MODERN DEVELOPMENTS IN UNIVERSAL JURISDICTION:

ADDRESSING IMPUNITY IN TIBET AND BEYOND

MARK CHADWICK*

“It would be a travesty of the law and a betrayal of the universal need for justice, should the concept of

state sovereignty be allowed to be raised successfully against human rights. Borders should not be considered

as a shield against the reach of the law and as a protection for those who trample underfoot the most elementary

rights of humanity.”

– International Criminal Tribunal for Yugoslavia, Prosecutor v Tadic1

I – Introduction

In March 2008 rioting broke out across much of Tibet in protest at Chinese authority, provoking a wave

of media interest and international responses.2 The events raised concern over the tense situation in the region,

the origins of which date back to May 1951 when Tibet was incorporated into China under threat of military

force.3 The recent riots are only the latest manifestation of the unease felt amongst Tibetan people, fuelled by

resentment at their apparent subjugation and the associated human rights violations documented to have

occurred against them.

It is claimed that an estimated 1.2 million Tibetans, one sixth of the original population, have died since

1951 as a direct result of Chinese policies.4 Human rights violations have been documented by a series of UN

*
BA (Hons) (Nottingham), LLM (Nottingham). The author wishes to thank Ms. Emilie Hunter and Mr. Alán Cantos for their help
and advice in writing this article.
1
International Criminal Tribunal for Yugoslavia, Case IT-94-1, Interlocutory Appeal (2 October 1995), para. 58.
2
Examples include statements by the European Union (http://europa.eu), United Nations (http://www.unhchr.ch) and the United
States (http://www.whitehouse.gov/news/releases/2008/03/20080326-2.html).
3
For an objective history of these events see Tsering Shakya, The Dragon in the Land of Snows: A History of Modern Tibet Since
1947 (London: Pimlico, 1999), chapters 1-4.
4
Figure quoted by the Tibetan Government in Exile: see www.tibet.com.

1
General Assembly resolutions5 as well as resolutions by the European Parliament and national parliaments,6

demonstrating international concern at events.

Whilst modern debate has tended to focus on the issue of Tibet’s self-determination,7 it would be amiss

to leave unaddressed the human rights violations that have allegedly occurred there, especially in the modern

international legal climate of accountability stimulated largely by the creation of the ad hoc tribunals8 and the

permanent International Criminal Court (ICC).9 Together these institutions have transcended national

boundaries and asserted the supremacy of accountability over sovereignty.

The confidence inspired by these developments has also led to increasing consideration of the

principle of universal jurisdiction, a principle that permits a state to prosecute certain heinous crimes committed

anywhere, by anyone, against anyone. It is by using this principle that Spanish courts have opened an

investigation against former Chinese President Jiang Zemin and six other former officials into charges of

genocide, crimes against humanity, state terrorism and torture.10 This essay will examine the application of

universal jurisdiction by Spain in the context of the traditional concept of the principle and in the light of recent

developments. It will then go on to assess the potential hazards and benefits of the exercise, particularly in

relation to: (i) the customary international law applicable; (ii) the concept of sovereign equality; (iii) the

implications for the ICC and; (iv) the development of the crime of genocide. It seeks to conclude whether the

investigation is a worthwhile endeavour - part of a positive new trend in combating impunity, or merely an

empty promise made by idealists.

5
United Nations General Assembly Resolutions 1353 (XIV) of 1959, 1723 (XVI) of 1961 and 2079 (XX) of 1965, expressing
concerns about human rights violations in Tibet and urging action.
6
European Parliament, Resolutions of 15 March 1989 and of September 1991; statements of the United States Congress and Senate
in 1987 and 1989, the German Bundestag in 1987 and the Italian Parliament in 1989.
7
See Robert McCorquodale and Nicholas Orosz (eds), Tibet: The Position in International Law (London: Hansjörg Mayer & Serindia
Publications, 1994), which concludes that Tibet is an independent state under occupation, and entitled to self-determination.
8
The International Criminal Tribunal for Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR), established
by Security Council Resolutions 827 (S/Res/827, 1993) and 955 (S/Res/955, 1994) respectively.
9
Established under Rome Statute of the International Criminal Court: UN doc. A/CONF. 183/9, 17 July 1998.
10
See ‘Spain to investigate genocide and other charges against China’ at www.phayul.com/news.

2
 II – Universal Jurisdiction: Traditional Concepts

- Jurisdiction in International Law

International law traditionally recognises multiple principles of jurisdiction that a state may invoke to

assert its laws, each of which is characterised by a clear link to the state. If a state, ‘State A’, wishes to assert

jurisdiction over an individual, it can do so if: (i) the crime in question occurred on State A’s territory (the

territoriality principle); (ii) the perpetrator of the crime is a national of State A (the nationality principle); (iii)

the victim(s) of the crime are nationals of State A (the passive personality principle); (iv) the crime constitutes

a threat to its fundamental interests11 (the protective principle). These principles signify an attempt to reconcile

competing jurisdictional claims with territorial sovereignty, and in accordance with this need for balance

extraterritorial jurisdiction will be accepted only insofar as it does not infringe on another state’s sovereignty

and internal affairs.12 In addition to these generally accepted principles is the controversial universality

principle, which is unique in that no discernible link is required to the state wishing to prosecute - rather, the

exercise of jurisdiction is justified by the heinous nature of the offence in question, deemed to be an offence

against the whole of humanity. As such, domestic courts prosecuting these crimes act on behalf of the

international community of states.13

- The History of Universal Jurisdiction

The principle of universal jurisdiction was recognised by Hugo Grotius in the 17th Century14 and was

11
The case of Joyce v Director of Public Prosecutions [1946] AC 347 provides an example - the defendant was a British passport
holder involved in broadcasting Nazi propaganda during the Second World War; he was charged with treason, on the basis of the
protective principle.
12
See Luc Reydams, Universal Jurisdiction (Oxford: OUP, 2003) 23-24. This concept is, however, being eroded: see infra pp28-30.
13
As does the ICC: see Rome Statute, supra no9, preambular paragraph 4.
14
See the Amnesty International study ‘Universal Jurisdiction - The Duty of States to Enact and Enforce Legislation’, Chapter 2,
available at www.amnesty.org.

3
originally conceived of in relation to the crime of piracy, 15 the perpetrators of which were deemed to be hostis

humani generis – “enemies of all mankind”. Several treaties existed in the 19th Century expressly providing for

universal jurisdiction in this regard.16 The application of the principle can be justified in a practical sense by

the nature of piracy, occurring in high seas beyond the territorial jurisdictional reach of states, and the dangers

the perpetrators therefore pose to all nations. Cassese further justifies this use of universality by claiming that

there would be “innumerable conflicts of jurisdiction” as states attempt to assert jurisdiction over

perpetrators.17 It would follow that the most logical solution is the granting of jurisdiction to the custodial

state, notwithstanding any link to the crime. Universal jurisdiction was also extended to slave trading, an

equally ‘stateless’ and heinous act, in the 19th Century.18

After the Second World War universal jurisdiction became recognised as applicable to the core

international crimes. The development occurred in the wake of the Nuremberg trials 19 (which fuelled the

concept that criminal accountability need not end with the home state20), the drafting of the Universal

Declaration on Human Rights21 (constituting the extension of international law beyond national boundaries to

the level of individual subjects) and the subsequent blossoming in international human rights discourse.22

Amongst the treaties allowing for universal jurisdiction were the 1949 Geneva Conventions 23 and Additional

15
See e.g. In re Piracy Jure Gentium [1934] AC 586 and the separate opinion of Judge Guillame in Case Concerning Arrest Warrant
of 11 April 2000 (Democratic Republic of Congo v Belgium), ICJ Reports 2002, para. 5 (available at www.icj-cij.org).
16
E.g. the 1878 Lima Treaty to Establish Uniform Rules for Private International Law, the 1889 Montevideo Treaty on International
Penal Law.
17
Antonio Cassese, ‘When May Senior State Officials Be Tried for International Crimes? Some Comments on the Congo v. Belgium
Case’, 13 European Journal of International Law 853 (2002), 857.
18
See, e.g., Slave Trade Act of 1834 (United Kingdom), Treaty for the Suppression of the African Slave Trade 1841. For a history of
these developments, see M. Cherif Bassiouni & Ved Nanda, ‘Slavery and Slave Trade: Steps Toward its Eradication’ (1972) 12 Santa
Clara Law 424.
19
Established by the Allies to try major World War II war criminals; see Judgment of the International Military Tribunal, Sept. 30,
1946, reprinted in Richard A. Falk et al., Crimes of War (New York: Random House, 1971) 96.
20
The Court arguably invoked universal jurisdiction in stating that “[in creating the Tribunal], the Signatory Powers … have done
together what any one of them might have done singly”; the statement was interpreted by the UN Secretary-General as confirmation
that the crimes under the Charter were subject to universal jurisdiction: see Vyver, ‘Prosecution and Punishment of the Crime of
Genocide’ (1999) 23 Fordham International Law Journal 286, at 332.
21
Adopted and proclaimed by General Assembly resolution 217 A (III) of 1948.
22
See Steiner, ‘Three Cheers for Universal Jurisdiction – Or Is It Only Two?’ (2004) 5 Theoretical Inquiries in Law 199, 210-211.
23
Geneva Convention (I) for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field; Geneva
Convention (II) for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea; Geneva
Convention (III) Relative to the Treatment of Prisoners of War; Geneva Convention (IV) Relative to the Protection of Civilian
Persons in Time of War; all signed August 12, 1949. Available in Roberts and Guelff, Documents on the Laws of War 3rd ed. (rev)
(Oxford: OUP, 2004), 195.

4
Protocol I (1977):24 Articles 49, 50, 129, 146 and 85(1) of Geneva Conventions I, II, III, IV and Additional

Protocol I respectively incorporate ‘extradite or prosecute’ (aut dedere aut judicare) provisions in relation to

‘grave breaches’ of the Conventions, requiring contracting parties to “bring persons [committing such

breaches], regardless of their nationality, before its own courts” or “hand such persons over for trial to another

High Contracting Party concerned”.25 The provisions were inserted possibly due to the inherently international

nature of the offences,26 or perhaps due to recent events in Europe and the ratifying states’ determination to

prevent future similar incidents.

The 1984 Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or

Punishment27 also incorporates an aut dedere aut judicare provision, requiring States Parties to “[if not]

extradite [the suspect], submit the case to its competent authorities for the purpose of prosecution”. 28 The

provision was designed in order to deny torturers any place of refuge, and was inserted as it was felt that the

territorial state would probably not prosecute acts of torture committed by itself or its officials. 29 This rationale

indicated a move away from the traditional conception of universal jurisdiction as a response to the

transnational nature of offences, warranted in response to the categorically unjustifiable nature of torture.30

Universal jurisdiction provisions were also inserted into a number of treaties dealing with crimes with

transnational elements such as aircraft hijacking and sabotage, attacks on internationally protected persons,

drug trafficking, attacks on ships and navigation, theft of nuclear materials, use of mercenaries and attacks on

peace-keepers,31 and a convention dealing with apartheid.32 Curiously, however, the international community

24
1977 Geneva Protocol I Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of
International Armed Conflicts; also available in Roberts and Guelff, ibid., at 419.
25
Universality in this respect has arguably since passed into customary international law – see Henckaerts and Doswald-Beck,
Customary International Humanitarian Law Volume I: Rules (Cambridge: CUP, 2005), at 604.
26
Reydams, supra no12 at 56, states that “diversity of nationality between victim and perpetrator is a constitutive element of a grave
breach”.
27
1465 UNTS 85; adopted by General Assembly Resolution 39/46 of 10 December 1984.
28
Article 7.
29
See Reydams, supra no12, 66.
30
See generally JH Burgers and H Danelius, The United Nations Convention Against Torture: A Handbook on the Convention
Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (Dordrecht: Martinus Nijhoff, 1988).
31
E.g., Convention for the Suppression of Unlawful Seizure of Aircraft 1970 (860 U.N.T.S. 105); Convention on the Prevention and
Punishment of Crimes against Internationally Protected Persons 1973, (1035 U.N.T.S. 167); Convention on Psychotropic Substances
1971 (1019 U.N.T.S. 175); Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation 1988;
Convention on the Physical Protection of Nuclear Material 1980; International Convention against the Recruitment, Use, Financing
and Training of Mercenaries 1989; Convention on the Safety of United Nations and Associated Personnel 1994.

