Introduction
The recent conviction of Syrian ex-official Anwar Raslan by a German Court is a reminder of the relevance of universal jurisdiction. Deemed by some as ‘the only way’ to obtain justice, universal jurisdiction can be employed when efforts for domestic criminal prosecutions are in vain, and other pathways for international adjudication such as in the international court of justice (‘ICJ’) or international criminal court (‘ICC’) are unattainable; as was the case with Anwar Raslan.
Amnesty International, ‘Germany/Syria: Conviction of Syrian official for crimes against humanity a historic win for justice’ (Amnesty International, 13 January 2022) <https://www.amnesty.org/en/latest/news/2022/01/germany-syria-conviction-of-syrian-official-for-crimes-against-humanity-a-historic-win-for-justice/>.
Moreover, universal jurisdiction may again come up regarding grave crimes currently being committed by the Russian officials in the military operation in Ukraine. Although the assertion of universal jurisdiction would be an unfavourable and last resort option in the case of Ukraine, especially concerning the ongoing ICJ case and the ICC investigation, it nevertheless provides an interesting example of its prospects and possible application.
In light of these two applications, this article sets out relevant aspects of the theory and debate surrounding universal jurisdiction and elaborates on the recent application of universal jurisdiction in the above-mentioned case concerning Anwar Raslan. Then, it will assess the prospects for the possible application of universal jurisdiction regarding Russia’s current military operation in Ukraine.
Universal Jurisdiction: the Basics
What makes universal jurisdiction unique is that it is exercised over a crime irrespective of the place of perpetration, the nationality of the suspect, the nationality of the victim, or any other recognised link with the prosecuting State. Further, whereas ‘traditional’ jurisdiction revolves around States protecting their respective interests, universal jurisdiction relates to the interests of the international legal system as a whole. Since States with territorial or national links sometimes fail to respond adequately to crimes, universal jurisdiction provides all States with the right to prosecute.
General Practice
For some crimes, the basis for universal jurisdiction can be derived from a treaty. In particular, the obligation to prosecute or extradite with regard to international terrorism. Examples of provisions of this kind are Article 4(2) of the 1970 Hague Convention for the Suppression of Unlawful Seizure of Aircraft or Article 7(4) of the 1999 Convention for the Suppression of the Financing of Terrorism, prescribing States to take measures to establish jurisdiction over the perpetrator of the crimes at issue when they are present in the State’s territory. However, outside treaty obligations, there is no obligation for States to exercise universal jurisdiction. Nevertheless, over time, it has become accepted that States may exercise universal jurisdiction over piracy, torture and ‘core crimes’ under the Rome Statute of the ICC, including genocide, crimes against humanity and war crimes.
Robert Cryer, Darryl Robinson and Sergey Vasiliev, An Introduction to International Criminal Law and Procedure (4th edn Cambridge University Press 2019), 50.
Ibid, 51.
M Cherif Bassiouni, ‘Universal Jurisdiction for International Crimes: Historical Perspectives and Contemporary Practice’ in M Cherif Bassiouni (ed), Post-Conflict Justice (Brill Nijhoff 2002).
Hague Convention for the Suppression of Unlawful Seizure of Aircraft (Adopted 16 December 1970, entered into force) 860 UNTS 12325 14 October 1971; Convention for the Suppression of the Financing of Terrorism (Adopted 9 December 1999, entered into force 10 April 2002) 2178 UNTS 38349.
For elaboration on this topic, see, Evan Gruetter, ‘Piracy, a Crime of Universal Jurisdiction: A Perspective into the History of United States Piracy Jurisprudence, its English Common Law Roots, and Relationship with the Law of Nations’ (2019) SSRN 1.
Furundžija (Judgement) IT-95-17/1 (10 December 1998).
Rahim Hesenov, ‘Universal Jurisdiction for International Crimes – A Case Study’ (2013) 19 European Journal on Criminal Policy and Research 275, 277; Supra note 2, 51.
Limits
In contrast to those praising it as one of the solutions for impunity, several scholars such as Cherif Bassiouni and Kissinger have demonstrated its negative aspects. In particular, political interests often interfere with the pursuit of justice and due process. As such, scholars have criticised the ‘double standards’ of States applying universal jurisdiction with regard only to political circumstances, resulting in ‘erratic’ and inconsistent applications. Moreover, Judge Bula-Bula, in his separate opinion to the Arrest Warrant case, denounced the exercise of universal jurisdiction by Belgium in the DRC, its former colony, as a continuance of neo-colonialism.
