The doctrine of universal jurisdiction allows national courts to try cases of the gravest crimes against humanity, even if these crimes are not committed in the national territory and even if they are committed by government leaders of other states.
The concept is not new, though states have shown an increasing willingness to enlarge the zone of their jurisdiction and to prosecute or extradite those in high places. The case of Chilean dictator Augusto Pinochet signaled changing international norms in the late 1990s. Brought by Spanish magistrate, Baltasar Garzón, and involving an extradition request to the United Kingdom, this case never came to trial, but it had a very broad legal impact.
As a result of the precedents of the Pinochet case, other leaders who have committed well-documented crimes have been pursued, including former US Secretary of State Henry Kissinger and Prime Minister Ariel Sharon of Israel. Kissinger has restricted his international travel, because he is wanted in so many jurisdictions either for trial or as a prosecution witness.
In recent years, however, several state governments have limited the use of universal jurisdiction by their domestic courts, after pressure from countries like the United States, Israel and China. The creation of the International Criminal Court in 2002 has also reduced the need for domestic courts to apply the doctrine.
This page analyses the concept of universal jurisdiction and follows the legal and political battles over attempts to invoke it.
The former Bolivian president Gonzalo Sánchez de Lozada was formally charged by Bolivian courts for ordering his forces to suppress protests against his government’s policy on energy and globalization. His military forces reportedly killed 67 individuals and injured over 400 of the nation’s indigenous Aymara community, and the outrage which led to the “Gas Wars”, drove the president into exile in the US. Although a US-Bolivia extradition treaty currently exists, the US refused to accept this particular extradition request on the grounds that “a civilian leader cannot be tried for crimes committed by the military.” The politics behind this “justification” is transparent owing to Sánchez de Lozada’s pro-American ideology. It is unfortunate that political trivialities are keeping justice from being served to the families of those who died in the Gas Wars, but it is however somewhat unsurprising of the American system of international justice. (Guardian)
Human rights activists are gearing up to prosecute Ali Abdullah Saleh, Yemen’s former president. They hope to arrest Saleh under Universal Jurisdiction, a doctrine that allows any national court to try cases of the gravest crimes against humanity. The US, who is providing medical treatment for Saleh, has in recent years limited the use of Universal Jurisdiction in their domestic courts. But Yemeni activists are determined to bring Saleh to justice. According to Foreign Policy, a good place to try Saleh is London, which has a history of exercising Universal Jurisdiction to prosecute offenders, such as Nazi collaborator Anthony Sawoniuk, Afghan warlord Faryadi Sarwar Zardad, and Chilean dictator Augusto Pinochet. (Foreign Policy)
Universal Jurisdiction allows national courts to pursue serious crimes against non-nationals, even if the crime takes place on foreign soil. The International Criminal Court (ICC) encourages national courts to exercise Universal Jurisdiction in order to complement the ICC and strengthen international law. In this Harper’s Magazine interview, US Ambassador David Scheffer praises the US for prosecuting war criminals, like Chuckie Taylor of Liberia. But embracing Universal Jurisdiction in national courts is not an excuse to ignore ratification of the Rome Statute of the ICC. The US has continued to practice and manipulate international law under its own terms, and is not keen on other states using Universal Jurisdiction to prosecute its own nationals. (Harper's)
The principle of universal jurisdiction is based on the idea that there are some fundamental principles of public international law binding upon everyone and from which no derogation is ever permitted. An infamous case based on the principle of universal jurisdiction was the indictment of former Chilean dictator Pinochet. The more recent case of Hissène Habré, the former dictator of Chad, illustrates the dilemmas surrounding the pursuit of justice based on this principle. Habré is accused of grave crimes, such as ethnic cleansing, committed under his regime from 1982 to 1990. Jacqueline Moudeina has been the lawyer for the victims of Habré and a leader in the fight to bring him before justice since 2000. However, the realistic possibility of the case seems small, and without progress in the case Moudeina has stated that “justice delayed is justice denied”. (Justice in Conflict)
