European Efforts in Transitional Justice While Implementing Universal Jurisdiction: ICJ Belgium v. Senegal Case

© Springer International Publishing Switzerland 2015
Pat Gibbons and Hans-Joachim Heintze (eds.)The Humanitarian Challenge10.1007/978-3-319-13470-3_10

10. European Efforts in Transitional Justice While Implementing Universal Jurisdiction: ICJ Belgium v. Senegal Case

Gabija Grigaitė  and Renata Vaišvilienė 

Institute of International and European Union Law, Law Faculty, Vilnius University, Vilnius, Lithuania



Gabija Grigaitė


Renata Vaišvilienė (Corresponding author)

10.1 Introduction

On 20th July 2012 the International Court of Justice ruled that Senegal must submit the case of Chad’s former leader Mr. Hissène Habré to its competent authorities for the purpose of prosecution if it does not extradite him to Belgium. The international consensus that the perpetrators of international crimes should not go unpunished is being advanced by established international criminal tribunals, treaty obligations and a growing number of countries that recognise universal jurisdiction for their national courts, which may have an important role to play in balancing justice and peace, accountability and stability in transitional societies as in Mr. Habré’s case. Despite the fact that universal jurisdiction (International Law Association 2000, p. 2)1 is being accepted by States while trying to comply with their international obligations, difficulties arise when it comes to the implementation of universal jurisdiction because of its concurrency with existing judicial mechanisms. The authors of this article argue that internationally recognised values and reparatory justice for victims of the conflict must be placed on a State’s power to choose which cases involving core international crimes are the objects of the exercising of its criminal jurisdiction, including universal jurisdiction and universal jurisdiction in absentia, after taking the principle of subsidiarity into account.

10.2 Universal Jurisdiction as a Comprehensible Remedy

Universal jurisdiction, being accepted widely as a tool to fight international impunity, is still one of international law’s more controversial topics (O’Keefe 2004, p. 736). Despite the positive effect of filling the impunity gap, the risk of possible negative consequences should be kept in mind when exercising universal jurisdiction. Unbridled universal jurisdiction can challenge the world order and deprive individuals of their rights when used in a politically motivated manner or for vexatious purposes. Even with the best of intentions, universal jurisdiction can be used imprudently, resulting in: unnecessary frictions between States, potential abuses of legal processes, and undue harassment of individuals prosecuted or pursued for prosecution under this theory (Bassiouni 2008, p. 153). Consequently, it is of the utmost importance firstly, to understand the essence of the doctrine of universal jurisdiction and, secondly, to implement universal jurisdiction with clear awareness of its risks.

The assertion of universal jurisdiction originated in 1927 when the Permanent Court of International Justice in The Case of S.S. ‘Lotus’ (France v. Turkey), (the Lotus case) Stated that ‘in all systems of law the principle of the territorial character of criminal law is fundamental’, although it also added that ‘[t]he territoriality of criminal law (…) is not an absolute principle of international law and by no means coincides with territorial sovereignty’ (Lotus case, p. 20). It further added:

(…) jurisdiction is certainly territorial; it cannot be exercised by a State outside its territory except by virtue of a permissive rule derived from international custom or from a convention. It does not, however, follow that international law prohibits a State from exercising jurisdiction in its own territory, in respect of any case which relates to acts which have taken place abroad, and in which it cannot rely on some permissive rule of international law (…) Far from laying down a general prohibition to the effect that States may not extend the application of their laws and the jurisdiction of their courts to persons, property and acts outside their territory, [international law] leaves them in this respect a wide measure of discretion which is only limited in certain cases by prohibitive rules; as regards other cases, every State remains free to adopt the principles which it regards as best and most suitable (Lotus case, pp. 18–19).

An argument to prove the utility of the universal jurisdiction concept as a comprehensive and widely accepted framework requires it to be situated within recognised international treaties, international customary law and national law.

