Universal Jurisdiction After Pinochet: Prospects and Perils Diane F. Orentlicher Professor of International Law and Director of the War Crimes Research Office Washington College of Law American University Washington, D.C. This paper was presented at UC Irvine on February 21, 2003, as part of the Symposium Series "Prosecuting Perpetrators: International Accountability for War Crimes and Human Rights Abuses."
Universal Jurisdiction Mter Pinochet: Prospects and Perils. Diane F. Orentlicher Several years ago on a quiet weekend morning, I was heading out the door to catch an overseas flight when the telephone rang. The caller was a reporter with the New Yark Times who was about to catch his own flight from Argentina to Chile. Augusto Pinochet had just been anested in England in connection with human rights violations committed decades earlier, while he was president of Chile, The reporter had just one question: "How is this possible?" Surely, he thought, Pinochet's an-est violates intemationa1law. How, after all, could a fonder head of state be aitested by another government on charges relating to how he governed his own country? Making matters more confounding, British police had arrested Pinochet at the request of a Spanish judge, Baltasar Garz6n, who for some time had been investigating the former Chilean president. Until Pinochet's arrest in England, Garz6n's investigation had seemed nothing if not quixotic In an instant, however, what had long been unthinkable became precedent. An obscure legal concept with an ungainly name - universal jurisdiction - ended its long exile in the musty precincts of legal trivia, where it had languished largely unnoticed since Israel's prosecution of Adolf Eichmann in 1961. Now, universal jurisdiction was a political and legal reality-and it became a white hot subject of global controversy. In my remarks this afternoon, I would like to share with you some thoughts about the controversies sultounding universal jurisdiction as they have evolved since General Pinochet's *@ 2003 by Diane F. Orentlicher. 1
arrest in England four years ago. First, however, a working definition may be in order. In brief, the principle of universal jurisdiction allows any state to prosecute individuals who are believed to have committed certain international crimes, even if the prosecuting state has no link to the crime in question other than the bonds of common humanity. In an earlier time, the principle applied to crimes of piracy and participation in the slave trade. After World War ll, it was extended to a small number of offenses against the basic code of humanity, such as genocide and serious war crimes Until recently, states actually exercised this extraordinary jurisdiction quite rarely, and then mainly against Nazi war criminals. This began to change in the years leading up to the arrest of General Pinochet. Several countries in Europe had begun to exercise universal jurisdiction in respect of atrocities committed in the Balkans and Rwanda, but the suspects were typically low-level perpetrators who had sought sanctuary in the prosecuting state. None of these prosecutions had reached as high as a former head of state - not even close. And so the arrest of Pinochet changed everything. It was a moment when international law seemed to plunge forward rather than advance at its more usual lumbering pace. Indeed, the case transfonned the landscape of international law and practice in respect of universal jurisdiction, This transformation has three principal features. First, the case opened up new possibilities for holding traveling dictators to account for their crimes. The very act that at first seemed so stunning - the arrest of General Pinochet by British authorities - shattered legal and psychological baniers. Public opinion quickly accommodated itself to the new reality. The Emperor could be altested - and so, why not extradited to Spain to stand trial? The new logic
quickly took hold even within England's conservative judiciary. To no one's surprise, the first British court to role on Pinochet's amenability to legal process found the former Chilean leader immune from criminal process. But to the astonishment of many, its ruling was soon reversed, and Pinochet was eventually found liable to extradition to Spain to face trial on certain charges of torture. Although ill health ultimately ended Pinochet's legal ordeal, the judicial rulings in London inspired human rights activists to press other cases against traveling dictators. In the immediate aftermath ofpinochet's arrest, further triumphs seemed to pile up for proponents of universal jurisdiction. Inspired by the "Pinochet precedent," human rights victims and their advocates filed a criminal complaint against former Chadian dictator Hissene Habre in Senegal in late January 1999. One week later, a Senegalese investigating judge indicted Habre. Although this case was later dismissed (a point I will come back to). proceedings against Habre have gone forward in Belgium, which has become the world capital of universal jurisdiction. Last November, Danish police attested General Nizar Khazraji, the former Chief of Staff of the Iraqi army. Relying on universal jurisdiction, Danish authorities brought war crimes charges against Khazraji, who commanded the Iraqi Anned Forces when they used chemical weapons against Iranian troops and Kurdish civilians.! Meanwhile, other cases based on universal jurisdiction have broken new ground. In June 2001 a Belgian jury convicted four Rwandans for their roles in the 1994 genocide in Rwanda. Universal jurisdiction has received another boost from the recent establishment of a ISee Richard Beeston, "War crimes arrest blow to Iraqi opposition," The Times (London), Nov. 20, 2002. 3