5
has not explicitly applied the universality principle to the international crimes considered to be the most

morally reprehensible: the Genocide Convention, drafted in 1948, is silent on whether universality is applicable

to the crime,33 whilst ‘crimes against humanity’ lack an international convention to date.34 In any case the

silence in treaty law has not meant the end of the matter, as universality has tended to find an anchor -

sometimes strong, other times tentative - in customary international law.

- Universal Jurisdiction In Practice

Universal Jurisdiction first came to international prominence in the Eichmann case,35 concerning a

former senior Nazi largely responsible for organising the massive deportations of Jews and others to death

camps. Eichmann was abducted in Buenos Aires in April 1960 by Israeli agents and brought to trial in Israel

for crimes against the Jewish people and crimes against humanity, including acts of genocide, crimes for which

he was convicted and executed. States generally acquiesced in the case, although had doubts about the

abduction.36 In the case the Court explicitly invoked a customary right of all states to exercise universal

jurisdiction over such crimes, thereby justifying application of their jurisdiction extraterritorially. 37 However

the Eichmann case was clearly as much about Jewish justice as universal justice, and could be tied to

jurisdictional principles of passive personality or protection - one commentator has stated that “the coincidence

of factors impelling exercise of jurisdiction solely on the ‘universal’ principle [is likely to be] rare”.38

Nevertheless, the case is noteworthy for having attempted to reach beyond the traditional jurisdictional

categories and setting standards for the future. Whilst perhaps not making use of universal jurisdiction in the

32
International Convention for the Suppression and Punishment of the Crime of Apartheid 1973, 1015 UNTS 243.
33
See Reydams, supra no12, 47-53.
34
See Bassiouni, ‘Crimes Against Humanity: The Need for a Specialised Convention’ (1993-94) 31 Columbia Journal of
Transnational Law 494. Although no specialised convention exists, 108 states have to date ratified the Rome Statute (supra no9),
granting the ICC jurisdiction over crimes against humanity if committed on their territories or by their nationals.
35
Attorney General of Israel v Eichmann, Supreme Court of Israel, 29 May 1962; 36 Int’l L Reports 227 (1968).
36
See JES Fawcett, ‘The Eichmann Case’, (1962) 27 British Yearbook of International Law 181.
37
Supra no35, paras 9-12.
38
Louis Henkin, How Nations Behave: Law and Foreign Policy (New York: Columbia University Press, 1976), pp 276-277.

6
true sense, it might be viewed as a precursor to modern cases of universal jurisdiction.39

Following Eichmann there was a burst of similar cases in the 1980s and 90s against Nazi-era criminals

in, inter alia, Israel (Demjanjuk40), Australia (Polyukhovich41), Canada (Finta42), France (Barbie43) and the

United Kingdom (Sawoniuk44). Whilst these cases all espoused the principle of universal jurisdiction in some

form or other, they were nevertheless examples of the allied World War II forces prosecuting individuals who

in essence committed crimes against them, and could have been alternatively based on the passive personality

or protective principles. Further, with the exception of the Israeli cases (Israel might be seen to have a special

interest in pursuing such prosecutions) they all took place against individuals found in the territory of the

prosecuting state and were largely a response to public outcry against their presence. They were all politically

‘safe’ prosecutions, as the Nazi regime had long since disappeared and had been universally condemned;

indeed, Germany - perhaps the most interested state - was happy to see these remnants of its past prosecuted.

Whether these cases form a precedent for the exercise of true universal jurisdiction, then, is debatable; the main

precedent they do offer is that it is acceptable to try facilitators of The Holocaust, although such a proposition is

now largely obsolete.

With the inauguration and operation of the International Criminal Tribunal for Yugoslavia (ICTY)45 and

the International Criminal Tribunal for Rwanda (ICTR)46 there came a fresh wave of prosecutions rooted in

universal jurisdiction. As the conflicts in Yugoslavia and Rwanda unfolded, European nations received waves

of refugees - amongst them perpetrators of grave acts linked to the conflict. With the catalysing effect of the ad

hoc tribunals (which established a plausible foundation for national proceedings 47) various European states,

upon finding themselves burdened with such criminals, decided to take their own action in the absence of the

tribunals’ expressed desire to take over proceedings.

39
Steiner, supra no22, 215.
40
Demjanjuk v Petrovsky 776 F.2d 571 (1985). The defendant was extradited from the USA.
41
Polyukhovich v Australia, (1991) 172 CLR 501, F.C. 91/026.
42
The Queen v Finta [1994] S.C.R. 701 (Can).
43
Fédération Nationale des Déportés et Internés Résistants et Patriotes and Others v Barbie 78 I.L.R. 125, 128-29 (Fr. Cass. Crim.
1983).
44
R v Sawoniuk (Central Criminal Court 1999) (unpublished).
45
See supra no8.
46
Ibid.
47
Reydams, supra no12, 221.

7
 In Germany the first such case was that of Dusko Tadic,48 the defendant more memorable as the first

person to be tried by the ICTY when it took over the proceedings in 1994.49 Tadic was initially arrested in

Germany and charged with aiding and abetting genocide inter alia. Before his extradition to the ICTY an

examining magistrate cited international conventions and the accused’s presence in Germany as sufficient

justification for the prosecution.50 The subsequent case of Djajic51 justified the proceedings not only on the

basis of international interest but also the ideal that Germany was not to be seen as “a refuge for offenders” and

that “Germany has an interest not to be perceived […] as a haven for international criminals”. The later cases

of Jorgic52 and Sokolovic53 also cited such links, although in the latter case the Court considered that “such

additional legitimising links are not necessary” and further considered that assertion of extraterritorial

jurisdiction would not violate the principle of non-interference.

Other cases from this cluster also cite the need for ‘legitimising’ links – for instance, the Austrian case

of Cvjetkovic54 involved a Bosnian Serb arrested in Salzburg on suspicion of genocide. The courts based their

jurisdiction on universality, which they stated required the presence of the accused on Austrian territory, a

requirement satisfied by the site of the accused’s apprehension. In Belgium the most notable case was that of

Higaniro et al55 (also known as ‘The Butare Four’), whereby four Rwandan citizens residing in Belgium were

arrested on charges of war crimes.56 The judiciary was initially reluctant to act, but extradition to the territorial

state was impossible and so Belgium was left with the dilemma, under pressure from relatives of victims of the

Rwandan massacres, of whether to grant asylum to the suspects, or to prosecute them. It did the latter and the

four were convicted and sentenced - although proceedings were lengthy, lasting five years due to the

48
Tadic, Federal Supreme Court, 13 February 1994.
49
Supra no1.
50
Supra no48.
51
Public Prosecutor v. Djajic, Judgment, No. 20/96 (Higher Regional Court of Bavaria 23 May 1997).
52
Jorgic case, Judgment, Higher Regional Court at Düsseldorf, 6 September 1997.
53
Sokolovic case, Judgment, Federal Supreme Court, 21 February 2001.
54
Republic of Austria v Cvjetkovic, Landesgericht, Salzburg, 31 May 1995.
55
Unreported, Cour d’Assises de l’Arrondissement Administratif de Bruxelles-Capital, President Maes, Judges Louveaux and Massart,
8 June 2001.
56
Although the crimes occurred during internal conflict, several decisions of the ICTY and ICTR recognised certain internal acts as
crimes under customary international law, e.g. Tadic, supra no1, and Akayesu, ICTR-96-4. War Crimes occurring during internal
armed conflict have since been codified by the Rome Statute, Article 8(2)(c-f).

8
difficulties involved in investigation.57 Several ‘legitimising’ links were present in the case such as the deaths

of ten Belgian UN peace-keepers during the massacres, Belgium’s historic links with Rwanda and, not least,

the presence of the defendants on Belgian territory, although these links were played down by the courts.

- Considering ‘Conditional’ Universal Jurisdiction

From the above cases a pattern emerges: all were conducted by Western states, in relation to conflicts

that received international attention and universal condemnation (lessening the possibility of opposition to

prosecutions), concerning suspects who could not be tried by the territorial or national states, and conducted by

states with a ‘legitimising’ link to the crimes in question, generally the presence of the suspect within the

prosecuting state. That this form of ‘conditional’ universal jurisdiction, requiring a link to the prosecuting state

- usually custody of the offender - has passed into customary international law for certain defined international

offences (i.e. grave breaches of the Geneva Conventions and torture; possibly genocide and crimes against

humanity58) is a possible conclusion to draw; the claim can be backed up by a recent study which shows that

125 states have incorporated provisions applying universal jurisdiction to some extent,59 a demonstration of

widespread state practice. Further support can be garnered from decisions of international courts and

tribunals60 and from a recent ICRC study into customary international humanitarian law. 61 Such a practice also

makes sense from a policy point of view because ‘it would be met with incomprehension in those countries that

a national could be prosecuted after committing a crime abroad, whilst a foreign fugitive would be left in peace

57
Reydams comments that “such a delay is hardly reconcilable with the right to be tried within a reasonable time”, supra no12, 111.
58
See Menno Kamminga, ‘Lessons Learned from the Exercise of Universal Jurisdiction in Respect of Gross Human Rights Offenses’
(2001) 23 HRQ 940, 965: “states parties to the Geneva Conventions and the UN Convention Against Torture have undertaken an
obligation to exercise universal jurisdiction in respect of grave breaches and torture, respectively. Under customary international law
states are moreover entitled to exercise universal jurisdiction in respect of genocide, crimes against humanity, war crimes and
torture”.
59
See Amnesty International study, supra no14.
60
See Prosecutor v Tadic, supra no1; Prosecutor v Ntuyuhaga, Decision on the Prosecutor's Motion to Withdraw the Indictment
ICTR-96-40-T, 18 Mar 1999; Prosecutor v Kallon and Kamara, Decision on Challenge to Jurisdiction, 13 March 2004, SCSL-04-15-
PT-060; Lomé Accord Amnesty, SCSL-2004-15-AR-72(E) and SCSL-2004-16-AR72(E), 13 Mar 2004, paras 67-71.
61
Henckaerts and Doswald-Beck, supra no25.