In July, Human Rights Watch (HRW) released a report that presented information of Bush administration officials’ involvement in detainee abuse and the returning of detainees to countries where they were subjected to torture. Pakistan Director at HRW, Ali Dayan Hasan, states that if the US government does not initiate criminal investigations, other countries should under the doctrine of “universal jurisdiction.” Universal jurisdiction can be used as a “safety net” for grave international crimes, when states are unable or unwilling to conduct effective investigations. (The Express Tribune)
In 2002 Germany enacted the Code of Crimes Against International Law
(CCAIL), codifying the principle of universal jurisdiction into domestic law. The CCAIL facilitates the prosecution of war crimes, crimes against humanity and genocide, regardless of whether those crimes have a connection to Germany. The first case to be tried under the CCAIL is that of two Rwandan Rebel leaders, Ignace Murwanashyaka and Straton Musoni, who are accused of committing war crimes and crimes against humanity in the Democratic Republic of Congo. The capacity of the International Criminal Court is limited, so the willingness of countries like Germany to apply the principle of universal jurisdiction is essential to prevent impunity. (Human Rights Watch)
Last week Spanish authorities charged Judge Baltazar Garzón with abuse of his authority by opening an investigation into deaths and disappearances during the regime of former Spanish dictator Francisco Franco. Judge Garzón is internationally known for his crusades against foreign leaders on the basis of universal jurisdiction. According to Eric Posner, a conservative professor at the University of Chicago Law School, this trial marks "the end of a failed experiment in international justice." By "experiment" he means the whole notion of universal jurisdiction as applied by domestic courts and the International Criminal Court. (Wall Street Journal)
Argentine human rights groups have asked federal courts in Argentina to open an investigation into the crimes committed during the Spanish Civil War and the regime of former Spanish dictator Francisco Franco. Lawyers representing the Argentine relatives of the victims are invoking the principle of universal jurisdiction, which provides that genocide and crimes against humanity can be prosecuted by the courts of any country. This move comes a week after a decision by the Spanish Supreme Court to take a case against Spanish judge Baltazar Garzón. Garzon, known for his charges against various Argentine military figures, has been charged for bias and abuse of authority by opening an investigation into deaths and disappearances in Franco's Spain. (Associated Press)
Prime Minister Gordon Brown has announced plans to change a British law that allows arrest warrants against foreign officials for war crimes and other violations of international law. The move follows after British courts' increasing action against visiting foreign officials under the principle of universal jurisdiction. As a result several high profile foreign officials have refused to travel to the UK, including Israel's foreign minister, Tzipi Livni. Brown's announcement comes a few days after the arrest in London of Ejup Ganic, a former Bosnian vice president. Serbia accuses him of war crimes committed during the Bosnian war in 1992. (Telegraph)
In July 2009, the Spanish National Court agreed to hear a lawsuit by Tibetan rights groups against seven Chinese leaders. According to these groups, 203 Tibetans were killed and about 1,000 hurt in China's crackdown of protests before the start of the Beijing Olympics. The Spanish court accepted the lawsuit on the basis of universal jurisdiction. Then, in November 2009, the Spanish government narrowed the definition of universal jurisdiction, after pressure from countries such as the United States, Israel and China. As a result, the Spanish court has now decided to drop its investigations into the complaint. (Associated Press)
The UK government is looking into reforming its law on war crimes after a British court issued an arrest warrant against former Israeli foreign minister Tzipi Livni. The warrant was requested by Palestinian plaintiffs under the principle of universal jurisdiction to prosecute Livni for war crimes committed during "Operation Cast Lead" in Gaza. This incident illustrates a growing trend in British courts that might make it difficult for Israeli officials to travel to the UK - if the British government doesn't hollow out the law in the interest of preserving good relations with Israel. (The Guardian)
The US is failing to investigate and prosecute high-level officials responsible for the implementation of "enhanced interrogation techniques" amounting to torture in Guantanamo, Iraq and Afghanistan. These policies originated at the highest level, but investigations conveniently blamed it all on a few "bad apples" rather than look up the chain of command. In the absence of domestic prosecution, complaints have been filed in Germany, France and Spain under the principle of universal jurisdiction. But German and French courts have dismissed the cases on obvious political grounds, while Spain is facing pressure from the US - as well as China and Israel - to limit its application of universal jurisdiction. (Journal of International Criminal Justice)