pennanent international criminal court, or "ICC". Some countries that are parties to the Court's statute have enacted domestic implementing legislation that includes provisions which allow their national courts to exercise universal jurisdiction over crimes that can also be prosecuted before the ICC. More generally, the work during the past decade of two UN tribunals for the Balkans and Rwanda, along with the recent creation of the ICC, helped foster a contemporary zeitgeist conducive to the exercise of universal jurisdiction. So far, I have noted various ways in which the space for universal jurisdiction that was opened up by British judges has expanded in the years since Pinochet's legal odyssey in England. But a second defining feature of post-pinochet developments is largely antithetical to the trends I have just described. It can be described in a word: backlash The arrest of General Pinochet set in train something akin to a battle for the soul of international law - or at any rate, over bedrock principles of international law The outcome of legal proceedings against Pinochet represented a tectonic shift in the basic ground rules of global politics, which had long affirmed principles of mutual restraint and deference in interstate relations. While human rights advocates and victims have celebrated this development, governments have rallied to reaffirm their sovereign prerogatives Other critics have challenged the legitimacy of universal jurisdiction on grounds relating to democratic values. In the wake ofpinochet's arrest in England, an American critic denounced the proceedings on the grounds that, "Morally and politically, what Pinochet's regime did or did not do is primarily a question for Chile to resolve.,,2 Had British authorities extradited Pinochet 2prepared Testimony of John R. Bolton, Senior Vice President, American Enterprise Institute, Before the House Committee on International Relations, Hearing on H.R.4654, American Servicemembers' Protection Act, July 25, 2000. 4
to Spain, he argued, "a Spanish magistrate operating completely outside the Chilean system will effectively have imposed his will on the Chilean people. One is sorely tempted to ask: Who elected him?,,3 Also, some worry whether the courts of bystander states have either the wisdom or resources to pass fair judgment on crimes committed a world away. Controversy over universal jurisdiction has only intensified in recent years, though the central battleground has shifted from London to Brussels, with a brief layover in The Hague. Last year, the International Court of Justice in The Hague - better known as the World Courtentered the fray, ruling that Belgium's attempt to prosecute the incumbent foreign minister of Congo, an exercise of universal jurisdiction, violated rules of intemationallaw concerning the official immunity of an incumbent foreign minister. On its face, the decision in Democratic Republic of Congo v. Belgium4 did not entail a head-on clash with principles established in the Pinochet case. In fact, the British judges who opened the way for Pinochet's extradition to Spain had no doubt that Pinochet's immunity would have been ironclad if he were still president of Chile. The decision of the World Court merely confinned the British judges' view that at least certain incumbent senior officials enjoy broad immunity from the legal process of other states But to leave the matter here would miss the broader significance of the World Court's ruling. If nothing else, the decision sent a strong message that universal jurisdiction has its. limits. In some circumstances, the ruling made clear, the exercise of universal jurisdiction might even violate international law. In fact, the Court held, Belgium had violated international law by 3Id. 4 Arrest Warrant of 11 April 200 (Dem. Congo v. Belg.) (Int' I Ct. Justice, Feb. 14, 2002). 5
issuing an international arrest warrant against an incumbent foreign minister of another state. Parenthetically, the World Court was able to side-step the thorny issue whether Belgium's exercise of universal jurisdiction was itself a violation of international law. Although Congo had originally laid this issue before the Court, it later withdrew this claim. And so the case before the World Court went forward only on the issue of official immunity. Still, a number of judges expressed their views on universal jurisdiction in separate opinions. What was striking was the wide range of views concerning universal jurisdiction expressed by these judges. Although these ruminations are not legally binding, they highlight the lack of contemporary consensus on the contours of universal jurisdiction, even among judges on the International Court of Justice. The decision in Congo v. Belgium was hardly the only indication that the Pinochet case had triggered efforts to define and enforce limits on the exercise of universal jurisdiction Seventeen months after former Chadian leader Hissene Habre was