9
because for some reason he could not be extradited’.62 Thus prosecution is all the more justifiable if the state is

to avoid being regarded as a ‘safe haven’ for génocidaires and war criminals. Presence also provides a

practical check that controls the otherwise potentially chaotic exercise of universal jurisdiction. 63 Reydams

suggests that this principle can only be limited by the principle of non bis in idem; otherwise, “prosecution by

the custodial state interferes with no legitimate expectations of the offender”. 64 The proposition also sits well

with Cassese’s analysis of justifying the application of universal jurisdiction to crimes of piracy for reasons of

reconciling conflicts of interest.65

Universal jurisdiction in this form is to be encouraged, such that perpetrators of gross human rights

violations cannot, when extradition is impracticable or undesirable (such as in the Yugoslavian and Rwandan

cases), escape accountability. This is in the interests not only of the international community given that such

crimes are an affront to humanity, but also of the individual states themselves, if they do not want to be

perceived as ‘safe havens’ or to engender disillusionment amongst their citizens.

Outside these established realms states wishing to assert jurisdiction are more likely to run into

difficulties, such as political differences (including the potential to impinge on the ostensibly inviolable

principle of state sovereignty), practical problems (including resources, as indicated by the fact that only

developed, Western states have instigated prosecutions) and legal uncertainties (such a rule is not explicitly

granted under the Geneva Conventions, and is ruled out under the Torture Convention66). These difficulties are

characterised by the refusal of states to seek extradition or investigation of suspects enjoying impunity in their

home states or who have gone into refuge in third states: instructive cases include those of Re Javor,67 whereby

the French Court of Cassation held that authorities could not initiate proceedings unless the accused was

present in French territory, Re Bouterse68 in which the Dutch Supreme Court held that the Netherlands could

62
Reydams, supra no12, 222; this follows the reasoning in Djajic, supra no51.
63
Colangelo, ‘The New Universal Jurisdiction: In Absentia Signalling Over Clearly Defined Crimes’ (2005) 36 Georgetown Journal
of International Law 537, 541.
64
Supra no12, 222-223.
65
Supra pp3-4 and footnote no17.
66
See infra p11.
67
1996 Bull. crim., No. 132, at 379; French Cour de Cassation, Criminal Chamber, March 26, 1996.
68
HR, Sept 18 2001, NJ 559; english translation available at (2001) Netherlands Yearbook of International Law 282.

10
not prosecute the former leader of Surinam for war crimes given that he was not present in the Netherlands, and

Lee Urzua v Pinochet,69 in which the Danish Director of Prosecutions declined to indict former Chilean dictator

Augusto Pinochet, for the same reasons. Meanwhile, documented human rights violators such as Hissene

Habré, senior Khmer Rouge and Idi Amin remained at large, with states unwilling to take action.

As worthwhile an exploit as ‘conditional’ universal jurisdiction may be, it does not address the impunity

of perpetrators who remain at large in their own countries - either because of amnesties (such as the self-

granted blanket amnesty exculpating Pinochet and his senior officials for crimes in Chile) or because the crimes

were carried out in collusion with the state, which will have no interest in prosecuting (as is the case with Jiang

Zemin, in relation to alleged crimes carried out in Tibet and elsewhere in China) - or in third states with no

interest in initiating investigations. It is only in the past ten years that states have, with mixed success,

attempted to tackle these loopholes using universal jurisdiction.

III: Towards Tibet: The Development of ‘Absolute’ Universal Jurisdiction

Universal jurisdiction exercised in absentia,70 also referred to as ‘absolute’ universal jurisdiction, is a

theory that permits any state to investigate an international crime regardless of any link with the forum state. In

such cases the link is the international nature of the crimes committed, which justifies the right of any state to

investigate, given that it is acting on behalf of, and in the interests of, the international community. 71 The

German courts in Sokolovic, noted previously, hinted at such wide judicial power.72

The concept is given little support in international conventions; for example, Article 5(2) of the

Convention Against Torture states that States Parties must “take measures as may be necessary to establish its

jurisdiction over offences in cases where the alleged offender is present in any territory under its jurisdiction

69
Opinion of the Director of Public Prosecution, December 3, 1998, Case No. 555/98.
70
Referring to the application of universal jurisdiction over an individual not present within a state, rather than an actual trial in
absentia.
71
See Kenneth C. Randall, ‘Universal Jurisdiction Under International Law’ (1988) 66 Texas Law Review 785, 831.
72
Supra no53.

11
and it does not extradite him”.73 This prerequisite also appears in many of the conventions concerning

transnational offences.74 The major exceptions to the rule are found in the Geneva Conventions, which require

no such link, although state practice (i.e. military manuals, legislation and case-law), whilst not unanimous, has

tended to indicate otherwise.75 Despite the lack of support from conventional international law, a handful of

states have introduced legislation permitting the exercise of broad, ‘absolute’ universal jurisdiction76 and a

stream of cases have been brought by those states, drawing attention to the concept and sparking debate over its

significance within the international criminal law sphere. By reference to the Lotus principle77 this stream of

cases could be said to be indicative of an emerging principle of customary international law, unless a counter-

rule can be established that negates that assertion. The following examples form the basis of this premise.

- The Pinochet Precedent

The first instance in which such legislation was put into practice was in the course of the 1998 Pinochet

litigation. In October 1998 Augusto Pinochet was arrested in London charged with genocide, terrorism and

torture on the request of Spanish investigating judge Baltasar Garzón. Pinochet had been the military dictator

of Chile for seventeen years from 1973 until 1990, during which time some five thousand political opponents

were killed, over a thousand disappeared and tens of thousands more tortured or arbitrarily imprisoned.78 On

stepping down in 1990 Pinochet ensured that no judicial action could be taken against him by passing a blanket

self-amnesty immunising the military from prosecution. Despite these obstacles a case against him was opened

in Spain in 1996, in conjunction with another investigation into similar atrocities occurring in Argentina around

the same time. The case was based on Article 23(4) of the Ley Orgánica del Poder Judicial (LOPJ) which

73
Supra no27, emphasis added.
74
E.g. Single Convention on Narcotics Drugs 1961, Article 36(2).
75
See Henckaerts and Doswald-Beck, supra no25, 605-606.
76
Notably Spain, Germany, Italy, Israel and New Zealand. Belgian law also permitted such investigations until curtailed in 2003 (see
infra pp14-16). A great many states have legislation that is silent on the matter, leaving matters of interpretation to the courts.
77
Discussed infra pp 25-27.
78
For a history see Helen Spooner, Soldiers in a Narrow Land: The Pinochet Regime in Chile (Berkeley: University of California
Press, 1994).

12
provides that “Spanish Courts have jurisdiction over crimes committed abroad by Spaniards and foreigners

when such crimes constitute genocide, terrorism, piracy, counterfeiting, offences in connection with

prostitution and corruption of minors, or other crimes which Spain is obliged to prosecute under international

treaties”.79 Although the provision does not oblige a link with Spain, the investigation originally dealt only

with crimes committed against Spanish nationals given that this would appease the government who were

deemed to be more likely to oppose the investigation if no Spanish citizens were involved. One commentator

stated that “it was this political imperative, not any legal requirement, which led to an initial focus on the

Spanish victims”.80 As evidence built up, the investigation expanded to cover crimes against persons of other

nationals (it eventually expanded to cover the ambit of ‘Operation Condor’, a continent-wide terror campaign

involving co-operation between several South American governments) and the issue entered the territory of

universal jurisdiction. In pushing for the arrest warrant, Garzόn obtained a decision from the Spanish courts81

affirming the applicability of universal jurisdiction and ruling that the Chilean amnesty was irrelevant to

Spanish proceedings.82 Nevertheless, the decision to go ahead and request Pinochet’s arrest constituted an

unprecedented move and “a daring step into uncharted territory”.83

In the United Kingdom the House of Lords initially approved the warrant,84 but the decision was

overturned due to the fact that Lord Hoffman, one of the judges sitting on that case, was discovered to be the

director of a charity associated with Amnesty International, an intervening party in the proceedings. 85 A further

decision, whilst producing vastly divergent opinions from the law lords (indicative of the House’s lack of

dealings with international law and its seemingly arcane quality), produced the same decision as that in the
79
Ley Orgánica 6/1985 del Poder Judicial of 1 July 1985.
80
Naomi Roht-Arriaza, The Pinochet Effect: Transnational Justice in the Age of Human Rights (Philadelphia: University of
Pennsylvania Press, 2006), 12.
81
Uniόn Progresista de Fiscales de España et al. v Pinochet, Audiencia Nacional (investigating tribunal no5), decisions of 16 and 18
October and 3 November 1998. English translation in R. Brody and M. Ratner (eds), The Pinochet Papers: The Case of Augusto
Pinochet in Spain and Britain (The Hague: Kluwer Law International, 2000) 95.
82
The correct policy: see the views of the UN Secretary-General on the status of amnesty in Sierra Leone, in Report of the Secretary-
General on the Establishment of a Special Court for Sierra Leone, 4 October 2000, UN Doc. S/2000/915. See also the views of
Baltasar Garzón in Daniel Rothenberg, ‘“Let Justice Judge”: An Interview with Judge Baltasar Garzón and Analysis of His Ideas’
(2002) 24 Human Rights Quarterly 924, 946-7, although see also the response of the author, 954-60.
83
Roht-Arriaza, supra no80, 34.
84
R v Bow Street Metropolitan Stipendiary Magistrate Ex p. Pinochet Ugarte (No.1) House of Lords, 25 November 1998; [2000] 1
A.C. 61; [1998] 3 W.L.R. 1456; [1998] 4 All E.R. 897.
85
R v Bow Street Metropolitan Stipendiary Magistrate Ex p. Pinochet Ugarte (No.2) House of Lords, 15 January 1999; [2000] 1 A.C.
119; [1999] 2 W.L.R. 272; [1999] 1 All E.R. 577.

13
original case, although based strictly on the application of the Convention against Torture, and only on actions

occurring post-1988 - the year of the United Kingdom’s ratification.86 Only one of the cases presented at that

time by Garzόn fell within these restricted limits, a result that was nevertheless sufficient to obtain extradition.

Ultimately, however, Pinochet was allowed to return to Chile by the United Kingdom’s Home Secretary on

“compassionate grounds”, his health apparently failing rapidly.87

Although Spain was unable to put Pinochet on trial, the landmark decision stimulated progress in the

field of universal jurisdiction, confirming that persons committing gross human rights violations could face

justice regardless of their place of domicile. It established principles of global, transnational justice and

shattered the previously untouchable concept of the inviolability of state sovereignty. It also demonstrated that

justice can overcome politics and that “no longer are war crimes, crimes against humanity, genocide and torture

seen to be matters for politicians and diplomats to resolve, but ordinary crimes […] to be investigated and

prosecuted by independent prosecutors and investigating judges.”88 The case also catalysed the justice process

in Chile, where Pinochet, on his return, was indicted and forced to live out his final years under house arrest.

The precedent must, however, be viewed alongside the United Kingdom proceedings and the thoroughly

narrow interpretation of international criminal law adopted there. The contrast serves as a reminder that,

although Spain took the first, bold steps towards transnational accountability, they were taken with some

difficulty, their ideals not receiving a universal welcome. It is necessary to look at more recent trends in order

to better analyse whether a pattern, and possibly a customary norm of absolute universality in relation to

genocide and crimes against humanity, may be emerging.

- Universal Jurisdiction in Belgium

The most ambitious cases post-Pinochet were arguably undertaken in Belgium, which in 1999 had a

86
R v Bow Street Metropolitan Stipendiary Magistrate Ex p. Pinochet Ugarte (No.3) House of Lords, 24 March 1999; [2000] 1 A.C.
147; [1999] 2 W.L.R. 827; [1999] 2 All E.R. 97.
87
http://news.bbc.co.uk/1/hi/uk/663170.stm.
88
See Amnesty study, supra no14, Chapter 2.

