II. The Challenges of Universal Jurisdiction

Before analyzing how the Office of the Prosecutor (OTP) can make itself a more effective partner in states’ exercise of universal jurisdiction, it is first important to get an insight into the challenges of universal jurisdiction. This will, in turn, enable an understanding of how the OTP can surmount those challenges. According to Moghadam, there are three issues with universal jurisdiction. The first issue is jurisdictional imperialism, which focuses on the idea that universal jurisdiction is usually exercised by former colonial powers against perpetrators of former colonies, or, in other words, a Global North versus Global South type of situation.6 The second issue is politicization, and, particularly, the perception that universal jurisdiction infringes upon state sovereignty.7 Politics plays a prominent role in the exercise of universal jurisdiction, for example, in the context of high-ranking officials targeted by universal jurisdiction cases, who can deter their own prosecution by exerting powerful political pressure, which leads to states refusing to detain, extradite or prosecute suspects for fear of political reprisals.8 The third challenge is that of implementation. Universal jurisdiction is a somewhat novel concept for several states, and this lack of familiarity creates an obstacle in its exercise.9 Judges are often reluctant to exercise it because of the political implications of trying a crime without a traditional nexus between the forum and the accused.10 Many states simply lack the courage to try high-ranking officials from powerful nations.11 Not every member state has universal jurisdiction codified in its legislation. In the case of Africa, the African Union (AU) has put in place an AU Model Law of Universal Jurisdiction which, while accepted by African States, is not used by them.

One of the goals of the ICC, and indeed of the world, is to end impunity, which universal jurisdiction provides a steppingstone in achieving. Promoting its exercise could, hopefully, lead to more international criminals being brought to justice.

III. ICTY Rules of the Road

In the aftermath of the war in Bosnia and Herzegovina, the OTP agreed to operate a Rules of the Road12 scheme to address refugees and returning displaced persons’ fears about arbitrary arrests on suspicion of war crimes.13 Signed in 1996, the Rules of the Road provision states that:

[P]ersons, other than those already indicted by the International Tribunal, may be arrested and detained for serious violations of international humanitarian law only pursuant to a previously issued order, warrant, or indictment that has been reviewed and deemed consistent with international legal standards by the International Tribunal.14

In other words, the scheme provided that local prosecutors were obliged to submit case files to the Hague for review.15 The main aim of this was to ensure that no person could be arrested on suspicion of war crimes unless the Tribunal’s prosecution had first received and assessed a case file to contain credible charges.16 This was brought about by a myriad of concerns about the Bosnian judicial system, including, but not exhaustively:

[Its] lack of judicial accountability, corruption of judges and judicial ministries, intimidation by nationalist political parties and criminal elements, lack of enforcement of judicial decisions by the police, financial dependence of judges on the political system, politically influenced judicial appointments, inexperienced judges, lack of resources.17

Therefore, according to the provision, local authorities may only arrest and detain persons if two of the following circumstances are met: (1) the individual has already been indicted by the Tribunal for serious violations of international humanitarian law, or (2) the indictment has already been reviewed by the Tribunal and found to be consistent with international legal standards.18

Under the Rules of the Road, the OTP’s role is to determine whether there is credible and reliable evidence available on two matters, namely, whether a serious violation of international humanitarian law within the Tribunal’s jurisdiction has been committed, and whether the alleged person is responsible for this violation. After that, the OTP will inform whether there is sufficient evidence under international legal standards to show reasonable grounds for believing the suspect committed the crime.

