Statement of the Legal Task Force of Scholars for Peace in the Middle East

On the Abuse of Universal Jurisdiction

DATE OF RELEASE: March 22, 2010

In recent years, universal jurisdiction has generated a continual stream of controversies. Critics have challenged both the exercise of jurisdiction in cases where it appears unwarranted (as in the U.K. arrest warrant issued for Tzipi Livni and threatened prosecutions of George W. Bush and Condoleezza Rice) and the failure to exercise it where it appears appropriate (as in the cases of Mahmoud Ahmadinejad and Kim Jong Il). Inherent in universal jurisdiction are the risks of politically motivated prosecution, loss of due process, abandonment of legal standards, and abrogation of state sovereignty. Selective enforcement, under-enforcement and over-enforcement all exacerbate the risks of legal uncertainty, unpredictability, confusion, disparity and inequity. Selective exercise may also create the appearance of politicization, paternalism, neocolonialism, aggression or bias. Moreover, abusive practices can jeopardize peaceful relations among nations, by curbing international travel by senior governmental officers and provoking retaliatory actions by states whose officials are subjected to extraterritorial jurisdiction.

In most cases, judicial proceedings should be conducted by judicial bodies of the state in whose territory the alleged wrong transpired in order to further the judicial interests in full discovery of evidence, increase the deterrent value of the proceedings and to ensure that the accused is held accountable under laws of which he or she has had proper notice and under a system of justice to which he or she has at least implied consented. There are several legitimate exceptions to this rule, but each must be circumscribed closely in order to curb the potential for abuse.

Universal jurisdiction by a domestic tribunal, still an exception in current international law, can constitute serious judicial abuse under some circumstances. For this reason, universal jurisdiction must be considered an extraordinary measure subject to the strictest care, precautions and scrutiny. States which exercise universal jurisdiction have an obligation to ensure that adequate safeguards are established to maintain the integrity of the judicial process, prevent criminal justice abuse, and the destabilization of peaceful relations with other states.

Specifically, all states should limit the potential for abuse of universal jurisdiction by establishing four basic safeguards: (i) requiring special circumstances, such as a limitation of the offences that can give rise to its invocation or the requirement of a nexus between the state and the alleged transgression, (ii) providing mechanisms to prevent either politicization or judicial overreaching, (iii) recognizing qualified immunities for certain governmental officials, and (iv) requiring prior exhaustion of adequate and available domestic remedies. Some of these limitations are contained within the important joint separate opinion of the International Court of Justice in the Arrest Warrant case (April 11, 2000).

According to the ICJ’s joint separate opinion of judges Higgins, Kooijmans and Buergenthal “special circumstances” are a necessity to commence proceedings under universal jurisdiction. This may entail a request from a source external to the prosecutorial office, such as the victim’s family. This is intended to ameliorate the prospect of politically motivated prosecutions. An alternative limitation on offices is to require a nexus between the state exercising jurisdiction and the alleged crime. This requirement may limit jurisdiction to cases where a national of the state exercising jurisdiction is victim or accused or where the state is mandated by treaty to exercise it.

Various limitations have arisen to minimize the prospect of politicization or judicial overreaching. One such mechanism is the requirement of prior approval by an appropriate cabinet officer, such as a minister of justice, before judicial proceedings may take place. Another limitation, suggested by the ICJ, is that prosecution must be conducted by a prosecutor independent of any state organ, in order to reduce the likelihood that charges are brought for political reasons. To date, many cases brought on the basis of universal jurisdiction have suffered from both official and private sector politicization, neither of which serves the cause of international justice. The initiative for prosecutions must be in the hands of a sovereign criminal justice system – which includes consent from the Minister of Justice for any indictment or prosecution to proceed – in order to prevent private sector legal agitation from taking hold of a prosecutorial agenda for which state officials must be responsible. On the other hand, the prosecution itself must be carried out by a prosecutorial staff that is independent of any pressure by the political branches of government, in order to prevent the justice system being misused for foreign policy goals.

The ‘exhaustion of domestic remedies’ requirement is an important limitation of unnecessary use of universal jurisdiction. As the ICJ has explained, this requirement means that any state which chooses to assert universal jurisdiction in absentia “must first offer to the national State of the prospective accused person the opportunity itself to act upon the charges concerned.” This limitation both protects comity among nations and also respects the superior jurisdictional claims of the state in whose territory the alleged wrongdoing occurred. Some commentators have observed that international scrutiny of domestic judicial proceedings, together with the prospect of subsequent proceedings abroad (subject to limitation on double jeopardy), would enhance the likelihood of good faith prosecution. This requirement must however be limited to cases in which domestic remedies are adequate and available to ensure that the purposes of universal jurisdiction are not frustrated.

The ICJ has recognized that “no exercise of criminal jurisdiction may occur which fails to respect the inviolability or infringes the immunities of the person concerned[, but] commencing an investigation on the basis of which an arrest warrant may later be issued does not of itself violate those principles.” In other words, states exercising universal jurisdiction must honor the privileges and immunities which the officials of other states may exercise, but they may nevertheless conduct investigations. The exercise of universal jurisdiction is necessarily subject to various privileges, including a qualified immunity for heads of state. This privilege should be recognized for former as well as present heads of state. It should also be recognized for certain inferior officers. Universal jurisdiction should not be used in a manner which undermines the fundamental right of self-defense of all sovereign states.

FOR THESE REASONS

We appeal to all states to provide adequate legal guarantees with a view to prevent politically motivated judicial proceedings, making abuse of any law permitting universal jurisdiction. If necessary, domestic laws should be drafted or amended accordingly.

We welcome and endorse the British government’s declaration of March 4, 2010 that ‘… the Crown Prosecution Service will take over responsibility for prosecuting war crimes and other violations of international law, ending the current system in which magistrates are obliged to consider a case for an arrest warrant presented by any individual’.

We encourage the British government and any other government to act in a speedy and timely manner in order to ensure judicial integrity, avoid frictions between nations and restore the good understanding among friendly nations.

Members of the SPME Legal Task Force

Kenneth L. Marcus (chair)

Lillie & Nathan Ackerman Chair in Equality & Justice in America, CUNY/Baruch College & Director, Initiative on Anti-Semitism & Anti-Israelism, Institute for Jewish & Community Research, USA

Marc Cogen
Professor of International Law
Ghent University, Belgium

Karen Eltis
Associate Professor of Law
University of Ottawa, Canada

Ed Morgan
Professor of Law,
University of Toronto, Canada

Mohammed Saif-Alden Wattad
Lecturer in Law
Zefat Law School, Israel.