CYIL Vol. 4, 2013

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.