A. Rules of the Road: Success or Failure?

One of the recurring issues that the ICC faces until this day is its lack of financial resources. In the context of Bosnia and the exercise of the Rules of the Road, the OTP instead wanted to focus its efforts on indictments within its jurisdiction rather than creating a monitoring and authorization procedure for the parties’ prosecutorial exercises.19 Furthermore, another challenge of the Rules of the Road is that it required three parties (Bosnia and Herzegovina, Serbia, and Croatia) to provide the OTP with an estimate of the number of cases expected to be submitted for review and a projected timeline for when they will be submitted, yet only Bosnia complied with this requirement.20 Thirdly, a major issue encountered was the OTP’s delay to the parties who submitted the review, which resulted in increased animosity toward the Tribunal by the Bosnian Government.21 The ICTY was slow in reviewing cases partly because of staff limitations and competing priorities.22 Many of the files were in local languages and were organized in a way alien to the OTP.23 More than 2300 of almost 6000 cases sent to the ICTY were never reviewed and were lost, which overall stalled the domestic jurisdiction’s momentum to prosecute.24 Many of the files were also incomplete in part because of the ongoing war, but also because the Tribunal was still in its infancy and thus unable to provide clear guidance on file preparation.25 Lack of clarity regarding the legal status of the Rules of the Road and failure to share the rules to entity officials led to confusion among domestic authorities.26 Due to this, the Tribunal was ill-prepared and even became reluctant to shoulder the burden of Rules of the Road, which were later given a low priority within the OTP’s administrative structure.27 Despite its many challenges, the Rules of the Road enabled the OTP staff to review 1419 files involving 4985 suspects between 1996 to 2004 and approved 848 persons. Of those, 54 had reached trial stage in domestic courts by January 2005.28

The Rules of the Road framework thus demonstrates a way in which the ICC may make itself an effective partner by confirming that domestic jurisdictions’ claims meet the international legal standards.

B. The Rules of the Road in the Context of Universal Jurisdiction

In the case of universal jurisdiction, the context is different since, compared to the Rules of the Road framework, the situation country does not exercise jurisdiction, but instead, a third country does. A way in which the Rules of the Road may be used would be to provide a similar framework whereby the third country may send the file to the ICC for review. Since the ICTY was very reluctant to exercise this power due to lack of resources and different priorities, perhaps this could be optional. Having the Rules of the Road framework as an option rather than an obligation will help both the ICC and the third country. The ICC would have less work than the ICTY did since not every country wishing to exercise universal jurisdiction would need to do it. On the other hand, any third country unsure about whether they may exercise universal jurisdiction may get preliminary approval by the ICC who could confirm, as the ICTY did in the Rules of the Road, that the evidence meets international standards. This would surmount the third challenge mentioned by Moghadam above about states lacking familiarity to prosecute. In this case, the ICC would first need to provide clear guidelines on the structure of the file and the threshold that must be met to conform to legal standards.

Hoover suggested creating an ICC Review Board, which may mirror the framework of the Rules of the Road.29 This would consist of having a body within the ICC to provide a pre-trial check of a state party’s claim to exercise universal jurisdiction. According to Article 15 of the Rome Statute,30 the Pre-Trial Chamber must authorize and conclude that there is reasonable basis for the OTP to commence an investigation in proprio motu cases. The ICC Review Board could follow a similar structure whereby the state could present evidence to the Board, who will then determine whether the state’s claim is valid and well-founded.31 The Board must first, however, ensure that there are clear guidelines on file preparation, to avoid the issues faced by the Rules of the Road. This would provide a solution to the challenge mentioned above that states lack the courage to prosecute certain nations, since, in this case, they would ask the ICC for confirmation on whether their case has merits, which will then enable them to proceed with their investigation and trials. Another advantage is that it would prevent the delays experienced by the ICTY since a whole new unit would be tasked with the review. It could also enable the ICC’s assistance in ensuring that the exercising states have effective national legislations in place, not only that define the relevant crimes, but also provide courts with due process rights, as well as unbiased and prompt trials.32 In turn, this would ensure that the state properly exercises universal jurisdiction by providing guidance and confirmation that the claim is valid, once again surmounting Moghadam’s third challenge. Furthermore, the Review Board could also determine whether the state has the financial and logistical means to prosecute without sacrificing the interests of justice or protection of the perpetrator in custody or that of the witnesses.33

On the other hand, perhaps it might be unrealistic to task the court with the creation of a new body. Rather, an alternative could be to have the exercising state seek Advisory Opinions, as is done in the International Court of Justice, whereby the Court could then issue a pre-trial check. This would then reach the same aim as the ICC Review Board by providing guidance to states and confirming the validity of their claim, which would potentially provide courage to so-called weaker states who lack the political will to prosecute powerful states to exercise universal jurisdiction.34 On the other hand, the issue of the ICC issuing Advisory Opinions has been a recurring one. In the situation in the DRC,35 the Court stated that:

[I]f the Appeals Chamber were to answer such a request, it would have to assume the role of an advisory body, which it considers to be beyond and outside the scope of its authority.

