Amnesty International Universal Jurisdiction Study

Amnesty International has recently conducted a massive review of universal jurisdiction legislation around the world. The study was launched in connection with discussions occurring within the Sixth (Legal ) Committee of the General Assembly prompted by the Tanzanian delegation (see also here for 2010 discussions and here for 2011 discussions). In its study, Amnesty defined “universal jurisdiction” as

the ability of the court of any state to try persons for crimes committed outside its territory that are not linked to the state by the nationality of the suspect or the victims or by harm to the state’s own national interested.

Some key findings:

1. 85% of the 193 UN states have defined one or more of the core international crimes (war crimes, crimes against humanity, genocide and torture) within their domestic law. (So long as any one crime against humanity or war crimes was prosecutable, the state is included in these statistics). These statistics break down as follows:

• War Crimes: 72% of states have at least one war crime as a crime under national law and 69% of all states provide for universal jurisdiction over such crimes
• Crimes Against Humanity: 46% have at least one crimes against humanity as a crime under national law and 40% of all states provide for universal jurisdiction over such crimes.
• Genocide: 60% of states have genocide on the books.
• Torture: 49% have included torture as a separate crime under national law, and 44% allow for universal jurisdiction.
• Other crimes that might be subject to universal jurisdition (piracy, trafficking, and terrorism, e.g.) are not surveyed.

2. 75% of states have provided for universal jurisdiction over one or more of these crimes.

3. 47% provide for universal jurisdiction over “ordinary crimes.”

4. In total, 84% of states can exercise universal jurisdiction over certain international and domestic crimes.

5. States often incorporate incomplete or incorrect definitions of international crimes into their domestic codes.

6. Very few states have actually invoked universal jurisdiction since WWII (the study lists: Argentina, Austria, Australia, Belgium, Canada, Denmark, Finland, France, Germany, Israel, Netherlands, Norway, Paraguay, Senegal, Spain, Sweden, Switzerland, the UK, the US).

7. The study cites only one instance (the Cavallo case) in which an individual has been extradited to a state prosecuting pursuant to universal jurisdiction.

The study notes that there are many ways that states can incorporate universal jurisdiction into their domestic systems. These include:

• Defining the crime within domestic law and then referring to treaty obligations to prosecute (or extradite).
• Defining the crime within domestic law and then allowing for the assertion of jurisdiction over crimes contained within multilateral penal treaties that the state has joined, regardless of treaty obligations to prosecute.
• Allowing for the assertion of jurisdiction over crimes contained within treaties, but not specifically defining the crime within domestic law.
• Allowing for universal jurisdiction over ordinary crimes (usually serious crimes such as murder or rape).
• Treating treaties as automatically part of domestic law (so-called monist states), but charging and sentencing individuals in accordance with analogous domestic crimes.

Nonetheless, the study notes that there are a number of obstacles to the effective use of the law that is on the books. These include:

1. The failure to define international crimes as domestic crimes

2. Inadequate definitions of crimes and principles of responsibility

3. The availability of defenses, such as superior orders, statutes of limitations, amnesty laws, pardons, and immunities

4. Presence requirements to open an investigation or seek the extradition of a suspect

5. Limiting the triggering of universal jurisdiction who are residents or nationals

6. Limiting the use of universal jurisdiction to foreign nationals who are civil servants or members of the armed forces

7. The double criminality rule (which requires a conduct constitutes an offense under both the extraditing and prosecuting state’s law)

8. Political control over decisions to investigate, prosecute or extradite

The study concludes:

Universal jurisdiction is an essential tool of international justice because of the limited jurisdiction of international courts and because national political and prosecutors are all too often unwilling an unable to genuinely investigate crimes under international law … in their own countries.

The surveys of particular countries will be invaluable to researchers and advocates. Well worth the read!