indicted in Senegal, the charges against him were dismissed in July 2000. Since then, however, parallel proceedings against Habrehave moved forward in Belgium. Last year, a Belgian investigating judge caitied his investigation of Habre to Chad. In October 2002, the government of Chad notified Belgium that it was waiving Habre's immunity from prosecution in Belgian courts. The most contentious case since Pinochet has been Belgium's investigation of Israeli Prime Minister Ariel Sharon and others for their roles in the 1982 massacres in Sabra and Shatila. The case was triggered by a complaint lodged in June 2001 by twenty-three survivors of the massacre. Recent developments in this case highlight key issues left unresolved by the Pinochet case. Last June a Belgian appeals court ruled that the case against Sharon and other Israeli and Lebanese suspects could not go forward because the accused "were not present on 6
Belgian soil." In response, the Belgian legislature took up proposals to amend the country's law; one of the amendments reportedly would allow suspected war criminals to be tried "no matter where the person accused of the crime is located."s In the meantime, the United States inserted itself into the Belgian tempest. Early last month, Attorney General John Ashcroft expressed "concern" in talks with Belgium's Justice Minister over his country's "universal competence law. " According to a report by Agence France-Presse, the United States "fears that the modified law could lead to legal action against its citizens, including soldiers and even politicalleaders."6 Before the legislative proposals were finalized, Belgium's highest court ruled last week that the case against Sharon could go folward once his tenn as Prime Minister ended, though not as long as he enjoyed the immunity of his office.,7 Like other decisions in high-profile cases based on universal jurisdiction, the ruling was polarizing. Human rights organizations called it a "landmark step for international law,"8 while Israeli authorities denounced the decision as a "blood libel" against the Jewish people and recalled the new Israeli Ambassador to Belgium just S"Belgium opens way for Sharon trial," BBC Online News Report, Jan. 15,2003; Yossi Melman, "Belgium amending law to enable Sharon trial," Ha'aretz, Jan. 16,2003. 6"US presses Belgium over law on pursuing foreigners: report," Agence France-Press, Jan. 11, 2003. 7Marlise Simons, "Sharon Faces Belgian Trial MterTerm Ends," The New York Times, Feb. 13, 2003. SHuman Rights Watch, "Belgian Ruling Key Precedent for Human Rights; Green-lights Case against ex-chad Dictator," Feb. 13,2003. 7
before he was to present his credentials.9 It is not surprising that officials of other states oppose Belgium's law; after all, Belgian prosecutors have set their sights on senior foreign officials the world over, including the leaders of Cuba, Iraq, the Ivory Coast and the Palestinian Authority. But it is not only executive officials who have misgivings about the exercise of universal jurisdiction. In an eloquent contribution to a forthcoming collection of essays exploring universal jurisdiction, Australian High Court Justice Michael Kirby explains why even judges inclined to advance human rights through the common law are cautious when it comes to universal jurisdiction. His essay makes clear that their hesitation stems not from hostility to principles of accountability but rather their fidelity to the rule of law and democratic values. Let me share with you just a few grounds for hesitation mentioned by Justice Kirby. First is the natural inclination of a judge who is asked to assert jurisdiction over crimes that have no natural link to her country to wonder, "Why my court? Why not theirs?"lo This inclination stems in part from the belief that "crime is by its definition an offence against the society in which it occurs."ll This instinct is not a matter of myopic self-regard; rather, it reflects what Justice Kirby calls "a proper sense of inhibition in intruding into an area that can readily be 9Conol Urquhart, "Israel Scorns 'anti-semitic little Belgium'; Furious backlash after court rules against Sharon," The Guardian, Feb. 14,2003; James Bennet, "Israel Rejects Belgian Court Ruling on Sharon," The New York Times, Feb. 14,2003; Marc Perelman, "Israel Seeks to Counter Belgian 'War Crimes' Ruling," The Forward, Feb. 20,2003. l~chael Kirby, Universal Jurisdiction and Judicial Reluctance: A New" Fourteen Points", in UNNERSAL JURISDICflON: NATIONAL COURTS AND THE PROSECUTION OF INTERNAllONAL CRIMES [ms p. 9] (Stephen J. Macedo, ed.) (Univ. of Pennsylvania Press, forthcoming). II/d. [ms. p. 18] 8
