“Prof. Ralph Sarmiento explains the Principle of Universality of Jurisdiction, prosecution of international crimes, the Rome Statute of the International Criminal Court (ICC), Delegated Jurisdiction, etc. Interview on the IBP Hour hosted by Atty. Andy Hagad.”
“you can be hauled into court before the ICC no matter who your Sovereign is upon Security Council referral.” Of course, the odds of the Security Council bringing any of the other largest members of the Security Council to court before the ICC is very remote, especially if they are all guilty of committing the same crimes.
WHAT IS UNIVERSAL JURISDICTION?
From Wikipedia, the free encyclopedia
“Universal jurisdiction allows states
or international organizations
to claim criminal jurisdiction
over an accused person regardless of where the alleged crime was committed, and regardless of the accused’s nationality, country of residence
, or any other relation with the prosecuting entity. Crimes prosecuted under universal jurisdiction are considered crimes against all, too serious to tolerate jurisdictional arbitrage
The concept of universal jurisdiction is therefore closely linked to the idea that some international norms are erga omnes, or owed to the entire world community, as well as the concept of jus cogens – that certain international law obligations are binding on all states
Opponents, such as Henry Kissinger
, argue that universal jurisdiction is a breach on each state’s sovereignty
: all states being equal in sovereignty, as affirmed by the United Nations Charter
, “Widespread agreement that human rights violations and crimes against humanity must be prosecuted has hindered active consideration of the proper role of international courts. Universal jurisdiction risks creating universal tyranny – that of judges.” According to Kissinger, as a practical matter, since any number of states could set up such universal jurisdiction tribunals, the process could quickly degenerate into politically driven show trials to attempt to place a quasi-judicial stamp on a state’s enemies or opponents.
“All nations,” says the Institutional Treatise published under the authority of Roman EmperorJustinian
(c. 482-565) “…are governed partly by their own particular laws, and partly by those laws which are common to all, [those that] natural Reason appoints for all mankind.”
Expanding on the classical understanding of universal law accessible by reason, in the Seventeenth Century the Dutch jurist Grotius
laid the foundations for Universal Jurisdiction in modern international law, promulgating in his De Jure Pradae (Of Captures) and later De jure belli ac pacis
(Of the Law of War and Peace) the Enlightenment
view that there are universal principles of right and wrong.
At about the same time, international law came to recognize the analogous concept of hostes humani generis
(‘enemies of the human race’): pirates, hijackers, and similar outlaws whose crimes were typically committed outside the territory of any state. The notion that heads of state and senior public officials should be treated like pirates or outlaws before the global bar of justice is, according to Henry Kissinger, a new gloss on this old concept.
From these premises, representing the Enlightenment belief in trans-territorial, trans-cultural standards of right and wrong, derives Universal Jurisdiction.
Perhaps the most notable and influential precedent for Universal Jurisdiction were the mid-20th century Nuremberg Trials
. U.S. Justice Robert H. Jackson
then chief prosecutor, famously stated that the International Military Tribunal
could prosecute Nazi “crimes against the peace of the world” even though the acts might have been perfectly legal at the time in Fascist Germany. Indeed one charge was that the Nazis distorted the law itself into an instrument of oppression.
International jurisdiction differs from “territorial jurisdiction
“, where justice is exercised by a state in relation to crimes committed on its territory (territorial jurisdiction). States can also exercise jurisdiction on crimes committed by their nationals abroad (extraterritorial jurisdiction
), even if the act the national committed was not illegal under the law of the territory in which an act has been committed. As an example, the American law the Protect America Act of 2007
asserts jurisdiction over terror-suspects on a worldwide basis.
States can also in certain circumstances exercise jurisdiction over acts committed by foreign nationals on foreign territory. This form of jurisdiction tends to be much more controversial. Bases on which a state can exercise jurisdiction in this way:
The least controversial basis is that under which a state can exercise jurisdiction over acts that affect the fundamental interests of the state, such as spying
, even if the act was committed by foreign nationals on foreign territory. The Indian Information Technology Act 2000
largely supports the extraterritoriality of the said Act. The law states that a contravention of the Act that affects any computer or computer network situated in India will be punishable by India – irrespective of the culprits location and nationality.
Also relatively non-controversial is the ability of a state to try its own nationals for crimes committed abroad. Some nations such as France as a matter of law will refuse to extradite
their own citizens, but will instead try them for crimes committed abroad.
