ArticlePDF Available

The Diplomacy of Universal Jurisdiction: The Political Branches and the Transnational Prosecution of International Crimes

Authors:

Abstract and Figures

Applying a theoretical framework based on the incentives and disincentives for political branches to exercise universal jurisdiction to prosecute core international crimes, this article undertakes a global survey of contemporary universal jurisdiction cases and qualitative case studies of five states to analyze the current state of universal jurisdiction, predict its likely future evolution, and suggest a starting point for a realistic normative assessment of universal jurisdiction and for the institutional design of the universal jurisdiction regime.
Content may be subject to copyright.
Electronic copy available at: http://ssrn.com/abstract=1661243
Note: This is an earlier version of the article now published in 105 American Journal of
International Law 1 (2011)
THE DIPLOMACY OF UNIVERSAL JURISDICTION:
THE POLITICAL BRANCHES AND THE TRANSNATIONAL PROSECUTION OF
INTERNATIONAL CRIMES
By Máximo Langer*
Contents
Introduction......................................................................................................................... 2
I. The Universal Jurisdiction Enforcement Regime............................................................ 7
II. Five Case-Studies on Universal Jurisdiction................................................................ 22
A. Germany............................................................................................................................... 23
1.Legal and Institutional Framework........................................................................... 23
2.Trials ......................................................................................................................... 27
3.Pending Case............................................................................................................. 28
4.Dismissed Cases........................................................................................................ 29
B. England and Wales............................................................................................................... 31
* Professor of Law, UCLA; Visiting Professor of Law, NYU (2010-11); Louis D. Brandeis Visiting Professor of
Law, Harvard Law School (Spring 2010). I would like to thank Rick Abel, Asli Bali, Gabriella Blum, Rachel
Brewster, Hernán Charosky, Kevin Davis, Joseph W. Doherty, Einer Elhauge, Noah Feldman, Ryan Goodman,
Robert Keohane, Adriaan Lanni, Martha Minow, Mark Ramseyer, Jacqueline Ross, Kim Lane Scheppele, Seana
Shiffrin, Joseph Singer, Carol Steiker, Matthew Stephenson, Eugene Volokh, Alex Whiting, James Q. Whitman,
Noah Zatz, six anonymous reviewers, and participants at the UCLA Summer-Works-in-Progress Workshop, the
2009 Annual Meeting of the American Society of Comparative Law, the IX Encuentro de Juristas organized by the
University of Guadalajara in Mexico in December 2009, the Boston University School of Law Faculty Workshop,
the Harvard Criminal Justice Workshop, Harvard Law School Faculty Workshop, and the Seminar Series of the
Program in Law and Public Affairs at Princeton University for comments and conversations on earlier drafts. I
would also like to thank Julie Rieber-Mohn, Sarah-Eve Pelletier, Tamar Senikidze, and Tanja Stanossek for their
research assistance and Amy Gutman, Ariel McNichol, and Matt Seccombe for editing the piece.
Electronic copy available at: http://ssrn.com/abstract=1661243
1.Legal and Institutional Framework........................................................................... 31
2.Trials ......................................................................................................................... 34
3.Arrests....................................................................................................................... 35
4.Dismissed Cases........................................................................................................ 37
5.Reform Proposals...................................................................................................... 38
C. France................................................................................................................................... 39
1.Legal and Institutional Framework........................................................................... 39
2.Trials ......................................................................................................................... 43
3.Pending Cases........................................................................................................... 46
4.Dismissed Cases........................................................................................................ 50
5.The ICC and Universal Jurisdiction in France.......................................................... 52
D. Belgium................................................................................................................................ 53
1.First Period (1993–2003) .......................................................................................... 53
2.Second Period (2003–present) .................................................................................. 61
E. Spain..................................................................................................................................... 67
1.First Period (1985–2009) .......................................................................................... 67
2.Second Period (November 2009–Present)—The Amendment of the Spanish
Universal Jurisdiction Statute ............................................................................................... 82
III. How Stable is the Current Universal Jurisdiction Regime? ....................................... 84
IV. Some Normative and Institutional Design Implications............................................. 92
A. Scaling Down the Universal Jurisdiction Debate ................................................................ 92
B. Rethinking the Relationship between Law and Politics in Universal Jurisdiction .............. 94
C. The Two Sides of Selectivity ............................................................................................... 96
Conclusion ...................................................................................................................... 101
INTRODUCTION
Under universal jurisdiction, any State in the world may prosecute and try the core
international crimes—crimes against humanity, genocide, torture, and war crimes—without any
territorial, personal, or national-interest link to the crime in question when the crime is
committed.1 The jurisdictional claim is principled on the atrocious nature of the crime and
legally based on treaties or customary international law. Unlike the regime of international
1 See, e.g., RESTATEMENT (THIRD) OF THE FOREIGN RELATIONS LAW OF THE UNITED STATES §402 and 404 and
comments thereto. Though torture is sometimes not included among the core international crimes, I include it in this
category for convenience of use and because its prosecution based on universal jurisdiction presents similar issues as
the other three crimes.
2
criminal tribunals created by the UN Security Council and the enforcement regime of the
International Criminal Court, universal jurisdiction is completely decentralized.
Defenders of universal jurisdiction claim that it is a crucial tool to bring justice to
victims, to deter State or quasi-state officials from committing international crimes, and to
establish a minimum international rule of law by substantially closing the “impunity gap”
regarding international crimes.2 Critics of the regime argue that universal jurisdiction disrupts
international relations, provokes judicial chaos, and interferes with political solutions to mass
atrocities.3
One of the issues missing in this debate is the role of the political branches, specifically
the executive and the legislature. By identifying the main incentives for political branches in
universal jurisdiction cases and explaining the relationship among these incentives, this article
articulates a theoretical framework that (1) accounts for the current state of universal jurisdiction,
(2) predicts how universal jurisdiction is likely to evolve in the future, and (3) provides what
2 See, e.g., Amnesty International, Ending Impunity: Developing and Implementing a Global Action Plan Using
Universal Jurisdiction (2009), available at http://www.amnesty.org/en/library/info/IOR53/005/2009/en (visited on
Feb. 10, 2010); Kenneth Roth, The Case for Universal Jurisdiction, 80 FOREIGN AFF. 150 (2001); UNIVERSAL
JURISDICTION. NATIONAL COURTS AND THE PROSECUTION OF SERIOUS CRIMES UNDER INTERNATIONAL LAW
(Stephen Macedo ed. 2003) [hereinafter PRINCETON PRINCIPLES].
3 See, e.g., John Bolton, Democracy Under Arrest, The Wall Street Journal, Dec. 15, 2009; Jack Goldsmith &
Stephen D. Krasner, The limits of idealism, 132 DAEDALUS 47 (2003); Eugene Kontorovich, The Inefficiency of
Universal Jurisdiction, 2008 U. ILL. L. Rev. 389; Henry Kissinger, The Pitfalls of Universal Jurisdiction: Risking
Judicial Tyranny, 80 FOREIGN AFF. 86 (2001); Jack Snyder and Leslie Vinjamuri, Trial and Errors, 28
INTERNATIONAL SECURITY 5 (2004).
3
should be a starting point for any non-ideal-world normative assessment of universal jurisdiction
as well as for the institutional design of the universal jurisdiction regime.
This article will argue that by passing universal jurisdiction statutes, opening formal
proceedings, and bringing cases to trial, the political branches of a universal-jurisdiction
prosecuting State can gain the support of human rights groups and of domestic constituencies
sympathetic to foreign human rights. That being said, since international crimes are often
committed by State officials, the political branches of the prosecuting States must be willing to
pay the international relations costs that the defendant’s State of nationality would impose if a
prosecution and trial take place. Given that these costs can be substantial, universal-jurisdiction
prosecuting States have strong incentives to concentrate on defendants who impose low
international relations costs because it is only in these cases that the political benefits of
universal jurisdiction prosecutions and trials tend to outweigh the costs.
This article will show two ways in which political branches of individual States have
acted consistently with this incentive structure. First, relying on the results of a first-of-its-kind
survey carried out for this project that aims at covering all universal jurisdiction cases on the core
international crimes brought since Eichmann, this article will show that universal jurisdiction
defendants who have gone to trial are primarily Nazis, former Yugoslavs, and Rwandans. In
other words, they are the type of defendants that the international community has most clearly
agreed should be prosecuted and punished and that their own States of nationality have not
defended. Those who fall outside these three categories have been nationals of States that have
not exercised their leverage to defend their nationals abroad, or that have been too weak to stop
trials from occurring.
4
Second, relying on statutes, judicial decisions, and other materials in their original
language, this article will show how these incentives explain State behavior through analysis of
case-studies from five States—Germany, England, France, Belgium, and Spain. Each of these
States has passed legislation giving universal jurisdiction to its courts, and in each State both
victims and NGOs have filed universal jurisdiction complaints. But, given that the executive
branch has varying degrees of control over criminal procedures among these fives States, these
States have acted differently regarding similar complaints. This article will show that as we
move along the spectrum of executive branch control from Germany to England, from England
to France, and from France to Belgium and Spain, the spectrum of expected costs imposed upon
the prosecuting State by defendants against whom formal proceedings are opened moves in the
opposite direction. This supports the argument that, to the extent they are able, executive
branches in these five States have responded to the incentives identified in this article.
By extension, this article will also show that those States that have had a low degree of
executive control over universal jurisdiction prosecutions, and have opened formal proceedings
against higher-cost defendants, have had to face substantial international relations costs. In turn,
this has given their executive branch and legislature incentives to restrict their universal
jurisdiction statutes or to give more control to the executive branch over these prosecutions, to
ensure that the cases against higher-cost defendants are dismissed and do not move forward
toward trial. For this reason, as this article will argue, Belgium and, much more recently, Spain
have amended their universal jurisdiction regulations. Similarly, France, even more recently, has
expanded universal jurisdiction of its courts over crimes against humanity, genocide and war
crimes as part of its implementation of the ICC Statute in the French legal system, but only under
5
very restrictive conditions and by giving more control to the executive branch over these
prosecutions; and England is currently discussing some amendments to its law of arrest.
This article will also explore some of the more significant normative and institutional
design implications of its theoretical framework and empirical findings. Key among these is the
fact that universal jurisdiction will never establish a minimum international rule of law—that is,
it will never substantially close the “impunity gap” regarding international crimes or be applied
equally across defendants—given that high-cost, most mid-cost, and many low-cost defendants
are beyond the reach of the universal jurisdiction enforcement regime. This article’s findings also
suggest that a number of common criticisms of universal jurisdiction are unfounded, given that
States have incentives to concentrate on defendants against whom there is broad agreement in the
international community and whose own States of nationality are not willing to defend. For these
reasons, universal jurisdiction is unlikely to lead to unmanageable international tensions, to
judicial chaos, or to interference with political solutions to mass atrocities. This article will thus
suggest that though there are important issues at stake in universal jurisdiction, there are certain
benefits and costs that universal jurisdiction is so unlikely to bring about that they should play a
minor or no role in our assessment of this regime.
This article will also argue that both supporters and opponents of universal jurisdiction
should rethink the relationship between law and politics. Supporters of universal jurisdiction
have tended to have a legalistic approach that has rejected any political consideration as
improper. This article will argue that the debate among supporters of universal jurisdiction
should not be whether political branches should be part of the universal jurisdiction regime—
since this is an unavoidable fact—but rather what is the best way to give a voice to political
branches in this regime. But this article will also show that, although political branches’
6
incentives play an important role in universal jurisdiction, universal jurisdiction trials have
generally been true adjudicatory processes. Critics who have characterized universal jurisdiction
as simply a political tool to harass world leaders would thus be well advised to take law more
seriously.
Finally, this article will argue that selectivity has two sides. Though selectivity is
undoubtly a problematic structural feature of universal jurisdiction—since there are people
around the world who may commit international crimes with impunity—this article will maintain
that selectivity also plays a positive role in the universal jurisdiction regime. This is because the
type of selectivity that occurs in universal jurisdiction makes it concentrate mostly on defendants
against whom there is a broad agreement in the international community. And acting upon this
type of agreement addresses some of the legal and political legitimacy deficits of universal
jurisdiction and reduces the chances that cases that should not be prosecuted will be prosecuted.
I. THE UNIVERSAL JURISDICTION ENFORCEMENT REGIME
Modern international criminal law starts with Nuremberg.4 The London Charter, the
International Military Tribunal trial at Nuremberg, and the other post–World War II trials that
followed relied on the idea that there are certain international crimes that are established by
4 The idea of universal jurisdiction is older than most core international crimes. For instance, while crimes against
humanity, genocide, and torture were created as international crimes at or after Nuremberg, States have claimed
universal jurisdiction over the crime of piracy for more than two hundred years. The framework articulated in this
article provides an explanation of why universal jurisdiction over piracy has been less controversial than over the
core international crimes, since pirates are generally low-cost defendants. For three recent studies on piracy and
universal jurisdiction, see Agora: Piracy Prosecutions, 104 AMERICAN JOURNAL OF INTERNATIONAL LAW 397
(2010).
7
international law and that can be enforced against individuals.5 After the Nuremberg and Tokyo
Tribunals finished their tasks and after efforts to create a permanent international criminal court
foundered with the Cold War, there was no supranational enforcement mechanism left for these
crimes.
It was thus up to individual States to prosecute and try international crimes relying on
traditional jurisdictional principles. After World War II, a few States gave their courts universal
jurisdiction over certain international crimes.6 However, in the political context of the Cold War,
there was little room for this type of prosecution.7 The situation started to change during the late
1970s and the 1980s in reaction to mass atrocities committed in Africa, Asia, and Latin America;
as it became publicly known that Australia, Canada, England, France, and the United States had
Nazis and Nazi collaborators living in their territories; and as Southern Europe and Latin
America began transitioning from authoritarian to democratic rule.8 All these developments
5 See, e.g., Report of the International Law Commission, 5 U.N. GAOR, Supp. No. 12 (A/1316), at 11-14 (1950).
6 See, e.g., StGB, §6.1 (genocide) (1955); Nazi and Nazi Collaborators (Punishment) Law, 5710-1950, Passed by the
Knesset on the 16th Av, 5723 (6th August, 1963) and published in Sefer Ha-Chukkim No. 404 of the 26th Av,
5723(16th August, 1963), p. 140.
7 The Eichmann case was an exception. On this case, see, e.g., HANNAH ARENDT, EICHMANN IN JERUSALEM: A
REPORT ON THE BANALITY OF EVIL (1963).
8 On the identification of Nazis in a number of States in the 1980s and the efforts to prosecute them, see, e.g.,
Matthew Lippman, The Pursuit of Nazi War Criminals in the United States and in Other Anglo-American Legal
Systems, 29 CAL. W. INTL L.J. 1, 13-20 (1998-99).
8
fostered human rights efforts around the world, and domestic and transnational constituencies
sought legal tools—including prosecutions—to deal with mass atrocities.9
The end of the Cold War and its bipolar framework further opened up the landscape for
universal jurisdiction prosecutions. During the 1990s, there were a number of investigations and
prosecutions against Nazis, former Yugoslavs, Rwandans, and a few others.10 But universal
jurisdiction took a more important place in the agenda of human rights groups in October 1998,
when Augusto Pinochet, the former head of State of Chile, was arrested in London on an
international warrant and extradition request from Spain.
States have relied on two legal sources of authority to assert universal jurisdiction over
the core international crimes. The first of these is treaties—specifically, the Torture Convention
of 1984, the Geneva Conventions of 1949 and its Additional Protocol I from 1977, the Genocide
Convention, and the ICC Statute. While none of these treaties explicitly establishes universal
jurisdiction,11 a number of States have interpreted them to authorize and even require that their
courts assert universal jurisdiction over one or more of the core international crimes.12 The
second source of authority for universal jurisdiction is customary international law, which a
9 For analyses of this broad trend, see, e.g., MARGARET E. KECK & KATHRYN SIKKINK, ACTIVISTS BEYOND
BORDERS: ADVOCACY NETWORKS IN INTERNATIONAL POLITICS (1998); BETH A. SIMMONS, MOBILIZING FOR HUMAN
RIGHTS: INTERNATIONAL LAW IN DOMESTIC POLITICS (2009).
10 For a survey of the main universal jurisdiction cases until the early 2000s, see LUC REYDAMS, UNIVERSAL
JURISDICTION: INTERNATIONAL AND MUNICIPAL LEGAL PERSPECTIVES 86-219 (2003).
11 See, e.g., M. Cherif Bassiouni, The History of Universal Jurisdiction and Its Place in International Law, in
PRINCETON PRINCIPLES, SUPRA NOTE 2, at 39, 50 & 55-6.
12 See, e.g., 18 U.S.C. § 1091(e); 18 U.S.C. § 2340A(b); and decisions and statutes cited in the subsections on
Germany, England and Wales, France, Belgium, and Spain, analyzed infra.