perceived as primarily the concern of the institutions (including the courts) of the country most concerned."12 To my mind, this sensibility reflects a proper regard for principles of selfgovernment by the community most affected by atrocious crimes. On the other side of this regard for democratic legitimacy is a keen awareness by national judges, at least those who operate within the framework of a democratic tradition, that they were appointed or elected to serve a particular community - the community in whose territory they render judgement. It is from that community that judges derive their legitimacy to exercise jurisdiction. Let me move on, finally, to a third distinctive feature of post-pinochet developments. In recent years challenges of another sort have arisen by virtue of a new phenomenon - the proliferation and diversification of courts empowered to enforce humanitarian law. This development presents novel questions about which court should receive priority when more than one is able and willing to prosecute atrocious crimes. Earlier I mentioned the new international criminal court, or "ICC." As many of you know, the ICC fonnally came into existence last July. Its judges were elected this month, and they will be sworn in on March 11 With the ICC nearly open for business, we can soon expect to see situations arise in which the same crime could be prosecuted before both the ICC and national courts exercising universal jurisdiction. Although the statute of the ICC has something to say about the allocation of jurisdiction in these cases, key issues remain to be detennined. In this regard, I was interested to see that a former prosecutor for the UN tribunals for the former Yugoslavia and Rwanda, Justice Louis Arbour, recently suggested that the ICC statute "is a call 12Id. [IDS. p. 37] 9
for the fullest exercise of States of their own international criminal jurisdiction."13 Yet the Belgian legislation I mentioned earlier, which has already been approved by the Belgian Senate and is expected to be adopted soon by the Chamber of Deputies, would acknowledge the preeminence of the ICC with respecto crimes committed after July 1,2003, the day that the Court's jurisdictional clock started ticking. While international tribunals are the most visible manifestation of global justice, a new breed of court has entered the legal landscape - hybrid courts fashioned from national and international elements. Ironically, the prototype for this new generation of courts emerged in negotiations that have so far been unsuccessful. For five years, the United Nations and the government of Cambodia have been involved in negotiations aimed at creating a mixed tribunal to bring to justice surviving leaders of the murderous Khmer Rouge. In July 2000, the UN and Cambodia reached broad agreemento establish a court under Cambodian law that would apply a combination of domestic and international law. The court would be composed of both Cambodian and foreign judges and prosecutors, the latter based on nominations by the UN Secretary-General, Last February, the United Nations abruptly withdrew from the talks, having concluded that, ''as currently envisaged, the Cambodian court would not guarantee independence, impartiality and objectivity, which is required by the United Nations for it to cooperate with such a COurt.,,14 But after receiving a nudge from the General Assembly last December, the UN held 13Remarks by the Honourable Louise Arbour, Justice of the Supreme Court of Canada, "Waging War Lawfully: Who Will Enforce the Law?," Georgetown University, Feb. 5,2003. 14Seth Mydans, "U.N. Ends Cambodia Talks on Trials for Khmer Rouge," The New York Times, Feb. 9, 2002. 10
exploratory talks with Cambodia last month Although the Cambodian negotiations have repeatedly bogged down, they succeeded in launching an idea that has struck fertile soil. Apparently inspired by the Cambodian model, the UN established another form of hybrid court in 2000, while it was administering East Timor during a transitional period before the territory became independent. A special panel of judges in Dili has exclusive jurisdiction over serious crimes, which include specified crimes under both international and domestic law.ls Each of these panels must include one East Timorese judge and two "internationals." The lead prosecutor for serious crimes is also a foreigner, though her staff now includes East Timorese lawyers. In this way, the UN has sought to build local capacity while it pursues justice for victims of serious crimes. The UN has also established and administered hybrid courts in another post-conflict region, Kosovo. There is one more hybrid court, which appears to have gotten off to a solid start. In January 2002 the United Nations concluded an agreement with the government of Sierra Leone to establish a court "of mixed jurisdiction and composition.,,16 Like the other hybrid courts I have mentioned, the Special Court for Sierra Leone has jurisdiction over a combination of international and domestic crimes.17 Although the Special Court is based in Sierra Leone, a lssee UNTAET Regulation No. 2000/11, 10 (entered into force Mar. 6, 2000). 16Report of the Secretary-General on the establishment of a Special Court for Sierra Leone, UN Doc. S/2000/915, If 9 (2000). 17 Articles 2 through 4 of the court's statute establish jurisdiction over crimes against humanity, several specified violations ofintemational humanitarian law, and crimes that involve attacking the personnel or property of peacekeeping and humanitarian assistance operations. Article 5 establishes jurisdiction over certain offenses under Sierra Leonean law. The Special Court has jurisdiction only with respecto offenses committed in Sierra Leone since November 30, 1996. See Statute of the Special Court for Sierra Leone, art. 1(1). 11