The prosecution by Spanish courts of crimes committed in Guatemala has allowed victims of human rights abuses to tell their stories and fight against impunity. But after a decade of prosecution of crimes committed outside its territory, Spain has announced that it would begin to limit its application of universal jurisdiction. The Spanish government has been under international pressure following judges' investigations into human rights abuses perpetrated by American, Israeli and Chinese government officials. (NACLA)
Two local NGOs are calling for South Africa to exercise universal jurisdiction over Israel for war crimes committed during "Operation Cast Lead". Although this would amount to a crucial step in the international application of human rights law, the endeavor is unlikely to succeed. The South African government shows reluctance to engage on the issue, and cooperation from Israel is highly improbable. (Mail & Guardian Online)
Spain's National Court has become a de facto international court, pursuing serious violations of international law since 1985. Under the principles of "universal jurisdiction," the court, in 2005, decided that human rights violations could be tried without limitation in Spain. The court, which won praise for its pursuit of Chilean dictator Augusto Pinochet, has recently met opposition, especially in its investigations dealing with Israel, China and the United States. Under increasing international pressure, the Spanish government has decided to "clip the court's wings," Justice Baltasar Garzon and his colleagues continue the fight for universal jurisdiction. (Spiegel Online)
A Spanish court invokes universal jurisdiction to indict six former Bush officials. Under universal jurisdiction, international courts can investigate and prosecute foreign nationals for "crimes that shock the conscience of the global community." Bush officials responsible for violations of international law at Guantanamo Bay are subject to the same principle of universal jurisdiction as Adolph Eichmann, a German national who Israel prosecuted for war crimes committed in Nazi Germany. (San Francisco Chronicle)
A Spanish court will start criminal investigations against 6 former US government officials, including former vice-president Dick Cheney. Former Guantanamo Bay prisoners claim the Bush administration violated international law, by providing the legal framework to justify torture. US legal advisers, Jay S. Bybee and John Yoo, both under accusation, argue that arrests are unlikely to take place in the US. Nevertheless, prosecution for torture carried out outside of the US is legally possible under US law. (International Herald Tribune)
George W. Bush and his team of high-ranking officials, including former Defense Minister Rumsfeld, and Vice President Dick Cheney, facilitated war crimes in Guantanamo Bay and Abu Graib by condoning torture tactics. This article looks at ways that the International Criminal Court or the US federal court could prosecute the "Bush team." Prosecution of key people within the Bush administration could be feasible under international law and might also fall under universal jurisdiction. (Foreign Policy in Focus)
Just like his father Charles, Chucky Taylor stands trial for committing war crimes in Liberia. Whereas Charles Taylor's trial takes place before the Special Court for Sierra Leone, a US Federal Court in Miami tries Charles' son Chucky on the basis of universal jurisdiction. The case of Chucky Taylor is the first case in which a US citizen faces trial before a US court for war crimes overseas. (Observer)
According to the author of this article, governments can use military power to arrest suspects if other countries do not want to extradite alleged offenders of serious crimes. In 2008, a Spanish court decided to hear a case of a pro-Tibetan group that accuses Chinese officials of human rights violations. This article asks, if the Spanish court holds China responsible for its actions and Spain uses military power to arrest these officials, will this breach China's sovereignty. (Quantitative Peace)
In 2008, the US will try Chuckie Taylor for committing torture in Liberia during the regime of his father, former Liberian president Charles Taylor. Although the US joined the Convention against Torture in 1994, which allows the prosecution of non-nationals, Chuckie Taylor is the first person the US will bring to court on the basis of universal jurisdiction. (Human Rights Watch)