In Prosecutor v. Kani, the Appeals Chamber repeated that:

[T]he Appeals Chamber recalls that it does not provide guidance on the interpretation of the law in the abstract as it is not an advisory body. This is not a role vested in the Appeals Chamber by the applicable law before the Court.36

It also signaled that, for rendering an advisory opinion, the procedure needs to be enacted by the Assembly of States Parties (ASP).37 It could be inferred that rather than amending the Rome Statute, it could be possible to introduce new procedures in the ICC Rules of Procedure and Evidence and request advisory opinions from the Court.38 The Appeals Chamber in Prosecutor v. Kani mentioned that the Court “has the power to pronounce on general matters of interpretation and application related to the Statute.”39 This thus shows that the ICC has the implied power to render advisory opinions but lacks the procedure for this competence to exist.40

This would also respond to the AU’s concerns that universal jurisdiction may interfere with state sovereignty.41 To prevent such infringement, the AU Assembly suggested the establishment of an:

[I]nternational regulatory body with competence to review and/or handle complaints or appeals arising out of abuse of the principle of universal jurisdiction.42

They made no mention of the ICC, but this could be used by the ICC since the body would review whether claims of universal jurisdictions are valid or whether they interfere with state sovereignty, thus circumventing Moghadam’s second challenge to universal jurisdiction on politicization. Preventing the abuse of universal jurisdiction could also surmount Moghadam’s first challenge on jurisdictional imperialism since in this case, the claims would be confirmed to be well-founded, thus not leaving room for a Global North versus Global South criticism.

IV. ICTY Procedures: Partnership with National Jurisdictions

Another way in which the ICC may make itself a more effective partner in states’ exercise of universal jurisdiction would be to, once again, follow the OTP’s initiatives in the ICTY. Security Council Resolution 1503 prescribes that the ICTY transfers cases involving those who do not bear the greatest level of responsibility for crimes within the Tribunals jurisdiction to competent national jurisdictions and to strengthen the capacity of such jurisdiction.43 The OTP used transition teams to ensure as many persons as possible would be brought to justice by transferring whole cases for prosecution locally.44 The team within the OTP was tasked with handing over to national courts cases involving intermediate and lower ranked accused.45 In an effort to prosecute war crimes at the domestic level, the OTP fostered partnerships with prosecutors and courts through the several initiatives such as: Rule 11 bis cases (which consisted of assisting regional prosecutors with cases that the ICTY has transferred to them), Category 2 cases (which consisted of helping domestic prosecutors to run their own cases based on investigative material transferred by the OTP), responding to requests for assistance and otherwise sharing resources with national prosecutors, facilitating cooperation between the ICTY and domestic prosecutors by way of the liaison prosecutors program, and training and educating prosecutors and young professionals who are interested in war crimes litigation throughout the former Yugoslavia and promoting regional cooperation (cooperation between prosecutors of the region who are dealing with cases transferred by the OTP).46

To ensure that people suspected of war crimes are brought to justice, the OTP would assist national bodies in the region by passing on evidence that may be of use in local investigations and by transferring whole cases for prosecution locally. A transition team within the OTP would hand over to national courts such cases involving intermediate and lower-ranking accused. The Rules of the Road paved the way for Rule 11 bis whose main aim was to lift some of the burden of the ICTY due to the Tribunal’s limited time and need to complete more cases.47 Rule 11 bis focused on referrals, which allowed the Tribunal to transfer jurisdiction from the international to the national level/to the situation country. The body entrusted with such referrals within the ICTY was the referral bench, a quasi-chamber responsible for determining the suitability of an indictment for referral.48 Many members were American, such as the chief prosecutor, who was a former deputy U.S. attorney, and half of the prosecutors and judges, which enabled the chamber to be more legitimate and less politicized. Rule 11 bis reversed the mechanism of complementarity by deciding whether the indictment should be sent back to national courts rather than internationally.49 A particularly interesting aspect of Rule 11 bis is subsection (A)(iii) which states that the bench may refer the indictment to the authorities of the state “having jurisdiction and being willing and adequately prepared to accept such a case.” This provision does not mention any type of jurisdiction therefore leaving open the possibility of referrals to states which have no link to the crime or the accused, thus enabling the exercise of universal jurisdiction. In other words, the trial may occur in any state, if it is able and willing to prosecute.50 An advantage is that not only does it lift the ICC’s burden by handing cases to domestic courts, but it also enhances national capacity to prosecute the most international crimes, increasing their familiarity with universal jurisdiction, and surmounting the third challenge of implementation, as mentioned above. This reflects Article 9 of the ICTY Statute which states that the Tribunal is not intended to replace national courts but rather to coexist with them by having concurrent jurisdiction. In the context of the ICC, referrals under the Rule 11 bis framework may be problematic if it has already been determined that the situation country cannot or will not prosecute.51 However, in these cases, the dossier could be sent to the situation country along with assistance.52