There are a number of international treaties that impose an obligation to prosecute and punish criminal perpetrators.2 Starting with the UN Convention on the Prevention and Punishment of the Crime of Genocide (further referred to as the Genocide Convention) where States parties were obliged to take national actions in order to prevent and punish the crime of genocide as a ‘crime under international law’ (Genocide Convention, Art. I). Notwithstanding the fact that the Genocide Convention has provided only territorial jurisdiction, the customary law evolved towards the application of universal jurisdiction covering the crime of genocide, as Stated by the International Court of Justice (ICJ) in the Case Concerning Application of the Convention on the Prevention and Punishment of the Crime of Genocide (further referred to as the Genocide case):

(…) the rights and obligations enshrined by the Convention are rights and obligations erga omnes. The Court notes that the obligation each State thus has to prevent and to punish the crime of genocide is not territorially limited by the Convention.

Furthermore, universal jurisdiction was first explicitly embodied in the Geneva Conventions together with the obligation of the States Parties ‘to enact any legislation necessary to provide effective penal sanctions’.3

Customary international law, while providing a basic right for universal jurisdiction, does not elaborate a mechanism of implementation and does not provide obligations to be taken at the national level (Henckaerts 2005, pp. 604 and 568–621).4 To illustrate this, the Hague Court of Appeal in its judgements against two Afghan military officials refused to apply customary international law on the ground that Article 94 of the Dutch Constitution prohibits Dutch judges from reviewing statutes in light of unwritten international law. Even though this decision of the court could be criticised, national initiatives to include universal jurisdiction among other national legal provisions largely dependent on certain international treaties. As a consequence this can create an asymmetrical obligation for some States (Philippe 2008, p. 387).

The application of the normative legal framework of international law as it relates to universal jurisdiction is not elaborated in such a manner as to impose sufficiently clear obligations on States to exercise universal jurisdiction and to have explicit mechanism to do this. If international law were to make progress in formulating a concrete definition of those obligations, the discretionary power consubstantial with State sovereignty would still leave when it comes to the final implementation of the provision (Philippe 2008, p. 387).

Despite the acknowledgement of its existence, there is no consensus concerning the definition of the concept of universal jurisdiction. This problem was evident in the ICJ Arrest Warrant case between Congo and Belgium (hereinafter referred to as the Yerodia case) in which none of the judges made an effort to provide a definition of or clarify the concept of universal jurisdiction despite its importance for the case.5

Nevertheless, doctrinal agreement on certain well established features allows a definition of universal jurisdiction to exist. Universal jurisdiction according to O’Keefe amounts to the assertion of jurisdiction in the absence of any other accepted jurisdictional nexus at the time of the relevant conduct (O’Keefe 2004, p. 745). Bassiouni elaborates further, that as an actio popularis universal jurisdiction may be exercised by a State without any jurisdictional connection or link between the place of commission, the perpetrator’s nationality, the victim’s nationality, and the enforcing State. The basis is, therefore, exclusively the nature of the crime and the purpose is exclusively to enhance world order by ensuring accountability for the perpetration of certain crimes (Bassiouni 2008, p. 153).

The rationale for validating the existence of universal jurisdiction is that international crimes affect the international legal order as a whole. This means that after being affected by disruptive international crimes, territorially or nationally, States are not always able or willing to react effectively and therefore States that do not have any jurisdictional connection or link to the international crimes that have been committed are granted a right to prosecute. The main controversy this raises is whether in such cases States can or should do so. Indeed, there is no real evidence that States are obliged to implement universal jurisdiction outside of treaty obligations (Cryer et al. 2010, p. 44; Yerodia case, p. 51).

The discussion on the right to exercise universal jurisdiction by a State leads to ‘absolute’ or ‘pure’ universal jurisdiction, more often referred to as ‘universal jurisdiction in absentia’. Absolute universal jurisdiction comprises of actions when a State implements its jurisdiction over an international crime when the suspect is not present in the territory of the investigating State. Such exercise of universal jurisdiction could be argued as being convenient in cases where the impunity gap occurs because of the unavailability of the suspect due to the lack of political will to cooperate or the suspect has absconded. In comparison, the ‘conditional’ universal jurisdiction or otherwise referred to as universal jurisdiction with presence’ is exercised when the suspect is already in the State asserting universal jurisdiction.

While such a distinction made is approved for the academic purposes, in the conceptual level it seems to be non-existent (O’Keefe 2004; Kreß 2006). The controversy lies in the legality of trials in absentia, especially under human rights law. Therefore, many States still do not exercise universal jurisdiction when the person is present on their territory. One of the latest examples that could be considered as one of the setbacks in the fight against impunity through universal jurisdiction is the decision by the Paris Prosecutor to dismiss a complaint by an association of victims in Morocco against President Bashar Al-Assad of Syria in 2012 because the suspect was not present in France (as cited in Amnesty International Report 2012, p. 50).

