A. German Universal Jurisdiction Law

German law affords courts significantly broader discretion to exercise universal jurisdiction than almost any other country.5 On June 26, 2002, the German Code of Crimes against International Law (CCAIL) entered into force, and granted German courts jurisdiction over genocide, crimes against humanity, and war crimes.6 CCAIL defines these crimes in accordance with the Rome Statute.7 CCAIL confers broad jurisdiction to investigate and prosecute these crimes even when they were committed abroad and “bear no relation to Germany.”8 Likewise, CCAIL does not impose any double criminality or subsidiary requirements, meaning that Germany can try individuals for the aforementioned international crimes even when the crimes are not recognized in the country in which they were committed.9 Additionally, German courts do not give priority to states or international tribunals with more direct jurisdiction.10

B. Senegalese Universal Jurisdiction Law

Senegal incorporated the principle of universal jurisdiction into national law in 2007 by amending the Senegalese Code of Criminal Procedure.11 The 2007 amendments incorporate the Rome Statute into domestic law and provide for universal jurisdiction over genocide, crimes against humanity, and war crimes, as well as other crimes, including terrorism, and offenses against the security of the State.12 Additionally, under Article 98 of the Senegalese Constitution, any ratified international treaty is considered binding domestic law.13 Thus, a number of treaties Senegal has ratified, such as the Geneva Conventions and The Convention against Torture, could also be legal bases for universal jurisdiction prosecutions in Senegalese courts.14 However, the law confines the exercise of universal jurisdiction to situations where the perpetrator is arrested in or extradited to Senegal, or a victim resides in Senegalese territory.15

C. Spanish Universal Jurisdiction Law

Spain first incorporated the principle of universal jurisdiction into domestic law in the 1985 Organic Law on the Judiciary which formally defined the jurisdiction, organization, and operation of the Spanish Judiciary.16 Article 23.4 provided Spanish courts with jurisdiction over Spanish nationals and foreigners accused of committing serious crimes under Spanish criminal law including genocide, terrorism, piracy, and any crime that should be prosecuted pursuant to an international treaty.17 A subsequent amendment added to that list crimes against humanity.18 The initial iteration of Article 23.4 conferred extremely broad authority on the Spanish Judiciary to prosecute perpetrators of serious crimes without any connection to Spain. However, amendments to Article 23.4 have since narrowed the scope of Spanish universal jurisdiction. First, amendments passed in 2009 and 2014 established the requirement of a nexus between Spain and the alleged crime; today, for Spain to assert jurisdiction, it must be established that alleged perpetrators are present in Spain, that victims are Spanish nationals, or that the case has some important connection with Spain.19 The 2009 and 2014 amendments also restricted Spanish universal jurisdiction by introducing the principle of subsidiarity.20 Under Article 23.5, Spain will cede jurisdiction when a case is being investigated and prosecuted by (a) an international court established in accordance with the treaties and conventions signed by Spain or (b) either the State where the offence was committed or the alleged offender’s State of nationality.21

III. German, Senegalese, and Spanish Case Studies

This Section provides a brief background on each case and information on the period from the initiation of an investigation to the start of the prosecution or closing of the case.

A. German Prosecution of Anwar Raslan

From 2011 to 2012, Raslan served as a senior investigative officer in the al-Khatib branch of the Syrian intelligence services.22 Under Raslan’s command, officers illegally detained members of political opposition movements, and held them in in inhumane conditions, engaging in the brutal psychological and physical torture of over four thousand persons.23 At least fifty-eight people were killed as a direct result of these inhumane detention conditions and torture.24 In December 2012, Raslan fled to Jordan and was granted asylum in Germany in 2014.25

The Syrian crisis garnered substantial international attention and, in 2011, the German Federal Prosecutor opened a structural investigation into crimes against humanity committed by Syrian government branches.26 In 2015, the influx of nearly one million Syrian refugees to Germany afforded German authorities and European human rights organizations rare, direct access to victims, witnesses, and material evidence.27 In 2017, the European Center for Constitutional and Human Rights filed a criminal complaint in Germany on behalf of several Syrian refugees whose firsthand accounts implicated numerous high-ranking intelligence officers.28 The ECCHR’s complaint and other reports collected by human rights organizations first drew the attention of German officials to Anwar Raslan.