14
very broad universal jurisdiction law permitting investigation without the presence of the defendant, on the

initiation of anybody - even if residing outside Belgium.89

In April 2000 a Belgian judge issued an arrest warrant against the Democratic Republic of Congo

Foreign Minister, Abdulaye Yerodia Ndombasi, alleging charges of war crimes and crimes against humanity.

The DRC responded by filing a complaint with the International Court of Justice (ICJ), alleging that Belgium

had no right to interfere in its internal affairs (as established in Article 2(1) of the UN Charter) and that its

warrant disregarded established customary rules of diplomatic immunity. 90 Unfortunately, when the case came

before the ICJ it glossed over the universal jurisdiction issue, missing an opportunity to clarify an important

and contentious point and focussing instead on issues of immunity91 - on this point it held that Ndombasi was

immune from investigation whilst in office.92 Fortunately, several of the judges issued separate opinions that

did explicitly tackle the issue - these opinions will be discussed below.93 Following the ruling, the arrest

warrant was repealed by the courts.

Belgium attracted even greater controversy over subsequent, more politically charged, investigations.

In 2001 the Belgian courts opened an investigation, initiated by Palestinian complainants, against Ariel Sharon,

the then Prime Minister of Israel.94 The complaint implicated Sharon in the murder of hundreds of citizens in

refugee camps during the 1982 invasion of the Lebanon and alleged that he had committed war crimes, crimes

against humanity and genocide. The investigation pushed the limits of potential for universal jurisdiction cases

– it was high profile, against a head of government, had no connection with Belgium and was met with non-

cooperation from both the territorial and national states. It sparked a strong protest from Sharon and from

89
The 1993 Act to implement the Geneva Conventions and Additional Protocols listed twenty crimes under international law, based
on those treaties. It was substantially amended in 1999, to the Act Concerning the Punishment of Grave Breaches of International
Humanitarian Law (Loi Relative á la Répression des Violations Graves du Droit International Humanitaire), which added genocide
and crimes against humanity; see Reydams, supra no12, 106.
90
Application and Request for the Indication of a Provisional Measure by the Democratic Republic of the Congo against Belgium, 17
October 2000.
91
See, e.g., El Zeidy, ‘Universal Jurisdiction In Absentia: Is it a Legal Valid Option for Repressing Heinous Crimes?’ (2003) 37 Int’l
L. 835, 836. However the ICJ has another opportunity, in Case of Certain Criminal Proceedings in France (Republic of the Congo v
France), judgement pending (documents available at www.icj-cij.org).
92
Arrest Warrant case, supra no15.
93
See infra pp27-28.
94
Cass., 24 September 2003, ref. P.03.1217.F.

15
Israel.95 Ultimately the Belgian Court of Cassation prevented it from going ahead on immunity grounds,

following the ICJ judgement. The decision, however, left Belgium’s broad stance on universal jurisdiction

untouched. This stance was tested again when, in March 2003, an investigation was opened into former US

president George H.E.W. Bush and others for actions during the 1991 Gulf War.96 Another investigation was

opened in May 2003 into several US officials, concerned with alleged war crimes committed during the 2003

invasion of Iraq.97 With this, the US threatened to pull funding out of NATO headquarters in Brussels, and to

boycott future meetings. In response the Belgian Parliament quickly passed legislation, modifying the law in

August 2003. Modifications included narrowing the scenarios in which Belgian courts could act – there can

now only be a prosecution if there is a treaty requiring it and the suspect is present on Belgian territory. Failing

this there must be a link between the crime and the State of Belgium, such as a Belgian suspect, a Belgian

victim, or the suspect’s residence in Belgium for at least three years. The transformation reverts Belgian law to

traditional jurisdictional principles and to a limited ‘conditional’-type universal jurisdiction.

The Belgian experience provides the paradigm example of the conflict between law and politics when it

comes to attempting to counter impunity by transnational methods. Belgium may have been unfortunate in that

it was especially susceptible to US threats, being the base of NATO operations. However, similar threats could

easily be made against countries in other situations, such as trade sanctions or the pulling of humanitarian aid,

if applicable. The Belgian courts may have acted unwisely in taking on such politically volatile cases,

essentially indicting the states in question given that there had been no change of power since the alleged

offences (in contrast to Pinochet). The conclusion would seem to be that justice will often fail to triumph over

politics in such tense cases. The experience also raises questions as to the legality of ‘absolute’ universal

jurisdiction in customary international law given that its exercise provoked strong criticism. 98 In any case there

may have been a genuine concern about whether the Belgian court system should actually have been accepting

such cases given the inefficiency of its legal system, as demonstrated by the untenable length of the ‘Butare

95
‘Belgian move against Sharon angers Israel’: http://news.bbc.co.uk/1/hi/world/middle_east/2756709.stm.
96
Cass., 24 September 2003, ref. P.03.1216.F. Journal des Tribunaux (2003), at 369.
97
See Human Rights Watch publication, ‘Universal Jurisdiction in Europe: The State of the Art’, available at
www.hrw.org/reports/2006/ij0606.
98
This is discussed infra pp24-28.

16
Four’ trial.99

- Beyond Pinochet: The Spanish Experience

The Spanish courts continued to take a positive stance following Pinochet. Investigations into

Argentina’s ‘dirty war’ bore fruit as early as 1997 when former Argentinean Navy Captain Adolfo Scilingo,

involved in the notorious ‘death flights’ (in which political opponents were flown out over the Atlantic and

dropped, alive, into the ocean), fled to Spain. Scilingo had previously confessed his involvement in the flights

and had since been the target of intimidation in Argentina.100 On fleeing to Spain he testified to Judge Garzόn

and was instantly arrested. In April 2005 Scilingo was sentenced to 640 years imprisonment - the sentence was

increased to 1,084 years on appeal.101 Scilingo’s case provides an example of an exercise of absolute universal

jurisdiction actually resulting in a prison sentence. It serves as lasting proof that absolute universal jurisdiction

can and does work; however, the fact that Scilingo’s surrender to the Spanish courts (converting the case to

essentially one of conditional universal jurisdiction) was necessary to follow it through demonstrates the unique

circumstances often needed for such cases to succeed.102 In a related case, in August 2000 Ricardo Miguel

Cavallo, a former Argentine military officer suspected of torture in the 1970s and 80s, was arrested in Mexico

and subsequently extradited to Spain. In December 2006 the Spanish Supreme Court ruled that Spain had no

jurisdiction, as Argentina had indicated a willingness to prosecute him. Priority was thus rightly given to

Argentina as a more suitable forum for Cavallo’s prosecution.103

In December 1999 a complaint was filed with the Spanish courts alleging crimes of genocide, terrorism

and torture committed in Guatemala by military leaders (particularly General Ríos Montt) during a civil war

99
Reydams, supra no57.
100
Roht-Arriaza, supra no80, 22-24.
101
Supreme Court of Spain, Case No 10049/2006-P, July 3 2007.
102
See Giulia Pinzauti, ‘An instance of reasonable universality: the Scilingo Case’ (2005) 2(5) Journal of International Criminal
Justice 1092 and Christian Tomuschat, ‘The Scilingo Case and its Implications’ (2005) 3(5) Journal of International Criminal Justice
1074 for a discussion.
103
The decision was made in the wake of the Guatemala case: see infra pp17-18.

17
from 1962 until 1996. Around 200,000 people – predominantly indigenous Mayans104 - were killed or

disappeared during this time. The crimes, like the Chilean and Argentine cases before, had Spanish links given

that the Spanish embassy in Guatemala was destroyed during the conflict, leaving eight Spanish people dead.

Several other Spanish citizens were also killed or disappeared. In judging whether the case could proceed, the

Spanish Supreme Court held, in February 2003, that only cases with a direct link to Spain could proceed, thus

gutting the Spanish universal jurisdiction law.105 Coming around the same time as the Belgian move to restrict

universal jurisdiction laws, the decision was described as “clearly indicative of a new trend against what is

politically perceived as the excesses of the universal jurisdiction doctrine.”106

The situation was, however, reversed in September 2005 when the Spanish Constitutional Court

overturned the Supreme Court’s decision,107 setting aside the direct link requirement and restoring the

unqualified nature of Spanish universal jurisdiction in relation to heinous international crimes, such as the ones

alleged in the Guatemala case.108 The Constitutional Court held that the limitations imposed by the Supreme

Court constituted a “teleological reduction” in violation of the Constitution and ran against the intention of the

legislation, which was to permit universality. In assessing the principle of universality the Court stated that the

international community as a whole was injured by the crimes committed in Guatemala and that in such cases

there were no limits imposed on extraterritorial jurisdiction under international law, a position backed up by the

laws of several other states109 and a recent resolution by the Institut de Droit International.110 It added that the

presence of the accused was only a condition for trial, not a basis for jurisdiction. The Court even went so far

as suggesting that universal jurisdiction might be grounded in a jus cogens rule of international law. The Court
104
The UN-sponsored Commission for Historical Clarification found in its 1999 report, ‘Guatemala: Memory of Silence’: (available
at http://shr.aaas.org/guatemala/ceh/report/english/toc.html) that agents of the State committed acts of genocide against the Mayan
people from 1981 to 1983.
105
Spanish Supreme Court, Criminal Division, Decision No. 327/2003, 25 February 2003.
106
Hervé Ascensio, ‘Are Spanish Courts Backing Down on Universality? The Supreme Tribunal’s Decision in Guatemala Generals’,
(2003) 1 Journal of International Criminal Justice 690, 690.
107
The procedure of appealing to the Constitutional Court when one’s ‘fundamental rights or freedoms’ are violated, known as
‘recurso de amparo’, is an unusual one; see Elena Merino-Blanco, Spanish Law and Legal System (2nd ed.) (London: Sweet and
Maxwell, 2006), 202-203.
108
Tribunal Constitucional, STC 237/2005, decision of 26 September 2005. See also Hervé Ascensio, ‘The Spanish Constitutional
Tribunal’s Decision in Guatemalan Generals: Unconditional Universality is Back’ (2006) 4(3) Journal of International Criminal
Justice 586.
109
The laws of Belgium, Denmark, Sweden, Italy and Germany are referred to.
110
‘Universal Criminal Jurisdiction With Regard to the Crimes of Genocide, Crimes Against Humanity and War Crimes’, resolution
adopted 26 August 2005 at Kraków.

18
further held that the only limitation was that priority in such cases should be given to the state in which the

crime was committed, given that it was reasonable to do so on grounds of procedural practicability and criminal

policy. The decision re-opened the Spanish courts to universal jurisdiction claims at a crucial time, stemming

the growing tide of international disfavour against such proceedings. 111 The decision also provided a

springboard for cases invoking absolute universality, providing a firm base through coherent arguments and a

concise analysis of developments so far. It provides, at least in terms of philosophy if not precedent, the

decision that the ICJ failed to give in the Arrest Warrants case112. Consequently, the extradition from

Guatemala of seven former military leaders, including Montt, was requested in December 2006.113

There can be no doubt that Spain has played a key role in nurturing the principle of ‘absolute’ universal

jurisdiction. By accepting cases where the state involved has undergone a change of governance (as in Chile,

Argentina and Guatemala) and where the citizens were already demanding justice, the Spanish courts, aided by

their absolute separation from the government and lack of influence therefrom, have trodden carefully, a policy

which may well have enabled them to avoid the political pressures which caused Belgium’s downfall. They

have thus kept the principle open to consideration by national courts the world over. Whilst Spain did endure

protests in the cases these ultimately gave way to action, a beneficial spin-off effect - Pinochet faced judicial

action when he returned home and, similarly, Cavallo’s extradition was requested by Argentina. These were

countries yearning justice (their ratifications of the Rome Statute are indicative of this) and the Spanish courts

acted prudently in dealing with them.