9
number of States have argued authorizes or at least does not prohibit the exercise of universal
jurisdiction over the core international crimes.13
Supporters of universal jurisdiction have claimed that it is a critically important tool for
dealing with mass atrocities. They further argue that universal jurisdiction is needed despite the
creation of other international criminal law regimes in the 1990s because the ad-hoc international
criminal tribunals created by the U.N. Security Council and the ICC can try only a handful of
participants in international crimes due to the expense of their proceedings and the fact that they
have limited territorial, personal, and temporal jurisdiction.14
Within the universal jurisdiction debate and literature, the role of the political branches—
specifically the executive branch and the legislature—has received little to no attention.15
Supporters of universal jurisdiction have tended to dismiss political considerations in this area as
improper obstacles in the fight against impunity. They have sought to avoid the potential dangers
of universal jurisdiction through legal means, relying on rule-like restrictions including requiring
the presence of the defendant in the prosecuting State’s territory, immunity for foreign
incumbent officials, a principle of transnational complementarity, a prohibition against
13 See, e.g., ICJ, Case Concerning the Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v.
Belgium), Judgment of 14 February 2002, joint separate opinion by Judges Higgins, Kooijmans, and Buergenthal.
14 See, e.g., Wolfgang Kaleck, From Pinochet to Rumsfeld: Universal Jurisdiction in Europe 1998-2008, 30
MICHIGAN INTERNATIONAL LAW JOURNAL 927, 930-31 (2009).
15 For examples of analyses that have taken into account the role of political branches in universal jurisdiction
prosecutions—though without articulating the theoretical framework, gathering the data, or exploring most of the
issues that this article will present—see Richard A. Falk, Assessing the Pinochet Litigation: Whither Universal
Jurisdiction?, in PRINCETON PRINCIPLES 97; Eric Langland, Decade of Descent: The Ever-Shrinking Scope and
Application of Universal Jurisdiction, 39 ABA NEWSLETTER (INTERNATIONAL LAW NEWS) 4 (Summer 2010); and
Steven R. Ratner, Belgium’s War Crimes Statute: A Postmortem, 97 AM. J. INTL L. 888 (2003).
10
transnational double jeopardy, and a double criminality rule.16 Critics of universal jurisdiction
have tended to overlook the role of political branches in these prosecutions and—probably with
the cases of Belgium and Spain in mind—have tended to assume that these prosecutions are in
the hands of prosecutors and judges who lack accountability.17
This article’s central argument is that if we consider the incentives operating on the
political branches in universal jurisdiction prosecutions and trials, they tend to favor the assertion
of universal jurisdiction over low-cost defendants—those defendants who can impose little or no
international relations, political, economic, and other costs on potential prosecuting States—and
especially over those low-cost defendants against whom there is a broad agreement in the
international community. If this is the case, universal jurisdiction will neither substantially
reduce the “impunity gap” as its supporters hope nor lead to the dangers that its critics fear.
The main incentives encouraging the political branches of States to pass universal
jurisdiction statutes, open formal proceedings, and bring universal jurisdiction prosecutions to
trial come from domestic and transnational human rights groups, the media, and domestic
constituencies that value foreign human rights. To the extent that human rights groups’ actions
and the media’s exposure of atrocities or offenders resonate with local constituencies, domestic
politicians have incentives to address these issues because such actions may boost their electoral
fortunes and support their political legitimacy.
16 See, e.g., Antonio Cassese, Is the Bell Tolling for Universality? A Plea for a Sensible Notion of Universal
Jurisdiction, 1 JOURNAL OF INTERNATIONAL CRIMINAL JUSTICE 589 (2003); REYDAMS, SUPRA NOTE 10.
17 See, e.g., Kissinger, supra note 3, at 86 (“The danger lies ... in substituting the tyranny of judges for that of
governments”); Goldsmith & Krasner, supra note 3, at 51 (“Universal jurisdiction courts and prosecutors ... are
relatively unaccountable to their own government”).
11
Conversely, the primary incentives discouraging political branches of States from passing
universal jurisdiction legislation, opening formal proceedings, and engaging in trials include the
fact that international crimes are often committed by State officials, making it likely that the
defendant’s State of nationality will diplomatically lobby and threaten reprisals against the
prosecuting State. Other disincentives include the economic costs of these prosecutions and
trials, which can be quite substantial;18 and the challenges in proving guilt beyond a reasonable
doubt in this type of case.19 Moreover, local constituencies may oppose using their domestic
legal system to deal with cases that do not have a strong link with their State.
One would then predict that a State’s political branches would pass universal jurisdiction
statutes and engage in prosecutions and trials only if the expected benefits of bringing those
prosecutions and trials were higher than their expected cost, with expected costs and benefits
varying depending on a number of factors. The expected benefits for political branches would
vary depending on the potential defendants since societies have very different views of
international crimes and their perpetrators. Moreover, the domestic level of interest favoring the
prosecution and trial of certain defendants would vary depending on the seriousness of the crime
and the strength of the evidence against the defendant, the type of international crime or mass
18 For instance, it has been reported that the police investigation and two trials against Afghan warlord Faryadi
Sarwar Zardad cost £3m. See Laville, infra note 79. According to Belgium, its trials against Rwandan defendants
were substantially cheaper and cost €233,496.59 (the “Butare Four” in 2001); €308, 345.56 (Nzabonimana et al. in
2005); and €219,117.90 (Ntuyahaga in 2007). See Application Instituting Proceedings by the Kingdom of Belgium
against the Republic of Senegal, infra note 215, at para. 6.
19 The difficulties that Australian, British, and Canadian authorities have had in different prosecutions brought since
the 1980s in proving guilt beyond a reasonable doubt against Nazis accused of committing international crimes are
examples of this phenomenon. On these prosecutions, see, e.g., FRASER, infra note 90.
12
atrocities and the type of social groups affected by them, and whether the States where the
crimes took place have any historical, cultural, or linguistic links to the potentially prosecuting
State. The domestic level of interest would also vary depending on the presence of victims of the
alleged international crimes in the territory of the prosecuting State, the capacity of victims’
groups and human rights NGOs to bring crimes and defendants to public attention and to
generate sympathy and support among the State’s citizens, the domestic media’s extent and type
of coverage of the case, and the presence or permanent residence of the defendant in the territory
of the potential prosecuting State, to mention just a few relevant factors.
The expected costs of these prosecutions and trials for the political branches would also
vary depending on the type of defendants. The economic costs may vary depending on factors
such as whether the prosecuting State may actually arrest the defendant; whether the State where
the alleged international crimes took place cooperates with the investigation; and the ability of
victims and NGOs to bring complaints against individual defendants, bring evidence to
prosecutors and judges, and become formal parties in the criminal case. The opposition by
domestic constituencies to the prosecution and trial of certain defendants would depend on
factors such as those articulated in the previous paragraph—as this is the reverse side of
domestic support for these prosecutions and trials. Finally, the diplomatic pressures and potential
reprisals by foreign States would also vary depending on the nationality of the defendant, since
foreign States have different degrees of leverage over their counterparts and may not be willing
to exercise (all) their leverage over the prosecuting State to protect their nationals.
However, even if the expected costs and benefits vary depending on the type of
defendant, this article argues that, as we move along the spectrum of defendants’ costs borne by
13
potential prosecuting States, the expected costs quickly start to outweigh the expected benefits of
universal prosecutions and trials given the nature of the incentives just described.
For several reasons, there is a limited upside to acting on these positive incentives. First,
while a State’s domestic constituencies may value human rights in foreign countries, they are
unlikely to place these interests above their own economic well being and security, the education
of their children, and domestic human rights. Second, though a State may have domestic
constituencies who care about foreign human rights, political branches have a range of ways
other than universal jurisdiction to address or diffuse these concerns. These include giving
political asylum to victims, deporting international criminals, putting diplomatic pressure on
authoritarian regimes, contributing to reaching peace agreements, adopting symbolic measures
such as public recognition of the atrocities, and so on.
In comparison, incentives against universal jurisdiction prosecutions and trials can be
very compelling. Since potential defendants usually include officials or former officials of other
States, the prosecuting State may be subject to pressures or sanctions from the world’s most
powerful States, including China, Russia, and the United States. Since these sanctions could hurt
domestic human rights and the economic well being and security of the population of the
prosecuting State, its political branches would have strong incentives not to pursue the universal
jurisdiction prosecution and trial. Even less powerful States can exercise substantial leverage to
protect their officials or former officials by threatening individual reprisals—for example,
companies of the prosecuting State may have investments in the defendant’s State of nationality,
creating a potential vulnerability—or by joining forces with other less powerful States that also
fear prosecutions of their officials or former officials.
14
If this argument about the nature of the incentives operating on the political branches is
correct, one would predict that only low-cost defendants would be brought to trial, for it is only
in these cases that positive incentives for political branches outweigh the negative ones. This
prediction proves to be true. This research project has attempted to identify every single
universal jurisdiction complaint presented by victims, human rights groups, or any other actor—
or universal jurisdiction cases considered by public authorities by their own motion—for one or
more of the four core international crimes presented around the world since the Eichmann case.20
20 For the purposes of this project, we define a complaint as a report by an individual or organization presented to
State authorities about the possible commission of a crime. We coded complaints (or cases considered by the
authorities by their own motion) involving at least one of the core international crimes and based fully or partially on
the universal jurisdiction principle. The individual defendant has been our unit of analysis. This means that if a
complaint was presented or a trial was held against two defendants, we coded two complaints or trials—one per
defendant. In the few cases in which complaints were presented against unknown defendants, we coded that type of
complaint as a single case. The sources checked for our coding have included judicial decisions from actual cases;
Lexis-Nexis and Westlaw; specialized journals like the Journal of International Criminal Justice and the Yearbook
of International Humanitarian Law; key books on universal jurisdiction and international criminal law; the websites
of the Center for Constitutional Rights, the Center for Justice and Accountability, The Hague Justice Portal, Human
Rights Watch, the International Center for Transitional Justice, the International Federation of Human Rights and
Trial Watch; reports on universal jurisdiction and international criminal law cases by Amnesty International, Human
Rights Watch, and Redress; newspaper articles and other media documents; and the Google search engine. Every
single case included in the database has been documented. Our coding was done between July 2009 and June 2010.
Thus, for pending cases, the coding reflects the status of these cases during this time period.
15
This survey has identified 1050 complaints or cases considered by public authorities by their
own motion (with “Nazi” treated as a nationality in this context).21 Table 1 presents these cases
by nationality of the possible defendant.
21 Alleged perpetrators of international crimes committed during World War II in Germany and territories occupied
by Germany have included people of several nationalities, including Bielorussian, former Yugoslav, German,
Hungarian, Latvian, Polish, and Ukranian. Despite their different nationalities, they committed these crimes as Nazis
or Nazi collaborators and this is why it makes sense to include them in this single category.
16
Table 1: Universal Jurisdiction Complaints by Defendant’s Nationality
Defendant’s Nationality Number Percent
Afghan 4 0.38
Algerian 3 0.29
American 55 5.24
Argentinean 121 11.52
British 2 0.19
Cambodia 3 0.29
Cameroonian 12 1.14
Central African 1 0.09
Chadian 2 0.19
Chilean 16 1.52
Chinese 44 4.19
Colombian 1 0.09
Congolese (Brazzaville) 5 0.48
Congolese (DRC) 8 0.76
Cuban 5 0.48
Former Yugoslav 185 17.62
French 2 0.19
Guatemalan 8 0.76
Indian 1 0.09
Indonesian 3 0.29
Iranian 1 0.09
Iraqi 5 0.48
Israeli 44 4.19
Ivoirian 2 0.19
Libyan 1 0.09
Mauritanian 2 0.19
Mexican 1 0.09
Moroccan 15 1.43
Nazi 359 34.19
Palestinian 4 0.38
Peruvian 4 0.38
Russian 3 0.29
Rwandan 86 8.19
Salvadoran 15 1.43
Somali 1 0.09
Sri Lankan 1 0.09
Sudanese 1 0.09
Surinamese 1 0.09
Tunisian 7 0.67
Uzbek 12 1.14
Venezuelan 2 0.19
Zimbabwean 2 0.19
Total 1050 100.00
17
As Table 1 indicates, the largest groups are complaints against Nazi, former Yugoslav,
Argentine, Rwandan, American, Chinese, and Israeli possible defendants. However Table 2
shows that out of these possible 1050 defendants, only 32 have actually gone to trial.
Table 2: Universal Jurisdiction Trials by Defendant’s Nationality
Nationality of Defendant
Number
Percent
Afghan
4
12.5
Argentinean
1
3.13
Congolese (DRC)
1
3.13
Former Yugoslav
8
25.00
Mauritanian
1
3.13
Nazi
5
15.63
Rwandan
11
34.38
Tunisian
1
3.13
Total
32
100.00
As Table 2 indicates, of the thirty-two defendants who have been brought to trial, twenty-
four—three-quarters of all defendants tried under universal jurisdiction—have been former
Yugoslavs, Nazis, and Rwandans. These are defendants against whom there has been broad
agreement in the international community that they may be prosecuted and punished, and whose
State of nationality has not defended. There are two reasons why this broad agreement creates
incentives for political branches to concentrate on this type of defendants. First, a broad
agreement across the world against a certain type of defendants creates positive incentives for
political branches from a broad range of States to concentrate on these defendants. Second, the
broader the agreement against certain defendants, the harder it is for their State of nationality to
exercise leverage over potential prosecuting States, since these prosecuting States may be
multiple, and since the State of nationality will find it more difficult to find allies in other States.
18
For five out of the eight remaining defendants—four Afghans and one Congolese—the
defendant’s State of nationality did not protest the universal jurisdiction prosecution. Two out the
three remaining cases include a Mauritanian and a Tunisian as defendants, and their State of
nationality protested. These are low-leverage States, and in any case, the defendants were tried in
absentia and have not served any time. The one remaining case involves an Argentine defendant
who was tried in Spain over the protests of Argentina, a mid-leverage State. However, as we will
see later, it’s unclear how much of its leverage Argentina actually used in this case.22
The data on the universal jurisdiction cases that were actually tried is thus consistent with
the results one would expect from the incentive structure for political branches articulated in this
article.23 In addition, the general pattern of these data cannot be explained by using three
alternative hypotheses that have been proposed to explain universal jurisdiction prosecutorial
decisions.
22 See infra notes 234-37 and accompanying text.
23 The type of framework articulated in this article can also help explain the low number of universal jurisdiction
prosecutions regarding the crime of piracy. In the case of piracy, the costs tend to be lower than for the core
international crimes since most defendants do not have the protection of any State. The main cost of universal
jurisdiction piracy prosecutions thus consists in the economic and logistical challenges of capturing and trying the
defendants. But the positive incentives for political branches in this type of case are also low given that piracy
usually does not generate the type of concern that mass atrocities may generate in domestic constituencies. For an
analysis and empirical findings that are consistent with these observations, see Eugene Kantorovich and Steven Art,
An Empirical Examination of Universal Jurisdiction for Piracy, 104 AMERICAN JOURNAL OF INTERNATIONAL LAW
436 (2010).
19
The first of these alternative hypotheses would be that the weigh of the evidence would
explain which universal jurisdiction cases have been brought to trial.24 If the data were consistent
with this hypothesis, it would have to be shown that the tried cases were those that presented the
least evidentiary challenges among the pool of universal jurisdiction complaints. But this
explanation does not work for two reasons. First, there has been ample documentation and
available evidence of international crimes that have not been tried based on universal
jurisdiction. Second, some of the cases that have actually been tried presented extraordinary
evidentiary challenges—such as those against Nazi defendants in the 1980s and 1990s given that
the crimes had taken place many decades earlier. Since, as we will analyze later, universal
jurisdiction trials have tended to be true adjudicatory processes, this article does not suggest that
evidentiary considerations have not played a role in the selection of cases. But the survey data
and the case studies that we will analyze in Section II suggest that evidentiary considerations
have come after, rather than instead of, political calculation.
A second alternative hypothesis would be that universal jurisdiction trials have
concentrated on those cases or situations that have not been tried by the territorial State, or the
State of nationality of the offender, or an international criminal tribunal.25 But this hypothesis
does not stand scrutiny for two reasons. First, there have not been universal jurisdiction trials
involving alleged core international crimes committed in places that range from Cambodia to
China, El Salvador, Guatemala, the Middle East, Russia, United States, and Uzbekistan, to
mention just a few examples. And States in these places have tried few if any of the international
24 See, e.g., AU-EU. Technical Ad-Hoc Expert Group on the Principle of Universal Jurisdiction para. 25 (April
2009) [hereinafter AU-EU Expert Group].