Around the same time, fearing retribution from former colleagues, Raslan approached German police, and confessed to his role in the Syrian intelligence service seeking special protective services.29 To investigate Raslan, German police interviewed more than seventy people and lawfully searched Raslan’s home.30 Relying on information collected by both the German police and international organizations, the Federal Prosecutor arrested and formally indicted Raslan in 2019.31 Preparing for trial, police investigators conducted interviews of local victims and witnesses and coordinated with French, Swedish, and Norwegian authorities to interview Syrian witnesses living across Europe.32 German authorities also gained access to a large swath of investigative information collected by international actors. For example, the United Nations (U.N.) Commission of Inquiry provided German authorities access to more survivor interviews, forensic reports, videos, and satellite imagery, some of which were eventually admitted into evidence for in Raslan’s trial.33 Similar reports compiled by a number of international human rights organizations were also admitted into evidence.34 On January 13, 2022, the Higher Regional Court of Koblenz found former Syrian intelligence officer, Anwar Raslan, guilty of crimes against humanity in the form of killing, torture, severe deprivation of liberty, rape, and sexual assault, and sentenced him to life imprisonment.35

B. Senegalese Prosecution of Hissène Habré

On May 30, 2016, former Chadian dictator, Hissène Habré, was convicted of crimes against humanity, war crimes, and torture in a hybrid international Senegalese court.36 The conviction of Habré was particularly significant because it was the first time in the world that a former leader of a country was convicted of human rights violations by the court of another country exercising universal jurisdiction.37 Habré seized power in Chad in 1982 and ruled until 1990 when he was deposed and fled to Senegal.38 During this period, Habré’s regime engaged in widespread political killings, systematic torture, arbitrary arrest and ethnic cleansing.39 It is estimated that Habré’s government is responsible for roughly forty thousand deaths.40 When Habré was overthrown in 1990, surviving victims rallied together and, with the support of a national Truth Commission, and a number of international human rights organizations filed a criminal complaint against Habré in Senegalese court in 2000.41 While a Senegalese judge initially indicted Habré in response to the complaint, actual judicial proceedings remained stalled for over a decade.42

One major obstacle to prosecution was political interference by Senegalese President Wade and his administration who pressured Senegalese courts to declare they did not have jurisdiction or competence to try Habré in 2001.43 Over the next four years, victims continued to lobby for justice and, in 2005, Belgium, under its own universal jurisdiction statute, indicted Habré and sought his extradition from Senegal.44 However, President Wade declined to extradite Habré to Belgium and instead referred the situation to the African Union (AU). A committee of African Jurists appointed by the AU ultimately issued a decision calling on Senegal to prosecute Habré on behalf of Africa.45 President Wade cooperated by amending Senegalese law to grant national courts jurisdiction over Habré’s case but demanded the international community provide upfront funding of €33 million before proceedings could begin once again stalling prosecution.46

Another significant obstacle emerged when the Court of Justice of the Economic Community of West African States (ECOWAS) issued a decision that Senegal’s national courts could not prosecute Habré, and instead suggested that Habré be tried before a “special ad hoc procedure of an international character.”47 In response, the AU proposed a plan for an “extraordinary chamber” of international character that could prosecute Habré within Senegal’s existing court system.48 President Wade again resisted a Senegalese prosecution and, in 2011, abruptly withdrew from extraordinary chamber negotiations.49 Throughout 2011, Wade sought to expel Habré to other African countries, including Rwanda and Chad, to avoid a Senegalese prosecution.50 However, active resistance from numerous human rights organizations prevented Habré’s expulsion.51

