JURIST Guest Columnist Wes Rist of the University of Pittsburgh School of Law says that recent passage by Spain's lower house of parliament of a non-binding resolution aimed at limiting the scope of the country's universal jurisdiction may not be a step backwards in international criminal law, but rather may signal the beginning of the end of an effort that served its purpose and is now properly dying out from lack of need…..

When the International Criminal Court (ICC) emerged in 2002 as an actual organization in the international community, many felt it represented one of the best chances for an end to impunity for human rights abusers around the world. Largely due to the seemingly tireless work of Chief Prosecutor Luis Moreno-Ocampo, most still see the ICC as a steadily growing check on the unchallenged abuse of international humanitarian and human rights law by military or political leaders and even non-state actors. The coming into being of the ICC has not, however, uprooted other evolutionary offshoots in international criminal law that saw a resurgence during the long preceding period when the idea of a permanent international criminal court was scoffed at by the global community as a pipe dream held only by starry-eyed international lawyers.

One of these offshoots, universal jurisdiction, is actually a centuries-old legal principle that was modified and adapted to the modern international setting. Originally designed to address hostis humani generis, the “enemies of all humanity” found in pirates in the 1700s and arguably later expanded to include other non-state actors such as slave traders and hijackers, the modern theory has developed two distinct branches: conditional and absolute jurisdiction. Conditional jurisdiction holds that the accused must be present in the state for the prosecution to move forward, while absolute jurisdiction gives the state the right to pursue any individual, regardless of their location, for criminal violations that fall within the authorizing legislation.

Several countries experimented with absolute universal jurisdiction legislation in their domestic systems, and in the 1990s a series of cases began to move through domestic courts that attempted to initiate criminal proceedings against individuals who failed to meet any of the three traditional justifications for prosecution by a state: territoriality, active nationality, and passive nationality. Perhaps the most famous of these cases was the October 1998 detention of former Chilean dictator Augusto Pinochet by British officials upon the submission of an extradition warrant from Spain. The “Pinochet experience” ended in a draw, as the then-UK Home Secretary preempted an apparent judicial willingness to extradite Pinochet by finding that the former dictator, then aged 83, was medically incapable of withstanding trial and granted him leave to return to Chile.

But the evolution of modern universal jurisdiction legislation didn’t end there. Cases continued to develop in domestic legal systems and even before the International Court of Justice, which considered the doctrine in the 2003 case of Democratic Republic of Congo v. Belgium. Belgium’s universal jurisdiction statute was modified after the Bush administration brought significant pressure to bear on the Belgian government after a case against U.S. General Thomas Franks for alleged war crimes in Iraq looked to be moving forward. The Belgian law was eventually replaced entirely by a much more limited law on extraterritorial jurisdiction. German prosecutors have traditionally been extremely conservative in applying the Völkerstrafgesetzbuch law which gives German courts authority over the public international law crimes of genocide, crimes against humanity, and war crimes. This conservatism is clearly illustrated by the fact that German prosecutors have opened very few investigations and have not initiated a single prosecution. Canada passed the Crimes Against Humanity and War Crimes Act in order to meet domestic requirements imposed by its ratification of the ICC’s Rome Statute, and academics have argued that this gives the country an absolute universal jurisdiction statute to apply. The Canadian Department of Justice, however, has clearly indicated that any use of the law in Canada would fall under the conditional universal jurisdiction theory, requiring the accused to actually be present in Canada. Article 689-11 of the French Criminal Procedure Code allows for the prosecution of individuals indicted for crimes against humanity, war crimes, genocide, or serious breaches of the Geneva Conventions. It too, however, recognizes only conditional universal jurisdiction, requiring that the accused be “usually resident” in France. Standing alone as one of the last enforcers of absolute universal jurisdiction, the Spanish judiciary has maintained its authority via Article 23(4) of the Organic Law of the Judicial Branch to initiate prosecutions against any individual alleged to have violated public international law instruments to which Spain has subscribed.

A new non-binding resolution from the Congress of Deputies, Spain’s legislative lower house, is now pushing for a restriction on Article 23(4) that would require a clear connection to Spain and an absence of a current investigation in the domestic country in question. The restrictions, which seem to have support in the legislative branch of Spain’s government, would reduce Spain’s procedural rule allowing for open-ended investigations of violations of public international law to a more traditional conditional universal jurisdiction provision. As the opposition Popular Party presented the resolution and Spain’s governing Socialist Party has previously indicated their favor in limiting Spanish courts’ active use of the universal jurisdiction principle, it seems likely that the law will eventually come into effect.

Human rights groups have strongly protested the move, alleging that any restriction on the Spanish judiciary’s ability to pursue these cases will result in an increase in impunity for human rights abusers. As a strong proponent of international criminal justice, I share their concern, but as a legal scholar, I think there is validity in asking whether this is actually a step backwards in international criminal law, or simply the ending of an evolutionary offshoot that served its purpose and is now dying out from lack of need. Despite claims to the contrary, changing the Spanish law would not end the use of universal jurisdiction. By Amnesty International’s own count, over 125 nations have some type of conditional universal jurisdiction over human rights abuses. Advocates' greatest worry appears to be that the Spanish court is the one that makes the news regularly and puts the issue in the public spotlight, often forcing governments to take some type of political action, if only to avoid having Spain issue an arrest warrant for the individual in question.

While publicity about impunity for international human rights abuses is important, international criminal law is evolving in its own right along a more unified path with the growth of the ICC. There are arguments in
favor of seeing a reduction in absolute domestic universal jurisdiction statutes as we move along that path. While Spain’s prosecutions do generate media attention on human rights issues and can prompt government action, it logically follows that a push for all nations to adopt absolute universal jurisdiction legislation would result in a much more confused situation where multiple states, at the discretion of judges or prosecutors, could pursue criminal proceedings against alleged human rights abuses.

On the surface, this doesn’t seem like a bad idea, but one of the strongest and perhaps longest lasting objections to the ICC is the fear that prosecutions would become motivated by political goals rather than an actual desire for justice. That potential for political abuse of international criminal law is exponentially increased in a world where dozens of nations can exercise absolute universal jurisdiction at their own discretion. The ICC has repeatedly demonstrated its ability to resist such political calls, both from the UN and from outside actors, and it is more reasonable to expect governments around the world to develop an institutional trust in the ICC than it is for them to accept the prosecution of their own citizens, let alone their former leaders, by other domestic systems.

In addition, there is a strong argument that the international community needs to work together to address the not-insignificant challenges facing international criminal law and the ICC. Encouraging the proliferation of absolute universal jurisdiction legislation would have the effect of splintering efforts in holding international wrongdoers accountable for their actions, rather than uniting the international community behind a common system, a common organization, and a common goal.

The challenges facing advocates seeking an end to all impunity for human rights abusers require nations to act together. Spain by itself will never be the reason that individuals fear to perpetrate human rights abuses. Neither will a dozen or even a hundred nations with similar statutes, each acting alone. Only when the entire international community makes it clear that, regardless of a perpetrator's position or office, genocide, crimes against humanity, and war crimes are unacceptable, and agrees to enforce that stance through the ICC, will the possibility of impunity dwindle. And perhaps for that to happen, absolute universal jurisdiction rules must go the way of the dodo and make room for new evolutionary developments in international criminal law.

Wes Rist is an Adjunct Professor and Assistant Director of the Center for International Legal Education at the University of Pittsburgh School of Law. He was a member of JURIST's student staff from 2004-2006, and served as JURIST's International Law editor from 2005-2006.
——–