Lessons Learned from the Exercise of Universal Jurisdiction in Respect of Gross Human Rights Offenses

I. Introduction

On 11 April 2000, Belgian investigating magistrate Damien Vandermeersch signed an arrest warrant against the Foreign Minister of the Democratic Republic of the Congo, Abdulaye Yerodia Ndombasi. The warrant alleged that in August 1998 Mr. Yerodia had committed grave violations of international humanitarian law by publicly referring to members of the Tutsi ethnic group as "vermin" and calling for their "extermination." On 17 October 2000, Congo responded by bringing proceedings against Belgium before the International Court of Justice in The Hague. In its application Congo asserted that the action taken by the Belgian magistrate represented interference in its internal affairs and that it was incompatible with the diplomatic immunity of its Foreign Minister. The application was accompanied by a request for the indication of a provisional measure. ¹

The attempt to bring the Congolese Foreign Minister before a Belgian court in connection with crimes allegedly committed against Congolese nationals in Congo is the most spectacular example yet of the increasing willingness of domestic judicial authorities to bring proceedings against gross human rights offenders on the basis of universal jurisdiction. Much has changed since the then Legal Adviser of the International Committee of the Red Cross wrote in 1986 that universal jurisdiction was of "no practical value" for war crime trials. ² During the past seven years, ten perpetrators of gross human rights offenses in the former Yugoslavia and Rwanda (including several perpetrators of genocide) were successfully brought to trial and convicted on the basis of universal jurisdiction in Belgium, Denmark, Germany, and Switzerland. Proceedings on the basis of universal jurisdiction not (yet) resulting in convictions were also brought in Austria, France, the Netherlands, Senegal, Spain, and the United Kingdom in respect of crimes committed in Chad, Chile, Mauritania, Rwanda, Sudan, and Yugoslavia. ³ In other words, after decades in which the principle of universal jurisdiction for gross human rights offenses laid dormant in treaty provisions, it is beginning to move to center stage.

Circumstances which contributed to this development probably include widespread public concern about the atrocities committed in the former Yugoslavia and Rwanda; the increasing effectiveness of the International Criminal Tribunals for the former Yugoslavia (ICTY) and Rwanda (ICTR); and the establishment of the International Criminal Court (ICC). Partly in response to Security Council decisions under Chapter VII of the UN Charter and partly in response to the adoption of the Statute of the ICC a growing number of states have adopted implementing legislation specifically enabling them to bring persons to trial on the basis of universal jurisdiction. The successful example set by the ICTY and ICTR in bringing perpetrators to justice is likely to have inspired and given courage to domestic prosecutors.

Nevertheless, the exercise of universal jurisdiction in respect of gross human rights offenses raises a series of legal and practical problems that have hardly begun to be considered. The purpose of this article is to take stock of the case law so far, to identify the difficulties that have arisen, and to consider how they might be overcome.

II. What is Universal Jurisdiction?

Under the principle of universal jurisdiction a state is entitled or even required to bring proceedings in respect of certain serious crimes, irrespective of the location of the crime, and irrespective of the nationality of the perpetrator or the victim. ⁴ This paper is concerned with jurisdiction to adjudicate, specifically the exercise of criminal jurisdiction by domestic courts in respect of gross human rights offenses. It does not cover enforcement jurisdiction or the exercise of jurisdiction for the purpose of obtaining civil law remedies. ⁵ The term "gross human rights offences" is employed as shorthand for certain serious violations of international humanitarian law and international human rights law that qualify as crimes under international law.

It follows from this definition that, with one or two exceptions, the post- Second World War...