25 See Kantorovich & Art, supra note 23, at 447 (2010) (analyzing this hypothesis to explain patterns of universal
jurisdiction prosecutions regarding the crime of piracy).
20
crimes allegedly committed in their territory or by their nationals. Second, universal jurisdiction
trials have actually concentrated mostly on situations—Nazi Germany, the former Yugoslavia,
and Rwanda—in which there have been a substantial number of prosecutions by the territorial
State and international criminal tribunals.
A third alternative hypothesis would be that the physical presence or absence of the
defendant in the universal jurisdiction prosecuting State, or the possibility or impossibility of
apprehending the defendant by that State, would explain which cases have been brought to trial
because many States require the presence of the defendant in their territory as a precondition to
opening formal proceedings based on universal jurisdiction and many States do not admit trials
in absentia.26 But there are several problems with this hypothesis. First, as our case-studies in the
next Section will make clear, there have been many cases in which possible defendants present in
the territory of a universal jurisdiction prosecuting State were not taken to trial. Second, there
have been at least four universal jurisdiction cases that were brought to trial in which formal
proceedings were opened without the defendant being present in the territory of the prosecuting
State.27 Third, a number of universal jurisdiction States—such as France—do admit trials in
absentia. Finally, this is not truly a third alternative hypothesis given that, as the case-studies will
also indicate, the structure of political incentives described in this article has often been the very
reason why many universal jurisdiction States require the presence of the alleged offender in
their territory as a precondition to opening formal proceedings based on universal jurisdiction
26 See, e.g., id. at 449-50 (analyzing lack of apprehension as one of the hypothesis that would explain universal
jurisdiction prosecution patterns in piracy cases).
27 The Ntuyahaga case in Belgium, the Eichmann and Demjanjuk cases in Israel, and the Scilingo case in Spain fall
into this category.
21
and why a number of universal jurisdiction States have not been able to apprehend certain
defendants.
II. FIVE CASE-STUDIES ON UNIVERSAL JURISDICTION
As a way to further test the theoretical framework articulated in the previous Section, this
Section will consider the experiences of five States.28 These States were chosen because, while
they each have universal jurisdiction statutes and have received universal jurisdiction complaints,
they accord varying degrees of control to the executive branch over universal jurisdiction
prosecutions and trials.
Given the incentives for the executive branch identified in the previous Section, one
would predict that those States that accord a high degree of control to the executive branch over
universal jurisdiction prosecutions would only open formal proceedings against low-cost
defendants, while States that give a lower degree of control to the executive branch over these
cases would open formal proceedings against a wider range of defendants. As this Section will
demonstrate, this prediction proves to be true.
In support of this claim, this Section will include an analysis of these five States from a
comparative criminal procedure perspective. Since the five States selected are developed
democracies, their judges have independence protections. This means that the political branches
do not have direct control over judges and that judges do not respond to the incentive structure
28 Most of the research on these five States was carried out between June 2009 and February 2010. Given the
number of cases covered in our five case-studies, the description of specific pending investigations, prosecutions and
trials may thus reflect their status during this time period.
22
identified in the previous Section.29 The degree of control by the executive branch over universal
jurisdiction cases will thus depend on how each of these States structures its criminal
processes—in other words, on how easily a criminal case may move forward despite opposition
from prosecutors and the executive branch.
Given the incentives articulated in the previous Section, we would also predict that in
those States where the executive branch exerts little control over criminal proceedings, the
executive branch and the legislature will make (greater) use of other tools—such as influencing
judicial decisions by invoking the executive branch’s foreign relations concerns or expertise and
supporting amendment of universal jurisdiction domestic provisions—in an effort to avoid the
opening of universal jurisdiction formal proceedings and trials against higher-cost defendants.
As this Section will show, this prediction also proves to be true.
A. Germany
1. Legal and Institutional Framework
German law gives to German criminal courts territorial jurisdiction,30 and, under certain
conditions, extraterritorial jurisdiction based on the active personality,31 passive personality,32
29 This article does not argue that judges do not respond to incentives. But judges do not have the same positive and
negative incentives as political branches in universal jurisdiction cases since judges in our five case studies are not
popularly elected, may get individual reputational gains from going ahead with universal jurisdiction cases, may not
be pressured directly by foreign governments, and do not have the main responsibility for international relations
costs. The literature on judges’ incentives is extensive. A classic piece is Richard A. Posner, What Do Judges and
Justices Maximize? (The Same Thing Everybody Else Does), 3 SUP. CT. ECON. REV. 1 (1993).
30 StGB, Sections 3 and 9.
31 StGB, Section 7(2)1, and Section 5 (subsections 3a), 5a), 8, 9, 11a, 12, 14a, and 15).
23
protective,33 and universal jurisdiction principles.34 Until June 30, 2002, Section 6.1 of the
German Criminal Code gave German courts universal jurisdiction over the crime of genocide,35
and Section 6.9 of that Code still gives jurisdiction to German courts over offenses committed
abroad when prosecuted on the basis of an international agreement. This provision indirectly
gives German courts universal jurisdiction over grave breaches of the Geneva Conventions
committed before June 30, 2002.36
In the second half of the 1990s, the German federal government, still under a coalition
led by Christian Democrat Helmut Kohl, developed an increasingly positive attitude toward
international criminal law that found its clearest expression in the active role played by German
representatives in the creation of the ICC.37 On June 30, 2002, a special statute—the Code of
Crimes against International Law (VStGB according to the German abbreviation)—went into
effect to ensure that Germany complies with and supports the framework of the ICC. This statute
was passed in the Bundestag with the support not only of the Social Democrats and the
Alliance90/Greens that formed the governing coalition but also of the Union (which includes the
32 StGB, Section 7(1), and Section 5 (subsections 6, 6a, 7, 8, and 14).
33 StGB, Section 5 (subsections 1 to 5, 7, 8, 10, and 14a).
34 StGB, Section 6 and Section 7(2)2 (representation principle); and crimes included in the Code of Crimes against
International Law.
35 Section 6.1 and Section 220a (criminalizing genocide) of the German Criminal Code went into effect in 1955 after
Germany acceded to the Genocide Convention in November 1954.
36 See infra notes 55 & 57, on the Djajic and Sokolovic cases.
37 See Wolfgang Kaleck, German International Criminal Law in Practice: From Leipzig to Karlsruhe, in
INTERNATIONAL PROSECUTION OF HUMAN RIGHTS CRIMES 93, 102 (Wolfgang Kaleck et al. eds. 2007).
24
Christian Democrats), the Free Democratic Party, and the Party of Democratic Socialism; it was
also received positively by the individual States in the Bundesrat.38
This statute gives universal jurisdiction to German courts over genocide, crimes against
humanity, and war crimes, even when they have no link to Germany after the crime’s
commission.39 As for German criminal procedure, the pretrial phase is under the control of the
prosecutor. As a general rule, German prosecutors have the duty to prosecute every offense they
have knowledge of, provided that there is a factual basis for the prosecution.40 However, there
are a number of explicit exceptions to this general rule—the so-called opportunity principle—
that authorize the prosecutor not to pursue a case.41
One of these exceptions is where the offense takes place outside of German territory.42 In
such cases, the prosecutor is authorized to dismiss the case even after formal proceedings have
begun, if the proceedings would pose a serious detriment to Germany or other important public
interests.43 In addition, for offenses regulated by the VStGB, the German Criminal Procedure
Code authorizes the prosecutor to refrain from prosecution if the alleged offender is not in or
expected to be in Germany,44 if the offense is being prosecuted by an international court of
justice or by a State in whose territory the offense was committed, or if the offense was
38 See HELMUT GROPENGIEΒER & HELMUT KREICKET, DEUTSCHLAND 59-60 & 444, 1 NATIONALE
STRAFVERFOLGUNG VÖLKERRECHTLICHER VERBRECHEN (Albin Eser & Helmut Kreiker eds. 2003).
39 VStGB, Sections 1, 6, 7, and 8-12.
40 StPO, Section 152.
41 StPO, Sections 153-54.
42 StPO, Section 153c(1)1.
43 StPO, Section 153c(3).
44 StPO, Section 153f(1) and (2)3.
25
committed by or against one of the other State’s nationals.45 The German Criminal Procedure
Code establishes that the prosecutor can dismiss a case on these grounds at any stage, even after
formal proceedings have been launched.46
For alleged crimes regulated by the Criminal Code’s Section 6.9—and under Section 6.1
before its derogation—and the VStGB, the decision on whether to launch formal proceedings or
to dismiss them once they have begun is in the hands of the German Federal Prosecutor,47 who is
subject to the control and direction of the Federal Minister of Justice.48 The alleged victim of the
offense can become a civil plaintiff and, in the case of certain offenses, a private prosecutor.49
However, if the prosecutor opts to dismiss a case where the alleged offense was committed
abroad, neither the civil plaintiff, the private prosecutor, nor the complaining victim may
challenge this decision in court.50
These regulations reflect a very high degree of control by the executive branch over
universal jurisdiction prosecutorial decisions in Germany since the Federal Prosecutor, a high-
level official who belongs to the executive branch, has unreviewable discretion over these
45 StPO, Section 153f(2)4.
46 StPO, Section 153c(4) and f(3). The German legislature adopted Section 153f(3) as a result of the concerns
expressed by the Federal Prosecutor concerning the principle of universal jurisdiction. See Kai Ambos, International
Core Crimes, Universal Jurisdiction and §153F of the German Criminal Procedure Code: A Commentary on the
Decisions of the Federal Prosecutor General and the Stuttgart Higher Regional Court in the Abu Ghraib/Rumsfeld
Case, 18 CRIMINAL LAW FORUM 43, 55 (2007).
47 GVG Section 142a, and 120.1.8; StPO, Section 153c(5).
48 GVG, Section 147.1.
49 StPO, Section 403 (civil claim in the criminal process); 395 (private prosecutor regarding certain offenses).
50 StPO, art. 172(2); OLG Stuttgart, 13. September 2005, Az.: 5 Ws 109/05; Oberlandesgericht Stuttgart, 5.
Strafsenat, Beschluss vom 21. April 2009, 5 Ws21/09.
26
decisions. Thus, given the incentive structure identified in this article, we would predict that
Germany would open formal proceedings based on universal jurisdiction only against low-cost
defendants. This is indeed the case.
We will now consider three categories of universal jurisdiction cases—cases that have
gone to trial, a case that is pending, and cases that have been dismissed.
2. Trials
The situation in the former Yugoslavia since the early 1990s generated substantial
attention in Germany because the atrocities took place in Europe and in an area that had been at
different points in history under German influence. Germany admitted hundreds of thousands of
Bosnian refugees, participated in peace-keeping operations in the region, and provided
substantial support to the International Criminal Tribunal for the former Yugoslavia (ICTY).51
The Federal Prosecutor initiated 127 investigations against 177 defendants for atrocities
in the former Yugoslavia.52 One of the cases—Dusko Tadic’s—was transferred to the ICTY in
April 1995.53 In four other cases, defendants were convicted of genocide, murder, or aiding and
abetting murder, among other charges.54 These cases involved four Bosnian Serbs: Novislav
Djajic,55 Nicola Jorgic,56 Maksim Sokolovic,57 and Djradj Kusljic.58
51 See, e.g., REYDAMS, UNIVERSAL JURISDICTION, supra note 10, at 149-50.
52 Rolf Hannich, Justice in the Name of All. Die praktische Anwendung des Völkerstrafgesetzbuchs aus der Sicht des
Generalbundesanwalts beim Bundesgerichtshof, ZIS 13/2007, p. 507, 510-11. There have also been prosecutions
against Argentine military for human rights violations in Argentina, but since they have mostly relied on the passive
personality principle, they are beyond the scope of this article.
53 Prosecutor v. Tadic, ICTY, IT-94-1.
54 http://www.generalbundesanwalt.de/de/voelker.php (visited on July 16, 2009).
55 See BayObLG, Urt. V. 23. 5. 1997 – 3 St 20/96, reprinted in 1998 NEUE JURISTISCHE WOCHENSCHRIFT 392.
27
In several decisions, the German Supreme Court held that universal jurisdiction pursuant
to the German Criminal Code required a legitimizing link with Germany.59 This was not an issue
in these cases in part because these defendants were all present in Germany, several being
longtime residents.
3. Pending Cases
Since the promulgation of the VStGB on July 1, 2002, over sixty complaints have been
presented, but formal proceedings were initiated against only two persons based on universal
jurisdiction.60 On its own initiative, the Federal Prosecutor Office opened an investigation
against Ignace Murwanashyaka, a leader of a Hutu militia of Rwanda allegedly responsible for
violations of international humanitarian law in Eastern Congo, but later dismissed it for
56 See BGH, Judgment of April 30, 1999, reprinted in 1999 NEUE ZEITSCHRIFT FÜR STRAFRECHT 396); BVergG,
Decision of December 12, 2000, reprinted in 2001 JURISTEN-ZEITUNG 975; and ECtHR, Jorgic v. Germany,
Judgment 12 July 2007, Application no. 74613/01.
57 See BGH, Judgment of February 21, 2001, 3 StR 372/00, reprinted in 54 NEUE JURISTISCHE WOCHENSCHRIFT
2728 (2001).
58 See BGH, Judgment of February 21, 2001, 3 StR 244/00.
59 See, e.g., BGH, Judgment of February 13, 1994, reprinted in 1994 NEUE ZEITSCHRIFT FÜR STRAFRECHT 232
(Tadic); BGH, Judgment of December 11, 1998, reprinted in 1999 NEUE ZEITSCHRIFT FÜR STRAFRECHT 236 (X v
SB and DB); BGH, Judgment of April 30, 1999, supra note 56. In Jorgic, the German Constitutional Court left open
the issue of whether a legitimazing link is actually required. See Bundesverfassungsgericht, Decision of December
12, 2000, supra note 56. In Sokolic, the German Supreme Court said that it was inclined to abandon the
legitimatizing link requirement, at least for cases prosecuted under Section 6.9 of the Criminal Code. See BGH,
Judgment of February 21, 2001, supra note 57.
60 See AMNESTY INTERNATIONAL, GERMANY. END IMPUNITY THROUGH UNIVERSAL JURISDICTION 60 and 101-02
(2008) (explaining that over sixty complaints have been presented).
28
insufficient evidence.61 But on November 17, 2009, following pressures from, among others, the
Rwandan government and the United Nations on German authorities, the Federal Criminal
Police Office arrested Murwanashyaka and his deputy Straton Musoni. They stand accused of
crimes against humanity and war crimes.62
On July 29, 2010, in a separate case based on the derogated Section 6.1 of the Criminal
Code, Onesphore Rwabukombe, another Rwandan, was indicted by the Federal Prosecutor for,
among other charges, genocide and incitement to commit genocide in Rwanda in 1994.63
4. Dismissed Cases
Among the over sixty complaints presented to the Federal Prosecutor since July 1, 2002,
one case was related to the Minister of Internal Affairs of Uzbekistan; nineteen cases were
related to the war in Iraq and acts of torture at Abu Ghraib and Guantanamo; sixteen involved the
conflict in the Middle East; and ten involved the alleged persecution of Falun Gong practitioners
in China.64
The most common grounds for dismissal were the alleged perpetrator’s absence from
German territory.65 Two of the dismissed cases deserve special mention. The first of these began
61 ID. at 102.
62 See Horand Knaup, Germany Arrests Rwandan War Crimes Suspects, Spiegel Online, November 18, 2009,
available at http://www.spiegel.de/international/world/0,1518,druck-661965,00.html (visited on March 18, 2010).
63 Anklage gegen einen ruandischen Staatsangehörigen wegen Völkermordes,
http://www.generalbundesanwalt.de/de/showpress.php?themenid=12&newsid=369 (visited on Oct. 1, 2010).
64 Salvatore Zappalà, The German Federal Prosecutor’s Decision Not to Prosecute a Former Uzbek Minister.
Missed Opportunity or Prosecutorial Wisdom?, 4 JOURNAL OF INTERNATIONAL CRIMINAL JUSTICE 602 (2006);
AMNESTY INTERNATIONAL, GERMANY, supra note 60, at 101.
65 ID. at 60.
29
on November 21, 2003, when the German Association Falun-Dafa, joined by forty complainants
from various nations, presented a complaint against former Chinese President Jiang Zemin and
other members of the Chinese government for repression against the practice of the Falun-Gong.