More controversial is the exercise of jurisdiction where the victim of the crime is a national of the state exercising jurisdiction. In the past some states have claimed this jurisdiction (e.g., Mexico (Cutting Case (1887)), while others have been strongly opposed to it (e.g., the United States, except in cases in which an American citizen is a victim (US v Yunis (1988)). In more recent years however, a broad global consensus has emerged in permitting its use in the case of torture, “forced disappearances” or terrorist offences (due in part to it being permitted by the various United Nations conventions on terrorism); but its application in other areas is still highly controversial.
For example, former dictator of Chile Augusto Pinochet
was arrested in London in 1998, on Spanish judge Baltazar Garzon
‘s demand, on charges of human rights abuses, not on the grounds of universal jurisdiction but rather on the grounds that some of the victims of the abuses committed in Chile were Spanish citizens. Spain then sought his extradition
from Britain, again, not on the grounds of universal jurisdiction, but by invoking the law of the European Union
regarding extradition; and he was finally released on grounds of health. Argentinian Alfredo Astiz
‘s sentence is part of this juridical frame.
States parties to the Statute of the International Criminal Court
(light green means ratification or accession deposited but not yet in force, brown means signed but not yet ratified).
Established in The Hague
in 2002, the International Criminal Court (ICC) is an international tribunal empowered with the right to prosecute state-members’ citizens for genocide, crimes against humanity, and war crimes, as defined by several international agreements, most prominently the Rome Statute of the International Criminal Court
signed in 1998. It provides for ICC jurisdiction over state party or on the territory of a non-state party where that non-state party has entered into an agreement with the court providing for it to have such jurisdiction in a particular case.
However, Amnesty International argues that since the end of the Second World War over fifteen states have conducted investigations, commenced prosecutions and completed trials based on universal jurisdiction for the crimes or arrested people with a view to extraditing the persons to a state seeking to prosecute them. These states include: Australia, Austria, Belgium, Canada, Denmark, Finland, France, Germany, Israel
, Mexico, Netherlands, Senegal
, Spain, Switzerland, the United Kingdom and the United States.
All states parties to the Convention against Torture
and the Inter-American Convention
are obliged whenever a person suspected of torture is found in their territory to submit the case to their prosecuting authorities for the purposes of prosecution, or to extradite that person. In addition, it is now widely recognized that states, even those that are not states parties to these treaties, may exercise universal jurisdiction over torture under customary international law.
IMMUNITY FOR STATE OFFICIALS
On 14 February 2002 the International Court of Justice in the ICJ Arrest Warrant Case
concluded that State officials may have immunity under international law while serving in office
. The court stated that immunity was not granted to State officials for their own benefit, but instead to ensure the effective performance of their functions on behalf of their respective States. The court also stated that when abroad, State officials may enjoy immunity from arrest in another State on criminal charges, including charges of war crimes or crimes against humanity.
But the ICJ qualified its conclusions, saying that State officers “may be subject to criminal proceedings before certain international criminal courts, where they have jurisdiction. Examples include the International Criminal Tribunal for the former Yugoslavia, and the International Criminal Tribunal for Rwanda… , and the future International Criminal Court.”
In 2003 Charles Taylor
, the former president of Liberia
, was served with an arrest warrant by the Special Court for Sierra Leone
(SCSL) that was set up under the auspices of a treaty that binds only the United Nations and the Government of Sierra Leone.
Taylor contested the Special Court’s jurisdiction, claiming immunity, but the Special Court for Sierra Leone concluded in 2004 that “the sovereign equality of states does not prevent a Head of State from being prosecuted before an international criminal tribunal or court.”
The Special Court convicted Taylor in 2012 and sentenced him to fifty years’ imprisonment, making him the first head of state since the Nuremberg Trials
in World War II to be tried and convicted by an international court.
In sum, the question whether a former Head of State might have immunity depends on which international court or tribunal endeavors to try him, how the court is constituted, and how it interprets its own mandate.
UNIVERSAL JURISDICTION LAWS AROUND THE WORLD
The High Court of Australia confirmed the authority of the Australian Parliament, under the Australian Constitution, to exercise universal jurisdiction over War Crimes in the Polyukhovich v Commonwealth
case of 1991.
In 1993, Belgium’s Parliament passed a “law of universal jurisdiction” (sometimes referred to as “Belgium’s genocide law”), allowing it to judge people accused of war crimes, crimes against humanity or genocide. In 2001, four Rwandan citizens were convicted and given sentences from 12 to 20 years’ imprisonment for their involvement in 1994 Rwandan genocide
There was a rapid succession of cases:
Israelis filed a case against Yasser Arafat
on grounds of responsibility for terrorist activity;
Confronted with this sharp increase in cases, Belgium established the condition that the accused person must be Belgian or present in Belgium. An arrest warrant issued in 2000 under this law, against the then Minister of Foreign Affairs of the Democratic Republic of the Congo, was challenged before the International Court of Justice
in the case entitled ICJ Arrest Warrant Case
. The ICJ’s decision issued on 14 February 2002 found that it did not have jurisdiction to consider the question of universal jurisdiction, instead deciding the question on the basis of immunity of high-ranking state officials.
