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Comment on the Decentralized Accountability Question: “How, and to what extent, should the ICC’s Office of the Prosecutor engage with national, regional, or other authorities or organizations to support accountability for those accused of grave crimes?”

Alexandra Speed
47609
September 11, 2023
2:40 pm

Universal Jurisdiction’s Universal Issues: Solutions for the States by the ICC

I. Introduction

Universal jurisdiction is an element of international law that is frequently exercised by many countries across the world. It is most generally exercised by states that have an interest in seeing perpetrators of international crimes brought to justice. It has recently been exercised by Germany prosecuting Syrian officials and by Argentina in relation to the conflict in Myanmar.1 There has also been a call for countries to exercise jurisdiction against Russia for the war in Ukraine.2

This principle allows a state to exercise jurisdiction over a criminal, even if the crimes were not committed in their territory. The suspect generally does not even have to be in the territory of that state for them to exercise jurisdiction. Although, the crime must be an outrage to the international community as a whole, in order for another state to exercise universal jurisdiction. These types of crimes include: genocide, crimes of aggression, mass rape, and crimes against humanity. Which are agreed upon by the international community to be so egregious that the perpetrators must be investigated and brought to justice at any cost, even if that cost is an investigation by a completely unrelated state.

This comment explores the current landscape of universal jurisdiction, the major issues with the existing landscape, and what the International Criminal Court (ICC) can do, as a partner to the states, to help solve some of these issues. Section II explores and explains the current landscape of the legislation around universal jurisdiction. This section explains this principle from both the perspective of the states and the ICC. Then, Section III explores the current issues with universal jurisdiction. Finally, Section IV explores the solutions necessary for the ICC to assist in mending each of these issues.

II. Current Landscape of Universal Jurisdiction

The principle of universal jurisdiction is essentially about cultivating an international community through the protection of human rights by the prosecution of international criminals.3 Certain crimes like genocide or crimes against humanity are likely to go unpunished if some form of universal jurisdiction is not available, because the national state is unlikely to prosecute the perpetrators.4 This leaves the prosecution up to either the ICC or other states abroad. In order for a state to exercise universal jurisdiction, the offense must be so heinous that it offends or diminishes us all, so the international community is entitled to punish the perpetrator.5

The ICC is a court of last resort and is only meant to complement national courts when they are unable to exercise jurisdiction.6 Currently, the ICC does not have any sort of organ to review a state’s prosecution and evaluate it for fairness.7 Additionally, the ICC does not have truly universal jurisdiction, as it can only prosecute crimes that occur in a state that has ratified the Rome Statute.8 With only 110 states parties, the ICC has not diminished the need for universal jurisdiction.9 Therefore, the ICC can only encourage bystander prosecutions where other states exercise universal jurisdiction.10 Without other states practicing universal jurisdiction, “travelling tyrants” will not be dealt with.11

Under international law, the primary responsibility to prosecute, investigate, and bring perpetrators to justice is given to the national authorities.12 To have an effective prosecution under universal jurisdiction, there must be international cooperation.13 This allows a country to prosecute people for serious international crimes, regardless of where the atrocities occurred.14 The alternatives to universal jurisdiction are prosecution of criminals by international entities or by their national courts.15 Neither is fully sufficient on their own.16

The idea of universal jurisdiction is justified by the fact that all states parties to the relevant treaties have effectively consented to the exercise of jurisdiction by another state.17 It is a mechanism intended to disrupt states when they are acting outside of international norms.18 This mechanism is commonly used in order for a state to not become a safe haven for international criminals.19 Although, no successful prosecutions of high-ranking officials under universal jurisdiction have so far been reported.20

International law does not require that the perpetrator be present for a country to exercise universal jurisdiction, a state can open an investigation without the suspect’s presence.21 Although, this generally requires cooperation from the state where the crime occurred, which may be difficult to obtain.22 State to state cooperation is essential for universal jurisdiction prosecution in order to locate and transport witnesses, authenticate documents, transport evidence, and discourage political interference.23

Approximately 125 countries have legislation on universal jurisdiction that permits their courts to exercise it over any crime that arises to the level of international law.24 Universal jurisdiction can be exercised over both crimes arising under international law and ordinary crimes that arise under national law.25 In 2019, there were 2906 universal jurisdiction cases ongoing in the European Union alone.26

III. Issues with the Current Landscape of Universal Jurisdiction

There are many issues with the way universal jurisdiction is currently being implemented, which greatly affects its success in bringing justice to victims of mass atrocities. The major issue is that almost all of the legislation on universal jurisdiction is flawed in some way.27 Another issue is slow arrest procedures and investigations.28 Other substantial issues are heads of state and government officials’ immunities, states not knowing how to prosecute international criminals, and ineffective international monitoring of investigations and prosecutions.