Category 2 case files were investigations opened by the OTP, but which, due to prioritization of some cases over others, were discontinued and left incomplete.53 The OTP thereafter transferred those case files to national prosecutors. In total, seventeen files with investigative material on forty-three suspects were transferred and led to regional prosecutors being responsible for bringing the investigations to a conclusion based on the evidence received from the OTP.54 This could be useful for universal jurisdiction purposes, where there could be an exchange of information between the OTP and the exercising state. This would mirror Article 93(10) of the Rome Statute55 which provides that the Court may cooperate with and provide assistance to a State Party conducting an investigation which includes the transmission of statements, documents or other types of evidence, and the questioning of any person detained by order of the Court. Perhaps this would encourage states to exercise universal jurisdiction since they would have some assistance in the process. On the other hand, realistically, this may be an issue. Sharing evidence with an exercising country may be risky for the ICC, particularly in countries where the evidence may be compromised or may fall in the hands of the wrong person.56 In this case, the second challenge of politicization of proceedings would be raised.

Another way in which the ICC could mirror the ICTY is to have liaison prosecutors.57 In June 2009, three prosecutors from the region (one from Bosnia and Herzegovina, one from Croatia, and one from Serbia) worked as liaison prosecutors within the OTP. They would interact with members of the OTP’s Transition Team which enables them to consult with them on related cases and general issues.58 They would get training including how to search, review and analyze databases to access confidential ICTY materials so that they can utilize all the ICTY’s resources and would also act as a point of contact for other national prosecutors throughout the region.59 The OTP would also regularly meet with government officials and members of the judiciary to discuss practical issues faced by colleagues in the former Yugoslavia and provide guidance.60 This could be helpful in the context of universal jurisdiction. Perhaps a small team of national prosecutors of the exercising state could act as liaison prosecutors and spend some time in the Hague with the OTP where they could be provided with training. Such training would then enable the national prosecutors to blend their knowledge of national law with international law, which may lead to greater legitimacy in the proceedings as well as greater conformity with international standards. According to Brammertz, for domestic prosecutions to be successful, States must have a criminal justice system with the capacity to deal with cases the Tribunal cannot prosecute.61 One of the arguments raised by Senegal in the Habré case was that they did not have the capacity to deal with the case.62 Perhaps this would be less of an issue by having those partnerships. It would also benefit the ICC since it would conserve the OTP’s financial resources. The OTP could act as an advisor to domestic jurisdictions and could expand efforts to serve as a hub enabling different domestic actors to communicate with criminal justice system officials from other jurisdictions and share experiences of best practices.

Such a framework would thus be a continuation of that of the Rules of the Road, whereby a country seeking to exercise universal jurisdiction could collaborate with the ICC in trying the relevant State. Following the Rules of the Road framework, the exercising state could submit case files to the Hague, which would then assess it to see whether there are any credible charges. Once this is done, the OTP could then assist national bodies by providing information, as well as training the national authorities to assist in their investigations. This would enable the OTP to ease its case load and to hand off its cases because national authorities would then have guidance on how they could exercise universal jurisdiction and having this guidance and framework will then incite more states to do the same. This would surmount many of the challenges faced by universal jurisdiction, particularly the three mentioned above: imperialism, politicization and implementation.

