Rule 157. Jurisdiction over War Crimes
Rule 157. States have the right to vest universal jurisdiction in their national courts over war crimes.
Volume II, Chapter 44, Section B.
State practice establishes this rule as a norm of customary international law with respect to war crimes committed in both international and non-international armed conflicts. The universality principle is additional to other bases of criminal jurisdiction: territoriality principle (based on where the crime occurred);[1] active personality principle (based on the nationality of the perpetrator);[2] passive personality principle (based on the nationality of the victim);[3] and protective principle (based on the protection of national interests or security).[4]
The right of States to vest universal jurisdiction in their national courts for war crimes is supported extensively by national legislation.[5] There have also been a number of cases of suspected war criminals being tried by national courts on the basis of universal jurisdiction.[6] Over the last decade, several persons have been tried by national courts for war crimes committed in non-international armed conflicts on the basis of universal jurisdiction.[7] It is significant that the States of nationality of the accused did not object to the exercise of universal jurisdiction in these cases. Several military manuals further support the rule that war crimes jurisdiction may be established on the basis of the principle of universal jurisdiction.[8]
The right of States to vest universal jurisdiction in their national courts for war crimes is also supported by treaty law. The Second Protocol to the Hague Convention for the Protection of Cultural Property states that it does not affect “the exercise of jurisdiction under customary international law”, which was intended by delegates at the negotiation of the Protocol to refer to the right of States to vest universal jurisdiction in their national courts for war crimes.[9] The Genocide Convention, which refers explicitly to territorial jurisdiction, has been interpreted as not prohibiting the application of the principle of universal jurisdiction to genocide.[10] While the Statute of the International Criminal Court does not oblige States to establish universal jurisdiction over the war crimes it lists, several States have incorporated the list of war crimes contained in the Statute in their national legislation and vested jurisdiction in their courts to prosecute persons suspected of having committed such war crimes on the basis of the principle of universal jurisdiction.[11]
Practice is not uniform with respect to whether the principle of universal jurisdiction requires a particular link to the prosecuting State. The requirement that some connection exist between the accused and the prosecuting State, in particular that the accused be present in the territory or has fallen into the hands of the prosecuting State, is reflected in the military manuals, legislation and case-law of many States.[12] There is also legislation and case-law, however, that does not require such a link.[13] The Geneva Conventions do not require such a link either.
In 2000, the Democratic Republic of the Congo instituted proceedings before the International Court of Justice challenging an international arrest warrant issued by a Belgian judge against the Congolese Minister of Foreign Affairs. In its pleadings before the Court in 2001, the Democratic Republic of the Congo did not object in principle to the existence of States’ right to vest universal jurisdiction in their national courts over war crimes, but argued that the indicted person needed to be in the territory of the State exercising such jurisdiction. The judgment of the International Court of Justice turned on the question of immunity of heads of State and foreign ministers and therefore no decision was taken on the extent of universal jurisdiction.[14] In their separate and dissenting opinions, the judges were divided on the issue of whether universal jurisdiction could be exercised when the accused was not present in the territory of the prosecuting State, but the majority did not contest the right to try a suspected war criminal on the basis of universal jurisdiction.[15]
The right of States to vest universal jurisdiction in their national courts over war crimes in no way diminishes the obligation of States party to the Geneva Conventions and States party to Additional Protocol I to provide for universal jurisdiction in their national legislation over those war crimes known as “grave breaches”.[16] Numerous States have given effect to this obligation in their legislation.[17] Several suspected war criminals have been prosecuted for grave breaches on the basis of universal jurisdiction.[18]
In addition to the Geneva Conventions and Additional Protocol I, a number of other treaties oblige States party to provide for universal jurisdiction over certain crimes, including when they take place during armed conflict. These are, in particular, the Convention against Torture, the Inter-American Convention on Forced Disappearances, the Convention on the Safety of UN Personnel and the Second Protocol to the Hague Convention for the Protection of Cultural Property.[19]
[1] See, e.g., the military manuals of New Zealand (cited in Vol. II, Ch. 44, § 152), Switzerland (ibid., § 156) and United States (ibid., § 161) and the legislation of Australia (ibid., § 165), Bangladesh (ibid., § 169), Canada (ibid., § 177) and Côte d’Ivoire (ibid., § 183); see also the draft legislation of Nicaragua (ibid., § 218).
