Closing the Impunity Gap: Universal Jurisdiction and the Crime of Crimes

Panagiotis Diamantis

Genocide involves the commission of heinous, revolting, and atrocious acts with the intent to destroy a group of people in whole or in part.[1] Genocide ‘defies universal conscience’[2] and this is why it is often described as ‘the crime of crimes’.[3] The prosecution of genocide not only ensures the attribution of individual criminal accountability but also paves the way for reconciliation.[4] However, prosecutions often face various substantive, procedural, and jurisdictional hurdles leading to an impunity gap. It has been observed that ‘historically, its [genocide’s] perpetrators were above the law’.[5] Domestic courts of states where genocide took place and international courts often fail to prosecute génocidaires effectively. This article argues that an expansion of universal jurisdiction prosecutions can contribute to fighting impunity. The article examines (i)the relationship between universal jurisdiction and genocide, (ii)why universal jurisdiction is a better alternative, and (iii) assesses its legitimacy. 

Universal Jurisdiction and Genocide

Universal jurisdiction is a type of prescriptive jurisdiction asserted when there is no recognised link with the crime at the time of its commission.[6] The rationale is that some crimes are from their nature so heinous that shock the consciousness of humanity and therefore their perpetrators should not escape criminal liability.[7] The perpetrators are hostes humanis generis and hence all states are legitimised to suppress them.[8] Thus, the heinous nature of the crime justifies the assertion of jurisdiction and there is no need for any additional nexus of the prescribing state with the crime such as territoriality, passive or active personality, the effects principle, or the protective principle.

Article VI of the Genocide Convention grants adjudicatory jurisdiction to the state where genocide was committed or to a competent international tribunal. The Convention uses the word ‘or’ in conjunction with the word ‘shall’, which suggests that only one of these two options is permitted. Hence, a grammatical interpretation of the Convention would preclude universal jurisdiction trials. However, a reading of the travaux préparatoires reveals no intention of the parties to prohibit universal jurisdiction.[9] Through a teleological interpretation, Article VI should be interpreted as merely permissive and not precluding the possibility of universal jurisdiction prosecutions.[10] This is because the Genocide Convention has ‘an absolute requirement of punishment’ under Article IV.[11] By examining the Convention’s purpose and object, which is to absolutely punish genocide, Article VI should not be interpreted restrictively as being prohibitive of additional jurisdictional bases.[12] This was also confirmed by the International Court of Justice in the Bosnian Genocide case, where it found that states can assert jurisdiction for genocide on grounds other than territoriality.[13] Similarly, the International Criminal Tribunal for Rwanda reaffirmed that states can prosecute genocide ‘in application of the principle of universal jurisdiction’.[14]

Moreover, state practice also supports this interpretation. For instance, German courts have interpreted Article VI as ‘non-exclusive’.[15] Israel has asserted universal jurisdiction for genocide in the Eichman trial.[16] Spain has also investigated complaints for genocide committed in Tibet.[17]  Hence, according to Article 31(3)(b) of the Vienna Convention on the Law of Treaties, an examination of the subsequent practice of the treaty’s application would favour an expansive and permissive interpretation of Article VI.

A Better Alternative?

Having established that universal jurisdiction is permitted, the article will now turn to why universal jurisdiction can ensure greater accountability. To understand the suitability of universal jurisdiction, it is important to consider the nature of genocide. As Adanan rightly points out ‘the political nature of the crime mean(s) that it may not be prosecuted’ which creates an ‘impunity gap’. [18] Schabas concurs that genocide is almost invariably committed ‘at the behest and with the complicity of those in power’.[19] Therefore, genocide’s political nature often impedes prosecutions.

At the domestic level, national courts are unlikely to institute proceedings against their nationals – especially if they hold high office.[20] Domestic prosecutions usually occur only after a regime change. However, depending on new regimes to initiate prosecutions, which could also be politically motivated and give rise to due process concerns, is a precarious accountability mechanism. This was the case in post-genocide Rwanda, where national prosecutions were criticised for violating due process standards and being influenced by politics.[21] Moreover, the aftermath of genocide often finds states emerging from civil wars or unrest and plunged into political and economic instability and disarray. [22] Under these circumstances, there might not be a stable and competent judicial system capable of effectively carrying out these prosecutions.

