admitted that jurisdiction of ICTY and ICTR is limited to the territories of former Yugoslavia and Rwanda but in the absence of an international tribunal with universal jurisdiction it is a step in the right direction to establish ad hoc tribunals for countries facing emergency situation’. With regard to Security Council’s competence to establish tribunals the ICTY observed in Tadic Case that SC was competent to establish tribunals in the exercise of chapter vii enforcement powers when there is a threat to peace. The working of tribunals is transparent. The cases are brought on the basis of available evidence and exparte proceedings are video taped. Therefore it is wrong to say that tribunals are biased (18)

MERITS AND DEMERITS OF ADJUDICATION BY INTERNATIONAL TRIBUNALS:

Some writers suggest that the international tribunals are not suitable forums for exercising universal jurisdiction over foreign nationals because they lack an autonomous police force empowered to arrest and override national authorities. The international crimes are committed over large territories involving many states; in the absence of a standing police force it is very difficult for the tribunals to collect evidence without seeking state cooperation. Trials before international tribunals are unnecessarily prolonged because judges are from different social and cultural backgrounds and the proceedings have to be translated into more than one language. The accused remains in custody for a long time due to lengthy proceedings at pre trial, trial and appeal stages. The trial before international tribunals is also prolonged due to lengthy examination and cross examination. It is so because the accused does not usually like to plead guilty due to stigma attached to the conviction by international tribunals. (19)

Despite of these short comings the international tribunals enjoy a number of advantages over domestic courts in the exercise of jurisdiction over international crimes. It is submitted that the international tribunals ensure uniformity in the application of international laws. The Judges of international tribunals are generally considered impartial. The trial before international tribunals is given more media projection resulting into public dislike and repression of crime itself. The domestic courts are not inclined to exercise jurisdiction where the states have no territorial or national link with the crime whereas the tribunals being independent bodies can exercise jurisdiction directly over individuals living in foreign countries. The states are more willing to cooperate with international tribunals instead of domestic courts because international tribunals are considered as independent and impartial bodies. (20)

CONCLUSIONS:

It has been suggested by Daniel D. Natenda that “a permanent court vested with universal jurisdiction could have been a potent force to combat the immunity enjoyed by today’s dictators but sadly the ICC statute reveals that the dream has not materialized” (21). Due to reluctance of states the international tribunals are in a better position to adjudicate upon international crimes by assuming universal jurisdiction. The ICC only comes into picture when the states are unable or unwilling to proceed. Nevertheless it is hoped that ICC will assert its limited jurisdiction with great vigour and if it does the states will be pressurized to repress international crimes with fairness and impartiality because no state would like ICC to pass judgement on its inability or unwillingness to proceed against international criminals (22) Furthermore, It is pertinent to mention that in recent years states have preferred t() resort to mixed tribunals in emergency situations .Mixed tribunals are established JI1 the territorial states under national legislation or treaty law and they comprise of national as well as international judges. Such Courts have been set up for Sierra Leone and Kosovo. Mixed courts can prove more useful in the exercise of universal jurisdiction because they can utilize the services of local judiciary under international scrutiny. (23).

REFERENCE:

1.                   Antonio Cassese, International law (2001) p,246

2.                   J,I Charney, ‘International Criminal law and the role of domestic courts, 95 AJIL(2001) P.120

3.                   Antonio Cassese, International Criminal law (2003) p. 284-291

4.                   Ian Brownlie, Principles of public international law (2003) p.568

5.                   Antonio Cassese, International Criminal law (2003) p.286-287

6.                   Antonio Cassese, International law (2001) p.259-260

7.                   Alexander Orakhelashvili, Arrest warrant of II April 2000 (Congo v. Belgium) 96 AJIL 2002 p.677

8.                   D J Harris, Cases and materials on international law (2004) p.333-340

9.                   Ibid

9a-       Antonio Cassese, International law (2001) p.259-260

10.               J.I Charney. ‘International Criminal law and the role of domestic courts, 95 AJIL(2001) P.120

11.               Antonio Cassese, International Criminal law (2003) p.291

12.               Antonio Cassese, International law (2001) p.265

13.               Kriangsak kittichaisaree, International Criminal Law (2002) p.25-26

14.               Kriangsak kittichaisaree, International Criminal Law (2002) p.27-38

15.               Antonio Cassese, International Criminal law (2003) p.277-285

16.               Daniel D Ntanda Nsereko, The ICC Jurisdictional and related issues, 10; 1 Criminal Justice Periodicals 1999 P.87

17.               Ibid

18.               Antonio Cassese, International Criminal law (2003) p.232-338

19.               Antonio Cassese, International law (2001) p.268-270

20.               Antonio Cassese, International law (2001) p.268-270

21.               Daniel D Ntanda Nsereko, The ICC Jurisdictional and related issues, I 0; I Criminal Justice Periodicals 1999 P.87

22.               Helen Duffy, Towards eradicating impunity: The establishment of ICC, 26,4:Criminal Justice Periodicals 1999 p.115

H. Strohmeyer, Collapse and reconstruction of judicial system, 95 AJIL (2001) P.46

* The writer is an ex- civil Judge 1^st Class  and presently an Assistant Professor of Law University of Sargodha.