[2] See, e.g., the military manuals of New Zealand (ibid., § 152), Switzerland (ibid., § 156), United States (ibid., §§ 159–161) and Yugoslavia (ibid., § 162) and the legislation of Australia (ibid., § 165), Azerbaijan (ibid., § 168), Canada (ibid., §§ 177–178), Germany (ibid., § 196), Kyrgyzstan (ibid., § 205), Mexico (ibid., § 213), Netherlands (ibid., § 214), Russian Federation (ibid., § 224) and United States (ibid., § 243).
[3] See, e.g., the military manuals of New Zealand (ibid., § 152), Switzerland (ibid., § 156) and United States (ibid., §§ 159–161) and the legislation of Canada (ibid., § 178), Chile (ibid., § 179), Côte d’Ivoire (ibid., § 183), France (ibid., § 193), Germany (ibid., § 196), Mexico (ibid., § 213), Netherlands (ibid., § 214), Slovenia (ibid., § 228) and Sweden (ibid., § 231).
[4] See, e.g., United States, Naval Handbook (ibid., § 161); the legislation of Azerbaijan (ibid., § 168), Chile (ibid., § 179) and Netherlands (ibid., § 214); Israel, District Court of Jerusalem, Eichmann case (ibid., § 258).
[5] See, e.g., the legislation of Australia (ibid., § 165), Azerbaijan (ibid., § 168), Bangladesh (ibid., § 169), Belarus (ibid., § 171), Belgium (ibid., § 172), Canada (ibid., §§ 177–178), Colombia (ibid., § 180), Costa Rica (ibid., § 182), Ecuador (ibid., § 188), El Salvador (ibid., § 189), Ethiopia (ibid., § 190), France (ibid., § 195), Germany (ibid., §§ 196 and 198), Luxembourg (ibid., § 208), New Zealand (ibid., § 217), Niger (ibid., § 219), Slovenia (ibid., § 228), Sweden (ibid., § 231), Switzerland (ibid., § 232), Tajikistan (ibid., § 234), United Kingdom (ibid., §§ 238–240) and United States (torture) (ibid., § 242); see also the draft legislation of Lebanon (ibid., § 206), Sri Lanka (ibid., § 230) and Trinidad and Tobago (ibid., § 235).
[6] In addition to the cases cited in footnote 207, see also Australia, High Court, Polyukhovich case (ibid., § 247); Canada, High Court of Justice, Finta case (ibid., § 250); Netherlands, Special Court of Cassation, Ahlbrecht case (ibid., § 262); Netherlands, Special Court of Cassation, Rohrig and Others case (ibid., § 263); United Kingdom, Supreme Court of Judicature, Court of Appeal, Sawoniuk case (ibid., § 271); United States, Court of Appeals, Demjanjuk case (ibid., § 273).
[7] See, e.g., Belgium, Court of Cassation, The Four from Butare case (ibid., § 249); France, Court of Appeal, Munyeshyaka case (ibid., § 253); Netherlands, Supreme Court, Knesević case (ibid., § 264); Switzerland, Military Tribunal at Lausanne, Grabež case (ibid., § 267) and Niyonteze case (ibid., § 269).
[8] See, e.g., the military manuals of Australia (ibid., § 144), Netherlands (ibid., § 150), United Kingdom (ibid., § 157) and United States (ibid., § 161) (“certain war crimes”).
[9] Second Protocol to the Hague Convention for the Protection of Cultural Property, Article 16(2)(a). See also Jean-Marie Henckaerts, “New Rules for the Protection of Cultural Property in Armed Conflict”, International Review of the Red Cross, No. 835, September 1999, p. 593, at 617.
[10] Genocide Convention, Article VI (cited in Vol. II, Ch. 44, § 109); Germany, Higher Regional Court at Düsseldorf, Jorgić case (ibid., § 255); Israel, District Court of Jerusalem, Eichmann case (ibid., § 258).
[11] See, e.g., the legislation of Belgium (ibid., § 172), Canada (ibid., § 178), Germany (ibid., § 198), New Zealand (ibid., § 217) and United Kingdom (ibid., § 240); see also the draft legislation of Trinidad and Tobago (ibid., § 235).