However, it should be noted, first, that such selective application remains a problem for the prosecution of international crimes regardless of the principle of jurisdiction that is invoked. Second, contrary to the allegations of morally reprehensible political aims, most invocations of universal jurisdiction are consistent with a general consensus regarding the propriety of the perpetrators’ prosecutions.
Yet, as argued by Bassiouni, “[e]ven with the best of intentions, universal jurisdiction can be used imprudently”, leading to unwanted tension between States or inadequate legal processes for the persons prosecuted. This entails practical issues such as unwillingness from States to assist in the procedures or ‘forum shopping’, which could violate the norm that a person cannot be penalised twice for the same deed. Hence, although international law, in principle, permits the assertion of universal jurisdiction over grave crimes, it remains a contested topic.
Germany’s Conviction of Syrian Ex-Official
Photo: Anthony Cronin via Flickr, 31-03-2012
In spite of the above-mentioned negative aspects, universal jurisdiction can be employed to achieve justice in cases that would have otherwise resulted in impunity. One such recent example is Germany’s prosecution of Anwar Raslan, a notorious Syrian ex-intelligence officer under President Bashar al-Assad. During the Syrian civil war, he was reported to have directed operations in the Al-Khatib prison, dubbed ‘Hell on Earth’. He had received asylum in Germany but was subsequently arrested there in 2019.
German prosecutors then invoked universal jurisdiction for grave crimes to bring the case to court. Although the crimes were not committed in Germany or against German nationals, the crimes were of ‘international concern’.
- Mr Raslan received numerous murder charges, charges of rape and sexual assault, and he was charged with torture of more than 4000 detainees between 2011 and 2012. The German Higher Regional Court in Koblenz found Mr Raslan guilty of crimes against humanity, and he received a life sentence. As such, the German Court has become the first criminal court to formally recognise the commitment of crimes against humanity under Syria’s Assad regime.
Generalbundesanwalts v. Anwar R., Koblenz Higher Regional Court, Docket no. 1 StE 9/19 (2022), ‘dem syrischen Allgemeinen Geheimdienst’.
Jenny Hill, ‘German court finds Syrian colonel guilty of crimes against humanity’ BBC (Koblenz, 13 January 2022) <https://www.bbc.com/news/world-europe-59949924> accessed 8 March 2022;
Amnesty International, ‘Germany/Syria: Conviction of Syrian official for crimes against humanity a historic win for justice’ (Amnesty International, 13 January 2022) <https://www.amnesty.org/en/latest/news/2022/01/germany-syria-conviction-of-syrian-official-for-crimes-against-humanity-a-historic-win-for-justice/>.
See, People & Power, ‘The Trial of Anwar Raslan (Part 2)’ (Al Jazeera, 20 January 2022) <https://www.aljazeera.com/program/people-power/2022/1/20/the-trial-of-anwar-raslan-2#:~:text=In%20April%202020%2C%20one%20of,of%20participating%20in%20those%20crimes>.
Supra note 14.
Supra note 17; Last February, the same court also sentenced a lower-ranking ex-intelligence officer, Eyad A., for ‘aiding and abetting a crime against humanity’.
Prospects for the Situation in Ukraine
Photo: pix-4-2-day via Flickr, 26-02-2022
Although universal jurisdiction is generally a last resort option, it could possibly be applied to Russia’s unlawful use of force in Ukraine. Since Russia’s activities constitute crimes under many national criminal codes of third States, universal jurisdiction could allow these States to adjudicate crimes committed in Ukraine. Since there are other avenues to pursue accountability outside the ICJ, such as the ICC or a new ad hoc tribunal, unilateral assertions of universal jurisdiction could be a solution for willing States if the efforts in such multilateral fora prove themselves unsuccessful.
Applicable crimes
If reliance on universal jurisdiction is accepted, it remains to be seen which crimes would be applied. Considering Russia’s unprovoked initiation of the war and its conduct throughout, the crime of aggression is highly applicable. Yet, the ICC Prosecutor has confirmed that the ICC cannot exercise jurisdiction over the crime of aggression regarding the situation in Ukraine. By contrast, universal jurisdiction in some domestic courts does extend to the crime of aggression. In those States – including the Netherlands, Germany, but also Ukraine and Russia themselves – perpetrators of the crime of aggression can be prosecuted if they are on that
Sergey Vasiliev, ‘Aggression against Ukraine: Avenues for Accountability for Core Crimes’ (EJIL: Talk!, 3 March 2022) <https://www.ejiltalk.org/aggression-against-ukraine-avenues-for-accountability-for-core-crimes/>.