In 2012, when President Wade lost the presidential election to President Sall, newly-elected President Sall swiftly reinitiated talks to create the Extraordinary African Chambers (EAC).52 The EAC was formally inaugurated on February 8, 2013 with the jurisdiction to prosecute “those most responsible” for international crimes committed in Chad between 1982 and 1990 under Senegalese law.53 On July 2, 2013, Habré was indicted for crimes against humanity, war crimes, and torture and placed in pre-trial detention.54 To prepare for trial, investigative officials conducted four missions to Chad where they met with victims and gathered physical evidence, and collected statements from thousands of witnesses.55 A large array of material evidence collected by international human rights groups active in Chad from 2000 to 2013 was also admitted at the EAC.56

C. Closed Spanish Case Against Former Chinese President Jiang Zemin

Jiang Zemin served as the President of China from 1993 to 2003.57 Beginning in 1994, Zemin’s administration launched a new, brutal repression campaign in Tibet.58 Under this campaign, Chinese officials suppressed Tibetan religious and cultural customs, arrested, tortured, and killed political dissidents, forcibly sterilized Tibetan women, and increased the Chinese population transfer into Tibet.59 In 2005, Thubten Wangchen Sherpa, a Tibetan victim and naturalized Spanish national, worked with numerous civil society groups to file a complaint at the Spanish National Audience against Zemin and six other high-ranking Chinese officials for genocide, torture, state terrorism, and crimes against humanity.60

In 2006, the National Audience admitted the case and began a preliminary investigation, inviting Sherpa to testify.61 The Chinese Foreign Ministry immediately decried the allegations and investigation calling them “calumnies… motivated by political reasons [in order to] damage the international image of China and bilateral relations between Spain and China.”62 Over the next few years proceedings stalled as Spanish authorities struggled to gather evidence in the face of continued, vocal opposition from China.63 The investigation was particularly challenging because Spain had limited access to Tibetan victims and witnesses. For example, the Indian government refused to cooperate with Spanish requests to interview exiled Tibetans living in India.64 The National Audience also faced obstacles within Spain amid growing political opposition to the Spanish Judiciary’s broad exercise of universal jurisdiction to try international crimes.65 In 2009, in response to these sentiments, the Spanish Parliament passed almost unanimously the limiting amendments to the Spanish universal jurisdiction law outlined in Section II(C) above. As a result, in 2010, a Spanish judge dismissed the Tibetans’ case, holding that there was not a sufficiently strong link between Spain and the Tibetan crisis under the amended terms.66 However, a few years later, another Spanish Judge, Ismael Moreno, reexamined the case and determined that Sherpa’s status as both a Tibetan victim and a naturalized Spanish citizen established a sufficient link between Spain and the atrocities committed in Tibet.67 Following this decision, in February 2014, Judge Moreno issued an arrest warrant for Zemin.68 The Chinese Foreign Ministry responded aggressively, recalling Spain’s ambassador, calling Judge Moreno’s decision a “despicable act,” and stating that it could “destroy the extremely friendly relations between China and Spain.”69

The Spanish government and public remained sharply divided on the proceedings. While pro-Tibetan civil society groups and liberal factions advocated for prosecution, conservatives expressed skepticism about whether Spain was the appropriate forum for the case. Illustratively, Carlos Diver, the President of the General Council of the Spanish Judiciary, stated that “we cannot become the judicial policemen of the world” in response to the assertion of Spanish jurisdiction.70 Likewise, in the face of China’s strong opposition, many conservative politicians feared that the potential economic costs of souring relations with one of Spain’s most important economic partners far outweighed the interests of justice.71 In June 2014, the National Audience reexamined the case and once again dismissed it due to an insufficient link between Spain and the Tibetan crisis. A Pro-Tibetan group accused the Audience of balking in the face of Chinese opposition and issuing an illegitimate legal decision, calling it a “blatant and shameful capitulation to pressure from Beijing.”72 On April 22, 2015, the Spanish Supreme Court upheld the dismissal of the case against Zemin, definitively closing the investigation.73

IV. Challenges in Reaching the Prosecution Stage

Comparing the respective successes and challenges of the German, Senegalese, and Spanish cases discussed above reveals a number of factors that can either propel prosecutions forward or present obstacles to States exercising universal jurisdiction. In this Section, I discuss the impact of government commitment to the prosecution and internal politics, development of law, investigative capacity, and interstate power dynamics.