Alternatively, if the ICC finds itself unable to shoulder the burden of review, as was the case in the ICTY, perhaps hybrid expert groups could share the burden. In November 2008, the African Union and European Union, established a working group composed of outside experts to clarify both organizations’ “respective understandings of the principle of universal jurisdiction” by providing a description of its application in Africa and Europe, which led to a 45-page report.63 This could be used when dealing with universal jurisdiction cases by combining expert groups to share the investigative burden and the gathering of evidence,64 surmounting the third challenge.

V. Conclusion

Overall, only a few states so far have exercised universal jurisdiction. Therefore, it might be unrealistic to argue that it will hold a substantial share of the perpetrators of international crimes accountable. However, the ICC can make itself a more effective partner by encouraging such use of universal jurisdiction. It could do that by following some of the procedures of the ICTY. Following the Rules of the Road framework will enable the ICC to prosecute high-ranked officials, while leaving lower-level officials to domestic courts. This would surmount Moghadam’s second challenge of politicization since the higher-ranked official would be handled by the ICC, thus, any political threats towards the state would be futile. Since the domestic jurisdictions would also be able to submit their files for review to the ICC, they would also be able to circumvent Moghadam’s third challenge of implementation since they would get confirmation that their claim is valid. Finally, the ICC could follow the ICTY’s procedures on partnering with national jurisdictions by providing training and assistance to liaison prosecutors or by sharing evidence. Giving states this additional guidance may also circumvent Moghadam’s first challenge of imperialism since the exercise of universal jurisdiction would be equal for both the Global North and South countries. This will overall give more confidence to those states to exercise jurisdiction even against others considered to be more powerful.

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

1. 1.

   Term: Universal Jurisdiction, ECCHR, available online (last visited Aug. 29, 2023). ↩

2. 2.

   Id. ↩

3. 3.

   Andrew Johnson, How Universal is Universal Jurisdiction?, Am. U. J. Gender & Soc. Pol’y & L., available online (last visited Aug. 29, 2023). ↩

4. 4.

   Xavier Philippe, The Principles of Universal Jurisdiction and Complementarity: How Do the Two Principles Intermesh?, 88 Int’l Rev. Red Cross 375, 380 (Jun. 2006), available online. ↩

5. 5.

   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. 17, available online. ↩

6. 6.

   Tanaz Moghadam, Revitalizing Universal Jurisdiction: Lessons from Hybrid Tribunals Applied to the Case of Hissène Habré, 39 Colum. Hum. Rts. L. Rev. 471, 484–90 (2008), paywall. ↩

7. 7.

   Id. ↩

8. 8.

   Id. ↩

9. 9.

   Id. ↩

10. 10.

    Id. ↩

11. 11.

    Fatou Bensouda, Private Conversation with Author during International Law Weekend Conference in New York City (Oct. 22, 2022). ↩

12. 12.

    Report of the General Assembly, U.N. Doc. S/1996/665, Third Annual Report of the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia since 1991, ¶¶ 80–82 (Aug. 16, 1996), available online.

    (The Rules of the Road procedure enabled local prosecutors to submit case files to the Hague for review before arresting alleged perpetrators of war crimes). ↩

13. 13.

    Working with the Region, ICTY, available online (last visited Aug. 29, 2023). ↩

14. 14.

    Mark Steven Ellis, Bringing Justice to an Embattled Region: Creating and Implementing the “Rules of the Road” for Bosnia-Herzegovina, 17 Berkeley J. Int’l L. 1, 7 (Jul. 1999), available online. ↩

15. 15.

    Working with the Region, supra note 13. ↩

16. 16.

    Id. ↩

17. 17.

    Laurel E. Fletcher & Harvey M. Weinstein, Justice, Accountability and Social Reconstruction: An Interview Study of Bosnian Judges and Prosecutors, 18 Berkeley J. Int’l L. 102, 110 (2000), available online. ↩

18. 18.

    Ellis, supra note 14, at 7. ↩

19. 19.

    Id. ↩

20. 20.

    Id. at 9. ↩

21. 21.

    Id. at 19. ↩

22. 22.