The complaint alleged genocide, crimes against humanity, torture, and other crimes. On June 24,
2005, the German Federal Prosecutor dismissed this complaint, arguing, inter alia, that Jiang
Zemin had immunity under international law as a former head of State.66
The second case involved two complaints against Donald Rumsfeld and other U.S.
officials. The first of these, presented on November 29, 2004 and amended in February 10, 2005,
was initiated by the Center for Constitutional Rights and four Iraqi citizens. The complaint cited
forty-four alleged cases of mistreatment at Abu Ghraib prison in Iraq and four additional cases of
alleged mistreatment during detention at other locations in Iraq. Rumsfeld was expected at a
Munich Security Conference on February 13, 2005, and just two days before his anticipated
arrival, the prosecutor dismissed the complaint, mainly based on the principle of
complementarity. According to the prosecutor, there were no indications that the U.S. would not
investigate and prosecute the alleged abuses.67
On November 14, 2006, the Center for Constitutional Rights joined by NGOs and twelve
alleged torture victims filed a new complaint against Rumsfeld and others for abuses at Abu
66 Strafanzeige gegen Jian Zemin und andere, 3 ARP 654/03-2, available at
http://www.diefirma.net/index.php?id=84,174,0,0,1,0 (visited on July 16, 2009).
67 Federal Prosecutor’s decision, published in 2005 JURISTEN-ZEITUNG 311. An appeal against the prosecutor’s
decision was rejected by the Stuttgart Higher Regional Court, OLG Stuttgart, 13. September 2005, Az.: 5 Ws
109/05. See also Florian Jessberger, Universality, Complementarity, and the Duty to Prosecute Crimes under
International Law in Germany, in INTERNATIONAL PROSECUTION OF HUMAN RIGHTS CRIMES, supra note 37, at 213,
214.
30
Ghraib and Guantanamo. The new complaint was related to the old one but included new
evidence, new defendants, and new plaintiffs, and it was filed after a new German Federal
Prosecutor took office and after Donald Rumsfeld had resigned as U.S. Secretary of Defense.68
The prosecutor dismissed the complaint, referring to the earlier prosecutor’s dismissal and
arguing that the alleged offenders were not present in Germany or expected to be there. The
prosecutor further argued that a successful investigation would require investigations in Iraq and
the United States, and that trying to get foreign legal assistance, especially in Iraq, would prove
to be futile.69
B. England and Wales
1. Legal and Institutional Framework
England has traditionally based its criminal law jurisdiction on the territorial principle.70
However, in recent decades a number of statutes have established the universal jurisdiction of
UK courts over the international crimes that are the subject of this study. First, as part of the
implementation of the Geneva Conventions of 1949, Section 1 of the Geneva Conventions Act of
1957 establishes universal jurisdiction of the UK courts over grave breaches of these
68 The complaint is available at http://ccrjustice.org/ourcases/current-cases/german-war-crimes-complaint-against-
donald-rumsfeld%2C-et-al. (visited on July 16, 2009).
69 An English version of the decision by the Federal Prosecutor is available at
http://ccrjustice.org/files/ProsecutorsDecision.pdf (visited on March 18, 2010). An appeal against the prosecutor’s
decision was rejected by the Stuttgart Higher Regional Court, Oberlandesgericht Stuttgart, 5. Strafsenat, Beschluss
vom 21. April 2009, 5 Ws21/09.
70 11(1) HALSBURYS LAWS OF ENGLAND 462-64 (4th ed. 1990). The main exception to this general rule has been
that a British subject who commits murder or manslaughter abroad can be prosecuted in Britain. Id. at 472.
31
Conventions and their Additional Protocol I.71 In addition, as part of the implementation of the
Torture Convention of 1984, Section 134(1) of the Criminal Justice Act of 1988 gives universal
jurisdiction to UK courts over the crime of torture.
Section 1(1) of the War Crimes Act of 1991 gives UK courts jurisdiction over persons in
the United Kingdom charged with the war crimes of murder, manslaughter, and culpable
homicide committed between September 1, 1939, and June 5, 1945, in a place that was then part
of Germany or under German occupation, but only if the alleged offender was on March 8, 1990,
or has since become a British citizen or resident of the United Kingdom, the Isle of Man, or any
of the Channel Islands.72 Finally, Sections 51 and 68 of the ICC Act of 2001 give jurisdiction to
English and Welsh courts over genocide, crimes against humanity, and certain war crimes
committed outside the United Kingdom by, among others, a person who subsequently becomes a
UK resident.
All of these statutes specify that in England and Wales proceedings for these crimes can
be initiated only by or with consent from the Attorney General—the chief legal adviser to the
Crown and its government as well as a government minister who answers directly to
Parliament.73 The legal guidance of the Crown Prosecution Service (CPS) explains that this rule
aims at preventing “abuse or bringing the law into disrepute, because the offence is a kind which
71 The Geneva Conventions (Amendment) Act of 1995, s. 1(2), added grave breaches to Additional Protocol I.
72 On the political context and debate that led to the implementation of the 1991 War Crimes Act, see FRASER, infra
note 90.
73 Section 1A(3) of the Geneva Conventions Act of 1957; Section 135 of the Criminal Justice Act of 1988; Section
1(3) of the War Crimes Act of 1991; and Section 53(3) of the International Criminal Court Act of 2001.
32
may result in vexatious private prosecutions” and ensuring “that prosecution decisions take
account of important considerations of public policy or international nature. . . .”74
However, Section 25(2)(a) of the Prosecution of Offences Act of 1985 establishes that the
prior consent provision does not prevent the arrest of an individual or the remand into custody or
on bail of a person charged with any offense.75 In England and Wales any person may institute
criminal proceedings, with private individuals applying directly for arrest warrants to be
issued.76 Thus, while a defendant’s case will not go to trial without the Attorney General’s
consent, private individuals can trigger arrest warrants as long as magistrates agree with them.
Under this regime, the government has a monopoly over determining who can be
prosecuted for international crimes based on universal jurisdiction, and this decision is in the
hands of a single official, the Attorney General. We would expect that, as a minister of the
government, the Attorney General would respond to the incentive structure articulated in this
article, opening formal proceedings only against low-cost defendants.
However, given that private individuals may apply for and obtain arrest warrants from
judges who are members of the judiciary, the government has less control over these
proceedings, and we would predict that arrest warrants would be issued against a wider range of
potential defendants than are eventually prosecuted. In addition, to the extent that these arrest
warrants generate substantial international tensions for England and Wales, this would be
expected to create incentives to reform the arrest warrant proceedings.
As we are will now demonstrate, these three predictions have all proved true.
74 See The Crown Prosecution Service, Consents to Prosecute, at 2, updated Dec. 22, 2009, available at
http://www.cps.gov.uk/legal/a_to_c/consent_to_prosecute/ (visited on Jan. 16, 2010).
75 Prosecution of Offences Act of 1985, section 25(2)(a).
76 See Prosecution of Offences Act of 1985, section 6(1).
33
2. Trials
Only two defendants have been prosecuted and tried in England and Wales pursuant to
the universal jurisdiction provisions of these statutes.
The only case tried under the War Crimes Act of 1991 to have reached a verdict was
against Anthony Sawoniuk, accused of the war crimes of murder against Jews in Belarus while
working in the local police employed by German forces. Since 1946, Sawoniuk had been living
in the United Kingdom, where he became a railroad worker. He came to the attention of UK
authorities in 1988 when his name appeared on a list of potential suspects provided to UK
authorities by the Soviet Union. On April 1, 1999, a jury at the Central Criminal Court at the Old
Bailey convicted Sawoniuk of two counts of murder in connection with the 1942 deaths of two
Jewish women in Belarus and sentenced him to life in prison.
The only universal jurisdiction case involving torture to have gone to trial under Section
134(1) of the Criminal Justice Act of 1988 was against Afghan warlord Faryadi Sarwar Zardad.
After the Soviet Union withdrew from Afghanistan, Zardad, who controlled a checkpoint on the
route between Kabul and Pakistan between 1992 and 1996, was said to have terrorized, tortured,
imprisoned, and blackmailed civilians passing by this route.77 After the Taliban’s 1996 rise to
power in Afghanistan, Zardad entered the United Kingdom with a falsified passport and sought
77 See, e.g., Trial Watch, Faryadi Sarwar Zardad, available at http://www.trial-ch.org/en/trial-
watch/profile/db/spotlight/faryadi-sarwar_zardad_329.html (visited on Feb. 19, 2010) [hereinafter Trial Watch,
Zardad].
34
asylum there.78 After BBC’s John Simpson’s Newsnight film disclosed that Zardad was living in
Britain, he was arrested in the United Kingdom in 2003.79
After a first jury could not reach a verdict on the case, Zardad was retried before the Old
Bailey and convicted on July 18, 2005, for torture and hostage taking.80 He was sentenced to 20
years of imprisonment.81 The Blair Administration’s Attorney General Lord Goldsmith came to
the court for the first time since his appointment to prosecute the first trial and explained that
Britain had decided to try the case because Zardad’s crimes were so heinous and such an affront
to justice that they could be tried in any country.82
3. Arrests
The second prediction, that arrest warrants may be issued against a broader range of
defendants than those who are prosecuted, has also proven to be true, as reflected in the issuance
of arrest warrants against Israeli officials. Following an application by British lawyers acting for
Palestinian victims, senior district judge Timothy Workman issued an arrest warrant against
Major General Doron Almog on the basis of alleged war crimes under the Geneva Conventions,
specifically for allegedly ordering the demolition of fifty-nine civilian Palestinian homes. Almog
78 Id.
79 See, e.g., Sandara Laville, UK court convicts Afghan warlord, July 19, 2005, available at
http://www.guardian.co.uk/uk/2005/jul/19/afghanistan.world (visited on Feb. 19, 2010).
80 Hostage taking is another crime over which UK courts have universal jurisdiction, but it is not the focus of this
study since it is not one of the four core international crimes.
81 See, e.g,. Trial Watch, Zardad supra note 77; and Laville, supra note 79.
82 See Afghan Zardad jailed for 20 years, July 19, 2005, available at
http://news.bbc.co.uk/2/hi/uk_news/4695353.stm (visited on Feb. 19, 2010).
35
managed to fly back to Israel when British police failed to board his plane in September 2005.83
In December 2009, upon request by a number of Palestinians alleging that war crimes had been
committed during Operation Cast Lead, a British court issued an arrest warrant against Tzipi
Livni, the former foreign minister of Israel, only to withdraw it when it was discovered she was
not in the United Kingdom.84
In addition, the chief minister of the Gujarat state in India called off a visit to the United
Kingdom, possibly due to fears that an arrest warrant could be issued against him for his role in
2002 anti-Muslim riots.85 Based on immunity arguments, magistrates have rejected arrest
warrant requests against Israeli Defense Minister General Shaul Mofaz,86 Zimbabwean President
Robert Mugabe,87 Chinese Trade Minister Bo Xilai,88 and Israeli Defense Minister Ehud
Barak.89
83 See Vikram Dodd, Terror police feared gun battle with Israeli general, The Guardian, Feb. 19, 2008.
84 See Ian Black & Ian Cobain, British Court Issued Gaza Arrest Warrant for Former Israeli Minister Tzipi Livni,
The Guardian, Dec. 14, 2009.
85 BBC News, Gujarat lead calls off UK visit, March 25, 2005, available at
http://news.bbc.co.uk/2/hi/south_asia/4381585.stm (visited on Feb. 19, 2010).
86 See Re Mofaz, First instance, unreported (Bow Street Magistrates’ Court); ILDC 97 (UK 2004) 12 February
2004.
87 Colin Warbrick, Immunity and International Crimes in English Law, 53 ICLQ 769 (2004) (reproducing the
judgement at 770).
88 Application for Arrest Warrant Against Bo Xilai (Bow St. Mag. Ct. Nov, 08,2005) (per Workman, Sr Dist.J) cited
by Human Rights Watch, Universal Jurisdiction in Europe, June 27, 2006, available at
http://www.hrw.org/en/node/11297/section/15 (visited on Feb. 19, 2010).
89 See, e.g., BBC News, Goldstone defends UN Gaza report, Sept. 30, 2009, available at
http://news.bbc.co.uk/2/hi/middle_east/8280181.stm (visited on Feb. 19, 2010).
36
4. Dismissed Cases
The authorities have not moved forward with prosecution of other possible cases they
have considered including those against other Nazi defendants;90 Colonel Muyunyi, a former
official of the Rwandan army living in England who was arrested for transfer to the ICTR on
February 5, 2000;91 Dr. Mahgoub, a Sudanese physician living in Scotland who was accused of
participating in the torture of another Sudanese citizen in Sudan;92 Karuna Amman, a former
commander of the Tamil Tigers in Sri Lanka, accused of participating in a number of
massacres—including one against some 400–600 unarmed police officers—and other human
rights abuses;93 and former U.S. President George W. Bush that was not investigated on
immunity grounds.94
Finally, we come to the arrest of former Chilean dictator Augusto Pinochet, the most
well-known contemporary universal jurisdiction case. Section 134 of the Criminal Justice Act of
1988 could have provided England with grounds for prosecuting Pinochet, but previous efforts to
use this provision had been unsuccessful. During two earlier visits by Pinochet to England,
Amnesty International had unsuccessfully attempted to have Pinochet arrested and prosecuted in
England. In one of these attempts, the Bow Street magistrate did not grant the arrest warrant
90 For a description of the main cases against possible Nazi defendants, see DAVID FRASER, LAW AFTER AUSCHWITZ
274, 290-92, 298-99 (2005).
91 Geoffrey Bindman, UK Prosecutions for Crimes under International Law, in JUSTICE FOR CRIMES AGAINST
HUMANITY 365, 370 (Mark Lattimer & Philippe Sands eds. 2003).
92 Id. at 369-70; NAOMI ROTH-ARRIAZA, THE PINOCHET EFFECT 33 (2005). This case took place in Scotland and the
decision of withdrawing the prosecution was made by the Lord Advocate.
93 See, e,g., http://www.trial-ch.org/trialwatch/profil_print.php?ProfileID=733&Lang=en (visited on Feb. 20, 2010).
94 Human Rights Watch, Universal Jurisdiction in Europe, supra note 88.
37
application. In the other attempt, the Attorney General declined to order his immediate arrest and
instead initiated a police investigation that gave Pinochet time to flee the country.95
There are several possible explanations why England arrested Pinochet based on Spain’s
international arrest warrant and extradition request despite its own reluctance to arrest and
prosecute him. First, extradition “is a routine and normal process between European states that
are parties to the 1957 European Convention on Extradition . . . [and] administrative authorities
are thus accustomed to the procedures and would not be influenced by political sensitivities or by
lack of familiarity with international human rights law.”96 In addition, in extradition requests,
consent by the Attorney General is not necessary. In these cases, it is the Home Secretary who
plays the crucial role, but the Home Secretary of the Blair Labour government apparently was
not consulted before Pinochet was arrested.97 Moreover, as we will see in the subsection on
Spain, once Pinochet was arrested, there was so much support for his detention and prosecution
that it was only after more than sixteen months that the Home Secretary decided not to grant the
Spanish extradition request and allowed Pinochet to return to Chile.
5. Reform Proposals
The issuing of arrest warrants against higher-cost defendants has created incentives to
amend the arrest warrant proceedings. Following the 2005 issuance of the arrest warrant against
Major General Almog, the British newspaper The Guardian reported that, facing pressure from
95 Bindman, supra note 91, at 366-67.
96 Id. at 366.
97 David Sugarman, From unimaginable to possible: Spain, Pinochet and the judicialization of power, 3 JOURNAL
OF SPANISH CULTURAL STUDIES 107, 114 (2002).
38
the Israeli government, the Blair administration had considered changes that would bar
individuals from seeking arrest warrants against people suspected of war crimes and torture.98
While no reforms were passed, following the 2009 arrest warrant issued against former
Israeli Foreign Minister Livni, both former Prime Minister Gordon Brown and the new coalition
government of Conservatives and Liberal Democrats announced that they were considering
changes to the procedures by which arrest warrants are issued on private applications.99
C. France
1. Legal and Institutional Framework
French criminal law gives jurisdiction to French courts based on the territorial,100 active
personality,101 passive personality,102 and protective principles,103 and article 689 of the French
Criminal Procedure Code also holds that perpetrators or accomplices of offenses committed
outside of French territory can be prosecuted and tried by French courts in cases where French
law applies or where an international convention gives jurisdiction to French courts to entertain
the case.
98 Vikram Dodd, UK considers cubring citizens’ right to arrest alleged war criminals, The Guardian, Feb. 3, 2006,
available at http://www.guardian.co.uk/uk/2006/feb/03/humanrights.foreignpolicy/print (visited on Feb. 19, 2010).
99 See Gordon Brown, Britain must protect foreign leaders from private arrest warrants, Telegraph, March 3, 2010;
Afua Hirsch, Ministers move to change universal jurisdiction law, The Guardian, May 30, 2010.