However, the matter was addressed in separate and dissenting opinions,
such as that of President Guillaume who concluded that universal jurisdiction exists only in relation to piracy;
and the dissenting opinion of Judge Oda who recognised piracy, hijacking, terrorism and genocide as crimes subject to universal jurisdiction.
On 1 August 2003, Belgium repealed the law on universal jurisdiction, and introduced a new law on extraterritorial jurisdiction
similar to or more restrictive than that of most other European countries. However, some cases that had already started continued. These included those concerning the Rwandan genocide, and complaints filed against the Chadian ex-President Hissène Habré
(dubbed the “African Pinochet
In September 2005, Habré was indicted for crimes against humanity, torture, war crimes and other human rights violations by a Belgian court. Arrested in Senegal
following requests from Senegalese courts, he is now under house arrest and waiting for (an improbable) extradition to Belgium.
To implement the Rome Statute, Canada passed the Crimes Against Humanity and War Crimes Act
. Michael Byers
, a University of British Columbia
law professor, has argued that these laws go further than the Rome Statute, providing Canadian courts with jurisdiction over acts pre-dating the ICC and occurring in territories outside of ICC member-states; “as a result, anyone who is present in Canada and alleged to have committed genocide, torture […] anywhere, at any time, can be prosecuted [in Canada].”
The article 689 of the code de procédure pénale
states the infractions that can be judged in France when they were committed outside French territory either by French citizens or foreigners. The following infractions may be prosecuted:
Eichmann’s defense lawyer argued that Israel did not have jurisdiction on account of Israel not having come into existence until 1948. The Genocide Convention also did not come into effect until 1951, and the Genocide Convention does not automatically provide for universal jurisdiction. It is also argued that Israel agents obtained Eichmann illegally, violating international law when they seized and kidnapped Eichmann, and brought him to Israel to stand trial. The Argentinian government settled the dispute diplomatically with Israel.
Israel argued universal jurisdiction based on the “universal character of the crimes in question” and that the crimes committed by Eichmann were not only in violation of Israel law, but were considered “grave offenses against the law of nations itself.
It’s also asserted that the crime of genocide is covered under international customary law. As a supplemental form of jurisdiction, a further argument is made on the basis of protective jurisdiction. Protective jurisdiction is a principle that, “…provides that states may exercise jurisdiction over aliens who have committed an act abroad which is deemed prejudicial to the security of the particular state concerned.”
The legitimacy of the tribunal and its findings have been questioned.
Spanish law recognizes the principle of universal jurisdiction. Article 23.4 of the Judicial Power Organization Act (LOPJ), enacted on 1 July 1985, establishes that Spanish courts have jurisdiction over crimes committed by Spaniards or foreign citizens outside Spain when such crimes can be described according to Spanish criminal law as genocide, terrorism, or some other, as well as any other crime that, according to international treaties or conventions, must be prosecuted in Spain. On 25 July 2009 the Spanish Congress passed a law that limits the competence of the Audiencia Nacional
under Article 23.4 to cases in which Spaniards are victims, there is a relevant link to Spain, or the alleged perpetrators are in Spain.
The law still has to pass the Senate, the high chamber, but passage is expected because it is supported by both major parties.
In 1999, Nobel peace prize
winner Rigoberta Menchú
brought a case against the Guatemalan
military leadership in a Spanish Court. Six officials, among them Efraín Ríos Montt
and Óscar Humberto Mejía
, were formally charged on 7 July 2006 to appear in the Spanish National Court after Spain’s Constitutional Court ruled in September 2005, the Spanish Constitutional Court declaration that the “principle of universal jurisdiction prevails over the existence of national interests”, following the Menchu suit brought against the officials for atrocities committed in theGuatemalan Civil War
In June 2003, Spanish judge Baltasar Garzón
jailed Ricardo Miguel Cavallo
, a former Argentine
naval officer, who was extradited from Mexico to Spain pending his trial on charges of genocide and terrorism relating to the years of Argentina’s military dictatorship.