The Russian government is bringing the Bank of New York Mellon to trial in a Russian court over charges of money laundering. In the late 1990s, the US-owned bank contributed to the Russian economic crisis by improperly transferring $7.5 billion out of Russia into the US. Now, the Russian court is trying to apply the US statute of Racketeer Influenced and Corrupt Organizations (RICO) act against the bank. It would be the first time a country invoked RICO against the US in a foreign court. (New York Times)
The Rwandan parliament will discuss the issue of universal jurisdiction, following a Spanish judge's indictment of forty Rwandan army officers on charges of genocide. President Paul Kagame questions the rights of foreign nations' to prosecute crimes committed in Rwanda in 1994, since few countries offered help in ending the genocide and some even "abetted it." The President claims that universal jurisdiction is a ploy powerful countries use to "accord themselves the right to extend national jurisdiction to indict weaker nations." (New Times - Kigali)
Four human rights groups have filed a complaint in France charging former US Defense Secretary Donald Rumsfeld with "ordering and authorizing" torture of detainees at Abu Ghraib and Guantanamo Bay. Commentators suggest that Rumsfeld was in France attending a meeting when he allegedly fled to Germany to avoid arrest. According to this AlterNet article, under international law French authorities are obliged to investigate the complaint and will likely pursue Rumsfeld across the border. This comes as a stark reminder to the US that its own war criminals cannot escape accountability for breaches of human rights.
Leading human rights groups file an indictment against former US Secretary of Defense Donald Rumsfeld for authorizing the torture of prisoners in US custody. The charges against Rumsfeld were made in France and based on the Convention against Torture, which is endorsed by both the US and France. The plaintiffs say that there is enough evidence against Rumsfeld to prove the accusations in court. (OneWorld)
According to this paper, under traditional judiciary laws, negotiations between countries directly affected by a crime are faster than negotiations amongst those that are indirectly affected. The increasing popularity of universal jurisdiction, a policy which considers all states to have a stake in any international crime, decreases the international legal system's efficiency. This inefficiency, caused by numerous parties attempting to reach a consensus, leads countries to "hold out by threatening prosecution" and "block optimal deals." (University of St. Gallen Law School)
In the first case invoking Canada's Crimes Against Humanity and War Crimes Act, a judge will decide on the fate of a Rwandan national accused of committing atrocities, including murder and rape, during the 1994 genocide. The law, which Parliament passed in October 2000, allows Canadian courts to prosecute individuals regardless of when and where the alleged war crimes took place. The case demonstrates the increasing impact of the concept of universal jurisdiction on legislative procedures around the world. (Montreal Gazette)
In November 2006, human rights lawyers led by the Center for Constitutional Rights (CCR) filed a legal complaint against former US Defense Secretary Donald Rumsfeld and other high-ranking officials implicated in the Abu-Ghraib and Guantanamo Bay prison abuse scandals. CCR Vice President Peter Weiss explains the lawsuit against Rumsfeld and his cohorts based on the concept of universal jurisdiction.
NYU law professor Paul Chevigny considers the pros and cons of universal jurisdiction – a legal construct that allows courts in any country to pursue high international crimes committed outside their territory by persons not their own citizens. The author identifies some weakness, especially the problem of frivolous cases and its opposite, overly-narrow jurisdiction. He concludes that universal jurisdiction, while not a legal panacea, provides an important advance in law and a warning to future violators.
For the second time since 2004, the Center for Constitutional Rights intends to bring criminal charges against former US Defense Secretary Donald Rumsfeld for his alleged role in prisoner abuse at the US-run Abu Ghraib and Guantanamo Bay detention facilities. Under the doctrine of universal jurisdiction, the US-based organization can pursue its case in Germany, even though the crimes took place in other countries. The lawsuit demonstrates the international community's growing discontent with those "at the top of the chain of command" escaping prosecution for crimes against humanity. (Time)
Encouraged by a panel of legal experts, the African Union (AU) has asked Senegal to put exiled Chadian ruler Hissene Habre on trial for alleged crimes against humanity during his eight-year rule. Human Rights Watch reports that while welcoming Senegal's acceptance to try Habre, victims of the alleged atrocities promise to seek a binding ruling from the International Court of Justice if Dakar does not fulfill this commitment.