111
See Cassese, ‘Is The Bell Tolling for Universality? A Plea for a Sensible Notion of Universal Jurisdiction’ (2003) 1(3) Journal of
International Criminal Justice 589.
112
Supra no15.
113
http://news.bbc.co.uk/1/hi/world/americas/6205327.stm

19
 IV – The Spanish Investigation into Genocide in Tibet

“We have a great confidence in the Spanish legal system and we hope that it will be able to apply the

universal law such as it is written and not as certain governments and dictators would wish it to be.”

- Alán Cantos, coordinator, ‘Comite de Apoyo al Tibet’114

As the Constitutional Court threw the doors of absolute universality wide open in their decision on the

Guatemala case, the opportunity arose for further cases to be brought. The Tibet case, now in progress, denotes

a particularly bold move, set to test the limits of the Spanish law.

The initial complaint was filed by the Madrid-based ‘Comite de Apoyo al Tibet’ (CAT), the ‘Fundación

Casa del Tibet’ and the latter’s director, Spanish citizen (and exiled Tibetan) Thupten Wangchen, in June

2005.115 It was directed against former Chinese President Jiang Zemin, former Prime Minister Li-Ping and five

other former military and security officials, accused of genocide, crimes against humanity, state terrorism and

torture committed since the Chinese invasion of Tibet in 1950. The complaint constitutes the first ever to deal

with Tibet despite over fifty years of apparent repression.

The complaint was initially rejected in September 2005 based on the judgement of the Supreme

Tribunal in Montt. However, as the Spanish Constitutional Court overturned the decision three weeks later, the

way became clear for a fresh consideration of the case by the Audiencia Nacional116 in January 2006. In this

instance the Court held that the acts alleged possessed the characteristics of genocide, as defined in the

Genocide Convention, and that given the time which had passed since the facts complained of occurred, there

was unlikely to be any judicial remedy before Chinese courts, thus following closely the Constitutional Court

decision. The Court also considered the role of the ICC, but dismissed it as a potential forum seeing as the

114
Transmitted by Patrick Bonnassieux of Lyon Association of Snows for international groups for Tibet, June 28, 2005.
115
The Spanish legal system permits acción popular, enabling Spanish citizens with an interest in a particular case or acting on behalf
of a victim to bring private prosecutions; it is predominantly NGOs that bring such actions.
116
Audiencia Nacional, no 196/05, 10 January 2006. The Audiencia is Spanish national court charged with dealing with complex or
serious cases, including international offences. See Merino-Blanco, supra no107, 65-66.

20
events did not fall within its jurisdiction (rightly, as the events occurred before the Rome Statute’s entry into

force, and China in any case is not a party to it); in doing so they seemed to suggest that jurisdiction should be

deferred to the ICC if possible.117

The CAT’s 80-page complaint charges the accused with the murder or displacement of 1 million

Tibetans. It focuses on persons in various positions in power in China, dating from 1971 (Ren Rong, secretary

of the communist party and military officer until 1980) up until 2003 (Jiang Zemin, the previous president) and

therefore targets a broad range of events spread across over thirty years. Although the policy impliedly rules

out investigation of the initial years of the occupation and therefore chooses not to examine what was

documented as the worst period of human rights abuses,118 it sensibly chooses to base itself in relatively recent

events, evidence for which will be more readily available. In substantiating its claims that genocide has been

committed the complaint includes accounts of forced disappearances, arbitrary execution, apartheid, racial

discrimination and the prevention of reproduction (including forced sterilisation and late abortions); former

family planning minister Deng Delyun is amongst those named, indicating the emphasis on the latter. The

complaint wisely chooses to target former leaders, in order to get round issues of immunity. Enquiries are well

underway: several witness testimonies have been heard, international experts have been brought in, and

witnesses have been brought to Madrid.119 However, progress is not as good as it could be as there are

indications that India - home to a great many refugees and a huge potential source of evidence - has refused to

cooperate with a rogatory commission sent by the investigating judge.120 China itself has refused to cooperate,

claiming the investigation to be an interference in its internal affairs, and the allegations “a fabrication and a

complete slander”.121

Despite difficulties the Tibet case provides a huge step forward for the Spanish take on universal

jurisdiction and a natural progression from the Constitutional Court decision, being the first case where the

117
See infra pp 31-35.
118
1959 and 1960 were amongst the most atrocious years; up to 90,000 Tibetans were killed in this short time, in response to a
uprising in Lhasa in March 1959; see the International Commission of Jurists’ Report on Tibet, 1960, which explicitly states that
“acts of genocide” have occurred.
119
www.phayul.com/news/article.aspx?id=21272
120
Ibid.
121
‘China Warns Spain over Tibet Lawsuit’, www.iht.com/articles/2006/06/06/news/briefs.php.

21
complainant has not attempted to justify the exercise of jurisdiction by demonstrating links with Spain. The

case courts controversy by being against former members of the present government, and therefore effectively

also against the State. Moreover, being against China, it is directed at the most populous state in the world and

one of the most powerful - a nuclear power, a permanent UN Security Council member and a huge centre of

trade and investment for Spain.122 The case appears to be as audacious, and ambitious, as the Belgian

investigation of George Bush, and will doubtless engender similar protest and political pressure.

- Politics and Law in the Tibet Case

Politics will undeniably play a role in the case and in this respect regard must be had to previous

experiences, particularly Belgium’s buckling under political pressure. The Spanish courts must proceed

cautiously if they are to avoid putting the principle of universal jurisdiction at risk. However, they may be in a

better situation than Belgium, lacking the overt NATO-derived links - in fact, past exercises of universal

jurisdiction have generally shown little or no ill effects.123 The courts are also helped by their absolute

separation from the Spanish Government – it will be difficult for the Chinese to put pressure on a

(theoretically) depoliticised Court. In any case it is doubtful whether a more impartial forum could be found

that of the Spanish courts – politically independent and based in a far away state, with no record of a dispute

with China.

One commentator on the case states that “political considerations might lead the relevant Spanish

authorities not to request the extradition of the accused”. 124 Whilst the previous practice of the courts seems to

indicate otherwise (extradition requests were made in relation to the Chilean, Argentinean and Guatemalan

122
Spanish companies invested approximately 120 million euros in China in 2006: ‘Spanish Court Looks at Tibetan Genocide
Claims’, www.globalpolicy.org/intljustice/universal/2006/0302tibetgenocide.htm.
123
See Roht-Arriaza, supra no80, 65, who relates the minor ill effects felt on diplomatic and trade relations.
124
Christine Bakker, ‘Universal Jurisdiction of Spanish Courts over Genocide in Tibet: Can it Work?’ (2006) 4 Journal of
International Criminal Justice 595, 599. However, the CAT view the situation otherwise – a press officer has stated that the CAT
‘wants there to be a fair, open and honest trial, and those people who are found to be guilty for them to be sentenced and imprisoned
for the crimes they are found to have committed’, at ‘Tibet v China: The Human Rights Showdown’, www.opendemocracy.net,
August 16th 2006.

22
cases), Bakker is probably correct in stating that, in any case, “it is unthinkable that China would comply with

such a request” (a necessary event if trials are to take place, due to Spain’s ban on trials in absentia) given their

condemnation of the investigation so far. This problem is exacerbated by one of the key differences between

this and past cases - the fact that, as stated above, the case targets members of a regime that still governs the

territory in question, and a regime that has to date sheltered the accused (and which is not a party to the ICC).

Permitting extradition would be tantamount to admitting their government’s, and State’s, guilt. It would also

mean them paying more attention to “the so-called Tibet issue”,125 an issue that has been persistently ignored.

Another genuine concern is that the process could endanger any political solutions to the problem -

China has recently indicated a willingness to enter a dialogue with the Tibetan Government in Exile, plans

which could potentially be undone by the lawsuit as pressure on the Chinese is likely to undermine their

willingness to negotiate, a phenomenon seen widely in previous conflicts, notably in Yugoslavia. 126

Even if justice is not done in the traditional sense, Tibet and its indigenous inhabitants have much to

gain from the investigation going ahead. It would create a stigma that would of itself punish the defendants and

deter similar crimes in the future. As was seen in Chile and Argentina, the case could have a catalysing effect,

bringing greater attention to the crimes and increasing pressure on the Chinese authorities to take action. It

would also allow the victims to tell a judge their story, providing them with a sense of justice and catharsis, a

sense that their grievances have been addressed in some form,127 and creating a permanent historical record. It

will also establish rule of law – “an understanding that aggressors and those who attempt to abuse the rights of

others will henceforth be held accountable”.128 More practically it would prevent the accused from travelling

to Spain - perhaps even to Europe as a whole if the Pinochet precedent, and actions of the UK, are anything to

go by - whilst the investigation could snowball, encouraging other states to investigate and restricting the

125
Supra no121.
126
On the conflict between peace and justice in Yugoslavia see O. Schuett, ‘The International War Crimes Tribunal for the Former
Yugoslavia and the Dayton Peace Agreement: Peace Versus Justice’ (1997) 4(2) International Peacekeeping 91.
127
Neil Kritz, ‘Coming to Terms with Atrocities: A Review of Accountability Mechanisms for Mass Violations of Human Rights’
(1996) Law and Contemporary Problems 127, 129.
128
Ibid., 128.

23
defendants even further, effectively turning China into a huge open-air prison.129

From a legal point of view the case is very exciting. Bakker summarises this feeling by stating that “the

Spanish judiciary has taken [the audacious step of testing] the international obligation of states to prosecute

authors of genocide … in a world where state sovereignty continues to be the bedrock principle.” 130 As such

the investigation will “usefully contribute to the state practice supporting or confirming the customary rule of

international law that allows states to exercise universal jurisdiction over the most heinous international

crimes.”131 However, Bakker concludes, on a cautious note, that China’s response must be taken into account

in order to properly appraise such practice. China’s objections may hint at whether or not a customary rule is

crystallising, but must be viewed in the context of prevailing consensus. In this context it will be interesting to

note whether many other states also object to the investigation.

V – At the Pinnacle of Universal Jurisdiction: Evaluating Present Conditions

The past sixty years have seen an evolution in the concept of universal jurisdiction, from a tool used in

justifying the prosecution of pirates or perpetrators of other transnational offences (such as slave traders) found

within a state’s jurisdiction, to a norm permitting a state to investigate international offences committed

anywhere, absent any link to the forum state. The former type of universal jurisdiction (‘conditional’) rests on

the premise that certain offences are of an transnational nature (whilst not being international crimes per se)

and therefore all states have an interest in prosecuting them given that they are threatened by the action; the

custodial state has the primary right to do so, thereby addressing any conflicts of jurisdiction arising. This form

of universal jurisdiction is enshrined in a series of international conventions dealing with such crimes and is

probably also a norm of customary international law. This form of universal jurisdiction is also obliged by

convention in relation to war crimes and torture, the rationale for which is based on the heinous, unjustified

nature of these crimes (rather than their transnational nature) which converts them from national crimes into
129
Roht-Arriaza, supra no80, suggested in relation to the Argentine case.
130
Supra no124, 601.
131
Ibid.