100 Criminal Code France, art. 113-2.
101 Criminal Code France, art. 113-6.
102 Criminal Code France, art. 113-7.
103 Criminal Code France, art. 113-10.
39
Until the introduction of article 689-11 in August 9, 2010, that we will analyze later,
torture was the only core international crime subject to universal jurisdiction in France that was
not restricted to a certain geographical location. Article 689-2 of the French Criminal Procedure
Code establishes that any person guilty of torture can be prosecuted and tried if, as required by
article 689-1, that person is present in France. In addition, in implementation of UN Security
council resolutions, French courts have jurisdiction over genocide, crimes against humanity, and
war crimes under the jurisdiction of, respectively, the ICTY and the ICTR, if the alleged
offenders are found in France.104
As for French criminal procedure, the formal investigation of any serious offense is in the
charge of an investigating judge.105 Investigating judges are part of the judiciary and have life
tenure.106 As a way to prevent arbitrary investigations, the investigating judge cannot initiate
investigations by her own motion. There are two ways to enable an investigating judge to initiate
a formal investigation. The first is by a prosecutor’s request, and prosecutors make such requests
at their own discretion.107 Prosecutors answer to the Ministry of Justice—part of the executive
branch—which holds the power to appoint, transfer, apply disciplinary measures, or dismiss
them.108
This way of opening formal proceedings gives a high degree of control to the executive
branch, though less so than in Germany and England. First, the decision to open an investigation
104 Loi n 95-1 du 2 janvier 1995; Loi n 96-432 du 22 mai 1996.
105 CPP France, art. 79.
106 Constitution France, art. 64; Code de l’organisation judiciare, art. L121-1.
107 CPP France, art. 40.
108 See, e.g., YVES BEIGBEDER, JUDGING WAR CRIMES AND TORTURE: FRENCH JUSTICE AND INTERNATIONAL
CRIMINAL TRIBUNALS AND COMMISSIONS (1940-2005) 12 (2006).
40
is not centralized in a single high prosecuting official—such as the Federal Prosecutor in
Germany and the Attorney General in England and Wales. Second, the law establishes that
although the Ministry of Justice can order prosecutors to open formal proceedings, it cannot
order them to dismiss complaints.109 Third, though prosecutors have discretion (unreviewable by
the courts) to dismiss a complaint, once they decide to open a case they cannot dismiss it without
court approval.
The second way in which an investigating judge can initiate an investigation is if a crime
victim or an NGO presents a complaint and asks to become a civil party to the criminal case.110
When a victim or NGO seeks to become a civil party, there is no need for a prosecutor’s request,
and the prosecutor does not have discretion to dismiss the complaint.111 While the prosecutor
may still challenge the investigating judge’s jurisdiction over the case, this challenge is
ultimately decided by the investigating judge herself or by a higher court.112 All in all, the
executive branch has little control over this procedure, suggesting that it is likely to foster the
initiation of cases against a broad range of defendants.
That being said, two incentives discourage victims and NGOs from seeking to initiate
cases as civil parties. First, if the judge dismisses a case initiated in this way, the judge may,
upon the prosecutor’s request, find the initiation of formal proceedings by the civil party abusive
or dilatory, and fine the offending civil party accordingly.113 Second, if the case is dismissed, all
109 CPP France, art. 30; JEAN PRADEL, PROCÉDURE PÉNALE 131 (12th ed. 2004).
110 CPP France, art. 1.2.
111 CPP France, art. 80 and 86.
112 CPP France, art. 186.
113 See CPP France, art. 177-2 and 177-3. The fine cannot currently exceed 15,000 euros. After receiving the
complaint with the request to be admitted as a civil party, the investigating judge sets the amount that the civil party
41
the persons targeted in the complaint may sue the civil party for damages.114 By contrast, if a
victim or NGO delays seeking civil party status until after the prosecutor has formally requested
a judicial investigation, they do not assume either of these risks.115
Along with its participation in criminal cases through the work of prosecutors, the French
executive branch also influences universal jurisdiction through opinions issued by the French
Ministry of Foreign Affairs. This is particularly important in France given that the French
President has a “reserved domain” in foreign affairs—a legacy of the De Gaulle era—with low
levels of transparency and accountability vis-à-vis other branches of government and the
public.116
But given that overall the French executive branch has a lesser degree of control over
universal jurisdiction prosecutions than in Germany and England, one would predict that this
article’s incentive structure would play a lesser role in France and that formal proceedings would
be opened and move forward against a wider variety of defendants. This prediction proves to be
true. In addition and in accordance with the article’s framework, this section will also show how
the French executive branch has invoked its foreign relations concerns or expertise to try to
ensure that formal proceedings are not opened or defendants are not brought to trial in higher-
cost defendants’ cases; and how the recent expansion of universal jurisdiction over the crimes
established by the ICC has set very restrictive conditions and given more control to the executive
branch over these cases.
must deposit, based on the resources of the civil party, in order to ensure the payment of the civil fine. CPP France,
arts. 88 and 88-1.
114 CPP France, art. 91.
115 CPP France, art. 91 and 177-2.
116 BEIGBEDER, supra note 108, at 29-30, 301.
42
We will now turn to three categories of universal jurisdiction cases—cases that have gone
to trial, cases that are pending, and cases that have been dismissed—before concluding with an
analysis of the recent expansion of universal jurisdiction as part of the implementation of the
ICC Statute within the French legal system.117
2. Trials
Only two defendants have been tried under France’s universal jurisdiction provisions.
The first, Ely Ould Dah, was an intelligence lieutenant from the former French colony of
Mauritania. Ould Dah was prosecuted for his alleged torture in 1990-91 of black African
members of Mauritania’s military suspected of inciting a coup d’état. In August 1998, Ould Dah,
then captain in Mauritania’s army, travelled to France for military training. The following June,
the Fédération international des ligues des droit de l’homme (FIDH) and the Ligue des droit de
l’homme (LDH) presented a simple complaint against him (i.e., complaints presented without a
simultaneous request to be considered a civil party), and the prosecutor requested a judicial
investigation. Following interrogation by an investigating judge, Ould Dah was placed in pretrial
detention.118
117 There have also been a number of international criminal law cases based on the principles of active nationality,
passive personality, and territoriality. They include cases on alleged crimes committed in Algeria (Aussaresses),
Argentina (Astiz and others), Cambodia (Bilon Ung Boun Hor as complainant), Chile (Pinochet and others),
Indochina (Boudarel), Nazis and Nazi collaborators (Barbie, Touvier, Papon), and Rwanda (against the French army
and incumbent officials of the Rwandan government). But since they have not been based on universal jurisdiction
they are beyond the scope of this study. For a recent review of some of these cases, see Leila Nadya Sadat, The
Nuremberg Paradox, 58 AM. J. COMP. L. 151 (2010).
118 Ordonnance de mise en accusation devant la Cour d’assises et de non lieu partiel et ordonnance de prise de corps,
25 mai 2001, No du Parquet : .99/14445, No Instruction: .4/99/48 [hereinafter Ordonnance de mise en accusation,
Ould Dah]; Court Européene des Droits de l’Homme, Cinquième Section, Décision sur la Recevabilité, Ould Dah v.
43
Angered by the prosecution, the government of Mauritania responded by expelling
French citizens working in Mauritania in lieu of military service, repatriating the Mauritanian
military trainees in France, and reestablishing a visa requirement for French citizens entering
Mauritania.119 The arrest also generated anxiety for military or security services members in a
number of African countries who feared a similar fate if they went to France, thus disturbing
military cooperation with the old French colonies.120
Following a note from the French Minister of Foreign Affairs to the prosecutor stressing
the dangers of deteriorating French-Mauritanian relations,121 the Appeals Court released the
defendant under judicial control.122 The following April, the defendant fled France—according
to an NGO attorney, with the complicity of French authorities123—returning to a hero’s welcome
France, No. 13112/03, p. 2 and 12 (17 March 2009) [hereinafter Court Européene, Dah]; Group d’action judiciare de
la Fédération internationale des ligues des droits de l’Homme, Mauritanie. Affaire ELY OULD DAH. Ely Ould Dah
condamné ! Première condamnation pour torture en France fondée sur le mécanisme de compétence universelle,
November 2005, p. 8, available at http://www.fidh.org/Rapport-du-GAJ-de-la-FIDH-Ely-Ould (visited on July 1,
2009) [hereinafter Affaire Ould Dah] ; Renaud Lecadre, Un Mauritanien jugé en France pour tortures, Libération,
June 30, 2005.
119 Marie-Laure Colson, Un officier mauritanien soupçonné de torture este arrêté en France, Libération, July 6,
1999; Marie-Laure Colson, Représailles de la Mauritanie pour laver l’ “affront” français, Libération, July 7, 1999.
120 Le Monde, Mise en liberté du capitaine mauritanien écroué en France pour “crimes de torture”, September 30,
1999.
121 Marie-Laure Colson, Un presume tortionnaire en liberte surveillee, Libération, September 29, 1999.
122 Ordonnance de mise en accusation, Ould Dah, supra note 118; Court Européene, supra note 118, at 2; Affaire
Ould Dah, supra note 118, at 8.
123 Jean Chatain, Dix ans de prison pour un bourreau, L’Humanité, July 2005.
44
in Mauritania.124 But France does not prohibit trials in absentia,125 and the defendant was tried,
convicted, and sentenced to ten years of prison by the trial court of Gard on July 1, 2005.126
The second universal jurisdiction case tried in France was against Khaled Ben Saïd.
According to complainant Zoulaikha Majouhbi, Ben Saïd participated in her 1996 torture and
interrogation at a Tunisian police station where he served as chief in connection with an
investigation of her husband and the illegal religious group to which he was suspected of
belonging. The prosecutor ordered a police investigation of the case. The police made a phone
call to Ben Saïd—then vice counsel of Tunisia based in Strasbourg, France—to summon him to
appear, but he invoked his diplomatic status to refuse a verbal summons. At some point in the
following months, Ben Saïd fled France.127
In January 2002, the prosecutor initiated a formal investigation by an investigating
judge.128 In December 2008, the trial court of Bas-Rhin convicted Ben Saïd in absentia for
complicity in the crime of torture and other barbaric acts and sentenced him to eight years in
124 Le Monde, Un militaire mauritanien mis en examen pour tortures a réussi à fuir la France, April 9, 2000; Le
Monde, Un tribunal français condamne un officier mauritanien à 10 ans de réclusion, July 2, 2005.
125 CPP France, art. 379-2 to 379-6.
126 Court Européene, Dah, supra note 118, at 3; Cour d’Assises du Department du Gard, Arrêt de Condamnation de
Ely Ould Dah, July 1, 2005, No 70/05.
127 See Ordonnance de mise en accusation de Khaled Ben Saïd devant la Cour d’assises du Bas Rhin,, included in
Compétence universelle/Affaire Ben Saïd. L’affaire Ben Saïd, le premier procès en France d’un fonctionnaire
tunisien accusé de torture, available at http://www.fidh.org/IMG/pdf/Bensaid512fr2008_FINAL.pdf (visited on June
30, 2009) [hereainfter L’affaire Ben Saïd].
128 Id. at 8.
45
prison.129 Tunisia responded by denouncing the decision as an invention of Islamists aimed at
undermining the country.130
3. Pending Cases
Among pending cases are several against Rwandan defendants accused of playing a role
in the mass atrocities against Tutsis and moderate Hutus in 1994.131 Complicating the situation is
the fact that France provided support and training to the Hutu government. As a consequence,
French officials have been accused of complicity in the genocide, a charge they have hotly
denied.132
One noteworthy case involves Wenceslas Munyeshyaka, a Rwandan priest, and Laurent
Bucybaruta, who occupied a number of leadership positions in Rwanda—both accused of having
played a role in organizing the 1994 genocide. Simple complaints against Munyeshyaka and
Bucybaruta were presented in 1995 and 2000, respectively. In both cases, the prosecutor
requested a judicial investigation and the defendants were interrogated, put in pretrial detention,
and later released. While the case against Munyeshyaka has been pending almost fifteen years—
129 See Cour d’Assises du Bas-Rhin Siégeant a Strasbourg, Arrêt Criminel par Défaut du 15 décembre 2008, No CA
08/36, Ministère Public C/ Khaled Ben Said, included in L’affaire Ben Saïd, supra note 127.
130 Christophe Ayad, La France condamne un diplomate étranger, Libération, December 17, 2008.
131 In addition to the cases against Rwandans mentioned in the main text, complaints against thirteen additional
Rwandans were presented. On the status of each of these complaints, see Collectif des parties civil rwandaises,
Affaires, available at http://www.collectifpartiescivilesrwanda.fr/affairesjudiciaire.html (visited on Dec. 14, 2009).
Furthermore, France has handed over Jean de Dieu Kamuhanda and François-Xavier Nzuwonemeye to the ICTR.
132 See, e.g., BEIGBEDER, supra note 108, at 275-302.
46
ten years in Bucybaruta’s case—and despite interventions by the French Court of Cassation, the
European Court of Human Rights, and the ICTR—their cases are still open.133
Another high-profile pending case is against Agathe Kanziga Habyarimana, the widow of
Rwandan President Juvénal Habyarimana. On February 13, 2007, the Collective of Civil Parties
for Rwanda presented a complaint and asked to be civil parties against Kanziga Habyarimana for
her participation, organization, and direction of the genocide. A judicial investigation was
opened on March 13, 2008.134
Despite the many complaints presented in France against Rwandans, none of these cases
have reached trial. Human rights NGOs have attributed the situation to various factors. First,
victims’ groups and human rights NGOs have claimed that in the Rwandan cases—and in
universal jurisdiction cases more generally—the French office of the prosecutor does not take the
initiative and it is up to the victims to become civil parties in the case in order to break the
prosecutor’s inertia. Second, human rights NGOs have claimed that investigating judges from
133 See Cour Européenne des Droit de l’Homme, Affaire Mutimura c. France, Requête no 46621/99, June 8, 2004, §
8-10; The Prosecutor v. Wenceslas Munyeshyaka, Decision on the Prosecutor’s Request for the Referral of
Wenceslas Munyeshyaka’s Indictment to France, ICTR-05-87-I, November 20, 2007; The Prosecutor v. Laurent
Bucyibaruta, Decision on the Prosecutor’s Request for the Referral of Wenceslas Munyeshyaka’s Indictment to
France, ICTR-05-87-I, November 20, 2007.
134 See Collectif des parties civiles pour le Rwanda, Plainte avec constitution de partie civile, available at
http://www.trial-ch.org/fr/trial-watch/profil/db/legal-procedures/agathe_habyarimana_759.html (visited on Dec. 11,
2009); Collectif des parties civil rwandaises, Affaires, supra note 131. In March 2010, Habyarimana was briefly
arrested in France based on an international arrest warrant issued by Rwanda—but not in the context of the French
criminal proceedings based on universal jurisdiction just described. See, e.g., Le Monde, Rwanda : Agathe
Habyarimana interpellée dans l’Essonne puis remise en liberté, March 2, 2010.
47
Paris have neither the means nor the time to investigate these complex cases.135 Another factor
may be the diplomatic tensions between France and Rwanda that arose after a French
investigating judge issued international arrest warrants against nine Rwandan officials in
November 2006 in connection with the 1994 downing of a plane carrying twelve people
including Presidents Habyarimana of Rwanda and Ntaryamira of Burundi and three French crew
members.136
Another significant case is the so-called “Disappeared of Brazzaville Beach” case. On
December 7, 2001, several NGOs brought a complaint before the prosecutor of the Tribunal de
Grande Instance of Paris against Denis Sassou N’Guesso, the President of Republic of Congo.
and three other Congolese officials, accusing them of arbitrary detentions, tortures and barbaric
acts, and forced disappearances.137
135 See FIDH, La répression des présumés génocidaires rwandais devant les jurisdictions françaises : Etat des lieux
4, available at http://www.fidh.org/La-repression-des-presumes-genocidaires-rwandais (visited on Dec. 12, 2009);
Collectif des parties civiles rwandaises et al, 15 ans après le génocide, la justice françaises doit juger les présumés
génocidaires présents sur le territoire français, available at http://www.fidh.org/15-ANS-APRES-LE-GENOCIDE-
LA-JUSTICE-FRANCAISE (visited on Dec. 14, 2009). On current efforts to address this criticism, see Bernard
Kouchner & Michèle Alliot-Marie, Pour la création d’un pôle ”genocides et crimes contre l’humanité” au TGI de
Paris, Le Monde, Jan. 7, 2010, available at http://www.cfcpi.fr/spip.php?article415 (visited on Jan. 10, 2010).
136 See Tribunal de Grande Instance de Paris, Cabinet de Jean-Louis Bruguière, Premier Vice-Président, Parquet :
97.295.2303/0, Cabinet : 1341, Deliverance de mandats d’arret internationaux, Ordonnance de soit-communique, 6,
Nov. 17, 2006.
137 See Cour de cassation, chambre criminelle, Audience publique 10 janvier 2007, No. de pourvoi : 04-87245; Cour
de cassation, chambre criminelle, Audience publique du 9 avril 2008, No de pourvoi : 07-86412.