Most states have not enacted legislation that permits their courts to exercise universal jurisdiction over crimes against humanity, war crimes, or genocide.29 Very few states have legislation that covers all of these crimes.30 Every state’s legislation falls short of fully covering all of these crimes, thus creating the opportunity for the state to be a safe haven for criminals.31 Although, some states have had success applying international criminal laws in the absence of a national law.32

Furthermore, the legislation in some states is not consistent with the Rome Statute, so the punishments do not rise to the same level as the atrocity that was committed.33 In this situation, states fail to capture the full nature of the crime. For example, torture is not the same as assault and should not receive the same sentence.34 A few states even still have a statute of limitations on these international crimes, resulting in those states being safe havens for criminals after that period of time expires.35

Many states have slow arrest procedures and investigations, which gives suspects time to flee.36 Some states even require evidence of the presence of the suspect, before they can open a preliminary investigation.37 Additionally, it is difficult for states to locate witnesses in other states without assistance from that state.38 It is also difficult for states to obtain physical evidence from abroad.39 Even when they do obtain this evidence, it is difficult to authenticate it.40

This slow investigation and arrest procedure, is usually due to a lack of political will to actually investigate the crimes.41 Often, the states’ interests trump the interests of the victims in these cases.42 There is a contest between the rights of the victims and the rights of the states, which requires a balancing test to result in a proper investigation and prosecution.43

Another issue is that many states provide immunities to government officials, even for crimes against humanity.44 This immunity is granted because there is a fear of upsetting other states and the result of allowing these international immunities is that many perpetrators are not investigated.45 Many states originally have immunities for heads of state, government officials, and diplomats to protect them from civil suits and ordinary criminal prosecutions while abroad.46 This could be the case because criminal justice systems are often controlled by remaining elements from former regimes.47 Although, these immunities were not designed to protect heads of state from prosecution for international crimes.48 This allows for immunity for crimes that were not intended by the international community.

Another issue is that the investigation and prosecution of international criminals requires specialized knowledge and experience, that many states lack.49 It also requires skills and experience in evidence gathering abroad, interviewing victims, witness protection, negotiation with law enforcement agencies, and language ability.50 Many states lack these sophisticated task forces and experience in investigating and prosecuting international criminals.51

An additional issue, is that there is no effective international monitoring of a state’s investigation and prosecution.52 The ICC does not generally monitor the performance of states in enforcing international criminal law.53 This allows states to conduct sham investigations and prosecutions; states would likely take this responsibility more seriously if there was some form of international monitoring.54

IV. Solutions for the ICC to be a Better Partner

The ICC has the potential to solve most of the issues that come with exercising universal jurisdiction, thus becoming a more effective partner to the states in implementing this principle. With the ICC’s assistance, states will be more likely to have successful prosecutions of international criminals and get justice for victims. The ICC can offer assistance through many different avenues: preparing states for investigations and prosecution, fixing flawed legislation, and creating an international review board. These resources would be invaluable to the states attempting to exercise universal jurisdiction.

The first step for the ICC to help would be for them to survey states for what the main issues truly are. This survey will take into account the resources, population, legislation, and political landscape of the states. These data points will help the ICC determine which states need more assistance and which areas of the prosecution or investigation that they are struggling with. The purpose of the survey will be to gather data on what international crimes are the most difficult to prosecute and what the other shortcomings of the states are in these areas. Once the ICC has data on what areas the states are struggling with, they can offer better assistance in bringing justice to victims.

A. Flawed Legislation

The ICC could assist in fixing the flawed legislation of the states by drafting a toolkit on universal jurisdiction and international criminal law. This toolkit will include recommendations and best practices for the states to legislate, investigate, and prosecute international crimes. The ICC is the best entity to create this resource, because the Office of the Prosecutor knows what is required to carry out a trial of this type. With the experience of the ICC, a toolkit could be created that shows an exact pathway to a successful trial.