[12] See the military manuals of Canada (ibid., § 146), Ecuador (ibid., § 147), Netherlands (ibid., § 151), New Zealand (ibid., § 152) and United States (ibid., § 161); the legislation of Australia (ibid., § 165), Bosnia and Herzegovina (ibid., § 173), Canada (ibid., §§ 177–178), Colombia (ibid., § 180), France (ibid., §§ 194–195), Germany (ibid., § 196), India (ibid., § 201), Switzerland (ibid., §§ 232–233), United Kingdom (ibid., §§ 239–240) and United States (torture) (ibid., § 242); Canada, High Court of Justice, Finta case (ibid., § 250); France, Tribunal de Grande Instance de Paris, Javor case (torture) (ibid., § 252); Germany, Supreme Court of Bavaria, Djajić case (ibid., § 254); Germany, Higher Regional Court at Düsseldorf, Jorgić case (ibid., § 255); Germany, Supreme Court of Bavaria, Kusljić case (ibid., § 257); Netherlands, Special Court of Cassation, Rohrig and Others case (ibid., § 263).
[13] For explicit references to the possibility of commencing (extradition) proceedings against a suspected war criminal who is not present in the territory of the prosecuting State, see the legislation of Canada (ibid., § 176), Luxembourg (ibid., §§ 207–209) and New Zealand (ibid., § 217); Germany, Higher Regional Court at Düsseldorf, Sokolović case (ibid., § 256); United States, Court of Appeals, Demjanjuk case (ibid., § 273).
[14] ICJ, Arrest Warrant case, Judgment, (ibid., § 305).
[15] ICJ, Arrest Warrant case, Judgment, (ibid., § 305).
[16] First Geneva Convention, Article 49; Second Geneva Convention, Article 50; Third Geneva Convention, Article 129; Fourth Geneva Convention, Article 146; Additional Protocol I, Article 85(1).
[17] In addition to the legislation referred to in footnote 194, the legislation of the following countries is based on, or refers to, the grave breaches regime of the Geneva Conventions (and Additional Protocol I where applicable): Australia (cited in Vol. II, Ch. 44, § 166), Austria (ibid., § 167), Azerbaijan (ibid., § 168), Bangladesh (ibid., § 169), Barbados (ibid., § 170), Belarus (ibid., § 171), Belgium (ibid., § 172), Botswana (ibid., § 174), Bulgaria (ibid., § 175), Canada (ibid., § 176), Cook Islands (ibid., § 181), Cuba (ibid., § 184), Cyprus (ibid., §§ 185–186), Denmark (ibid., § 187), Finland (ibid., § 191), France (ibid., § 194), Germany (ibid., § 197), Guatemala (ibid., § 199), Israel (ibid., § 203), Kenya (ibid., § 204), Luxembourg (ibid., § 209), Malawi (ibid., § 210), Malaysia (ibid., § 211), Mauritius (ibid., § 212), New Zealand (ibid., § 216), Nigeria (ibid., § 220), Papua New Guinea (ibid., § 221), Paraguay (ibid., § 222), Poland (ibid., § 223), Russian Federation (ibid., § 224), Seychelles (ibid., § 226), Singapore (ibid., § 227), Spain (ibid., § 229), Switzerland (ibid., § 233), Uganda (ibid., § 236), United Kingdom (ibid., § 237), Vanuatu (ibid., § 244) and Zimbabwe (ibid., § 245); see also the draft legislation of Sri Lanka (ibid., § 230).
[18] See, e.g., Denmark, High Court, Sarić case (ibid., § 251); Germany, Supreme Court of Bavaria, Djajić case (ibid., § 254); Germany, Higher Regional Court of Düsseldorf, Jorgić case (ibid., § 255); Germany, Higher Regional Court of Düsseldorf, Sokolović case (ibid., § 256); Germany, Supreme Court of Bavaria, Kusljić case (ibid., § 257); Israel, District Court of Jerusalem and Supreme Court, Eichmann case (ibid., §§ 243–244); Switzerland, Military Tribunal at Lausanne, Grabež case (ibid., § 252).
[19] Convention against Torture, Article 5; Convention on the Safety of UN Personnel, Article 10; Inter-American Convention on Forced Disappearances, Article 4; Second Protocol to the Hague Convention for the Protection of Cultural Property, Article 16(1).