24
international crimes proper, worthy of prosecution in any state. 132 ‘Conditional’ universal jurisdiction, then,

certainly extends to ‘transnational’ crimes and to international crimes in some instances. It may also extend to

genocide and crimes against humanity, especially if it is impossible for a perpetrator to be tried in the territorial

state – a practice seen to occur in conjunction with the ICTY and the ICTR.

From this second branch of ‘conditional’ universal jurisdiction, dealing with international crimes

proper (rather than transnational crimes) stems the norm of ‘absolute’ universal jurisdiction. It is arguably

exercisable under treaty in relation to war crimes, as the Geneva Conventions posit no qualifying factor of

presence, a position supported in several domestic jurisdictions.133 Elsewhere, outside treaty law, it has been

exercised in relation to torture, genocide and crimes against humanity and, subject to certain considerations, 134

may be constitutive of a crystallising norm of customary international law, a trend illustrated by an increasing

demand for and increasing tendency for perpetrators of such crimes to be prosecuted in this way. The case

against Zemin et al constitutes the climax of this practice, abandoning all links with the forum state and taking

no chances in targeting a global superpower. The implications of the case are manifold, and ripe for

consideration.

(i) The Position in Customary International Law: Whilst there has been a steady growth in the

number of cases making use of absolute universality, the legal position at the time of the Tibet case remains

unclear. There is no treaty governing usage of the principle and therefore any rule, or contra-rule, must be

derived from customary international law.

Despite the lack of a clear trend, pioneer of universal jurisdiction Judge Garzón has maintained that

there is nothing to stop states implementing the legislation required to exercise universal jurisdiction. 135 This

seems rather an idealist approach (one which might not be adopted by a member of the Belgian judiciary), but

according to the reasoning in the historic Lotus case, Garzón’s argument carries resonance if there is no barring

132
War crimes, originally conceived of as crimes committed in international armed conflict, now also extend to non-international acts
and so will not always be ‘transnational’ in nature; see supra no56.
133
Henckaerts and Doswald-Beck, supra no25.
134
See infra pp 25-29.
135
Speaking at Edinburgh Festival of Spirituality and Peace, 18 th August 2007.

25
rule to the contrary. In the 1927 Lotus case,136 in which both France and Turkey wished to assert jurisdiction

over a sea captain who caused a fatal accident on high seas, the Permanent Court of International Justice (PCIJ)

stated that “International law … leaves [States] a wide measure of discretion which is only limited in certain

cases by prohibitive rules; as regards other cases, every state remains free to adopt the principles it regards as

best and most suitable”.137 According to the Lotus principle, then, a state remains free to adopt a course of

action provided there is no rule to the contrary - an explicit permissive rule is not required. Therefore as a

matter of international law Spain is permitted to adopt laws of absolute universal jurisdiction and proceed with

the Tibet case provided there is no rule that conclusively states otherwise. In exploring whether there is a

barring rule, it is apparent that only a handful of states have adopted provisions permitting absolute universal

jurisdiction, whilst others have chosen alternate, less radical models. Exercises of absolute universal

jurisdiction have been met with protest from their target states but rarely elsewhere. 138 As yet, then, there is no

consensus. Under the Lotus principle this would mean that – at least for now – the practice is permitted: El

Zeidy backs this view, stating that “controversy may support the view that a restrictive rule of international law

that bars [absolute universal jurisdiction’s] application is lacking”. 139 It must also be borne in mind that opinio

juris is needed to constitute a customary rule, and the fact that a majority have states have chosen not to

incorporate absolute-style provisions is not likely due to a belief that international law prohibits it. The

decision may be due instead to considerations such as political concerns, public opinion or practical

restrictions.140

However the applicability of the Lotus principle can be debated. The ICJ in the Nicaragua case,141 for

instance, stated that “for a rule to be established as customary the corresponding practice [does not need to be]

136
1927 PCIJ Reports, ser. A, no 10, 4.
137
Paras 18-19.
138
The cases brought so far indicate a mixture of opinion: for example, Pinochet provoked approval from the EU and European States
but denunciation from South America, whilst the USA failed to comment; Reydams supra no12, 71. The Guatemala case has been
met with approval from the European Parliament: Resolution of 26 October 2003.
139
El Zeidy, supra no91, 859.
140
Rabinovitch, ‘Universal Jurisdiction In Absentia’ (2004-05) 28 Fordham International Law Journal 500, 510. The majority of
states have issued no explicit provision on the matter, thus leaving it open for their respective courts to decide on the issue. See also
the opinion of Judge van den Wyngaert, infra p27.
141
Case Concerning the Military and Paramilitary Activities In and Against Nicaragua (Nicaragua v United States of America), ICJ
Judgement of 27 June 1986.

26
in absolutely rigorous conformity with the rule … [it is sufficient] that the conduct of states should, in general

be consistent with such rules,”142 indicating the necessity for positive formulation of customary rules. This

stance is also adopted by Reydams, who maintains that “[a] nascent, supportive trend … does not constitute

custom”.143 In the Nuclear Weapons case the ICJ, being unable to find a rule either permitting or prohibiting

the use of nuclear weapons, stated that it could not “conclude definitively whether the threat or use of nuclear

weapons would be lawful or unlawful” whereas if the Lotus principle were applied, such a finding would surely

mean that usage was in fact lawful.

Some academics have attempted to skirt the problem in other ways. Randall, for instance, draws on

dicta from ICJ case Barcelona Traction144 which states that “an essential distinction should be drawn between

the obligations of a state towards the international community as a whole, and those arising vis-à-vis another

state [...]. By their very nature the former are the concern of all states. In view of the importance of the rights

involved, all states can be held to have a legal interest in their protection; they are obligations erga omnes”.145

Thus, Randall proposes, once an offence rises to the level of being an international or jus cogens crime, it is

automatically subject to universal jurisdiction. The argument has also been adopted by Cassese who states that

“the crimes over which such jurisdiction may be exercised are of such gravity and magnitude that they warrant

universal prosecution and repression”.146 However it may be one thing to claim that all states have a legal

interest in preventing international crimes, but another to insist that their commission triggers the right of

domestic courts to exercise jurisdiction over the perpetrator, even without his presence.147

Until a case comes to an international tribunal that directly addresses the issue,148 or until cases continue

to be brought and a clear pattern is established, the situation will remain unresolved. It is unfortunate, then,

that the ICJ did not address the issue when given the mandate to do so in the Arrest Warrant case.149 Despite

142
Ibid., para. 98.
143
Reydams, supra no12, 224.
144
Barcelona Traction, Light and Power Company, Limited (Belgium v Spain), ICJ Reports 1970.
145
Randall, supra no71, 823.
146
Malcolm Shaw, International Law (5th ed.) (Cambridge: CUP, 2003), 452.
147
See, e.g., Shaw, ibid., 598, who suggests that jus cogens offences trigger conditional universal jurisdiction only; see also
references cited infra no159.
148
It may issue judgement in the ROC v France case, supra no91.
149
Supra no15.

27
this some members of the Court addressed the issue in separate opinions, providing some much needed

guidance. The opinions, however, highlighted the division of opinion on the issue, not unlike the vastly diverse

decisions of the House of Lords judges in Pinochet (No. 3).150 The Court President, Judge Guillame, took a

negative, restrictive stance on the issue - he differentiated between the two types of universal jurisdiction –

conditional and absolute – and went on to express the (questionable) view that under customary international

law absolute universal jurisdiction was only permitted in regard to piracy,151 whilst certain treaties obliged

contracting parties to exercise conditional universal jurisdiction. Judge Guillame’s views were shared by Judge

Rezek. Judge Van den Wyngaert adopted the Lotus principle (“not only an authority on jurisdiction, but also

on the formation of customary international law”152) and confirmed that because of the diversity of state

practice regarding absolute universal jurisdiction, there was no barring rule of customary international law

preventing its exercise. She also stated that the decision of states to abstain from initiating proceedings in

absentia was not necessarily driven by legal considerations, but could be due to practical or political

considerations. In a joint separate opinion Judges Higgins, Kooljmans and Buergenthal also distinguished

between the two types of universal jurisdiction and, similarly to Judge van den Wyngaert, found no established

state practice barring investigation in absentia – provided that certain conditions, set out by the judges, were

met.153 The safeguards propose that (i) immunities should be respected; (ii) the territorial state (or national

state, if different) should be given the opportunity to act first; (iii) investigations should be performed by an

independent judiciary; (iv) “special circumstances” should be required to initiate proceedings – in other words

proceedings should not be commenced by the prosecutor’s office, but rather by an external source such as the

victim’s family - and; (v) universal jurisdiction should be asserted only over the most egregious international

crimes. The Spanish investigation into Chinese policies in Tibet fulfils all these categories: immunities are

respected, in that only former position-holders are targeted; China has no intention of acting to bring those

150
Pinochet (No. 3), supra no86.
151
Cassese rightly claims that this viewpoint is mistaken, supra no17, 857, as does O’Keefe in ‘Universal Jurisdiction: Clarifying the
Basic Concept’ (2004) 2 Journal of International Criminal Justice 735, 751.
152
Separate opinion, para. 56.
153
Cassese hails this as a code for the practice of absolute universality, stating that “it seems correct to hold the view that [absolute]
universal is permitted by international law, subject to the conditions set out by these three distinguished Judges”, supra no17, 857; see
also Colangelo, supra no63.

28
responsible to account; the judiciary is completely independent from the government; the case has been

initiated by a pressure group rather than by the prosecutor proprio motu. For the final point the judges offer no

examples of what constitute the most egregious international crimes, but the allegations of genocide, crimes

against humanity and torture (perhaps less so terrorism) arguably fulfil this criterion. As such the investigation

fits the model offered by the judges. The safeguards might, in the future, form the basis of a treaty or some

other accepted model used in exercising universal jurisdiction.154 For the time being, at least, the potential for

universal jurisdiction cannot be written off.

It is also worth noting the implied acceptance of universal jurisdiction by the ICTY in Tadic, which

explicitly stated that borders could not constitute barriers against justice. 155 The remark indicates the feelings

of an international criminal tribunal, to which significant gravity should be attached.

(ii) Sovereign Equality of States: The most common argument levelled against universal jurisdiction is

that it is infringes the principle of sovereign equality of states and the corollary rule of non-interference. In the

context of the Tibet case, China has claimed that the Spanish investigation constitutes an interference in its

internal affairs.156

The principle of sovereign equality is formulated in Article 2(1) of the UN Charter: “[t]he Organisation

is based on the principle of the sovereign equality of all its Members”. Further clarification is provided by the

General Assembly’s 1970 Declaration on Principles of International Law. 157 The principle is deemed

“essential in the maintenance of a reasonably stable system of competing states”.158

The exercise of universal jurisdiction should not be viewed as interference in another state’s affairs

given the international nature of the crimes as affronts to all humanity – this is the stance taken by several

154
Several other nascent sets of guidelines exist, such as the Princeton Principles, available in Macedo, Universal Jurisdiction
(Philadelphia: University of Pennsylvania Press, 2004), 18-26 and the Joinet Principles, U.N. Doc. E/CN.4/Sub.2/1997/20 (1997).
See Amnesty study, supra no14, Chapter 1.
155
Supra p1 and footnote no1.
156
Supra no121.
157
“All states […] have equal rights and duties and are equal members of the international community”, Resolution 2625 (XXV) of
1970.
158
Shaw, supra no146, 192.