This toolkit would encourage states to review their national jurisdiction and legislation to better implement and define international law. This toolkit would also guide states in creating legislation that properly covers international crimes, because it would be based on the Rome Statute. This would help states to clearly define the crimes in their own statutes, instead of having to relate an atrocity to an ordinary crime in order to prosecute. It is essential for every state that seeks to exercise universal jurisdiction to have the proper framework. This framework would help create fairer trials and investigations. With this assistance from the ICC, the toolkit would help make universal jurisdiction, more universal.

B. Immunities

The ICC could also include guidelines for diplomats, heads of state, and government officials’ immunity in the toolkit. These guidelines would create a universal rule that waives immunity for any perpetrator of a mass atrocity. This is a major issue that states face when exercising universal jurisdiction and the ICC could alleviate this issue by encouraging states to drop the immunity clauses from their statutes for international criminals. With an immunity clause, universal jurisdiction is not successful, so as a partner to the states the ICC should strongly encourage a waiver of immunity in grave situations.

C. Slow Arrest Procedures and Investigations

The ICC could assist in accelerating investigations and arrest procedures by creating a taskforce of investigators that can be sent to assist the states. This taskforce would solve the issues of bureaucracy that currently confront investigators when trying to investigate crimes abroad. These investigators would be specially trained in investigating crimes of mass atrocity, as well as language skills. This training would allow them to investigate more efficiently than the typical investigators for ordinary crimes.

Additionally, this taskforce can be deployed directly onsite to the territory where the crime occurred much faster than any investigators from the state exercising universal jurisdiction. Due to the political landscape, it is likely that an international entity would be allowed to investigate before another state would be. This would assist the states by gathering evidence before it is tampered with and actuating arrests in a timely manner.

D. Unknowledgeable National State Officials

The ICC could amend state ignorance on international criminal prosecution by creating an international criminal law academy. This academy would train judges, prosecutors, and investigators on how to handle trials of this magnitude. The training would likely include investigation techniques, the ways international criminal law differs from ordinary criminal law, and the best practices for prosecuting a foreign national without the consent of their home state. This training academy would greatly assist national courts in hosting effective trials.

The ICC could also create specialized units for each of the crimes that fall under universal jurisdiction. These units would have specific training, resources, and knowledge on investigating and prosecuting that one specific crime. These units could be deployed to the state exercising jurisdiction to assist local prosecutors. This assistance would help states see the ICC as a more effective partner, because their assistance would be evident in both the trial and investigation.

E. Ineffective International Monitoring

Another way the ICC can be a better partner in universal jurisdiction is to create a mechanism for effective international monitoring. The ICC should create a review board to monitor the investigations and prosecutions of states for fairness and adequacy. If the states were to be under the scrutiny of an international review board, then a more successful prosecution would be likely to result.55 The review board would have the responsibility of reviewing evidence during the pre-trial process and then they would decide if that state has the ability to carry out the trial properly. This would allow the ICC to have oversight of the investigations and trials that both a national state and a state exercising universal jurisdiction are conducting.

F. Expanding Article 93(10) of the Rome Statute

In order to be a more effective partner in universal jurisdiction, the ICC should expand Article 93(10) of the Rome Statute.56 This article allows the ICC to aid a state party conducting an investigation by transmitting documents and questioning persons detained by the court.57

The ICC should expand this article to include more forms of assistance. This assistance could be evidence gathering, victim transportation, and suspect arrests. It would also be necessary to amend this article to include the solutions, listed in the subsections of this Section, to hold the court accountable to the states parties as a partner in universal jurisdiction.

V. Conclusion

Universal jurisdiction is an essential, yet complicated aspect of international law. As discussed in this comment, it was designed to protect the international community from mass atrocities. As well as, creating a mechanism for countries to diminish safe havens for international criminals. This is an important mission to both the ICC and states around the world.

Although, there are many issues with how it is currently being implemented. The states have failed to create legislation that properly implements universal jurisdiction, because the crimes are not clearly defined and are inconsistent with the Rome Statute. The legislation also frequently includes archaic immunity clauses or statutes of limitations. The states also have slow arrest and investigation procedures due to bureaucracy and difficulties obtaining evidence and witness statements from abroad. The states also simply do not know how to prosecute crimes of this magnitude and the ICC does not have a proper review system to monitor the investigations and trials for adequacy.

The ICC can provide a solution to all of these issues through amending Article 93(10) of the Rome Statute. The ICC can amend this provision to include a toolkit to fix flawed legislation, a taskforce to accelerate investigations and arrests, an academy to train state officials and prosecutors, and a review board to review states’ investigations and prosecutions. Through these solutions, the ICC has the potential to be a more effective partner to the states when they are exercising universal jurisdiction.