A. Government Commitment to the Prosecution and Internal Politics

First, resistance within the State government can substantially delay or completely block courts from reaching the trial stage. In Senegal, for example, President Wade’s unwillingness to prosecute Habré delayed his trial by almost fifteen years. Indeed, Habré’s trial likely would not have been effectuated without President Sall’s election in 2012; in the year leading up to this election Wade attempted to expel Habré multiple times.74 Had Wade been reelected, those efforts likely would have continued. Instead, President Sall made the Habré prosecution a high priority of his administration and immediately reopened talks to establish the EAC.75 This political shift within the Senegalese State government was thus instrumental in Habré’s prosecution reaching the trial stage. Similarly, the German government’s consistent commitment to investigating the crisis in Syria, even before individual perpetrators had been identified, empowered German officials to effectuate perpetrator arrests, indictments, and trials efficiently.

In contrast, in Spain, the conservative party’s growing influence on the State divided the government and blocked efforts to prosecute Zemin. Internal political division about the appropriate role for the Spanish Judiciary led to legislative amendments and judicial decisions that disrupted the pre-trial process. Illustratively, the initial complaint against Zemin was filed in 2006 and the case had made no significant progress by 2014 when it was officially closed.76 In contrast, a unified government committed to carrying out the prosecution expediates the initial investigation, arrest, and indictment. Illustratively, in Germany, Raslan was arrested, indicted, and convicted within only roughly four years of the first complaints implicating him in crimes against humanity.

B. Development of Law

The national courts of States exercising universal jurisdiction often grapple with novel issues of law that can delay investigations and prosecutions. There is no uniform approach to universal jurisdiction and many States are still developing and honing their universal jurisdiction laws. Thus, States often amend their universal jurisdiction statutes to adhere to emerging international norms. Amendments can force national courts to reexamine ongoing national proceedings. This was a significant obstacle in the Spanish prosecution of President Zemin. There, mid-investigation amendments to the universal jurisdiction law left Spanish courts divided on whether they could lawfully establish jurisdiction over the Tibetan situation. Resolving such complex legal questions requires extensive, timely, and costly pre-trial litigation efforts that can stall or impede prosecutions.

Furthermore, even where a State has not recently amended its universal jurisdiction law, national courts still have to grapple with novel issues related to (among other things) admissibility, extradition, venue, scope, and applicability of law. For example, criminal defendants may lawfully challenge the States’ jurisdiction over his case. This is particularly problematic where, as with the Habré case, multiple States or courts attempt to assert jurisdiction over a defendant’s case. There, multiple legal forums, including Belgian courts, the ECOWAS Court of Justice, and AU legal committees examined legal questions in Habré’s case. This led to conflicting, inconsistent decisions about what forum Habré could be prosecuted in that delayed the actualization of his trial.

C. Investigative Capacity

Where domestic officials have direct access to witnesses and physical evidence as well as investigative support from other States and organizations, a case is more likely to reach the trial stage. First, the ability to collect testimony from victims and witnesses significantly expedites the pre-trial process. This was evident in Germany’s prosecution of Raslan; direct access to Syrian refugees who had experienced or witnessed violence firsthand enabled the German Federal Prosecutor to identify individual perpetrators and build evidentiary bases for indictments more swiftly. Likewise, investigative officials for the EAC collected important evidence by traveling to Chad to conduct fact-finding missions.