Similarly, power dynamics affect the function of international courts. Rudolph opines that the International Criminal Court (ICC) treats with ‘institutional pragmatism’ and much greater caution cases involving ‘strategic interests’.[23] This one-sidedness of international courts has created a backlash, especially among African states, which contend that they are selectively targeted whilst perpetrators from more powerful nations remain unpunished. This has led to a growing aversion towards the ICC and countries such as Burundi have withdrawn from the Rome Statute.[24] Testament to the ICC’s favourable treatment of powerful nations is also its reluctance to proceed with prosecutions for crimes committed in Afghanistan and Iraq.[25]

Since both the domestic and international institutions are tainted by politics, third states might be better suited to provide an additional prosecutorial avenue when other means fail. However, it should be noted that universal jurisdiction is not a panacea. The prosecuting state could still face enforcement challenges with the most important one being securing the perpetrators’ extradition. Nevertheless, universal jurisdiction could still act as an additional accountability mechanism when international and domestic courts are unable or unwilling to prosecute. Moreover, through universal jurisdiction prosecutions, states can ensure that there are no safe havens for the perpetrators even if they are unable to secure an extradition.[26]

Legitimacy

This section will assess the criticism levelled at universal jurisdiction, which is often seen as biased, discriminatory, and selective.[27] Morris posits that there is a risk of prosecutions being ‘politically motivated’.[28] Universal jurisdiction has also been criticized as a tool of Western states that prosecute perpetrators from developing states by overstepping their powers and exercising a form of legal colonialism.[29]

However, this criticism seems misplaced if we closely examine how universal jurisdiction prosecutions are initiated. As Heller and Malagodi note many universal jurisdiction prosecutions are victim-driven and initiated ‘as a result of pressure from victims and victim-support groups’.[30] It should be conceded that European states practice universal jurisdiction more frequently. However, this can be attributed to displacement patterns.[31] Victims of international crimes often flee their country and attempt to initiate prosecutions in the countries where they have relocated. Lastly, victims and campaign groups may initiate strategic litigations in third states when other means fail.[32] Hence, universal jurisdiction trials are primarily victim-driven rather than a political tool used by more powerful states.

Moreover, as Langer and Eason observe universal jurisdiction is silently spreading in its geographical scope and is no longer solely practiced by Western states.[33] Therefore, it is fallacious to argue that universal jurisdiction is only practiced by Western states at the expense of other states. In reality, non-Western states are also initiating universal jurisdiction prosecutions. Notably, 37 African states have universal jurisdiction provisions in their domestic criminal law.[34]

Conclusion

Both domestic courts of the countries where genocide took place and international courts grapple to prosecute and punish genocide effectively resulting in an impunity gap. As they frequently struggle to overcome external political influence, power imbalances and lack of resources, third states can provide an alternative, yet, effective prosecutorial avenue when other means fail. Universal jurisdiction is primarily a victim-driven recourse to justice that can be used to increase accountability for genocide and ensure that there are no safe havens for génocidaires.

[1] Daniel Nsereko, ‘Genocide: A Crime Against Mankind’ in Gabrielle Kirk McDonald and Olivia Swaak-Goldman (edited), Substantive and Procedural Aspects of International Criminal Law: The Experience of International and National Courts (Volume I) (Kluwer Law International 2000) 118.

[2] Secretariat Draft E/447 (1947) Draft Convention for the Prevention and Punishment of Genocide.

[3] Prosecutor v Jean Kambanda (Judgment and Sentence) ICTR 97-23-S (4 September 1998) [16].

[4] Janine Natalya Clark, ‘ The “crime of crimes”: genocide, criminal trials and reconciliation’ (2012) 14(1) J Genocide Res 55.

[5] William Schabas, Genocide in International Law (2nd edition, CUP 2009) 18.

[6] Roger O’ Keefe, ‘Universal Jurisdiction – Clarifying the basic concept’ (2004) 2(3) JICJ 735, 745.

[7] Henry Kissinger, ‘The Pitfalls of Universal Jurisdiction’ 80(4) Foreign Aff 86.