Endnotes — (click the footnote reference number, or ↩ symbol, to return to location in text).

1.
Steve Szymanski & Peter C. Combe, The Siren Song of Universal Jurisdiction: A Cautionary Note, Articles of War (Apr. 1, 2022), available online. ↩
2.
Id. ↩
3.
Adeno Addis, Imagining the International Community: The Constitutive Dimension of Universal Jurisdiction, 31 Hum. Rts. Q. 129, 144 (Feb. 2009), available online. ↩
4.
Id. at 140–41. ↩
5.
Id. at 138. ↩
6.
Dalila V. Hoover, Universal Jurisdiction not so Universal: A Time to Delegate to the International Criminal Court, 52 Cornell L. Sch. Grad. Student Papers 7–8 (Jun. 4, 2011), available online. ↩
7.
See id. at 103. ↩
8.
Cedric Ryngaert, The International Criminal Court and Universal Jurisdiction: A Fraught Relationship?, 12 New Crim. L. Rev. 498, 500 (Oct. 1, 2009), available online, doi. ↩
9.
Human Rights Watch, Basic Facts on Universal Jurisdiction (Oct. 19, 2009), available online. ↩
10.
Ryngaert, supra note 8, at 505. ↩
11.
Olympia Bekou & Robert Cryer, The International Criminal Court and Universal Jurisdiction: A Close Encounter?, 56 ICLQ 49, 52 (Jan. 2007), available online, doi. ↩
12.
Eurojust, Supporting Judicial Authorities in the Fight Against Core International Crimes (2020), available online. ↩
13.
Christopher Keith Hall, Amnesty Int’l, Universal Jurisdiction: The Challenges for Police and Prosecuting Authorities, 1 (Jun. 13, 2007) [hereinafter Challenges for Police], available online. ↩
14.
Douglass Cassel, Universal Criminal Jurisdiction, 31 Hum. Rts. 22, 22 (2004), available online. ↩
15.
Id. ↩
16.
Id. ↩
17.
Devika Hovell, The Authority of Universal Jurisdiction, 29 EJIL 427, 432 (Jul. 23, 2018), available online, doi. ↩
18.
Id. at 435. ↩
19.
Id. at 439. ↩
20.
Ryngaert, supra note 8, at 507. ↩
21.
Id. ↩
22.
Id. at 12. ↩
23.
Id. at 14–20. ↩
24.
Challenges for Police, supra note 13, at 3. ↩
25.
Id. ↩
26.
Howard Varney & Katarzyna Zduńczyk, ICTJ, Advancing Global Accountability: The Role of Universal Jurisdiction in Prosecuting International Crimes, 1, 35 (Dec. 2020), available online. ↩
27.
Challenges for Police, supra note 13, at 3. ↩
28.
Id. at 4. ↩
29.
Id. ↩
30.
Id. ↩
31.
Id. ↩
32.
Hoover, supra note 6, at 88. ↩
33.
See Challenges for Police, supra note 13, at 4. ↩
34.
Hoover, supra note 6, at 90. ↩
35.
See Challenges for Police, supra note 13, at 4; Hoover, supra note 4, at 91. ↩
36.
Challenges for Police, supra note 13, at 4. ↩
37.
Id. ↩
38.
Id. at 14. ↩
39.
Id. ↩
40.
Hoover, supra note 6, at 94. ↩
41.
Challenges for Police, supra note 13, at 19. ↩
42.
Hovell, supra note 17, at 450. ↩
43.
Id. at 452. ↩
44.
Ryngaert, supra note 8, at 507. ↩
45.
Id. ↩
46.
Challenges for Police, supra note 13, at 5. ↩
47.
Varney & Zduńczyk, supra note 26, at 3. ↩
48.
Challenges for Police, supra note 13, at 5. ↩
49.
Id. at 18. ↩
50.
Id. ↩
51.
See id. ↩
52.
Id. at 21. ↩
53.
Id. ↩
54.
See id. ↩
55.
See Hoover, supra note 6, at 103. ↩
56.
Rome Statute of the International Criminal Court, Adopted by the United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court, Jul. 17, 1998, U.N. Doc. A/CONF.183/9 [hereinafter Rome Statute], Art. 93(10), available online. ↩
57.
Id. ↩

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