During this talk, we will provide an Introduction to “universal jurisdiction” and the possibility and procedure of filing complaints against domestic perpetrators before courts in other countries. Universal Jurisdiction can effectively contribute to accountability of perpetrators of genocide, crimes against humanity, war crimes, torture and enforced disappearances (‘serious international crimes’), provide justice for victims, shed light on human rights abuses and impunity, and contribute to policy changes and more generally to ending the culture of impunity.
Speaker: Khalil Rostamkhani (in Dari)
Date and Time: Monday, 18 October 2010, 14-16 hours
Venue: Armanshahr Offices, Karteh Parwan, Behind Baharestan Cinema, Kucheh Ghasabee, 5th (Rashid) Street, House No. 195
Translation into English will not be provided, please bring interpreters.
Kindly RSVP by 16 October
Contact Tel: 0779217755 & 0775321697
E-mail: armanshahrfoundation.openasia@gmail.com
This Programme is organised by Armanshahr Foundation with the financial assistance of the European Union. However it can under no circumstances be regarded as reflecting the position of the European Union.
Armanshahr Foundation/OPEN ASIA is a member of the
International Federation for Human Rights
Workshop on “Universal Jurisdiction”
The 63rd Goftegu public debate (5th Year) of Armanshahr Foundation was organised as a workshop on “Universal Jurisdiciton” at the Armanshahr offices on Tuesday, 19th October 2010. About 20 civil society and human rights activists, students of law and politics, and journalists took part in the half-day workshop. Khalil Rostamkhani, a colleague and consultant of Armanshahr Foundation, introduced Universal Jurisdiction in detail and his speech was followed by questions and answers and a lively discussion.
The title of the speech was “Universal Jurisdiction, introduction to mechanisms, experiences” and ways of prosecuting perpetrators of human rights violations. A number of international cases, where Universal Jurisdiction has been employed, were also outlined and explained. Excerpts of the speech are as follows:
What is Universal Jurisdiction?
There are three types of jurisdiction. “Territorial jurisdiction” concerns the prosecution of a crime in the country where it is committed.
“Personal jurisdiction” concerns jurisdiction of the courts of the nationality of a perpetrator or a victim.
“Universal Jurisdiction” allows the invoking of international law to prosecute perpetrators of serious international crimes all over the world.
“Universal Jurisdiction” has existed in international law for a long time. In contemporary times, it was first noted in the Geneva Conventions of 1949. In recent years, however, it made the headlines when General Pinochet of Chile faced prosecution in Spain and Britain in 1998 and spent some time under house arrest.
“Universal Jurisdiction” ensures the prosecution of perpetrators by courts in different countries even if the crime in question was not committed in those countries or was not directly linked to that country.
“Universal Jurisdiction” is mostly used to prosecute serious international crimes, which are so heinous that they affect the whole international community, e.g. genocide, war crimes, torture, and enforced disappearances.
Significance of “Universal Jurisdiction”
Up to now, the human rights organisations and human rights defenders have been using the traditional methods of advocacy by issuing statements, organising demonstrations and similar activities to expose the crimes. Now “Universal Jurisdiction” could help them to take practical action. There are examples at hand, where “Universal Jurisdiction” has been employed to bring to trial perpetrators of crimes against human rights and sentence them to imprisonment.
Legal foundations for “Universal Jurisdiction”
Firstly, “Universal Jurisdiction” has been provided for in the Geneva Conventions, the Convention against Torture and the International Convention for the Protection of All Persons from Enforced Disappearance. Afghanistan is a member of the first two conventions, but has not acceded to the third. Secondly, the Rome Statute (of the International Criminal Court) allows the court to prosecute several serious international crimes: genocide, crimes against humanity, war crimes and the crime of aggression. Afghanistan is a member state, but some countries such as the USA, Iran, China and Russia have not acceded to it yet. Thirdly, the United Nations Basic Principles and Guidelines on the right to a Remedy and Reparations for victims of gross violations of human rights and serious violations of international humanitarian law has called on all countries to enshrine the provisions of “Universal Jurisdiction” in their domestic law and to exercise them.
How can “Universal Jurisdiction” be exercised?
The Rome Statute emphasises that the perpetrators must be prosecuted through the national courts in the first place. Some countries however do not have an active judicial system, and it is not possible to prosecute the perpetrators there. On the other hand, the judicial systems in some countries are unable or unwilling to prosecute the perpetrators. In that case, the case should be taken to courts in other countries.