    Yaël Ronen, The Impact of the ICTY on Atrocity-Related Prosecutions in the Courts of Bosnia and Herzegovina, 3 Penn St. J. L. Int’l Aff. 113, 141 (Apr. 2014), available online. ↩

23. 23.

    Id. ↩

24. 24.

    Id. ↩

25. 25.

    Ellis, supra note 14, at 19. ↩

26. 26.

    Ronen, supra note 22, at 18. ↩

27. 27.

    Id. at 17. ↩

28. 28.

    Id. ↩

29. 29.

    Dalila V. Hoover, Universal Jurisdiction not so Universal: A Time to Delegate to the International Criminal Court, 52 Cornell L. Sch. Grad. Student Papers (Jun. 4, 2011), online, paywall. ↩

30. 30.

    Rome Statute, supra note 5, at Art. 15. ↩

31. 31.

    Hoover, supra note 29, at 103. ↩

32. 32.

    Id. at 104. ↩

33. 33.

    Id. ↩

34. 34.

    Bensouda, supra note 11. ↩

35. 35.

    Situation in the Democratic Republic of the Congo, ICC-01/04 OA4 OA5 OA6, Decision on Victim Participation in the appeal of the Office of Public Counsel for the Defence against Pre-Trial Chamber I’s Decision of 7 December 2007 and in the appeals of the Prosecutor and the Office of Public Counsel for the Defence against Pre-Trial Chamber I’s Decision of 24 December 2007, ¶ 30 (AC, Jun. 30, 2008), available online. ↩

36. 36.

    The Prosecutor v. Mahamat Said Abdel Kani, ICC-01/14-01/21 OA5, Decision on the admissibility of the appeal, ¶ 23 (AC, Oct. 25, 2022) [hereinafter Prosecutor v. Kani], available online. ↩

37. 37.

    Id. ↩

38. 38.

    Giorgi Nakashidze, Towards Advisory Opinions of the International Criminal Court, EJIL Talk (Nov. 16, 2022), available online. ↩

39. 39.

    Prosecutor v. Kani, supra note 36, ¶ 23. ↩

40. 40.

    Nakashidze, supra note 38. ↩

41. 41.

    Martin Mennecke, The African Union and Universal Jurisdiction, in The International Criminal Court and Africa 13 (Charles Chernor Jalloh & Ilias Bantekas eds., Oct. 5, 2017), available at paywall, doi. ↩

42. 42.

    Id. ↩

43. 43.

    Serge Brammetz, The Legacy of the ICTY: Fair Trials and Cooperation with Local Courts, in Assessing the Legacy of the ICTY 27, 28 (Richard H. Steinberg ed., 2011), paywall. ↩

44. 44.

    Working with the Region, supra note 13. ↩

45. 45.

    Id. ↩

46. 46.

    Brammetz, supra note 43. ↩

47. 47.

    Olympia Bekou, Rule 11 bis: An Examination of the Process of Referrals to National Courts in ICTY Jurisprudence, 33 Fordham Int’l L.J. 723, 726 (2009), available online. ↩

48. 48.

    Id. at 730–31. ↩

49. 49.

    Id. at 731. ↩

50. 50.

    Id. at 758. ↩

51. 51.

    Richard H. Steinberg, Private Conversation with Author (Dec. 5, 2022). ↩

52. 52.

    Id. ↩

53. 53.

    Bekou, supra note 47, at 758. ↩

54. 54.

    Id. ↩

55. 55.

    Rome Statute, supra note 5, at Art. 93(10). ↩

56. 56.

    Luis Moreno-Ocampo, Unpublished Remarks to UCLA Law School Class Attended by Author (Nov. 16, 2022). ↩

57. 57.

    Brammetz, supra note 43, at 31. ↩

58. 58.

    Id. ↩

59. 59.

    Id. ↩

60. 60.

    Id. ↩

61. 61.

    Id. ↩

62. 62.

    Questions Relating to the Obligation to Prosecute or Extradite (Belgium v. Senegal): Summary of the Judgment, I.C.J. 4 (Jul. 20, 2012), available online. ↩

63. 63.

    Mennecke, supra note 41, at 13. ↩

64. 64.

    Id. ↩