48
On January 23, 2002, the prosecutor of Meaux requested the initiation of a formal
investigation.138 On December 9, 2002, the Republic of the Congo sought to institute
proceedings against France before the International Court of Justice (ICJ), claiming, among other
things, that the unilateral exercise of universal jurisdiction was a violation of the principle of
sovereign equality among all members of the United Nations (article 2, paragraph 1, of the UN
Charter).139 After the ICJ rejected a provisional measure requested by Congo, Congo and France
repeatedly requested an extension of time limits for filing a reply and rejoinder while waiting for
a resolution of the case by French courts. The case is still open before the ICJ.140
A final case that bears mentioning is the so-called “Militias Rélizane” case. In October
2003, the FIDH and the LDH—supported by the Relizane section of the Algerian League for the
Defense of Human Rights—presented a complaint before the prosecutor of the Nîmes Tribunal
of First Instance against two Algerian members of the militias of Rélizane for torture and crimes
against humanity. After the filing of the case before the Nîmes investigating judge, the Mohamed
brothers were arrested at their home in March 2004, interrogated, confronted by two of the
alleged witnesses, and released under judicial control.141
138 Cour de cassation, Brazaville, Jan. 10, 2007, supra note 137; Cour de cassation, Brazaville, Apr. 9, 2008, supra
note 137.
139 See Application Instituting Proceedings, Certain Criminal Proceedings in France, Republic of the Congo v.
France, at 3, filed in the Registry of the ICJ on 9 December 2002 and entered in the Court’s General List on 11 April
2003.
140 See, e.g., ICJ, Case Concerning Certain Criminal Proceedings in France, Order, 16 November 2009.
141 FIDH, Deux tortionnaires algeriens mis en examen en France, at 2, March 31, 2004, available at
http://www.fidh.org/DEUX-TORTIONNAIRES-ALGERIENS-MIS-EN-EXAMEN-EN#outil_sommaire_1 (visited
on Jan. 10, 2010); L’affaire Ben Saïd, supra note 127, at 42.
49
4. Dismissed Cases
A first case involved a complaint and application to be considered a civil party by Elvir
Javor and four other Bosnian citizens living in France before an investigating judge in Paris. The
complaint was brought against unknown persons for the commission of war crimes, torture,
genocide, and crimes against humanity allegedly committed in 1992 by members of the Serb
forces as part of their policy of ethnic cleansing. After a long judicial battle, the Court of
Cassation confirmed the dismissal by the Court of Appeals because the alleged offenders were
not in France.142
At least four universal jurisdiction complaints were dismissed by prosecutors before
initiation of formal judicial proceedings. First, on November 24, 1998, the FIDH and the LDH
presented a complaint against Congolese (DRC) President Laurent-Désiré Kabila, then visiting
France, before the prosecutor for crimes of torture. The prosecutor dismissed the complaint,
arguing that the direct responsibility of Kabila for the acts of torture could not be shown and,
further, that it was unclear that the Torture Convention could be applied against current heads of
State.143
Second, on April 25, 2001, an Algerian family whose son was killed in detention and two
former Algerian detainees filed a complaint against Algerian General Nezzar, former
Commander-in-Chief, for torture and cruel, inhumane, and degrading treatment. The prosecutor
initiated an investigation but general Nezzar fled France before French police could interrogate
142 See Cour de Cassation, Chambre Criminelle, Audience publique du 26 mars 1996, No de pourvoi 95-81527.
143 Affaire Ould Dah, supra note 118, at 30.
50
him, allegedly with the assistance of the French political authorities. On June 14, 2001, the
prosecutor dismissed the case on the grounds that General Nezzar was no longer in France.144
Third, in April 2003, Robert Mugabe, President of Zimbabwe, travelled to Paris to meet
President Chirac and attend the Franco-African summit. Gay human rights campaigner Peter
Tatchell of the Zimbabwe Association in London presented a complaint against Mugabe to the
deputy prosecutor of Paris and requested Mugabe’s arrest on charges of torture. The prosecutor
said that the official French view was that President Mugabe enjoys immunity as a head of
State.145
Finally, when former U.S. Secretary of Defense Donald Rumsfeld attended a 2007
breakfast meeting in France, the FIDH, LDH, the Center for Constitutional Rights from the U.S.,
and the European Center for Constitutional Rights from Germany presented a complaint to the
prosecutor of Paris charging Rumsfeld with authorizing, ordering, and inciting the commission
of crimes of torture in Guantanamo and Iraq.146 On November 16, 2007, the prosecutor
dismissed the complaint, noting that the Ministry of Foreign Affairs had indicated that heads of
State and ministers of foreign affairs continue to have immunity from criminal prosecution in
144 Affaire Ould Dah, supra note 118, at 31.
145 Mugabe Escapes Arrest in Paris, http://www.petertatchell.net/international/mugabefrance.htm (visited on July 3,
2009); http://news.bbc.co.uk/2/hi/europe/2779313.stm.
146 Plainte déposée para la FIDH / LDH France / CCR /ECCR, contre Donald Rumsfeld, auprès du Procureur de la
République du tribunal de grande instance de Paris, p. 19-25, October 25, 2007, available at
http://www.fidh.org/Rumsfeld-poursuivi-pour-torture-en (visited on July 2, 2009).
51
connection with official acts after they have left office, a policy that applied to Rumsfeld in this
instance.147
5. The ICC and Universal Jurisdiction in France
Though France ratified the Rome Statute in June 2000, the implementation of the Statute
of the ICC in the French legal system took more than ten years, due partly to disagreements
between different political actors and human rights NGOs on whether universal jurisdiction
should be extended to the crimes under the jurisdiction of the ICC—genocide, crimes against
humanity, and war crimes—and, if so, under what conditions.148 In August 9, 2010, a new article
689-11 of the French Criminal Procedure Code finally became law.149 This article adopted a
very narrow universal jurisdiction provision regarding these crimes, establishing four limitations
to the exercise of universal jurisdiction by French courts. First, the alleged perpetrator must
become a resident in France after the crime. Second, the crimes have to be established by the
State where they took place (double criminality requirement) or the State in question has to be a
party to the ICC Statute. Third, only the prosecutor—not the victim or NGOs as civil parties—
can launch formal criminal procedures. Fourth, the prosecutor may initiate formal proceedings
only if no other international or national jurisdiction requests the submission or extradition of the
alleged offender.
The passing of this law is thus consistent with this article’s framework given that the
French legislature was willing to expand French courts’ universal jurisdiction over these crimes
147 Lettre du Parquet du Tribunal de Grande Instance de Paris Jean-Claude Marin à Maître Patrick Baudouin,
November 16, 2007.
148 See, e.g., Jeanne Sulzer, Implementing the Principle of Universal Jurisdiction in France, in INTERNATIONAL
PROSECUTION OF HUMAN RIGHTS CRIMES 125, 136-37 (Wolfgang Kaleck et al. eds. 2007).
149 Loi n 2010-930 du août 2010, art. 8.
52
only under very restrictive conditions and by giving to the executive branch more control over
these prosecutions.
D. Belgium
Belgium generally abides by the principle of territorial jurisdiction,150 but depending on
the situation, Belgian law recognizes the principle of active personality,151 passive personality,152
and the protective principle.153 Since the regulation of universal jurisdiction over international
crimes has changed over time in Belgium, this subsection will be divided into two periods, the
first covering the years 1993–2003 and the second spanning 2003 to the present.
1. First Period (1993–2003)
a. The Original Legal and Institutional Framework
The end of the Cold War gave new impetus to Belgian efforts to implement the Geneva
Conventions of 1949, and in April 1991, after guidance from the Conseil d’Etat, the Belgian
government submitted a bill to the Belgian Parliament aimed at accomplishing this.154 On June
16, 1993—only a few months after the UN Security Council created the International Criminal
Tribunal for the former Yugoslavia—the two chambers of the Belgian Parliament unanimously
passed a law on the repression of grave breaches of the Geneva Conventions of 1949 and their
150 CP Belgium, art. 3 and 4.
151 CPP Belgium, art. 6 and 7, that include not only Belgian nationals, but also other persons who have their main
residence in Belgium.
152 CPP Belgium, art. 10.4, 10.5.
153 CPP Belgium, art. 10.1, 10.2, 10.3.
154 L. Walleyn, Universal Jurisdiction: Lessons from the Belgian Experience, 5 YEARBOOK OF INTERNATIONAL
HUMANITARIAN LAW (H. Fischer & Avril McDonald eds. 2002).
53
Additional Protocols I and II.155 Article 7 of this law established Belgian jurisdiction over these
grave breaches, regardless of where or by whom they were committed.
In 1994, the genocide and the killing of Belgian peacekeepers in Rwanda—a former Belgian
colony—shocked and horrified the Belgian public. Belgium sprung into action, supporting the
creation of the International Criminal Tribunal for Rwanda (ICTR) by the UN Security Council
and the rebuilding of the Rwandan judiciary.156 International humanitarian law became an even
more important political issue when the Belgian Senate created a commission to investigate
Belgium’s involvement in the events in Rwanda with future Belgian Prime Minister Guy
Verhofstadt serving as secretary.157
In February 1999, the Belgian Parliament unanimously amended the Universal Jurisdiction
Statute to give universal jurisdiction to Belgium courts over genocide and crimes against
humanity.158 Following article 27 of the ICC Statute, the amendment also abolished the
immunity defense, establishing universal application of the law regardless of a person’s official
status.159 These changes were made with the goal of adapting Belgian “positive law to the latest
developments in international criminal law, in particular the adoption on July 17, 1998, of the
155 Loi du 16 juin 1993 relative à la repression des infractions graves aux Conventions internationals de Genève du
12 août 1949 et aux Protocols I et II du 8 juin 1977, additionnels à ces Conventions. Moniteur Belge, August 5,
1993.
156 Walleyn, supra note 154, at 396.
157 See Paul Kerstens, “Deliver Us from Original Sin”: Belgian Apologies to Rwanda and Congo, in THE AGE OF
APOLOGY: FACING UP TO THE PAST 187, 193 (Mark Gibney et al. eds. 2009); Walleyn, supra note 154, at 396.
158 See Loi relative à la repression des violations graves de droit international humanitaire, 10 Fevrier 1999,
Moniteur Belge, March 23, 1999, 9289, art. 2, available at http://www.ejustice.just.fgov.be/doc/rech_f.htm (visited
on July 6, 2009) [hereinafter 1999 Amendment].
159 1999 Amendment, art.5.
54
Rome Statute for an International Criminal Court, signed by Belgium on September 10,
1998.”160
In July 1999, Verhofstadt became the new Prime Minister of Belgium, leading a pro–human
rights coalition of Liberals, Socialists, and Greens.161 Two years later, Belgium passed the law
of July 18, 2001, that established in article 12bis of the Belgium criminal procedure code the
jurisdiction of its courts over offenses committed outside Belgium in cases where an
international convention would require that Belgium undertake prosecution. In this way,
Belgium provided for the exercise of universal jurisdiction by its courts over the crime of torture,
as it had ratified the Torture Convention in June 1999.162
From 1993 to 2003, universal jurisdiction cases in Belgium proceeded according to the
standard rules of criminal procedure, with an investigating judge heading up the investigation of
serious offenses.163 Belgian investigating judges are members of the judiciary with lifetime
tenure.164 To prevent arbitrary investigations, investigating judges are barred from initiating
investigations on their own motion.165 There are two ways to launch a judicial investigation.
160 Rapport de la Commission de la Justice of the Belgium Senate of December 1, 1998 (1-749/3), quoted in Luc
Reydams, The Belgian State of Affairs, 11 CRIMINAL LAW FORUM 183, 193 (2000); Vandermeersch, Prosecuting
International Crimes in Belgium, 3 JOURNAL OF INTERNATIONAL CRIMINAL JUSTICE 400, 402 (2005).
161 See, e.g., Kerstens, supra note 157.
162 See United Nations Treaty Collection, Convention against Torture and Other Cruel, Inhuman or Degrading
Treatment or Punishment, http://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV-
9&chapter=4&lang=en (visited on October 7, 2009).
163 CPP Belgium, art. 55.
164 Constitution Belgium, art. 151 (life tenure for judges).
165 CPP Belgium, art. 56.1, 5th paragraph; art. 61.
55
The first is by prosecutor’s request.166 The prosecutor has discretion over whether to initiate
an investigation167 and sets investigative priorities within his or her jurisdiction.168 While the
Constitution formally places the office of the prosecutor within the judiciary,169 the King
appoints and removes prosecutors on the advice of the Minister of Justice.170 Prosecutors work
under the direction and authority of the Ministry.171
Judicial investigations can also be initiated at the request of a victim who presents a
complaint to an investigating judge and asks to become a civil party. (In cases involving racial
discrimination, certain NGOs may also become civil parties.172) When a judicial investigation is
launched by a civil party, a court will always have the last word on whether Belgian courts have
jurisdiction. If, following an investigation, the Chambre du conseil (a court of first instance,
integrated by a single judge that oversees the investigating judge’s work173) finds that the
defendant has committed no offense and dismisses the case, the civil party must compensate the
defendant for his or her attorney’s honorarium and fees.174 But Belgium does not present the
two additional incentives to discourage this type of complaints that are present in France.175
166 CPP Belgium, art. 61.
167 CPP Belgium, art. 28quarter.
168 CPP Belgium, art. 28ter; art. 56.2, 3rd paragraph.
169 Constitution Belgium, art. 151 (as amended on November 20, 1998); Code Judiciare Belgium, art. 137-56.
170 Constitution Belgium, art. 153.
171 Constitution Belgium, art. 151.1; Code Judiciare Belgium, art. 138, 143, 143bis, 143ter, 143quarter.
172 CPP Belgium, art. 63; Cour d’arbitrage, Arrêt n 62/2005 du 23 mars 2005, at B.7.1. Article 9.3 of the Universal
Jurisdiction Statute affirmed that private actors could get direct access to the courts, even when military courts had
jurisdiction over the case.
173 CPP Belgium, art. 127.
174 CPP Belgium, art. 128; Code Judiciare, art. 1022.
56
Given the lesser degree of control by the Belgian executive branch over universal jurisdiction
during this first phase than in Germany, England and Wales, and France, one would predict that
formal proceedings would be opened against a wider range of defendants. In addition, if the
opening of these formal proceedings generated substantial international relations costs, the
political branches would have to amend this universal jurisdiction regime to reduce these costs
by ensuring that opened universal jurisdiction prosecutions are dismissed and do not go to trial.
As this Subsection will show, the facts bear out each of these hypotheses.
b. Butare Case
Relatives of Rwandan and Belgian victims of the 1994 Rwandan genocide filed complaints
with the office of the prosecutor in several Belgian jurisdictions, seeking application of the
Universal Jurisdiction Statute.176 When prosecutors hesitated, the Belgian Minister of Justice
directed the head of the Brussels office of the prosecutor to launch an official judicial
investigation.177 Belgium deferred its proceedings in favor of the International Criminal
Tribunal for Rwanda for two of the six defendants present in Belgium.178 Rwanda not only did
175 See supra notes 113-15 and accompanying text.
176 Reydams, The Belgian State of Affairs, supra note 160, at 202.
177 Lecture de l’acte de accusation par l’avocat général, p. 6, available at
http://www.assisesrwanda2001.be/040100.html (visited on July 7, 2009) [hereinafter Lecture]; Reydams, The
Belgian State of Affairs, supra note 160, at 203; Vandermeersch, supra note 160, at 404.
178 Luc Reydams, Belgium’s First Application of Universal Jurisdiction: the Butare Four Case, 1 JOURNAL OF
INTERNATIONAL CRIMINAL JUSTICE 428, 430 (2003). Belgium deferred to the ICTR in its proceedings against,
among others, Ferdinand Nahimana, Georges Ruggiu, Théoneste Bagosora, Elie Ndayambaje, and Joseph
Kanyabashi. Only the last two had been present in Belgium. See id. at 430.