[8] Chistopher Staker, ‘Jurisdiction’ in Malcom Evans (edited), International Law (5th edition, OUP 2018) 302.

[9] Christian Tams, Lars Berster, and Björn Schiffbauer, Convention on the Prevention and Punishment of the Crime of Genocide: A Commentary (Beck-Hart 2014) 252.

[10] William Schabas, ‘National Courts Finally Begin to Prosecute Genocide, the “Crime of Crimes”’ (2003) 1(1) JICJ 39, 57.

[11] Ibid (n 5).

[12] Anima Adanan, ‘Reflecting on the Genocide Convention in its Eighth Decade: How Universal Jurisdiction Developed over Genocide’ (2021) 19(5) JICJ 1039, 1048.

[13] Case Concerning the Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v Serbia and Montenegro) [2007] ICJ Rep, [442].

[14] Prosecutor v Ntuyahaga, ICTR-98-40-T, Decision on the Prosecutor's Motion to Withdraw the Indictment (18 March 1999).

[15] Nikolai Jorgic´, Oberlandesgericht Düsseldorf [Higher Regional Court, Düsseldorf], 26 September 1997, IV–26/96.

[16] Attorney General of the Government of Israel v Eichmann (1968), Israel Supreme Court, 36 ILR 18.

[17] Juzgado Central de Instrucción nº 2, Audiencia Nacional, Seccion 4' de la Sala de lo Penal, decision of 10 January 2006, Rollo de Apelación nº 196/05.

[18] Ibid (n 12) 1040.

[19] Ibid (n 5).

[20] Louis Rene Beres, ‘Genocide, Law and Power Politics’ (1988) 10 Whitter L Rev 329, 342.

[21] Nicola Palmer, Courts in Conflict: Interpreting the Layers of Justice in Post-Genocide Rwanda (OUP 2015) 96; Amnesty International, “Rwanda—The Troubled Course of Justice” (Report) (April 2000) AI-Index AFR 47/10/00.

[22] Joseph Yav Katshung , ‘Prosecution of Grave Violations of Human Rights in Light of Challenges of National Courts and the International Criminal Court: The Congolese Dilemma’ (2006) 7 Hum Rights Rev 5,12.

[23] Christopher Rudolph, Power and Principle: The Politics of International Criminal Courts (Cornel University Press 2017) 115.

[24] Konstantinos Magliveras, ‘The Withdrawal of African States from the ICC: Good, Bad or Irrelevant?’ (2019) 66 NILR 419.

[25] Jonathan Hafetz, ‘Fairness, Legitimacy, and Selection Decision in International Criminal Law’ (2017) 50(5) Vand JTL 1133, 1142.

[26] Máximo Langer, ‘Universal Jurisdiction is not Disappearing: The Shift from “Global Enforcer” to “No Safe Haven” Universal Jurisdiction’ (2015) 13(2) JICJ 245.

[27] Natalie Rosen, ‘Evaluating the Practice of Universal Jurisdiction Through the Concept of Legitimacy’ (2021) JICJ 1067, 1091.

[28] Madeline Morris, ‘Universal Jurisdiction in a Divided World: Conference Remarks’ (2001) 35(2) New Eng L Rev 337, 338.

[29] Harmer van der Wilt, ‘Universal Jurisdiction under Attack’ (2011) 9 JICJ 1043.

[30] Devika Hovell and Mara Malagodi, ‘Universal Jurisdiction: Law out of Context’ (2024) 84(6) MLR1480, 1487-1488.

[31] Máximo Langer and Mackenzie Eason, ‘The Quiet Expansion of Universal Jurisdiction’ (2019) 30 EJIL 779.

[32] Brianne McGonigle Leyh, ‘Using Strategic Litigation and Universal Jurisdiction to Advance Accountability for Serious International Crimes’ (2022) 16(3) IJTJ 363.

[33] Ibid (n 31).

[34] Amnesty International, ‘Universal Jurisdiction: A Preliminary Survey of Legislation Around The World – 2012 Update’  (Report) (October 2012) IOR 53/019/2012, 16-21.

