Universal Jurisdiction: It's Back!

The panel was convened at 9:00 a.m., Saturday, April 12, by its moderator, Ved Nanda of the University of Denver Sturm College of Law, who introduced the panelists: Christopher Keith Hall of Amnesty International; Wolfgang Kaleck of the European Center for Constitutional and Human Rights; Diane Orentlicher of the Open Society Institute; David Stewart of the U.S. Department of State; and Peter Weiss of the Center for Constitutional Rights. This panel discussed the rationale behind universal jurisdiction, its scope, and its limits, including state practice and selected case studies. Panelists assessed the current state of the law and analyzed the extent to which several states have enacted laws authorizing their courts and law enforcement authorities to exercise universal jurisdiction--that is, jurisdiction to investigate and prosecute an individual for crimes alleged to have been committed anywhere in the world, even though there is no consensus on the scope and operation of universal jurisdiction. INTRODUCTORY REMARKS BY VED P. NANDA * I will provide a broad overview and then request my distinguished panel members to make their presentations. Under universal jurisdiction a national court is authorized to investigate and prosecute a person suspected of committing international crimes in any place, regardless of his or her nationality or the nationality of the victim, and without the necessity of any links to the forum state. Currently a general consensus exists that effective institutional mechanisms are needed to combat impunity for grave human rights violations and to hold accountable those who commit international crimes--genocide, crimes against humanity, torture, and war crimes. Also, it is widely acknowledged that several recent developments have furthered that objective. These include the establishment of the International Criminal Court (ICC) and of hybrid and special national tribunals to try these crimes, such as the Cambodia and Sierra Leone tribunals, which were preceded by ad hoc war crimes tribunals for Bosnia in The Hague, and for Rwanda in Arusha, Tanzania. Notwithstanding these developments, the need is apparent for national courts to try cases of such grave crimes as well even if these crimes are not committed within their national territory and regardless of the nationality of the accused and of the victim, and even if the crimes are committed by government officials in another state. It should be recalled that the Convention against Torture and the Geneva Conventions provisions regarding grave breaches mandate the exercise of universal jurisdiction over persons accused of committing these crimes or to extradite them to a country that will prosecute them. Also, the Rome Statute of the International Criminal Court in its preamble recalls that it is the duty of national courts to exercise criminal jurisdiction over those responsible for international crimes. Nevertheless, for several decades following the trial of Nazi criminals by the Nuremberg Tribunal and adoption of the Nuremberg Principles by the UN General Assembly, states have declined to enact legislation empowering their national courts to exercise universal jurisdiction and have instead relied on territorial jurisdiction or some other valid basis for the exercise of jurisdiction under international law. A significant change in the international legal environment took place following the Pinochet precedent: pursuant to a Spanish magistrate's request for extradition on charges of torture during Pinochet's regime in Chile, the former president was arrested and detained in London in 1998. Although he was never extradited, the case spurred considerable activity regarding universal jurisdiction. Several states have now enacted legislation under which national courts can exercise universal jurisdiction. In its 2001 study, Universal Jurisdiction: The Duty of States to enact and implement legislation, Amnesty International reported that more than 125 countries had authorized their courts to exercise universal jurisdiction over one or more of the following international crimes: genocide, crimes against humanity, war crimes, torture, extrajudicial executions, and disappearances. …