29
commentators including Cassese who states that “the exercise of [universal jurisdiction does not] lead to undue

interference in the internal affairs of the state where the crime has been perpetrated”. 159 As such, “if a state

commits and condones crimes against humanity, these acts could invite prosecutions by other states”.160 As is

apparent from this statement, for this principle to be applicable the territorial state must be given the

opportunity to investigate first. In any case, investigation prior to request for extradition constitutes no

practical interference.

Reydams accepts that the principle of non-interference is not contravened given the international nature

of the crimes at issue (a telling proposition given his overall strongly negative stance towards absolute

universal jurisdiction), but that the higher principle of sovereign equality is. In this respect he quotes the Corfu

Channel case in which the ICJ held that such actions “would be reserved for the most powerful states, and

might easily lead to perverting the administration of international justice itself”.161 Reydams’ concerns are

echoed by several other critics162 and are exemplified by practice – universal jurisdiction has thus far been

exercised by developed, Western nations against undeveloped nations and, as such, the practice risks imposing

Western values onto the rest of the world. However, such investigations require resources and developed

nations are therefore best placed to conduct them. As the trend grows other countries will become more

confident, more resourceful and able to take a more active role - Steiner takes this optimistic position by stating

that the “lay of the land appears neither just nor desirable, but it is today simply a fact that will shape the course

of contemporary universal jurisdiction.”163 Senegal provides an example of a state that has already taken

action.164 This argument is not a complete solution, however, as undeveloped or ‘rogue’ states may be difficult

to take seriously. Senegal’s attempt to indict Habré was applauded, but a few eyebrows would be raised if, for

159
Cassese, International Law (Oxford: OUP, 2005), 452. There is much support for this view: see also Sammons, ‘The “Under-
Theorisation” of Universal Jurisdiction: Implications for Legitimacy on Trials of War Criminals by National Courts’ (2003) 21
Berkeley Journal of International Law 111; Randall, supra no71; Steiner, supra no22; the decision of the Spanish Constitutional Court
on Guatemala, supra no108; Pinochet (No. 3), supra no86; Demjanjuk, supra no40.
160
Bartram S. Brown, ‘The Evolving Concept of Universal Jurisdiction’ (2001) 35 New England Law Review 383, 389.
161
ICJ Reports, 1949, 4, 35; in Reydams, supra no12, 224-225.
162
E.g. Kissinger, ‘The Pitfalls of Universal Jurisdiction’ (2001) 90 Foreign Affairs 86; Colangelo, supra no63, 566; Bottini,
‘Universal Jurisdiction After the Creation of the International Criminal Court’ (2004) 36 New York University Journal of
International Law and Policy. 503.
163
Steiner, supra no22, 234.
164
Against Hissene Habré - the former Chadian dictator was present in Senegal at the time.

30
example, Senegal, or an African neighbour, attempted to indict the Bush (George W.) or Blair administrations

for committing war crimes in Iraq, or former Australian officials for the persecution of native Aborigines. It

seems unrealistic to believe that more powerful nations would accept the jurisdiction of weaker ones, but the

problem may dissipate as practice becomes more clear-cut, and prosecutions more widely accepted. Also

problematic may be the application of a state or government’s perceived take on the law; a startling example is

that of Ayatollah Khomeini’s issuance of a fatwa against Salman Rushdie, a pronouncement of Islamic law,

authorising his killing by anybody by virtue of his ‘criminal act’.165 This hurdle should be overcome by

asserting that only crimes recognised by all states (i.e. the ‘core crimes’ enunciated in the Rome Statute) can be

subjected to absolute universal jurisdiction. Prosecutions falling outside this category ought not to be

recognised.

Despite the genuine issues that arise, it is important to continue to break down state borders, as

anticipated by the ICTY in Tadic.166 There is no valid legal reason to continue to accept the argument that state

sovereignty prevails over universal jurisdiction – rather, international law “rises above the narrow interests of

states in recognising the universal jurisdiction of all to prosecute those responsible for certain special crimes of

concern to the entire international community”.167 Concerns over sovereignty should not continue to block the

progress of universal jurisdiction. Policy concerns over “Eurocentrism”, or “judicial imperialism”, 168 will be

abated as progress is made; the inauguration of the ICC, which recognises the importance of sovereign equality

in its preamble, will contribute to this process by disseminating its jurisprudence and trial standards amongst

domestic courts.

(iii) Universal Jurisdiction and the ICC: In 1998 the international criminal legal system was

overhauled by the setting up of the International Criminal Court, a permanent establishment given the power to

sit in judgement of perpetrators of genocide, crimes against humanity and war crimes. Since it became

165
Namely writing The Satanic Verses. See Rubin, ‘Is International Criminal Law “Universal”?’ (2001) University of Chicago Legal
Forum 351, for a discussion as regards the fatwa in international law.
166
Supra no1.
167
Brown, supra no160, 391.
168
Kissinger, supra no162.

31
operative in 2002 with the required sixtieth ratification of the Rome Statute,169 it has provided a mechanism of

accountability for international crimes, countering impunity in instances where domestic courts cannot, or will

not, take action.170 However it is not a panacea and has not eliminated the need for universal jurisdiction – both

systems are responses to impunity, and both are needed to combat it.

The ICC is technically limited in its exercise of jurisdiction in two major ways. The first is a temporal

restriction - Article 11 of the Rome Statute provides that the Court “has jurisdiction only with respect to crimes

committed after the entry into force of this Statute”. The second is a restriction of the situations in which the

ICC may exercise jurisdiction - rather than being able to exercise a power of universal jurisdiction, Article 12

provides the Court with jurisdiction if the crime occurred on the territory of a member state, or if the

perpetrator of the crime is a national of a member state (thus utilising the territorial and nationality principles).

Cases can reach the court in one of three ways, as outlined in Article 13 – referral of a situation by a state party,

referral by the Security Council acting under Chapter VII of the UN Charter, or by initiation of the prosecutor

proprio motu. Although theoretically any present or future situation could be referred to the ICC by the

Security Council, there is in practice a gaping hole in the ICC’s jurisdictional reach and, as such, many cases

will never get near the Court. The Tibet case is a particularly good example of such a case as the events under

investigation occurred before the coming into force of the Rome Statute, China is not a State Party to the ICC,

and China is a permanent Security Council member, able to veto any resolutions, including referrals to the ICC.

As such the case would never get to the ICC, even if the events were occurring now. 171 There is an obvious

role for universal jurisdiction in such situations.

Aside from these technical limits, the ICC is limited in a practical manner in that it will only ever have

sufficient resources to tackle a handful of crucial cases at a time.172 To date investigations have begun into four

169
Supra no19.
170
Rome Statute, ibid., Article 17.
171
There is also no real possibility that a special tribunal could be set up – the ICTY, ICTR and Special Court for Sierra Leone were
set up by the Security Council; as such it is doubtful one could exist for China.
172
Article 17(1)(d) of the Rome Statute requires cases to be of ‘sufficient gravity’. See Steiner, supra no22, 224.

32
situations, and four persons are detained pending trial.173 Given the difficulties the ICC faces – massive

evidence-gathering missions from countries with which it is not familiar, difficulties in obtaining perpetrators, a

horde of procedural guarantees designed to enhance the court’s legitimacy and, above all, high expectations –

justice may often be a slow process. The experiences of the ICTY and ICTR are testament to the tribulations it

faces.174 Those sceptical of universal jurisdiction are therefore wrong to write it off in the wake of the ICC.

Reydams states that “now the ICC is established, it would seem illogical to hold on to [universal jurisdiction]

and attribute similar, if not broader, powers to a single state than to a treaty-based court”.175 Whilst affording

the ICC deserved praise, such a statement fails to recognise the larger picture, in which there is only so much

the ICC is able to do to contribute to upholding global accountability for gross human rights violations, given

its jurisdictional and practical limitations.

Even when the ICC does have the legal power and resources to investigate a situation, there will still be

scope for domestic courts to take action, due to the fact that the Court’s jurisdiction is subsidiary, or

‘complementary’,176 to action at the national level. This principle is emphasised by the Preamble to the Rome

Statute, which states that “it is the duty of every state to exercise its criminal jurisdiction over those responsible

for international crimes”.177 The position is implemented under Article 17(1)(a) which provides that “a case is

inadmissible where [it] is being investigated or prosecuted by a state which has jurisdiction over it, unless the

state is unwilling or unable genuinely to carry out the investigation or prosecution”. 178 Thus the ICC assumes

jurisdiction only where states are either unable or unwilling to take action against offenders, a similar limit to

that imposed on Spanish powers of jurisdiction by the Constitutional Court.179 Given that the court is obliged

to defer jurisdiction in such cases, it should defer also in cases where a domestic court exercises universal

jurisdiction - there is nothing to suggest otherwise and, in fact, the concept was promoted by Judge Van den

173
The ICC has opened investigations into situations in the Democratic Republic of the Congo, Uganda, The Central African
Republic and Sudan. Four persons are presently in the Court’s custody: see the ICC website, www.icc-cpi.com.
174
See D. Raab, ‘Evaluating the ICTY and its Completion Strategy: Efforts to Achieve Accountability for War Crimes and their
Tribunals’ (2005) 3 Journal of International Criminal Justice 82.
175
Supra no12, p40; see also Bottini, supra no162.
176
Stated in Preamble to the Rome Statute, supra no9.
177
Ibid.
178
Supra no9.
179
Supra no108.

33
Wyngaert who stated, in her separate opinion in the Arrest Warrant case, that universal jurisdiction did not

violate the complementarity principle, which did not limit prosecution to the states linked to the parties or

events.180 This stance is also adopted by a number of commentators, including Kamminga who states that the

Preamble provides “an implicit reference to prosecutions carried out outside the territorial state”. 181 However

states wishing to displace the Court’s jurisdiction by exercising universal jurisdiction ought to be able to offer

sufficient fair trial standards, as it would be a calamitous exercise to grant rogue or dysfunctional states priority

over an international court.182 If a state fails to satisfy sufficient standards, the state conducting the trial should

be classed as ‘unable’ to do so, pursuant to the guidelines provided in Article 17(2) of the Rome Statute.

The subsequent result, of granting priority to prosecutions based on universal jurisdiction over

prosecutions conducted by the ICC (subject to trial standards) seems to be the natural consequence of the

language of the Rome Statute, making the ICC a kind of “court of last instance” in a three-tier system.183

However it might not be the most prudent system. Where there is possibility for the ICC to act, it should do

so,184 given the greater legitimacy that an investigation would be viewed with by the states concerned, 185 the

greater expertise on offer and better tools for enabling transboundary investigations and prosecutions. Such a

solution would also bypass volatile political issues that investigation by a third state might provoke. But it is

important that this suggestion is not pushed too far, such that the emergence of the ICC acts to take pressure to

prosecute off states, which might argue that waiting for ICC action is a better course of action seeing as it is

better placed to carry out investigations.186 A balance should be sought - in time ICC practice should provide

180
Supra no15.
181
Menno T. Kamminga, supra no58, 950. This stance is also supported by: Arbour, ‘Will the ICC have an Impact on Universal
Jurisdiction’ (2003) 1 Journal of International Criminal Justice 585; Marler, ‘The International Criminal Court: Assessing the
Jurisdictional Loopholes in the Rome Statute’ (1999) 49 Duke Law Journal 825 and Mary Robinson, in Macedo, supra no154, pp15-
18.
182
See Scheffer, ‘The International Criminal Court: The Challenge of Jurisdiction’ (1999) 93 American Society of International Law
Proceedings 68. The possibility that universal jurisdiction might be used for underhand political motives is a common argument
levelled against it, but it has not happened in practice: Amnesty study, supra no14.
183
This model is suggested by Roht-Arriaza, supra no80, 201.
184
This is implied by the Audiencia Nacional’s decision in the Tibet case: see supra no116.
185
See, e.g., Kritz, supra no127, who argues that an international tribunal is better positioned to convey a clear message to the
international community, is likely to be better staffed with experts will avoid being depicted as politicised and is better equipped to
conduct transboundary investigations.
186
Suggested by Hawkins, ‘Universal Jurisdiction for Human Rights: From Legal Principle to Limited Reality (2003) 9 Global
Governance 347, 362-3.