Bibliography

Cases

Attorney General of the Government of Israel v Eichmann (1968), Israel Supreme Court, 36 ILR 18

Case Concerning the Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v Serbia and Montenegro) [2007] ICJ Rep

Juzgado Central de Instrucción nº 2, Audiencia Nacional, Seccion 4' de la Sala de lo Penal, decision of 10 January 2006, Rollo de Apelación nº 196/05

Nikolai Jorgic´, Oberlandesgericht Düsseldorf [Higher Regional Court, Düsseldorf], 26 September 1997, IV–26/96

Prosecutor v Jean Kambanda (Judgment and Sentence) ICTR 97-23-S (4 September 1998)

Prosecutor v Ntuyahaga, ICTR-98-40-T, Decision on the Prosecutor's Motion to Withdraw the Indictment (18 March 1999)

Legislation

Convention on the Prevention and Punishment of the Crime of Genocide, UNGA Res 260 A (III) (9 December 1948)

Secretariat Draft E/447 (1947) Draft Convention for the Prevention and Punishment of Genocide

Articles

Adanan A, ‘Reflecting on the Genocide Convention in its Eighth Decade: How Universal Jurisdiction Developed over Genocide’ (2021) 19(5) JICJ 1039

Beres LR, ‘Genocide, Law and Power Politics’ (1988) 10 Whitter L Rev 329

Clark JN, ‘ The “crime of crimes”: genocide, criminal trials and reconciliation’ (2012) 14(1) J Genocide Res 55

Hafetz J, ‘Fairness, Legitimacy, and Selection Decision in International Criminal Law’ (2017) 50(5) Vand JTL1133

Hovell D and Malagodi M, ‘Universal Jurisdiction: Law out of Context’ (2024) 84(6) MLR1480

Kissinger H, ‘The Pitfalls of Universal Jurisdiction’ 80(4) Foreign Aff 86

Langer M and Eason M, ‘The Quiet Expansion of Universal Jurisdiction’ (2019) 30 EJIL 779

Langer M, ‘Universal Jurisdiction is not Disappearing: The Shift from “Global Enforcer” to “No Safe Haven” Universal Jurisdiction’ (2015) 13(2) JICJ 245

Magliveras K, ‘The Withdrawal of African States from the ICC: Good, Bad or Irrelevant?’ (2019) 66 NILR 419

McGonigle Leyh B, ‘Using Strategic Litigation and Universal Jurisdiction to Advance Accountability for Serious International Crimes’ (2022) 16(3) IJTJ 363

Morris M, ‘Universal Jurisdiction in a Divided World: Conference Remarks’ (2001) 35(2) N Eng L Rev 337

O’ Keefe R, ‘Universal Jurisdiction – Clarifying the basic concept’ (2004) 2(3) JICJ 735, 745

Rosen N, ‘Evaluating the Practice of Universal Jurisdiction Through the Concept of Legitimacy’ (2021) JICJ 1067

Schabas W, ‘National Courts Finally Begin to Prosecute Genocide, the “Crime of Crimes”’ (2003) 1(1) JICJ 39

Wilt H, ‘Universal Jurisdiction under Attack’ (2011) 9 JICJ 1043

Books

Evans M (edited), International Law (5th edition, OUP 2018)

McDonald GK and Swaak-Goldman O (edited), Substantive and Procedural Aspects of International Criminal Law: The Experience of International and National Courts (Volume I) (Kluwer Law International 2000)

Palmer N, Courts in Conflict: Interpreting the Layers of Justice in Post-Genocide Rwanda (OUP 2015)

Rudolph C, Power and Principle: The Politics of International Criminal Courts (Cornel University Press 2017)

Schabas W, Genocide in International Law (2nd edition, CUP 2009)

Tams C, Berster L, and Schiffbauer B, Convention on the Prevention and Punishment of the Crime of Genocide: A Commentary (Beck-Hart 2014)

Reports

Amnesty International, ‘Rwanda—The Troubled Course of Justice’ (Report) (April 2000) AI-Index AFR 47/10/00

Amnesty International, ‘Universal Jurisdiction: A Preliminary Survey of Legislation Around The World – 2012 Update’  (Report) (October 2012) IOR 53/019/2012