At the July 2006 African Union summit, a group of jurists will present their recommendations on whether to try former Chadian leader Hissene Habre in an African court or send him to Belgium to face charges of mass murders and torture in reference to his 1982-1990 rule. Human rights groups urge Senegal, which granted the exiled leader asylum, to prosecute Habre to reflect the country's commitment to justice rather than impunity. (Reuters)
Case studies in this report reveal persistent gaps in the capacity of several European courts to try alleged perpetrators of grave international crimes. National courts encounter challenges such as inadequate resources and insufficient domestic support to pursue such cases. Human Rights Watch encourages EU member states and other governments to maintain a hard line against impunity for crimes against humanity.
An African Union (AU)-appointed group of lawyers has ended deliberations on whether and how to put Hissene Habre on trial for human rights offences allegedly committed during his 1982-1990 rule. The AU had set some standards the panel needs to meet, for example, "priority for an African mechanism" and easy access to the trial for witnesses and alleged victims. However, a prominent Chadian lawyer doubts the AU's competence in handling the case and criticizes the government of Senegal, where Habre lives in exile, for not sending the former Chadian ruler to Belgium where judges can prosecute him under the universal jurisdiction law. (Integrated Regional Information Networks)
A Spanish court agreed to hear a Tibetan genocide case against China. In doing so Spain has become one of few countries to exercise the legal principle of universal jurisdiction, but this article argues there is growing support for this practice. The Chinese embassy in Madrid dismisses the case as "absurd" and the likelihood of the Chinese authorities coming before the court slim. Tibetan victims are satisfied that the case will bring attention to their suffering. (Christian Science Monitor)
The African Union has avoided a decision regarding the extradition of former Chadian leader, Hissene Habre to Belgium under universal jurisdiction laws. Instead it has requested a group of African jurists to advise them on the matter. Much disagreement exists about extradition versus trying Habre in Africa. However victims who have already been waiting 15 years for justice, want a trial sooner rather than later.(Integrated Regional Information Networks)
A Spanish court has agreed to consider a lawsuit against China over its treatment of Tibet, under its powers of universal jurisdiction. The lawsuit involves former Chinese President Jiang Semin, former Prime Minister Li Peng and five military and security officials. In September 2005 Spain's Constitutional Court ruled, allowing lower courts to probe genocide crimes, even if no Spanish citizens were among the victims. Spain first invoked the principle of universal jurisdiction in 1998. (Free New Mexican)
After living in exile in Senegal since 1990, former Chadian President Hissene Habre was arrested for crimes against humanity that occurred under his regime. Senegalese police arrested Habre after Brussels requested his extradition under Belgian universal jurisdiction laws. The complexity of international involvement in the case makes the outcome difficult to predict. Regardless, the case will set an important precedent for international criminal law, amnesty, and universal jurisdiction in Africa. (AngolaPress)
In spite of many developments in international law over the past 60 years the Nuremberg tribunal remains a defining moment. The author argues that the Nuremberg trial is fundamental to our understanding of transnational justice, especially retroactivity. The author concludes that the International Criminal Court and similar tribunals should therefore follow the Nuremberg example and explore evolving modes of justice. (openDemocracy)
In "an extraordinary advance that should be copied by all countries," Spain's Supreme Court asserted its right to try individuals under the principle of universal jurisdiction. Overturning a 2003 decision that blocked Spain from taking action against the perpetrators of human rights violations in Guatemala, the Court now affirmed the necessity of bringing international criminals to justice, regardless of their citizenship or where they committed their crimes. (Agence France-Presse)