See, for example, supra note 18; Tom Dannenbaum, ‘Mechanisms for Criminal Prosecution of Russia’s Aggression Against Ukraine’ (Just Security, 10 March 2022) <https://www.justsecurity.org/80626/mechanisms-for-criminal-prosecution-of-russias-aggression-against-ukraine/>; on the ICC, see, the ICC Prosecutor’s statement Karim A. A. Khan, ‘Statement of ICC Prosecutor, Karim A.A. Khan QC, on the Situation in Ukraine: “I have been closely following recent developments in and around Ukraine with increasing concern.” (ICC, 25 February 2022) <https://www.icc-cpi.int/Pages/item.aspx?name=20220225-prosecutor-statement-ukraine>.
The ICC Prosecutor’s statement Karim A. A. Khan, ‘Statement of ICC Prosecutor, Karim A.A. Khan QC, on the Situation in Ukraine: “I have been closely following recent developments in and around Ukraine with increasing concern.” (ICC, 25 February 2022) <https://www.icc-cpi.int/Pages/item.aspx?name=20220225-prosecutor-statement-ukraine>, the ICC cannot adjudicate the crime of aggression for Russia-Ukraine given that neither State is party to the Rome Statute.
State’s territory, regardless of links such as nationality and the territory where the crime was committed. However, in some of these States, such as the Netherlands, the crime of aggression is applicable only to persons in a position of leadership, thereby limiting the prosecution to the highest officials only.
Since the prosecution of middle- or low-level commanders or soldiers is thus more viable, another option would be to rely on war crimes and crimes against humanity. Especially considering the aforementioned prosecution of Anwar Raslan as a precedent, States such as Germany could prosecute Russian officials or soldiers for these grave crimes. Moreover, there are ample examples of such trials of perpetrators of grave crimes based on universal jurisdiction, ranging from post-WWII trials to the prosecutions of Augusto Pinochet and Charles Taylor Jr. Notably, for most States, the exercise of universal jurisdiction required the perpetrator to be present in the State. Thus, notwithstanding strategically planned travel itineraries of the perpetrators, universal jurisdiction could possibly facilitate the prosecution of Russians committing grave crimes in Ukraine.
Conclusion
From the prosecution of the Syrian ex-officials in Germany, it can be concluded that in some cases, universal jurisdiction may be the only way to attain justice. However, the success of universal jurisdiction is dependent on legitimate judicial interests as opposed to considerations of power politics. That is, when States prioritise political context over justice, it continues the longstanding sense of double standards and inconsistency.
With these difficulties, universal jurisdiction continues to be a last resort option when other legal pathways are unavailable. It remains to be seen whether it will have to be applied regarding grave crimes committed by Russian officials in Ukraine.
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Amnesty International, ‘Germany/Syria: Conviction of Syrian official for crimes against humanity a historic win for justice’ (Amnesty International, 13 January 2022) https://www.amnesty.org/en/latest/news/2022/01/germany-syria-conviction-of-syrian-official-for-crimes-against-humanity-a-historic-win-for-justice/
Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v. Belgium) Separate Opinion of Judge ad hoc Bula-Bula [2001] ICJ Rep. 100 (ICJ)
Convention for the Suppression of the Financing of Terrorism (Adopted 9 December 1999, entered into force 10 April 2002) 2178 UNTS 38349
Supra note 21, for Ukraine even trials in absentia would be permitted.
The Netherlands, ‘Wet internationale misdrijven’ (2003), Article 8(b)(1).
Michael P. Scharf, ‘Universal Jurisdiction and the Crime of Aggression’ (2012) 53 Harvard International Law Journal 358, pp. 368-369.
For example, Furundžija (Judgement) IT-95-17/1 (10 December 1998), para. 156 the Court described torture as a crime over which States can exercise universal jurisdiction regarding individuals accused of torture ‘who are present in a territory under its jurisdiction’; the aforementioned legislation from the Netherlands can only be invoked if that person is present on the territory, but Ukraine does permit trials in absentia.
Aforementioned Anwar Raslan and lower-ranking officer Eyad A, see supra note 20.
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