With this, resources and support from international actors significantly improves investigative capacity. For example, to prepare for Raslan’s trial, German authorities partnered with multiple European States and utilized evidentiary reports gathered by a number of different organizations including the United Nations, NGOs, Syrian resistance groups, and other human rights groups.77 The EAC also received substantial support from Chadian victim and human rights groups who gathered evidence in Chad for over a decade before the EAC was even created.78 Conversely, Spain struggled to gather evidence against Zemin. Tibetan victim and human rights organizations made efforts to collect victim testimony and other forms of evidence. However, Spain was routinely denied direct access to Tibet or other areas, like India, with a substantial population of Tibetans.79

D. Interstate Power Dynamics

It is more difficult to bring a powerful actor, particularly one from a powerful State, to trial. First, when the accused themselves can wield political influence, they are more likely to evade prosecution. This is particularly relevant for former heads of State. Beyond any diplomatic immunity they may be afforded, former heads of State can use residual political influence to incentivize other States to not pursue arrest and prosecution. For example, Habré’s lingering influence in Africa likely contributed to President Wade’s extreme resistance to arresting, extraditing, or prosecuting him. In contrast, Raslan, a Syrian refugee who briefly served in a relatively low-ranking position, did not have any political influence to exert on the German Judiciary or public.

Moreover, States may shield nationals from international accountability by refusing to extradite them. For example, it is highly unlikely that China would ever have extradited Zemin even if a competent international court could have established jurisdiction over him. With this, States like China with greater international clout can influence States to pursue or drop certain investigations. This was also evident in the Zemin case where even the hypothetical threat of economic blow-back from China contributed to the narrowing of Spain’s universal jurisdiction law and the eventual closing of Zemin’s case.

V. Conclusion

Universal jurisdiction may be a valuable tool to hold individual perpetrators of grave international crimes accountable under the right circumstances. Successfully and efficiently reaching the trial stage of a universal jurisdiction prosecution generally requires a unified governmental commitment to the prosecution, well-developed national universal jurisdiction laws, the assistance of international investigative bodies, and advantageous interstate power dynamics.

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

1. 1.

   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. ↩

2. 2.

   Id. ↩

3. 3.

   Stephen Macedo ed., The Princeton Principles on Universal Jurisdiction, Principle 1 (2001), available online. ↩

4. 4.

   Hoover, supra note 1, at 6. ↩

5. 5.

   Human Rights Watch, The Legal Framework for Universal Jurisdiction in Germany 1 (2014) [hereinafter Legal Framework for Germany], available online. ↩

6. 6.

   Code of Crimes against International Law, § 6–13 (Jun. 26, 2002, as amended Dec. 23, 2016) [hereinafter CCAIL], available online. ↩

7. 7.

   Legal Framework for Germany, supra note 5, at 1. ↩

8. 8.

   CCAIL, supra note 6, § 1. ↩

9. 9.

   Human Rights Watch, supra note 5, at 2. ↩

10. 10.

    Id. ↩

11. 11.

    Ministry of Justice, Republic of Senegal, U.N. Doc. 17-08094E, Information and Observations on the Scope and Application of Universal Jurisdiction, Submission to the U.N. General Assembly (2017), available online. ↩

12. 12.

    Id. at 2. ↩

13. 13.

    Id. at 3. ↩

14. 14.

    Id. ↩

15. 15.

    Id. ↩

16. 16.

    Kingdom of Spain, Organic Law 6/1985 on the Judiciary, 157 (Jul. 2, 1985, as amended through May 2007), available online. ↩

17. 17.

    Id. Art. 23.4. ↩

18. 18.

    Ministry of Foreign Affairs and Cooperation, Kingdom of Spain, U.N. Doc. 16-05499E, Contribution of Spain on the Topic “The Scope and Application of the Principle of Universal Jurisdiction,” Submission to U.N. General Assembly (2016), available online. ↩

19. 19.

    Id. at 4. ↩

20. 20.

    Id. ↩

21. 21.

    Rosa Ana Alija Fernández, The 2014 Reform of Universal Jurisdiction in Spain From All to Nothing, ZIS 717, 724 (2014), available online. ↩

22. 22.

    Id. at 1. ↩

23. 23.