majority of its judges, its Prosecutor, and its Registrar were appointed by the UN Secretary- General. The Government of Sierra Leone appointed the remaining judges, who did not have to be nationals of SielTa Leone; one, in fact, is a native of Australia who has long practiced in England. 18 The Prosecutor, a US national, took up his post in August; in early December 2002, the judges were sworn into office. The developments I have mentioned are the key components of a new system of justiceacross-borders that is now taking shape. And the transformation is quite remarkable. For decades, human rights advocates lamented the absence of an international tribunal, as well as states' passivity when it came to punishing crimes against the basic code of humanity. And so the developments I have just described present a challenge that long seemed unimaginable - the challenge of choosing among a diverse and growing repertoire of courts newly willing and able to bring wrongdoers to account. How, then, are we to proceed in light of the challenges I have mentioned? First, I believe there is an urgent need to develop principles that would provide greater guidance about which court should have first dibs in prosecuting atrocious crimes when more than one forum is available. Earlier I noted that it is not entirely clear which court would have priority if both the ICC and a state exercising universal jurisdiction wished to prosecute the same case. And so I would suggesthat, as the new ICC judges and prosecutor set about defining the 18Statute of the Special Court for Sierra Leone, art. 12(1). The judge appointed by the government of Sierra Leone to serve on the three-member trial chamber is former High Court Justice Bankole Thompson. The government's two nominees to sit on the five-judge appeals chamber are former Sierra Leonean Supreme Court Justice Gelaga King and Geoffrey Robertson, an Australian native. UN News Centre, "Annan, Sierra Leone appoint experienced judges for country's special war crimes court," July 25, 2002. 12
basic ground rules for the Court, they may wish to develop principles that define the proper division of responsibility between the ICC on the one hand, and states exercising universal jurisdiction on the other. More broadly, far greater thought needs to be given by far more people to the question of where atrocious crimes should be prosecuted - and how,19 It is no longer fanciful to suppose that more than one state, international court, or hybrid tribunal may seek to prosecute the same offense. It has already happened. In this setting, we need a principled approach for choosing among the various fora. Besides, some choices require a considerable commitment of resources. And so we had better get clear which options we prefer so that we can do what is needed to ensure their success. I am thinking in particular of the hybrid courts I mentioned earlier. I find this model quite appealing, but it is also fraught with risk. By bringing justice home, the new breed of mixed tribunals can contribute more effectively to national processes of reckoning with mass atrocity than the remote justice dispensed in The Hague and Arusha or by national courts exercising universal jurisdiction. Also, by including national judges, prosecutors and staff, the mixed tribunals can bolster the rule of law in countries whose judicial system has been decimated. But the advantages of these tribunals can be realized only if we do the job right. With the possible exception of the Special Court for Sierra Leone, mixed tribunals have so far fallen short of their full potential 19One effort in this direction, in which I participated, was undertaken by the Princeton Project on Universal Jurisdiction. Under its auspices, a group of international jurists produced the Princeton Principles on Universal Jurisdiction. The principles, which are available at httd://www.drinceton.edu/-lada/unive ~iur.qqf, provide guidance on various issues relating to the exercise of universal jurisdiction. 13
Finally, I believe that it is essential that the debate about these and other issues relating to universal jurisdiction become far more inclusive than it has been to date. The questions I have touched upon in my remarks this afternoon have been addressed in earnest by a rather exclusive cast of characters. They include, on one side of the debate, human rights advocates who for the most part have pressed a maximalist agenda: The more universal jurisdiction, the better. Arrayed against them have been government officials and other critics who have a hard time imagining a hypothetical exercise of universal jurisdiction they would support. Unfortunately, the debate has largely unfolded without the engaged participation of those occupying a principled middle ground. There have been few honest brokers - though fortunately there have been some, like Justice Kirby of Australia. Small wonder, then, that the debate about universal jurisdiction is still as polarized as it was four and a half years ago, when an astonished world learned that General Pinochet was arrested in England. In this setting, the apparently stunning triumphs of the human rights movement may in fact be rather vulnerable, for they have not been built on the solid foundation of a genuine consensus. And so the task today is to develop principled guidelines for the exercise of universal jurisdiction that enjoy a broad and deep consensus,these issues must not remain the exclusive preserve of so-called "experts." I thank you for the opportunity to share these thoughts with you this afternoon. 14