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UNIVERSAL JURISDICTION UNDER CUSTOMARY INTERNATIONAL LAW …
The critics of “absolute” universal jurisdiction, or, more exactly, of the enforcement
in absentia
of universal prescriptive jurisdiction,
20
are of the opinion that this broader
concept is either illegal,
21
or may easily lead to the improper infringement of the
sovereignty of foreign states, to undesirable competition between jurisdictions of
different states (“judicial chaos”) and to political misuse and (politically biased)
selectivity.
22
Practical problems of the exercise of universal jurisdiction
in absentia
were
highlighted by developments in Belgium, where the original, very broad regime of
universal jurisdiction (allowing i.a. victims to initiate the case, and without providing
expressly for the personal immunities under international law) was amended after
several contentious cases, including investigations of the Israeli prime minister,
A. Sharon, and the president of the United States, G. W. Bush, and ensuing protests
from these influential states. According to the amendments which entered into force
in 2003, Belgian courts can hear the cases regarding war crimes, crimes against
humanity and genocide when committed outside Belgium only if the defendant (on
the date of proceedings) or victim (on the date of the crime) is a citizen or resident of
Belgium. Personal immunities under international law have to be recognized, and the
prosecutor became the decisive authority to move the potential case forward and was
Federal Prosecutor General dismissed (by the decision of 27 April 2007) the complaint against the former
minister of defence of the United States, Donald Rumsfeld, for war crimes and other crimes committed
during the invasion of Iraq in 2003. The Federal Prosecutor General noted that there was no connection
with Germany and that it was not to be expected that the suspects would be present in Germany. (In
addition, the Federal Prosecutor General cautioned against this kind of “forum-shopping”, where those
bringing complaints alleging matters with no connection to the state did so because of the friendly forum,
the possible result being an overloading of the resources of the prosecutor’s office, and remarked on the
limits of her investigatory powers and the likelihood of a lack of success in a possible German investigation
of the activity of American forces and representatives, all of which in turn militated, according to the
Federal Prosecutor General, against granting the investigation.) Reproduced from Tom Gede, Universal
Jurisdiction: The German Case Against Donald Rumsfeld, Engage, Vol. 8, Issue 3, June 2007, p. 44;
available at
http://www.fed-soc.org/doclib/20080314_CrimGede.pdf(visited on 28 April 2013). For the
relevant decision of the Federal Prosecutor General see
http://www.generalbundesanwalt.de/de/showpress.php?themenid=9&newsid=273 (visited on 28 April 2013).
20
Roger O’Keefe points out that, in the debate on universal jurisdiction, one should differentiate
between the prescriptive jurisdiction on one hand and the jurisdiction to enforce (or an adjudicative
jurisdiction) on the other hand and talks about “the enforcement
in absentia
of universal prescriptive
jurisdiction”. As he puts it, “[O]n the one hand, there is universal jurisdiction, a head of prescriptive
jurisdiction alongside territoriality, nationality, passive personality and so on. On the other hand,
there is enforcement
in absentia
, just as there is enforcement
in personam
. … If one is to talk about
… “universal jurrisdiction in absentia”, then one might as well talk also of territorial jurisdiction
in
absentia
, nationality jurisdiction
in absentia
… and so on. But no one does.”; Roger O’Keefe, Universal
Jurisdiction – Clarifying the Basic Concept, Journal of International Criminal Justice, 2 (2004),
pp. 750-751.
21
See
i.a.
the separate opinion of judge Guillaume to the judgment of the International Court of Justice
in Arrest Warrant case (op. cit. sub 1), in which he came to the conclusion that “neither treaty law nor
international customary law provide a State with the possibility of conferring universal jurisdiction on
its courts where the author of the offence is not present on its territory.” (para. 9 and 10).
22
The Oxford Companion,
op. cit.
sub 4, p. 557.