The rationale for limited action in this area can be partly explained by the Statement made in the Yerodia case, that the adoption of pure universal jurisdiction ‘may show a lack of international courtesy’ (Yerodia case, 2002, Separate Opinion of Judge ad hoc Van den Wyngaert, para. 3). One might argue that the distinction of universal jurisdiction in absentia as a separate issue as it necessitates proof of legality to a separate head of jurisdiction. However, according to Cassese, it should be treated as a ‘different version’ (Cassese 2001, p. 261). Considering universal jurisdiction as a jurisdiction to prescribe, it can be extra-territorial. However, jurisdiction to enforce is strictly territorial, since a State may not enforce its criminal law in the territory of another State without that State’s consent (‘Lotus’ case, 1927, pp. 18–19; O’Keefe 2004, pp. 740 and 750).6 While prescription is logically independent of enforcement, one has limited influence over the legality of another. However, if universal jurisdiction is permissible then its exercise in absentia is also permissible. (O’Keefe 2004, p. 750)

The comprehensiveness of the universal jurisdiction concept is limited. Despite existing specific legal grounds for assertion of universal jurisdiction, there are no clear obligations established by legal instruments to identify the duties of States, particularly concerning implementation.

10.3 Universal Jurisdiction as an Obstacle Race

The recognition of universal jurisdiction by the State as a principle is not sufficient to make it an operative legal norm. There are three necessary steps to operationalise the principle of universal jurisdiction: the existence of specific grounds for universal jurisdiction; a sufficiently clear definition of the offence and its constitutive elements; and national means of enforcement allowing the national judiciary to exercise their jurisdiction over international crimes (Philippe 2008, p. 379). While the first two have been outlined in the previous part of this article, the enforcement obstacles will be introduced below.

Implementation of universal jurisdiction is directly related to the practical aspects of a national judicial process including evidence gathering, questioning of witnesses, interpreting and applying the ne bis in idem principle, overcoming immunities and finally, more or less ensuring international cooperation. Ensuring the availability of witnesses as well as the collecting of evidence, can be complicated and cannot be presumed. A number of cases based on universal jurisdiction have failed to achieve the standard of proof for a criminal conviction (Cryer et al. 2010, p. 60).7

One of the major problems when undertaking prosecutions on the basis of universal jurisdiction is that the existence of jurisdiction per se does not give rise to any obligations on behalf of the territorial or nationality State to assist in any investigation, provide evidence or extradite suspects (see Broomhall 2003, pp. 119–123). This problem was evident in the trial of two Rwandan nuns in Belgium. The jury’s ability to sort truth from fiction was particularly important because much of the most damning evidence against the nuns, in particular against Sister Kizito, came in the form of witness testimony and no forensic or ballistic evidence was available (Rettig 2012, p. 390). In 2007, the District Court of The Hague acquitted Afghan military official Abdullah F. due to lack of proof, because ‘the question of whether the defendant had effective control over his subordinates’ acts of violence and torture against the victims could not be answered affirmatively with a sufficient degree of certainty’.

For these reasons, national implementation of universal jurisdiction cannot be executed disregarding more affected countries and coexistence of the concurrent jurisdictions—either national or international. Therefore it is obvious that international law, by providing States with the competence to exercise universal jurisdiction, not only allows for an overlap of jurisdictions but even aims at such overlapping (Jessberger 2009, p. 557).

In order to resolve such an overlap of jurisdictions, the question that has to be answered is which court national or international, based on links with territory, person or without any link—can claim primacy. The exercise of universal jurisdiction should be understood as a fall back mechanism activated only if no primary jurisdiction is willing and able to genuinely prosecute the crime (Jessberger 2009, p. 557). In this context, noticeable similarities can be found between The International Criminal Court (ICC) complementarity system and the concept of universal jurisdiction. One might think that the complementarity regime could be accepted by the States while implementing universal jurisdiction for the purpose of strengthening national prosecutions and introducing more coordination among national legal processes. This could be seen as a possible solution for dealing with coexisting jurisdictions and the means by which the principle of subsidiary universality may be brought into practice.