57
not oppose, but in fact supported the investigation by allowing Belgian investigators onto its
territory.179
Between April 17 and June 8, 2001, the four remaining defendants were tried before a jury,
charged with participating in the commission of war crimes covered by the Universal
Jurisdiction Statute.180 The jury found the defendants guilty on all charges, except for some of
the killings alleged against one defendant. The four received prison sentences ranging from
twelve to twenty years.181
c. Yerodia Case
In January 1999, Belgian and Congolese nationals who had sought refuge in Belgium filed a
complaint and asked to be civil parties against the leaders of the Democratic Republic of Congo
for war crimes and crimes against humanity allegedly committed in the territory of Congo since
1997.182 On April 11, 2000, the Belgian investigating judge issued an international arrest
warrant against Abdoulaye Yerodia Ndombasi, Congo’s Minister for Foreign Affairs, for
allegedly making speeches inciting racial violence in August 1998.183
On October 17, 2000, The Congo instituted proceedings against Belgium before the
International Court of Justice, arguing that, in its purported exercise of universal jurisdiction,
Belgium had violated the “principle that a State may not exercise its authority on the territory of
another State”, the “principle of sovereign equality among all Members of the United Nations, as
179 Reydams, Belgium’s First Application of Universal Jurisdiction, supra note 178, at 430.
180 See Lecture, supra note 177, at 1, 24-7.
181 See Verdict, available at http://www.assisesrwanda2001.be/110500.html (visited on July 7, 2009).
182 ICJ, Case Concerning the Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v. Belgium),
Judgment of 14 February 2002, para 15 [hereinafter Arrest Warrant]; Vandermeersch, supra note 160, at 406-07.
183 Arrest Warrant, supra note 182, para 1, 13 & 15.
58
laid down in Article 2, paragraph 1, of the Charter of the United Nations,” and the diplomatic
immunity of the Minister for Foreign Affairs of a sovereign State.184
The ICJ as a whole concentrated on the issue of immunity and decided not to deal with the
universal jurisdiction issue. In a 13-to-3 vote, the Court concluded that, given the nature and
purpose of the arrest warrant, its mere issuance violated the immunity that Yerodia enjoyed as
the Congo’s incumbent Minister for Foreign Affairs. In a 10-to-6 vote, the Court held that
Belgium was required to cancel the warrant and to inform the relevant authorities that it had done
so.185
d. Sharon and Yaron case
On June 18, 2001, twenty-three alleged Lebanese and Palestinian victims filed a complaint
against then–Israeli Prime Minister Ariel Sharon and others allegedly responsible for the
massacres, killings, rapes, and disappearances that allegedly took place in Beirut, Lebanon, from
September 16 to September 18, 1982, in the Sabra and Chatila camps. The complaint alleged
genocide, crimes against humanity, and war crimes, and the complainants asked to be civil
parties to the case.186
The investigating judge and the Court of Appeals declared that they had no universal
jurisdiction over the case, among other reasons because none of the defendants were found in
184 Id. para 1, 11, 12, 17.
185 Id. para 52, 54, 70, 76 & 78.
186 See Plainte avec constitution de partie civile, Bruxelles, le 18 juin 2001, available at
http://www.mallat.com/articles/complaint.htm (visited on July 10, 2009).
59
Belgium.187 But in February 2003, the Court of Cassation, Second Chamber, partially reversed
the decision of the Court of Appeals, asserting that the presence of the defendants in Belgium
was not a precondition for the initiation of formal proceedings for crimes covered by the
Universal Jurisdiction Statute. However, the Court also held that customary international law
provided Sharon with immunity from universal jurisdiction transnational prosecutions.188 In
response to the decision, Israel withdrew its Belgian ambassador for more than three months.189
e. George H. W. Bush et al. case
On March 18, 2003, seven Iraqi citizens and an NGO presented a civil complaint against
former U.S. President George H. W. Bush, incumbent Vice-President Richard Cheney (Secretary
of Defense at the time of the alleged crimes), incumbent Secretary of State Colin Powell
(Chairman of the Joint Chiefs of Staff at the time of the alleged crimes), and General Norman
Schwarzkopf (the American Commander in the Gulf War). The plaintiffs alleged that the release
of two bombs over two civilian shelters in Baghdad during the Gulf War on the night of
February 12, 1991—an incident in which 403 people were killed—constituted war crimes.190
Belgian Foreign Minister Louis Michel of the French-speaking Liberal Party said that the
case pointed to a serious problem with the Universal Jurisdiction Statute, in that there were
187 Conclusions, para. 1, 16, 170, available at http://www.indictsharon.net/ (visited on July 10, 2009); La chambre
des mises en accusation de Bruxelles (10è ch.), 26 juin 2002, Sharon & Yaron, available at
http://www.law.kuleuven.be/jura/ (visited on October 9, 2009).
188 Arrêt de la Cour de cassation, N P.02.1139.F, 12 februar 2003.
189 Walleyn, supra note 154, at 402.
190 See Note, P.03.1216.F., Le procureur général près la Cour de cassation, en cause Bush et consorts (attached to the
decision by the Court of Cassation in its decision of Sept. 23, 2003, in the Bush case, P.03.1216.F); Jean-Pierre
Borloo & Pierre Vassart, Compétence universelle : plainte contre Bush père, Le Soir, March 19, 2003.
60
insufficient safeguards against its use for political or persecutory purposes.191 A Belgian Foreign
Ministry spokesperson added: “This case proved that there is something wrong with the genocide
law…. The government wants to change the law.”192
f. Other Cases
Other judicial investigations launched by civil parties during this period included those
against former officials of the Khmer Rouge in Cambodia; the former Moroccan minister, Driss
Basri; the former President of Iran, Hashemi Rafsanjani; Augusto Pinochet; Saddam Hussein;
Fidel Castro; Paul Kagame, President of Rwanda; Laurent Gbagbo, President of the Ivory Coast;
and Yasser Arafat.193
2. Second Period (2003–present)
After the complaint was presented against George H. W. Bush and other U.S. leaders,
U.S. Secretary of State Colin Powell told the Belgian government that Belgium was risking its
191 Id.
192 See Richard Bernstein, Belgium Rethinks its Prosecutorial Zeal, New York Times, April 1, 2003, available at
http://www.nytimes.com/2003/04/01/world/belgium-rethinks-its-prosecutorial-zeal.html?pagewanted=all (visited on
October 21, 2009).
193 Reydams, The Belgian State of Affairs, supra note 160, at 206 and 213; Vandermeersch, supra note 160, at 406
and 408; Juge d’instruction à Bruxelles, 6 novembre 1998, published in 1999 REVUE DE DROIT PÉNAL ET DE
CRIMINOLOGIE 278; Jan Wouters, The Judgment of the International Court of Justice in the Arrest Warrant Case:
Some Critical Remarks, 16 LEIDEN JOURNAL OF INTERNATIONAL LAW 253, 266 (2003). Some of the governments
concerned reacted strongly to these investigations. For instance, the Iranian parliament demanded financial
compensation for the “pain inflicted upon the Iranian people” as a consequence of the complaint against former
president Rafsanjani. See Alain Winants, The Yerodia Ruling of the International Court of Justice and the
1993/1999 Belgian Law on Universal Jurisdiction, 16 LEIDEN JOURNAL OF INTERNATIONAL LAW 491, 503 (2003).
61
status as a diplomatic capital and as host of the NATO headquarters.194 Such pressures
prompted an amendment that explicitly established an immunity defense based on a person’s
official capacity, though it also adopted the principle that the presence of an alleged perpetrator
in Belgian territory was not a precondition for the exercise of universal jurisdiction against
him.195 The Chamber of Representatives passed this provision on April 23, 2003 by a vote of 63-
48, and it took effect on May 7. 196 The amendment established a series of limitations to the cases
that civil parties could initiate,197 and mechanisms for the Minister of Justice to bring cases to the
attention of other States as a way to divest Belgian courts of jurisdiction.198 One of these
mechanisms was quickly dubbed the Bush clause, as it was designed to deal with the Bush et al.
case.199 This clause was passed in Parliament with the support of the opposition in order to
neutralize a majority that still favored universal jurisdiction.200
Following passage of the amendment, Israel returned its ambassador to Belgium.201
However, the amendment was quickly tested and proved insufficient to keep a lid on
international tensions. On May 14, 2003, a number of alleged victims presented the federal
194 Ratner, supra note 15, at 890; Michael Verhaeghe, The Political Funeral Procession for the Belgian UJ Statute,
in INTERNATIONAL PROSECUTION, SUPRA NOTE 37, at 142.
195 Loi modifiant la loi du 16 juin 1993, art. 4 (replacing art. 5, §3 of the 1993/1999 Law) and 5 (replacing art. 7, §1
of the 1993/1999 Law).
196 See Loi modifiant la loi du 16 juin 1993 relative à la répression des violations grave du droit international
humanitaire et l’article 144ter du Code judiciare, Apr. 23, 2003, Moniteur Belge, May 7, 2003.
197 Loi modifiant la loi du 16 juin 1993, art. 5 (replacing art. 7, §1 of the 1993/1999 Law).
198 Loi modifiant la loi du 16 juin 1993, art. 5 (replacing art. 7, §3 and §4 of the 1993/1999 Law).
199 Verhaeghe, supra note 194, at 142.
200 Walleyn, supra note 154, at 402-03.
201 Ratner, supra note 15, at 891.
62
prosecutor with a complaint against General Tommy Franks, commander of the U.S. and UK
forces in the war in Iraq, and Colonel Bryan P. McCoy, commander of the 3rd U.S. Marine
Battalion of the 4th Regiment, for alleged war crimes committed in Iraq.202
On May 20, 2003, the Belgian Council of Ministers brought the alleged crimes to the
attention of the United States pursuant to article 7, § 4, of the amended Universal Jurisdiction
Statute. The following month, based on the decision by the Council of Ministers, the federal
prosecutor decided to dismiss the complaint pursuant to article 7, § 1, of the amended statute,
finding that the complaint set forth insufficient grounds for the initiation of formal proceedings.
However, the plaintiffs appealed the federal prosecutor’s decision—as explicitly allowed by
article 7 §1 of the amended statute—and, on a subsidiary basis, sought a declaration from the
Belgian Constitutional Court as to whether article 7 §4 of the amended act violated the
Constitution’s articles 10 (establishing equality before the law) and 11 (barring discrimination)
and the principle of separation of powers.203
Meanwhile, on June 10, 2003, the Court of Appeals held that while Ariel Sharon’s status
as Israel’s prime minister conferred immunity, formal proceedings could move forward against
Brigadier General Amos Yaron.204 Two days later, U.S. Secretary of Defense Donald Rumsfeld
announced that the U.S. would refuse to pay for a new NATO headquarters building in Belgium
202 See Plainte, available at http://www.ulb.ac.be/droit/cdi/Site/Developpements_judiciaires.html (visited on October
24, 2009); KLACHT TEGENTOMMY FRANKS (15 MEI 2003); KI 24 SEPTEMBER 2003 (FRANKS EN
MCCKOY) (hereinafter Chambre des mises en accusation, Frank and McCoy), both published in Jura Falconis, jg
40, 2003-2004, nr 1, available at http://www.law.kuleuven.be/jura/ (visited on October 8, 2009).
203 Chambre des mises en accusation, Frank and McCoy, supra note 202.
204 Arrêt de la Chambre de mises en accusation du 10 juin 2003 (Corpus de la décision), published in Jura Falconis,
jg 40, 2003-2004, nr 1, available at http://www.law.kuleuven.be/jura/ (visited on October 8, 2009).
63
and would consider barring U.S. officials from traveling to meetings in Belgium unless the
country rescinded its universal jurisdiction law, stating that “Belgium appears not to respect the
sovereignty of other countries.”205 Within days, Verhofstadt agreed to seek further amendments
limiting the statute’s reach to cases with direct links to Belgium, asserting that the 1993
amendment had “ushered in a manifestly abusive political use of this law.”206
On August 5, 2003, Belgium passed a bill—effective two days later—that abrogated the
Universal Jurisdiction Statute and introduced amendments to the Belgian Criminal Code,
Criminal Procedure Code, and Judiciary Act.207 The August 2003 reform introduced far greater
limitations on Belgian’s extraterritorial jurisdiction than those introduced in April. First, it
established that only people who had become Belgian citizens or residents of Belgium after the
offense could be prosecuted based on universal jurisdiction for war crimes, crimes against
humanity, and genocide.208 Second, it eliminated the power of victims and NGOs to initiate
formal proceedings as civil parties based on the passive personality principle and the general
205 Ratner, supra note 15, at 891, citing News Transcript : Secretary of Defense Rumsfeld at NATO Headquarters,
DEFENSELINK (June 12, 2003), available at http://www.defenselink.mil/transcripts/2003/tr200306secdef02171.html.
See also Walleyn, supra note 154, at 403.
206 Ratner, supra note 15, at 891, citing Projet de loi relative aux violations graves du droit humanitaire, July 23,
2003, BELG. PARL. DOC. 510103/001.
207 See Loi relative aux violations graves du droit international humanitaire, August 5, 2003, Moniteur Belge, August
7, 2003, art. 27.
208 CPP Belgium, art. 6.1bis (as amended by Loi relative aux violations graves du droit international humanitaire,
August 5, 2003, Moniteur Belge, August 7, 2003, art. 14); Luc Reydams, Belgium Reneges of Universality: the 5
August 2003Act of Grave Breaches of International Humanitarian Law, 1 JOURNAL OF INTERNATIONAL CRIMINAL
JUSTICE 679, 683 (2003), citing Chambre des représentants de Belgique, Exposé des motifs, DOC 51 0103/001 at 5-
6.
64
enabling clause of article 12bis of the CPP and established that only the federal prosecutor could
open formal proceedings in these situations.209
A transitional provision of the August 2003 law also established that unless at least one
of the initiating plaintiffs was a Belgian national or resident and an official investigative act had
taken place in the case, any proceeding initiated before an investigating judge had to be sent by
the federal prosecutor to the prosecutor before the Court of Cassation who was obligated to ask
the Court to relieve Belgian courts of jurisdiction over the case.210
Based on this transitional provision, on September 24, 2003, the Court of Cassation
stripped Belgian courts of jurisdiction over all defendants in the Sharon211 and Bush212 cases as
well as over pending cases that included those against Fidel Castro and Paul Kagame.213 On the
same date, the Court of Appeals held that, following passage of the August 2003 law, it could no
longer entertain an appeal against the federal prosecutor’s dismissal of the case against General
Franks and Colonel McCoy.214
209 CPP Belgium, art. 12bis. The Belgian Constitutional Court upheld the constitutionality of most of these
provisions. See Cour d’arbitrage, Arrêt n 62/2005 du 23 mars 2005.
210 Loi relative aux violations graves du droit international humanitaire, August 5, 2003, Moniteur Belge, August 7,
2003, art. 29.
211 Cass. 24/09/2003, Arrêt N P.03.1217.F, published in Jura Falconis, jg 40, 2003-2004, nr 1, available at
http://www.law.kuleuven.be/jura/ (visited on October 8, 2009).
212 Cass. 24/09/2003, N P.03.1216.F, Bush George H. W. sr et consort.
213 See, e.g., Eric David, Belgium, in 8 YEARBOOK OF INTERNATIONAL HUMANITARIAN LAW 396, 400-02 (2005)
(describing the role of the Court of Cassation and the Cour d’arbitrage in the dismissal of Kagame’s case and the
TotalFinaElf case); Vandermeersch, supra note 160, at 408.
214 Chambre des mises en accusation, Frank and McCoy, supra note 202.
65
Significantly, and in contrast to the dismissal of cases against high- and mid-cost
defendants, cases against low-cost defendants have moved forward.215 For example, in June
2005, businessmen Samuel Ndashykirwa and Etienne Nzabonimana were convicted by a Belgian
jury for the war crimes of murder and attempted murder committed in Rwanda against Rwandan
citizens in April 1994, and respectively sentenced to ten and twelve years in prison.216 Both
were residing in Belgium at the time of their 2002 arrests.217 In July 2007, Bernard Ntuyahaga, a
major in the Rwandan army, was found guilty by a Belgian jury of the 1994 war crimes of
murder and attempted murder in Rwanda of ten Belgian peacekeepers and an undetermined
number of Rwandans and was sentenced to twenty years of imprisonment.218 In December 2009,
Ephrem Nkezabera, a former banker and leading member of the Interamhamwe militia, was
215 Belgium also proceeded with an investigation of former Chad President Hissène Habré. On February 16, 2009,
Belgium instituted International Court of Justice proceedings against Senegal—the country where Habré had been
in exile since his 1990 ouster—demanding that Senegal prosecute Habré based on universal jurisdiction or extradite
him to Belgium to be tried for crimes against humanity. However, Belgium has taken the position that its
jurisdiction over this case is based not on universal jurisdiction but rather on the passive personality principle. See
Application Instituting Proceedings by the Kingdom of Belgium against the Republic of Senegal, International Court
of Justice, 16 February 2009.
216 See La Cour d’assises de l’arrondissement administratif de Bruxelles-Capitale, June 29, 2005, available at
http://www.ulb.ac.be/droit/cdi/Site/Developpements_judiciaires.html (visited on October 24, 2009).
217 See http://www.trial-ch.org/en/trial-watch/profile/db/facts/etienne_nzabonimana_327.html (visited on July 14,
2009); http://www.trial-ch.org/en/trial-watch/profile/db/facts/samuel_ndashyikirwa_328.html (visited on July 14,
2009).