On 11 January 2006 the Spanish High Court
accepted to investigate a case in which seven former Chinese officials, including the former President of China Jiang Zemin
and former Prime Minister Li Peng
were alleged to have participated in a genocide in Tibet
. This investigation follows a Spanish Constitutional Court (26 September 2005) ruling that Spanish courts could try genocide cases even if they did not involve Spanish nationals.
China denounced the investigation as an interference in its internal affairs and dismissed the allegations as “sheer fabrication”.
The case was shelved in 2010, because of a law passed in 2009 that restricted High Court investigations to those “involving Spanish victims, suspects who are in Spain, or some other obvious link with Spain”.
Israeli Prime Minister Benjamin Netanyahu
strongly criticized the decision, and Israeli officials refused to provide information requested by the Spanish court.
The attack killed the founder and leader of the military wing of the Islamic terrorist organisation Hamas
, Salah Shehade
, who Israel said was responsible for hundreds of civilian deaths. The attack also killed 14 others (including his wife and 9 children).
It had targeted the building where Shahade hid in Gaza City. It also wounded some 150 Palestinians, according to the complaint (or 50, according to other reports).
The Israeli chief of operations and prime minister apologized officially, saying they were unaware, due to faulty intelligence, that civilians would be in the house.
A regretful Ya’alon also mentioned that the army had passed up on several earlier opportunities to kill Shehade, because he was with his wife or children, and that each time Shehadeh went on to direct more suicide bombings against Israel.
The investigation in the case was halted on 30 June 2009 by a decision of a panel of 18 judges of the Audiencia Nacional. The Spanish Court of Appeals rejected the lower court’s decision, and on appeal in April 2010 the Supreme Court of Spain upheld the Court of Appeals decision against conducting an official inquiry into the IDF’s targeted killing of Shehadeh.
Via video description; “Baltasar Garzón, an investigating magistrate of the Spanish National Court, came to international attention in 1998 when he issued an international warrant for the arrest of former Chilean dictator Augusto Pinochet on human rights charges. He has also presided over human rights cases against Argentine and Chilean military leaders and worked to unearth crimes committed during the Franco era in Spain.”
An offence is generally only triable in the jurisdiction where the offence took place, unless a specific statute enables the UK to exercise extraterritorial jurisdiction. This is the case for:
In December 2009 a court in London issued an arrest warrant for Tzipi Livni
in connection with accusations of war crimes
in the Gaza Strip during Operation Cast Lead
The warrant was issued on 12 December and revoked on 14 December 2009 after it was revealed that Livni had not entered British territory.
The warrant was later denounced as “cynical” by the Israeli foreign ministry, while Livni’s office said she was “proud of all her decisions in Operation Cast Lead”.
Livni herself called the arrest warrant “an abuse of the British legal system”.
Similarly a January visit to Britain by a team of Israel Defense Forces
(IDF) was cancelled over concerns that arrest warrants would be sought by pro-Palestinian advocates in connection with allegations of war crimes
under laws of universal jurisdiction.
HOW THE UK HAS DISMANTLED THE UNIVERSAL JURISDICTION LAW
AGRP: “This same process of subverting the will of the people is being pursued not just in the UK, but also in other countries, to try and dismantle this last refuge of the people who are in pursuit of universal justice, human rights and bringing people to account for their criminal actions.”
A Finnish high court sentenced a Rwandan preacher to life in jail in 2010 for his participation in Rwanda’s genocide in 1994. Francois Bazaramba, 59, moved in 2003 to Finland seeking asylum. Finland allows prosecutions for crimes against humanity wherever they are committed.
At the time of the genocide, he was a pastor in the Baptist church in Nyakizu in southern Rwanda. According to Finnish newspaper Helsingin Sanomat, the court found him guilty of orchestrating deadly attacks, and organising the torching of Tutsi homes.
In a statement the court said he had spread anti-Tutsi propaganda and incited “killings through fomenting anger and contempt towards Tutsis”. “The court has found Bazaramba guilty of an offence which without a genocidal intent would be judged as a murder or incitement to murder,” the statement said. “For those crimes, the only possible punishment is life imprisonment.” He was acquitted of 10 counts of murder and of providing training and acquiring weapons, Helsingin Sanomat reports. During the trial, the court heard from 68 witnesses, travelling to Rwanda and Tanzania to hear some testimonies.
US LAW IN REGARDS TO UNIVERSAL JURISDICTION
Universal Jurisdiction interviews three United States attorneys, who explain how they and others are using American courts on behalf of Palestinian claimants to seek justice for alleged rights violations committed by Israeli officials in Palestine.
A detailed explanation of Universal Jurisdication by a university professor in the US.