    Human Rights Watch, Seeking Justice for Syria: How an Alleged Syrian Intelligence Officer was Put on Trial in Germany (Mar. 2022) [hereinafter Seeking Justice for Syria], available online. ↩

24. 24.

    Id. ↩

25. 25.

    Id. at 11. ↩

26. 26.

    Anwar Raslan, Trial Int’l (Mar. 30, 2023), available online (last visited Aug. 28, 2023). ↩

27. 27.

    Seeking Justice for Syria, supra note 23. ↩

28. 28.

    Id. ↩

29. 29.

    Joachim J. Savelsberg & Miray Philips, Epistemic Power of Universal Jurisdiction: Spreading Mass Atrocity Crimes, 31 Minn. J. Int’l L. 57, 70 (2022), available online. ↩

30. 30.

    Seeking Justice for Syria, supra note 23. ↩

31. 31.

    Anwar Raslan, supra note 26. ↩

32. 32.

    Seeking Justice for Syria, supra note 23. ↩

33. 33.

    Id. ↩

34. 34.

    Id. ↩

35. 35.

    Anwar Raslan, supra note 26. ↩

36. 36.

    Reed Brody, Brot für die Welt, Victims Bring a Dictator to Justice: The Case of Hissène Habré 6 (Jun. 2017), available online. ↩

37. 37.

    Id. ↩

38. 38.

    Brody, supra note 36, at 7. ↩

39. 39.

    Human Rights Watch, Q&A: The Case of Hissène Habré before the Extraordinary African Chambers in Senegal (May 3, 2016), available online. ↩

40. 40.

    Brody, supra note 36, at 8. ↩

41. 41.

    Id. at 8, 10. ↩

42. 42.

    Id. at 13. ↩

43. 43.

    Id. at 10. ↩

44. 44.

    Id. ↩

45. 45.

    Id. at 11. ↩

46. 46.

    Id. at 12. ↩

47. 47.

    Id. ↩

48. 48.

    Id. ↩

49. 49.

    Id. ↩

50. 50.

    Id. ↩

51. 51.

    Id. ↩

52. 52.

    Id. at 13. ↩

53. 53.

    Agreement between the Government of the Republic of Senegal and the African Union on the Establishment of Extraordinary African Chambers within the Senegalese Judicial System, 1 AJICJ 107, Art. 1 (2015), paywall, doi. ↩

54. 54.

    Brody, supra note 36, at 13. ↩

55. 55.

    Id. at 13–14. ↩

56. 56.

    Id. at 14. ↩

57. 57.

    Jiang Zemin, Trial Int’l (Apr. 27, 2016), available online. ↩

58. 58.

    International Commission of Jurists, Tibet: Human Rights and the Rule of Law 80 (Dec. 1997), available online. ↩

59. 59.

    Id. at 80–81. ↩

60. 60.

    Craig Peters, The Impasse of Tibetan Justice: Spain’s Exercise of Universal Jurisdiction in Prosecuting Chinese Genocide, 181 Seattle U. L. Rev. 39 (2015), available online. ↩

61. 61.

    Id. at 185. ↩

62. 62.

    Id. at 186. ↩

63. 63.

    Id. ↩

64. 64.

    Id. ↩

65. 65.

    Id. at 187. ↩

66. 66.

    Id. at 188. ↩

67. 67.

    Id. ↩

68. 68.

    Id. at 189. ↩

69. 69.

    Id. ↩

70. 70.

    Id. at 187. ↩

71. 71.

    Id. at 190. ↩

72. 72.

    Id. ↩

73. 73.

    José Manuel Romero, Supreme Court Upholds Dismissal of Tibet Genocide Investigation, El País (Apr. 22, 2015), available online. ↩

74. 74.

    Brody, supra note 36, at 12. ↩

75. 75.

    Id. ↩

76. 76.

    Peters, supra note 60, at 183, 190. ↩

77. 77.

    Seeking Justice in Syria, supra note 23. ↩

78. 78.

    Brody, supra note 36, at 14. ↩

79. 79.

    Peters, supra note 60, at 186. ↩