218 La Cour d’assises de l’arrondissement administrative de Bruxelles-Capitale, July 5, 2007, available at
http://www.ulb.ac.be/droit/cdi/Site/Developpements_judiciaires.html (visited on October 24, 2009).
66
convicted for war crimes, including murders and rapes, committed in Rwanda in 1994 and was
sentenced to 30 years.219
E. Spain
Since the Spanish regulation of universal jurisdiction has evolved over time, this article
will focus on two discrete periods, the first spanning the years 1985–2009 and the second
extending from November 2009 to the present.
1. First Period (1985–2009)
a. The Original Legal and Institutional Framework
The National Audience, a Spanish federal jurisdiction, extends to offenses committed
abroad.220 Article 23.4 of the Spanish Judiciary Act of 1985—passed as part of Spain’s
democratization process—gave Spanish courts jurisdiction over genocide and any other offense
committed outside of Spanish territory, if international conventions would require their
prosecution. Spanish courts later interpreted article 23.4 to confer universal jurisdiction on
Spanish courts regarding torture and grave breaches to the Geneva Conventions and their
219 http://www.google.com/hostednews/afp/article/ALeqM5jtr0jenWbJXZTc5M18wRvJGvbRIw (visited on
September 23, 2010). Since he could not attend his trial as he was suffering from cancer, in March 2010 the Assize
Court of Brussels agreed to a new trial for him. But Nkezabera passed away shortly afterward, which put an end to
the legal proceedings against him. See http://www.trial-ch.org/en/resources/trial-watch/trial-
watch/profile.html?tx_jbtrial_pi2[tab]=legal-
procedures&tx_jbtrial_pi2[profile]=ephrem_nkezabera_627&cHash=9b991dc628 (visited on September 30, 2010).
220 Ley Orgánica del Poder Judicial, art. 65.1.e.
67
Additional Protocol I.221 In this period, article 23 did not explicitly require that the alleged
offender be on Spanish territory or that the case have any other link to Spain.
As for criminal procedure, Spain places the investigation of important offenses in the hands
of investigating judges who are members of the judiciary and have life tenure.222 The
prosecutor’s role during the pretrial phase involves requesting that the judge initiate a judicial
investigation, and overseeing the work of the investigating judge.223 Each new government
appoints its own head of the office of the prosecutor.224 The office of the prosecutor is organized
hierarchically and its head has authority over subordinates.225
There are two additional ways that an investigating judge may initiate an investigation. First,
by his own motion,226 and second, by a people’s or private prosecution. Any Spanish citizen—
or legal entity—can be a private prosecutor in the criminal process without being the alleged
victim of the offense—this is the so-called “people’s prosecutor.”227 Spanish and non-Spanish
citizens or legal entities can also be private prosecutors in a Spanish criminal process if they are
alleged victims of the offense.228 Due to the rule of compulsory prosecution, the judge can only
dismiss the “people’s” or “private” prosecutions if the alleged facts don’t constitute a crime or if
221 See, e.g., Tribunal Supremo, Sala de los Penal (1240/2006) (on grave breaches to the Geneva Conventions of
1949 and Additional Protocol I).
222 Spanish Constitution, art. 117.
223 LECrim, art. 105, 271, 306, 319.
224 The head of the office of the prosecutor is appointed by the king by proposal of the government and after the
judicial council has been heard.
225 TERESA ARMENTA DEU, LECCIONES DE DERECHO PROCESAL PENAL 82-3 (2007).
226 LECrim, art. 303 and 308.
227 Spanish Constitution, art. 125; LECrim, art. 101, 270; ARMENTA DEU, supra note 225, at 86.
228 Spanish Constitution, art. 24; LECrim, art. 270.I and II, 280-81; ARMENTA DEU, supra note 225, at 85.
68
the judge determines that she lacks jurisdiction. If the prosecutor disagrees with the judge on the
jurisdictional issue, the prosecutor can appeal, but the courts have the final word.229
While the judge may require the people’s prosecutor to deposit an indemnity to eventually
pay for the trial costs,230 the Judiciary Act establishes that the indemnity should not be set in a
way that prevents people’s prosecutions231 and the Constitutional Court has held that the amount
of the indemnity must be proportionate to the assets of the people’s or private prosecutor.232
However, if the case is dismissed for lack of evidence or because the alleged conduct does not
constitute a crime, the people’s or private prosecutor can be criminally prosecuted.233
Given the lesser degree of control of the executive branch over universal jurisdiction
prosecutions in Spain than in Germany, England and Wales, and France, our incentive structure
would predict that formal proceedings would be opened against a wider variety of defendants. In
addition, if the opening of these formal proceedings generated substantial international relations
costs, the political branches would have to amend this universal jurisdiction regime to reduce
these costs by ensuring that opened universal jurisdiction prosecutions are dismissed and do not
go to trial. These predictions have proved to be true.
b. Argentine Cases
The only universal jurisdiction case over international crimes to reach the trial phase in Spain
was against retired Argentine Captain Adolfo Scilingo, a proceeding that evolved out of a
broader investigation of mass atrocities in Argentina in the 1970s. Scilingo had gained notoriety
229 LECrim, art. 313; ARMENTA DEU, supra note 225, at 31-2.
230 LECrim, art. 280. LECrim, art. 281, establishes a number of exceptions to this rule.
231 Ley Orgánica del Poder Judicial, art. 20.3.
232 SSTC 62/1983, 113/1984, 1471/1989, and 326/1994, cited by ARMENTA DEU, supra note 225, at 87.
233 LECrim, art. 637; Criminal Code Spain, art. 205.
69
in Argentina by telling a journalist that the Navy had killed some 2,000 of the people that it
kidnapped and tortured by throwing them unconscious and naked from airplanes into the River
Plate that separates Argentina and Uruguay.234 Harassed at home and with a Spanish TV station
paying his expenses to Madrid, Scilingo travelled to Spain on October 6, 1997. Following
Scilingo’s arrival, investigating judge Baltasar Garzón interrogated him, then ordered his
arrest.235 Garzón also issued incriminating decisions against about 121 people and arrest
warrants against almost fifty in the Argentine case, one of whom was arrested in Mexico,
extradited first to Spain and then to Argentina.236 Alleging that Argentine courts had exclusive
jurisdiction over these events, the Argentine government rejected requests by Garzón to gather
and submit evidence to him.237 But there is no indication that Argentina threatened or took any
reprisals against Spain.
After Scilingo’s arrest, the prosecutor assigned to the case became relentlessly critical of
Garzón’s investigation, ultimately joining Scilingo’s defense in a challenge to the judge’s
jurisdiction.238 But by the time Scilingo went to trial in December 2004, the situation had
radically changed in Argentina, where the government now supported Spanish prosecutions. The
234 HORARIO VERBITSKY, EL VUELO (1995).
235 ROTH-ARRIAZA, supra note 92, at 24.
236 See, e.g., Juzgado Central de Instrucción Número Cinco, Audiencia Nacional Madrid, May 8, 2000, available at
http://www.derechos.org/nizkor/arg/espana/reitero.html (visited on June 30, 2010); Clarín, Cavallo llega extraditado
desde Madrid, Mar. 29, 2008.
237 See Texto del apartado número 8 de la nota del Ministerio de Relaciones Exteriores Argentino, Buenos Aires,
January 15, 1997; available at http://www.derechos.org/nizkor/arg/espana/coop.html (visited on November 4, 2009);
Decreto 111/98, Buenos Aires, Jan. 26, 1998; B.O. Feb. 09, 1998.
238 See Auto de la Sala de lo Penal de la Audiencia Nacional, Madrid, November 4, 1998, available at
http://www.derechos.org/nizkor/arg/espana/audi.html (visited on June 17, 2009).
70
situation had also changed in Spain, where the Socialist Prime Minister José Luis Zapatero had
taken office and the Office of the Prosecutor had announced a policy of non-opposition to
universal jurisdiction prosecutions.239 The trial court convicted Scilingo of crimes against
humanity, participating in illegal detention, and torture, sentencing him to a total of 640 years in
prison.240 On July 18, 2007, the Spanish Supreme Court partially reversed the verdict, reducing
his sentence to a maximum of 25 years.241
c. Pinochet Case
There is an extensive literature on Pinochet’s arrest and extradition proceedings in the United
Kingdom.242 For our purposes, it suffices to say that when Augusto Pinochet Ugarte arrived in
London for back surgery in September 1998, the investigation of atrocities in Chile was also in
the hands of judge Garzón, whose portfolio had expanded to include Chile as well as Argentina.
Following consultation with British police, he ordered Pinochet’s pretrial detention and issued an
international arrest warrant against him for the crimes of genocide and terrorism for the murder
of Spanish citizens in Chile—though the extradition request would later be expanded to true
universal jurisdiction cases. When Magistrate Evans called the Home Office, he was told that
there was no diplomatic immunity involved. Late that night, Scotland Yard served Pinochet with
239 See Amnistía Internacional, La Audiencia Nacional condena a el (sic) ex militar argentino Adolfo Scilingo por
crímenes de lesa humanidad, available at http://ania.urcm.net/spip.php?article13324 (visited on Nov. 24, 2009).
240 See Audiencia Nacional, Sala de lo Penal, Seccion Tercera, Sumario 19/1997, Rollo de Sala 139/1997, Sentencia
Num. 16/2005, Madrid, Apr. 19, 2005.
241 See Tribunal Supremo, Sentencia N 798/2007, Oct. 1, 2007.
242 See, e.g., Curtis A. Bradley & Jack L. Goldsmith, Pinochet and International Human Rights Litigation, 97 MICH.
L. REV. 2129 (1999); ROTH-ARRIAZA, supra note 92.
71
an arrest warrant. Apparently, the police failed to inform Home Secretary Jack Straw of the
arrest until after it had taken place.243
British public opinion was divided over the arrest, with the Conservatives criticizing and the
left applauding it—this was early on in the administration of Tony Blair and his “ethical foreign
policy.” In Spain, there was strong popular support for Garzón’s investigation and extradition,
something the conservative Popular Party government clearly recognized. In both Britain and
Spain, political leaders concluded that the most prudent course of action was to leave this issue
to the courts.244 Meanwhile, the arrest met a generally enthusiastic reception in Europe, with
Switzerland, France, and Belgium joining Spain in seeking Pinochet’s extradition.245
After the Spanish Court of Appeals rejected a lack-of-jurisdiction claim by the Spanish
prosecutor—in a decision that essentially repeated the arguments elaborated by the Court of
Appeals the day before in the Scilingo case;246 three decisions by the House of Lords—the third
of which held that Pinochet could be extradited only for torture committed after December 8,
1988;247 and a first extradition authorization by the Home Secretary; in April 1999 Home
243 Juzgado Central de Instrucción Número Cinco, Audiencia Nacional, Madrid, Sumario 19/97, Auto, Oct. 16, 1998;
ROTH-ARRIAZA, supra note 92, at 1, 34-5; Sugarman, supra note 97, at 114.
244 ROTH-ARRIAZA, supra note 92, at 36-7; Sugarman, supra note 97, at 112-14.
245 See, e.g., Reasons for Authority to Proceed by Secretary of State Jack Straw, 9 December 1998, in THE PINOCHET
PAPERS 183-87, 184 (Reed Brody & Michael Ratner eds. 2000).
246 Audiencia Nacional, Sala de lo Penal, Pleno, Rollo de Apelación 173/98 (Sección Primera), Sumario 1/98,
Madrid, Auto, Nov. 5, 1998.
247 R v. Bartle and the Commission of Police for the Metropolis and Others, Ex Parte Pinochet; R. Evans and
Another and the Commission of Police for the Metropolis and Others, [1999] UKHL 17 (24th March, 1999).
72
Secretary Jack Straw issued a second authorization to proceed with the extradition proceedings
regarding the crimes of torture and conspiracy to torture.248
However, shortly after the political climate changed dramatically, with growing concern that
the arrest of Pinochet was jeopardizing the chances of Chile’s governing center-left coalition to
carry the upcoming presidential election.249 Spain’s Prime Minister Aznar had gone on record
saying that he did not want “Spain to become an International Criminal Tribunal.”250 Moreover,
over time the Chilean government had moved from a position of protesting Pinochet’s arrest as
an attack on its sovereignty to a position in which it was promising that Pinochet could be tried
in Chile. Returning Pinochet to Chile would thus be less politically costly for the Labor
Government than it would have been earlier in the extradition process.251
According to several journalists’ reports, in the summer of 1999, the Chilean, Spanish, and
British governments struck a deal to release Pinochet on humanitarian grounds.252 A British-
appointed medical team examined Pinochet, concluding that he was not fit to stand trial and that
no change to his condition could be expected.253 Home Secretary Straw announced the
termination of the extradition proceedings on March 2, 2000 and Pinochet returned to Chile.254
248 See Second Authority to Proceed by Secretary of State Jack Straw, 15 April 1999, in THE PINOCHET PAPERS,
supra note 245, at 373; Reasons for Second Authority to Proceed by Secretary of State Jack Straw, 5 April 1998, id.
at 375-81.
249 ROTH-ARRIAZA, supra note 92, at 59-60; Sugarman, supra note 97, at 114-15.
250 See PILAR URBANO, GARZÓN. EL HOMBRE QUE VEÍA AMANECER 535 (2000).
251 ROTH-ARRIAZA, supra note 92, at 64.
252 Id. at 64.
253 See British Medical Report on Augusto Pinochet, in THE PINOCHET PAPERS, supra note 245, at 447.
254 See Letters from the Home Office to the Spanish, Belgian, Swiss and French Ambassadors announcing the
termination of extradition proceedings, 2 March 2000, in THE PINOCHET PAPERS, supra note 245, at 465; Statement
73
d. Guatemalan Generals Case
On December 2, 1999, Guatemalan Nobel Peace Prize winner Rigoberta Menchú Tum
presented a complaint against Guatemalan general and former de facto President Efraín Ríos
Montt and seven other Guatemalan officials, alleging the crimes of genocide, torture, terrorism,
aggravated murder, and illegal detention committed in Guatemala between 1962 and 1996. At
the time, the Spanish Office of the Public Prosecutor was still under the control of the Popular
Party of Prime Minister Aznar, and in January 2000, the prosecutor challenged the jurisdiction
of Spanish courts.255
On February 25, 2003, the Spanish Supreme Court, Criminal Law Section held in an 8-to-7
decision that Spanish courts did not have universal jurisdiction over the alleged crime of
genocide in Guatemala because (1) the Genocide Convention did not establish the principle of
universal jurisdiction, (2) there were no indications that the alleged offenders were on Spanish
territory or that Spain had denied their extradition, and (3) the alleged genocide did not affect a
Spanish national interest. (The Supreme Court also held that Spanish courts had jurisdiction
over the crime of torture but only for torture committed against Spanish citizens in
Guatemala.)256
The people’s and private prosecutors went to the Constitutional Court to challenge the
decision. Meanwhile, significant events were under way on the political front. Socialist José Luis
Rodríguez Zapatero became Prime Minister in April 17, 2004, and six days later, the job of chief
of the Office of the Prosecutor went to Cándido Conde-Pumpido, one of the Spanish Supreme
of Secretary of State Jack Straw in the House of Commons, 2 March 2000 [excerpts], in THE PINOCHET PAPERS,
supra note 245, at 481.
255 Juzgado de Instrucción No. 1, Audiencia Nacional, Madrid, Diligencias previas 331/99, Auto, Mar. 27, 2000.
256 Tribunal Supremo, Sala de lo Penal, No. De Recurso 803/2001, No. De Resolución 327/2003, Feb. 25, 2003.
74
Court judges who had voted in favor of pure universal jurisdiction in the Guatemalan Generals
case.257 On September 26, 2005, the Constitutional Court, Second Section, with the support of
the prosecutor, reversed the decision by the Supreme Court, holding that it had violated the
people’s and private prosecutor’s right to effective judicial protection as established in article
24.1 of the Spanish Constitution.258
e. Post-2004 Cases
After the Office of the Prosecutor shifted course on universal jurisdiction and, more
importantly, after the decision by the Spanish Constitutional Court just described, Spain saw a
wave of new universal jurisdiction complaints and renewed attention to older cases. These cases
included formal proceedings against the Rwandan president and military for, among other
crimes, genocide, crimes against humanity, and war crimes;259 proceedings against Moroccan
leaders for genocide and torture;260 proceedings against the Salvadoran military for the murders
of six Jesuit priests and two other people;261 and proceedings against four Nazis for their actions
in concentration camps during World War II.262
257 See Cándido Conde-Pumpido, La Justicia Universal en la Jurisdicción Española, 51 PERSONA Y DERECHO 49
(2004).
258 Tribunal Constitucional, Sala Segunda, Sentencia 237/2005, Sept. 26, 2005.
259 See Juzgado Central de Instrucción No. 4, Audiencia Nacional, Sumario 3/20