Navigating the Debate on Universal Criminal Jurisdiction: The Need for an Empirical Assessment? Dr Matt Garrod Sussex Law School University of Sussex The Ghandhi Research Seminar Series, March 2016

Overview Central argument and antecedents of today’s presentation; The meaning of “universal” jurisdiction and its rationale; Universal jurisdiction’s false historical foundations and the emergence of an “unproven collective belief”; False analogies with historical sources; The debate on universal jurisdiction at the UNGA and its Sixth Committee; and The need for an empirical assessment?

Antecedents of today’s presentation Central argument – universal jurisdiction is a hollow concept and has developed in scholarship out of an unproven collective belief. The current debate about universal jurisdiction has been wrongly postulated from the beginning; it is premised on historical misconceptions and false analogies Existing publications BICL Research funding Potential for impact

The meaning of “universal” jurisdiction Jurisdiction is regulated by customary international law Prescriptive jurisdiction The prescribing State is permitted to extend the scope of its criminal law beyond its borders over conduct taking place on the territory of another State Key issue – burden of proof

Common meaning of universal jurisdiction The competence of any State to prosecute certain “heinous” crimes, without the crime having any link with the State Criminal jurisdiction based solely on the nature of the crime, without regard to where the crime was committed, the nationality of the perpetrator, the nationality of the victim, or any other connection to the State exercising such jurisdiction

Universal jurisdiction’s rationale Premised on four assumptions: (1) Starting with piracy, certain crimes are “heinous”; (2) Preventing the impunity of such crimes is a concern of every State; (3) As such, States act as “agents of the international community” to protect exclusively international community values; and (4) Crucially important for fighting impunity.

False historical foundations and the emergence of an “unproven collective belief” Piracy (past 500 years) War crimes (World War II) Unproven collective belief = hollow concept

Post World War II 1949 Geneva Conventions Treaties containing extradite or prosecute obligations Crimes under international law

False analogies with historical sources Jurisdiction arising out of treaty obligations to extradite or prosecute impliedly establish universal jurisdiction Universal jurisdiction developed over piracy and war crimes because they are “heinous”. Therefore, universal jurisdiction may be extended to crimes of an equally heinous nature

1984 UN Convention against Torture Article 5 Each State Party shall take such measures as may be necessary to establish its jurisdiction over the offences referred to in article 4 in the following cases:

When the offences are committed in any territory under its jurisdiction or on board a ship or aircraft registered in that State; When the alleged offender is a national of that State; When the victim was a national of that State if that State considers it appropriate

2. Each State Party shall likewise take such measures as may be necessary to establish its jurisdiction over such offences in cases where the alleged offender is present in any territory under its jurisdiction and it does not extradite him pursuant to article 8 to any of the States mentioned in Paragraph 1 of this article [emphasis added]. Questions Relating to the Obligation to Prosecute or Extradite (Belgium v. Senegal), Judgment, ICJ Reports 2012, 32 “Treaty-based” jurisdiction? Matthew Garrod, Unravelling the Confused Relationship between Treaty Obligations to Extradite or Prosecute and Universal Jurisdiction in the Light of the Habré Case (under review)

Regardless of State and treaty practice historically and the actual text of treaties, it is widely believed that universal jurisdiction now exists in customary international law Mistaken belief = customary rule? Criteria for identification?

The debate on universal jurisdiction at the UNGA and its Sixth Committee General consensus that universal jurisdiction “exists” and is vital for preventing impunity Great confusion and disagreement on the basic concept, meaning and scope of “universal jurisdiction” The debate about universal jurisdiction has been wrongly postulated from the beginning Delegations have adopted the collective belief

2009 African Union memorandum “The principle of universal jurisdiction is well established in international law” The controversy is “not about whether the concept validly exists, but rather about the scope of its applicability” On closer analysis, the African Group’s support for universal jurisdiction is not as strong as it would first appear …

Support for a so-called “principle of universal jurisdiction on a treaty basis”, which requires a “jurisdictional link” between the commission and punishment of crimes Outside the treaty context, universal jurisdiction in customary international law “is unclear and remains yet to be settled or determined”

Just one year later, before the Sixth Committee in 2010, the Group of African States retreated from its earlier position and asserted that: “[t]here was as yet no generally accepted definition of universal jurisdiction and no agreement on which crimes, other than piracy and slavery … it would apply … [and that] the principle hardly existed in most domestic jurisdictions”

The African Group has urged Member States to fully take advantage of the “Model National Law on Universal Jurisdiction over International Crimes” and “to use the principle of reciprocity to defend themselves” by indicting non-African State officials Support for universal jurisdiction?

Custom Delegations have taken as their starting point the presumed historical development of universal jurisdiction over piracy No delegation has been able to identify, based on State practice, the existence of universal jurisdiction The States that had originally pioneered universal jurisdiction have abandoned the concept

Treaty Several delegations have evidenced the existence of universal jurisdiction by inaccurately describing jurisdiction implementing treaty obligations to extradite or prosecute as “universal jurisdiction” Eg Azerbaijan, Belgium, Brazil, France, ICRC, Italy, Paraguay, South Africa, Slovakia, Spain and Peru

A considerable number of delegates have cautioned against confusing the principle of universal jurisdiction with the distinct obligation to extradite or prosecute Chile (on behalf of the Community of Latin American and Caribbean States), Australia (on behalf of Canada, Australia and New Zealand), Argentina, Brazil, China, Colombia, Cuba, Czech Republic, Ecuador, India, Iran, Israel, Malaysia, Republic of Korea, Singapore, Sudan, Thailand, UK, US, Venezuela and the Council of Europe

Complicating matters even further, several of the above delegations have referred to some treaties as requiring the exercise of universal jurisdiction, such as the 1949 Geneva Conventions, while others have not Problems?

(1) One of the main reasons why delegations have referred to treaties as universal jurisdiction is because they have falsely analogised them with jurisdiction over piracy (2) Significant divergence among delegations as to which treaties establish “universal jurisdiction”, which has led to wide disagreement on the scope of the concept (3) Disagreement of whether “universal jurisdiction” is permissive or mandatory? (4) Little agreement on rationale

Sixth Committee Working Group Established in 2011 to undertake a “thorough discussion” of universal jurisdiction No commitment to achieving any particular outcome Hindered the Working Group’s focus and would imply that no legal instrument will be developed

(1) “based on the nature of certain crimes under international law and not on any other jurisdictional connection to the State exercising universal jurisdiction” (2) Distinct from the obligation to extradite or prosecute (3) Non-exhaustive list of crimes subject to universal jurisdiction – piracy, war crimes, “terrorism”, corruption, transnational organised crime, torture and apartheid, crimes against humanity, crimes against peace/crime of aggression, enforced disappearances, genocide. (4) Merely “examples from a potentially voluminous list” of treaties containing extradite or prosecute obligations (5) The exercise of universal jurisdiction may be obligatory, depending on the treaty

The need for an empirical assessment?