34
relevant guidance.187

Albeit with reservations, then, and recognition of need to compromise on certain issues, the need for

universal jurisdiction remains. Whilst some commentators advocate the elimination of universal jurisdiction

altogether “given the problems and risks associated with [its] application”,188 such a suggestion is impractical,

verging on careless. Universal jurisdiction is imperfect, but it has a crucial role to play in plugging the gaps left

by the ICC, which whilst an impressive and much-needed innovation, cannot be a panacea. Quite apart from

abrogating the need for universal jurisdiction, the ICC and the jurisprudence it will generate will influence and

complement it. As states ratify the Rome Statute and incorporate the crimes therein into their national

legislation (in some cases accompanied by universal jurisdiction provisions, as seen in Germany189), there will

be transnational harmonisation of laws.190 With the pursuant uniformity throughout international and national

courts a substantial corpus of international criminal law will develop, and worries about unfair trials in states

deemed to offer inadequate due process rights will diminish. In this way the two regimes will work together in

a symbiotic relationship – universal jurisdiction filling the gaps in ICC jurisdiction, and the ICC influencing

and harmonising national prosecutions (including exercises of universal jurisdiction), yet continuing to take a

lead role where consistency and coherency demands it, in compliance with the balanced approach advocated

above. Guidelines facilitating this interaction could be drawn up to quicken the process.191

Further harmonisation will occur at the procedural level as ICC provides guidance on the question of at

what point following an international offence it is legitimate to intervene in domestic affairs - Article 17(2) of

the Rome Statute provides guidance on when unwillingness or inability might be found to be present,

guidelines that can be followed by domestic states in determining whether or not they are violating the

principle of ne bis in idem, as outlined by the Spanish Constitutional Court.192 The ICC is but one pillar (albeit

187
See Monica Hans, ‘Providing for Uniformity in the Exercise of Universal Jurisdiction’ (2002) 15 Transnational Law 357, 400.
188
Bottini, supra no162, 545.
189
The Code of Crimes Against International Law (Völkerstrafgesetzbuch): see Reydams, supra no12, 144.
190
Aided by projects such as the ‘Legal Tools Project’ undertaken by the ICC, which provides a comprehensive collection of relevant
resources – see www.icc-cpi.int/legal_tools.html.
191
As advocated by Sadat, ‘Redefining Universal Jurisdiction’ (2001) 35 New England Law Review 241, 262 and Wible, ‘“De-
jeopardising Justice”: Domestic Prosecutions for International Crimes and the Need for Transnational Convergence’ (2002) 31
Denver Journal of International Law and Policy 265, 293.
192
Supra no108.

35
the central one) in the architecture of international justice.

(iv) Definitional Differences: The CAT’s complaint has placed the crime of ‘genocide’ at the head of

its list of allegations, thus ensuring abundant international attention, yet in doing so raises issues surrounding

the definition of the crime and the disparity between its definition at the international level and as conceived of

in this instance. The Pinochet investigation was representative of the problem: the impugned regime was

involved in widespread repression of political opposition, yet to characterise those crimes as ‘genocide’, as the

Spanish investigation did, does not seem to stay true to the classic, accepted definition of the crime. Article 2

of the Genocide Convention (and, more recently, Article 6 of the Rome Statute) provides that an enumerated

act must be committed against a “national, ethnical, racial or religious group”, whereas the Pinochet case

concerned extermination of a group of people with political affiliations. Supporting this latter tendency,

Garzón endorses a broader definition of genocide that extends to groups of people “that display common

characteristics linked to some essential activity, for example members of a union, political group, or

organisation bound by similar ideological characteristics”.193 Peculiarly, Spanish law originally included

‘social’ groups, although the position has since been changed.194 Garzón contends that, in any case, “we need

to engage in a reformulation of concepts such as genocide in response to [cases such as] the Tibetan genocide”,

claiming that the crime should be redefined to encapsulate such incidents, and other incidences such as the

crimes of the Pinochet regime or the ‘auto-genocide’ designed by the Khmer Rouge.195 Interestingly, the

Genocide Convention was originally set to include a definition covering such groups, until the Soviet

delegation objected – as such, Roht-Arriaza asks the question of “why a limitation introduced over fifty years

ago for purely tactical reasons should govern today’s interpretation of the Convention”. 196 However, the

present position should be maintained by virtue of the actual meaning of the term ‘genocide’, a term coined by

193
Rothenberg, supra no82, 948-51.
194
See Roht-Arriaza, supra no80, 47-48.
195
For a history see Ben Kiernan, The Pol Pot regime: race, power, and genocide in Cambodia under the Khmer Rouge, 1975-79
(London: Yale University Press, 2002).
196
Supra no80, 48.

36
Raphael Lemkin in the 1940s to describe the physical destruction of ethnic minorities.197 What is so

stigmatising about the term is that the intent to destroy the group is based purely on the origins (or perceived

origins) of the victims, rather than their political affiliations, which may be changeable. Although in many

incidences the two are likely to overlap, the underlying racially based intent should exist in order to enable

proper classification of the crime as ‘genocide’. Garzón’s argument is seemingly representative of the trend in

which the concept has erroneously come to represent extermination on a massive scale.

The crimes dealt with in the Pinochet case would be better classified as crimes against humanity, a

category that requires “widespread or systematic attacks against a civilian population”. 198 Garzón has stated

that “the problem virtually disappears because the ICC utilises the category of crimes against humanity”;199

therefore from a practical point of view the problem is eliminated. However in insisting on this use of the term

‘genocide’ not only risks weakening the value of the term but also undermining the progress of universal

jurisdiction. Spain is at the forefront of innovation in transnational accountability and may contribute

significantly towards the creation of a corpus of international law that is applied by various domestic courts -

but by adopting a misleading interpretation, the development of the law in this area is likely to become

muddled and unclear, and challenges thereto more numerous. Charges of genocide should be reserved for

cases that truly deserve the label. Moreover by linking the Tibet situation to his broader conception of the

crime, Garzón indicates that this ‘type’ of genocide is what is being investigated in the case, raising questions

as to whether investigating ‘genocide’ is at all appropriate. It must be borne in mind that crimes against

humanity are no less heinous - investigations along these lines are perhaps more appropriate in many situations.

VI – Conclusion

Over the past decade universal jurisdiction has evolved from a principle designed to justify

prosecution of perpetrators of transnational offences – notably pirates – found residing within a state’s
197
Raphael Lemkin, ‘Genocide as a Crime under International Law’ (1947) 41 American Journal of International Law 145.
198
Rome Statute, supra no9, Article 7.
199
Rothenberg, supra no82, 949.

37
jurisdiction. Thus even though the state had no link to the perpetrator, presence was sufficient to prosecute

such crimes, seen as an affront to all humanity. After World War II the principle was restrictively applied to

former Nazis, members of a universally discredited former regime.

Now, “after decades in which the principle of universal jurisdiction for gross human rights offences laid

dormant in treaty provisions, it is beginning to move to centre stage”. 200 Two key innovations have occurred

which have elevated universal jurisdiction to a being a much-needed tool in the fight against impunity. Firstly,

universal jurisdiction has routinely come to be applied to core international crimes, a trend which emerged

from the launch of the ICTY and ICTR, the activity of which triggered a wave of complementing prosecutions

in European states finding themselves hosts to perpetrators of gross human rights abuses. This conditional

form of universal jurisdiction is widely accepted, and is obliged under the Geneva Conventions and the Torture

Convention. Secondly, universal jurisdiction has begun to liberate itself from the restriction of presence,

leading to a revolution in the practical scope of universal jurisdiction, spearheaded by Belgium, Spain and

Germany.

The content of this new norm continues to be reinforced as cases are brought. However unless there is

firm reliance on the Lotus principle, support for which is unclear, and insistence that absolute universal

jurisdiction is permitted only by virtue of not being prohibited, its legal status remains unsure. Despite this

uncertainty there is firm ground, supported by a series of cases and academic opinion, on which to base an

argument that universal jurisdiction is permitted by the heinous nature of the acts it seeks to repress. The

argument can be used to further universal jurisdiction’s positive development and to waylay claims that it

impinges on state sovereignty. Although legal argument tends to favour the progression of universal

jurisdiction, a number of political considerations weigh against it, such as the potential deleterious effect on

diplomatic relations, the possibility for abuse by rogue states and the problems of ‘Eurocentrism’. Whilst these

political points are worthy of consideration, they should not be permitted to detract from the legal debate

surrounding the present status of universal jurisdiction. In any case, it is likely that as practice grows, so these

200
Kamminga, supra no58, 941.

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concerns will diminish.

Fearing that opening universal jurisdiction cases will be poorly received, or result in political crises,

states have generally shied away from instituting them. Even when cases have been taken on, they have rarely

come to fruition. The case of Scilingo is testament to this, whereby the perpetrator was only brought to justice

following his having fled to Spain, an occurrence not likely to repeat itself often. Yet, the Spanish

investigation into the Tibetan complaint has much to offer – although the case is beset with difficulty and may

never reach the trial stage the exploit will not be a futile one. As well as contributing to the development of

absolute universal jurisdiction the Spanish case will recognise, for the first time by a legal institution, the plight

of the Tibetan people. Their stories will become known to the world, others will take action and those

responsible will be shamed. The case may even trigger, if not an investigation on home soil as seen in Chile in

the wake of the catalytic Pinochet investigation, some recognition, and admission, of what has occurred.

The gaps left in the ICC system have the potential to be filled by the new trend in universal jurisdiction.

As such “a two-track approach to international justice”201 seems to be emerging, with institutions on the one

hand, and national courts on the other. In some cases the ICC should defer jurisdiction to states exercising

universal jurisdiction, seeing as it rests on the basis that national courts remain the key players in the system,

and seeing also that it will not always have the requisite resources to address every documented international

offence. The ICC should, however, take the initiative where possible, thereby relieving political tensions and

making full use of its expertise and broad powers. Guidelines should be drawn up to make this interaction

smoother.

An international treaty, or a recognised series of guidelines, is needed in order to make absolute

universality more acceptable. Such a treaty will encourage prosecutions at home, relieve political tensions and

help defeat worries of ‘Eurocentrism’. It may also harmonise varying definitions of crimes between states, and

contribute to the creation of a coherent body of international criminal law - a process already started by the ICC

and its domestic implementation. Until this stage is reached, states such as Spain have a pivotal role to play in

201
Roht-Arriaza, supra no80, 202.

39
setting broad, high standards. It is important that attention to continues to be brought to the potentials of

universal jurisdiction, creating a solid foundation of customary international law on which to base treaty rules.

The Spanish courts have proven that there is hope for ending impunity even beyond international

institutions. Action is now being taken which will provide some measure of relief for the Tibetan people, even

if only at a symbolic level. It may also be the first step - however small - in the reimagining of international

criminal law, into a system in which accountability extends to all corners of the globe.

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