POTENTIAL CASES FOR UNIVERSAL JURISDICTION COURT PROCEEDINGS
At Fukushima Daichi, 3 Coriums Left Containment Compared To 1 At Chernobyl; via @AGreenRoad
Fukushima – 200 MILLION Gallons Of Highly Radioactive Water Are Pouring Into Pacific Per Day, Or More; via @AGreenRoad
Shimatsu: Mega Nuclear Explosion Possible within Earth’s Crust Due to 3 Molten Coriums at Fukushima; via @AGreenRoad
Even Japan has citizen led universal jurisdiction courts and they have been trying to accomplish justice in Japan. For more details;
Ex-TEPCO Executives to Face Criminal Charges Over Fukushima Disasterhttp://en.ria.ru/world/20140731/191522370/Ex-TEPCO-Executives-to-Face-Criminal-Charges-Over-Fukushima.html
SadieDog October 23, 2014
“The Tokyo’s District Prosecutors Office last year declined to charge more than 30 Tepco and government officials after investigating a criminal complaint from residents, who said officials ignored the risks to the Fukushima Daiichi plant from natural disasters and failed to respond appropriately when crisis struck.
But a special citizens’ panel opened another legal front in July, asking prosecutors to consider charges of criminal negligence against three executives over their handling of the world’s worst nuclear disaster since Chernobyl in 1986.”
The first step in a Universal Jurisdiction case, is to establish who is committing crimes (or will in the near future) against humanity, identify the crime being committed, identify the motive, and then identify the specific suspects to be charged with these criminal charges via the Universal Jurisdiction process.
Not many people realize that there are many sociopaths/psychopaths running around the world, who have the power and means to destroy all life on Earth. The scary part of this equation is that they also have the power to cover up what they are doing, through their influence in the mass media and government. To find out the hidden truth about what is going on, click on the following link..
How To Spot A Sociopath Or Psychopath – 10 red flags that could save you from being swept under the influence of a charismatic nut job; via A Green Road
Evidence Of Crimes Against Humanity
Wouldn’t you agree that there are severe and immediate threats posed to all of humanity by thousands of nuclear weapons as well as over 400 nuclear power plants, which fit into the definitions of genocide, and/or crimes against humanity,.
? If for some strange reason, the following things do not fit into the present definitions of genocide and crimes against humanity, then it is time to change the definitions and include these things.
Tokyo Press Conference: Gov’t is committing crimes against humanity; Fukushima children living in war zone and can’t leave —
Wouldn’t you agree that there are severe and immediate threats posed to all of humanity by the present use of DU weapons, which is the equivalent of a low level nuclear war, plus thousands of nuclear weapons on hair trigger alert, combined with approval of ‘first strike’ policies which fit into the definitions of genocide
and/or crimes against humanity
? If for some strange reason, the following things do not fit into the present definitions of genocide and crimes against humanity, then it is time to change the definitions and include these things.
Cases can and should be brought via the Universal Jurisdiction process against any government using DU weapons, stocking WMD, specifically nuclear weapons, DU weapons, and against all nuclear power plants with a goal of shutting them all down and safely storing the high level nuclear wastes.
The nuclear weapons manufacturers will be guilty of genocide if the weapons are used (but no one will be left to prosecute) and the human population of the Earth will disappear if these 400+ nuclear power plants are accidentally destroyed or blown up on purpose, via the Carrington Event, war, natural calamities, or terrorist activities. At the very least, first strike laws should be made illegal and abolished globally. If even one country uses a ‘first strike’ all other countries will launch nuclear weapons, and the human race will cease to exist. Humanity cannot continue to exist much longer with nuclear weapons poised on hair trigger alerts.
INDIVIDUAL AND CLASS ACTION LAWSUITS AS PART OF THE SOLUTION
Individually, cases can also be brought in court via small claims, criminal courts and other venues, as the following article describes….
How Can A Radiation Exposure Victim Get 10 Million Dollars As Compensation For Health And Property Damage? via @AGreenRoad
USS Ronald Reagan Sailors/Crew Exposed To High Doses Of Fukushima Radiation, File Lawsuit; via @AGreenRoad
DNA Evidence May Prove Link Between Cancers And Fukushima Radiation In The Near Future; via @AGreenRoadhttp://agreenroad.blogspot.com/2014/02/dna-evidence-can-now-prove-link-between.html
Nuclear technology should not legally be allowed to be used in any way on the planet Earth.
Universal Jurisdiction; How To Save The World From Genocidal Sociopaths
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What is Needed? Top Down Champions Of Sustainability With $; via @AGreenRoad