Taking another step in broadening the application of universal jurisdiction, the Netherlands has brought to trial two former senior officials of the 1980s Khad secret police force in Afghanistan, who are accused of torture and war crimes. In response to a spike in asylum seekers in the 1990s, Amsterdam established a special war crimes investigation unit, solely to determine how many asylum-seekers were themselves former perpetrators of persecution. The investigation unit in turn presents cases to be prosecuted under a combination of Dutch laws, the Geneva Conventions and the 1984 UN Convention Against Torture. (New York Times)
Under the UN Convention against Torture, a British court convicted a fugitive Afghan warlord of crimes committed during Afghanistan's civil war. Establishing a precedent that upholds the principle of universal jurisdiction, the verdict proves that "there is no hiding place for torturers around the globe." (Eurasianet)
In an unusually outspoken speech, Executive Director of Amnesty International USA William Schulz sharply criticized Washington's failure to address US officials and top officers' responsibility in torture cases. Schulz called on the Pentagon to allow an independent investigation and urged foreign governments to arrest any US official who enters their territory – including President George W. Bush, Defense Secretary Donald Rumsfeld and former CIA Director George Tenet – for trial on prisoner treatment that violates the Geneva Conventions and the UN Convention against Torture. (Inter Press Service)
The Spanish National Court's sentencing of former Argentine navy commander Adolfo Scilingo was a "significant affirmation of the principle of universal jurisdiction," reports the Japan Times. The verdict proved that "national borders do not prevent the prosecution of those guilty of crimes against humanity" and will pave the way for similar trials in the near future.
Spain's National Court has sentenced former Argentinean naval officer Adolfo Scilingo to 640 years in jail for crimes against humanity. The ruling marked the first time a national court has convicted an individual for war crimes committed in another country. Even though Scilingo will only serve 30 years under Spain's penal code, human rights groups hailed the verdict as a "vindication" for the principle of universal jurisdiction. (Independent)
The International Commission of Inquiry on Darfur raised the possibility of prosecuting Sudan's war criminals in other states' courts as an alternative to the International Criminal Court or another ad hoc criminal tribunal. One of the drawbacks to this universal jurisdiction approach is the fact that the defendants must appear in court. In addition, the News and Observer questions whether the UN would willingly share its evidence with other countries.
Spain's national court is prosecuting former Argentinean officer Adolfo Scilingo for crimes against humanity committed under Argentina's military junta in the 1970s. Arrested in 1997, Scilingo is the first person being tried in Spain under the doctrine of universal jurisdiction. Former Chilean dictator Augusto Pinochet was indicted by a Spanish court on similar charges, and although that case did not go to trial, it paved the way for action against Scilingo. (Guardian
Under German legislation that allows for universal jurisdiction, New York's Center for Constitutional Rights and Berlin's Republican Lawyers' Association filed a lawsuit against US Defense Secretary Donald Rumsfeld and other officials liable for the Abu Ghraib prison scandal. The Pentagon warns that "frivolous lawsuits" would put the countries' relations at risk, and Rumsfeld threatens to boycott the annual Munich security conference if the lawsuit advances. (Deutsche Welle)
Accountability Commission Zimbabwe hopes Canada will indict Zimbabwean President Robert Mugabe for human rights violations, citing universal jurisdiction under the Canadian Crimes Against Humanity and War Crimes Act. The Canadian government says there needs to be a Canadian victim or connection in the case, but supporters cite International Criminal Court obligations and the precedent of Liberian President Charles Taylor's trial in Sierra Leone as reasons to proceed. (Globe and Mail)
The 1998 detention of former Chilean dictator Augusto Pinochet in London and the resulting legal proceedings against him sparked movements against impunity in Chile and Argentina. Activists should continue to utilize international mechanisms such as universal jurisdiction to reinforce domestic efforts to hold human rights violators accountable for their crimes. (Institute for Policy Studies)
As the concepts of transnational justice and universal jurisdiction gain international popularity, the Bush administration increasingly fears politically motivated prosecutions of US officials and citizens. The San Francisco Chronicle argues these fears should not serve as an excuse to immunize those who commit gross human rights violations.