Another step forward for Universal Jurisdiction

17 February 2014

Cases based on the principle of Universal Jurisdiction have taken another giant step forward this month with a trial starting in France, a country not particularly noted for being in the vanguard of pursuing this principle.

Pascal Simbikangwa, accused of complicity in genocide and crimes against humanity in Rwanda, is facing a jury trial in a Paris Court for allegedly having supplied officers with weapons and giving them instructions that lead to the massacre of numerous Tutsis. Although French law has incorporated limited recognition of the principle based on treaty obligations in respect of certain offences, absolute universal jurisdiction has not been established. But it can try international crimes alleged to have been committed in Yugoslavia and Rwanda.

The importance is that the trial is happening at all. It is another indication that countries around the world are prepared to put on trial those accused of such crimes, irrespective where they took place. Universal Jurisdiction has both its supporters and its detractors. Some say there should be no hiding place for those accused of heinous crimes, others say that it is not for a distant third State to intervene but the country where the events took place should try the accused or alternatively they should appear before a properly established international tribunal. But then those tribunals themselves have been criticised. They have been portrayed as “victors justice”, aroused controversy over who has been entitled to dictate the rules and terms of reference, and then proved difficult to conclude.

Bringing those to account for committing appalling crimes we see on our television screens and read graphic account about is clearly one aspiration in the modern world but the evidential practicalities and who should be entitled to prosecute is another. And where is the United Nations in all of this? They can refer a ‘situation’ to the International Criminal Court as they did with great haste in the case of Libya but seem either reluctant or impotent to do so in respect of the terrible tragedy which has unfolded in Syria. Many had and still have great hopes for the ICC, but it has shown an enthusiasm to pursue African based criminal situations, and many feel it cannot move dramatically forward without the support of the USA. Many feel it would be more appropriate and less controversial if the suspects now waiting in countries around the world accused of recent international crimes were to be tried by one international tribunal? But that would need all countries to buy into the idea.

It is a far from straight forward international situation. However less than 20 years ago, as a senior Judicial figure remarked, international law was little more than a chapter in a book on military law. Now it is on the agenda of most recognised governments. One thing is for certain; it is not a case of if but when the next case comes along alleging a breach of the norms of “universal jurisdiction” by highly placed individuals. And a measure of the recognition of how the principle has evolved in recent years is that it will not come as any surprise. It was reported last week that an investigation by BBC Radio 4 Today programme has discovered that 49 people suspected of committing genocide, torture or other serious crimes abroad are living in Britain having been given “restricted leave” despite being scheduled for deportation. With the human rights organisations flexing their muscles could the next case be here?

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