The third approach would be to go the ICC. Under the Rome Statute, the ICC is complementary to the national criminal jurisdiction. Furthermore, the ICC has its own constraints. First, the crime should have been committed after 1st July 2002. The ICC cannot prosecute crimes committed before that date.
Second, the crime should have been committed on the territory of a member state or the perpetrator should be citizen of a member state.
The third approach would be for the United Nations Security Council to refer the prosecution of a crime to the ICC. There are certain problems with that approach. For instance, the US has previously opposed the ICC actively. Therefore, it is not readily possible to apply to the Security Council for prosecution of a crime through the ICC.
The fourth method would be through the ad hoc and special tribunals, e.g. the ad hoc tribunal for former Yugoslavia or Rwanda. These tribunals are established occasionally and under special circumstances.
Some examples of application of “Universal Jurisdiction”
The International Federation for Human Rights (FIDH) has provided support to victims in numerous cases, helping victims from countries such as Argentina, Chile, Congo, Mauritania, Rwanda and others to lodge complaints with courts in France, Belgium, Germany and elsewhere. With the help of human rights lawyers, FIDH has established a legal action group to help the victims.
Exercise of “Universal Jurisdiction” has borne fruit in practice; a number of criminals have been convicted and imprisoned: Several from former Yugoslavia in Germany and Norway, criminals from Rwanda in Belgium, Argentinean perpetrators in Spain, and Mauritanians in France. From Afghanistan, Hesamuddin Hesam (2005) and Habibullah Jalazoy (2007) were convicted for war crimes and went to prison in the Netherlands. Faryadi Sarwar Zardad was tried for torture and sent to prison in Britain in 2007.
Does “Universal Jurisdiction” target mostly Africans and Third World?
The ICC recently accused President Omar al-Bahsir of the Sudan of perpetration of war crimes and issued an arrest warrant for him. This and other cases have prompted the Africans in particular to take it against themselves. The examples of Yugoslavia and Chile, in contrast, illustrate that other perpetrators have also been targeted. It should be noted that most complaints are not lodged by governments. The international human rights organisations pursue the matter and they have not concentrated on Africa and the Third World alone.
The most important example to cite is the complaint filed by the FIDH with the help of two of its member organisations against Donald Rumsfeld in 2007. Mr. Rumsfeld was scheduled to attend a political conference in Paris in October 2007. With advance knowledge of his visit, FIDH lodged a complaint in France and an arrest warrant was issued. Rumsfeld managed to escape only by hiding in the US Embassy. There are other current proceedings against him in Spain and Sweden and elsewhere.
A further example concerns Israel, a very close ally of the Western governments. With Israeli courts failing to investigate many complaints against crimes against human rights, international organisations lodged complaints in other countries with the help of the Palestinian Centre for Human Rights. One was a complaint filed in Britain in 2005 against General Doron Almog for war crimes, when a British judge ordered his detention. With General Almong due to arrive in Britain, the Israeli ambassador contacted him and told him not to get off the airplane, because the British police were waiting to detain him at the airport. He had to return to Israel on the same plane.
Problems and challenges
• Where should “Universal Jurisdiction” be used to lodge a complaint? To answer this question, the laws of various countries should be studied carefully. For instance, a complaint concerning the crime of torture is easier to file in some countries, but in some other countries it is easier to lodge complaints concerning the crimes of enforced disappearance, crimes against humanity or war crimes.
• Official immunities: Under the statute of the International Court of Justice, heads of states and foreign ministers may not be prosecuted, because that would impede them from performing their duties. They may be prosecuted after leaving office. This provision is in contravention of the Statute of the International Criminal Court.
• Trade and political influence of governments create serious obstacles. For example, in 2004 a British court refused to admit a complaint against then Israeli defence minister. In 2003, a complaint against Tommy Franks, then US commander in Iraq, failed in Belgium, because then US Secretary of Defence Rumsfeld threatened to move the NATO headquarters from Belgium.
Conclusion
“Universal Jurisdiction” is a relatively new issue that has not been put to much practical test. In the wake of traditional methods of advocacy, however, it allows a practice of filing complaints with courts and achieving result. Nevertheless, all aspects of the issue should be examined thoroughly. The Palestinians have exercised that thoroughness quite well.
Finally a number of sources were offered for further reading.
Invitation for 63rd Goftegu Public Debate: “Universal Jurisdiction”
