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Expanding the Universal Jurisdiction in International Law

Written by: Written By: Ashish Chugh Symbiosis Law College, (Pune)
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The Universal jurisdiction of International Law has been a source of enigma for centuries. The initial object for the Universal jurisdiction principle lay in the social necessity in punishing an offender, who has committed a crime against the interest of the international community, without exception.

Initially, it was confined to piracy jure gentium. This meant that any State could try and punish a pirate regardless of whether injury had been caused to such State or its nationals. However, in the modern era, the Universal jurisdiction principle has grown to include war criminals.

A moot question has arisen since then, whether international terrorism would possibly be an ingredient in the Universal jurisdiction principle? One will attempt to adequately scrutinize such a moot question at an appropriate stage.

1. Universal Jurisdiction

According to Starke , 
" An offence subject to the Universal jurisdiction is one which comes under the jurisdiction of all States wherever it is committed. Inasmuch as the general admission, the offence is contrary to the interests of the international community, it is treated as a delict jure gentium and all States are entitled to apprehend and punish the offenders…… There are probably today only two clear-cut cases of the Universal jurisdiction principle, namely piracy jure gentium and war criminals."

2. Piracy jure gentium

According to Article 15 of the Geneva Convention on the High Seas, 'piracy jure gentium' is defined as
" An illegal act of violence, detention or any act of depredation, committed for private ends, by those aboard a private ship or private aircraft, and directed, either on the high seas against any ship or persons or property thereon or in territory or waters of the nature of terra nullius against a ship or person or property thereon." 

Piracy jure gentium for numerous centuries has been considered as a scourge and pirates may tried, according to International Law, by any State provided the act was committed on the high seas and for private ends.

3.War Criminals

According to Malcolm Shaw ,
" The General Assembly in 1968 adopted a Convention on the Non-applicability of Statutory Limitations to War Crimes and Crimes against Humanity, reinforcing the general conviction that war crimes form a distinct category under International Law, susceptible to the Universal jurisdiction principle."

In the landmark case of Eichmann vs. A-G of Israel , the Supreme Court of Israel had the opportunity to consider the scope of the Universal jurisdiction principle with regard to war criminals.

Adolf Eichmann was a German officer during the Nazi regime in Germany. He was responsible for the wholesale massacre of the Jews in Germany. After the Second World War, he ran away from Germany and started living in Argentina. He was forcibly brought from Argentina to Israel and put to trial in Israel under the Nazi Collaborators (Punishment) Law, enacted in Israel after the State of Israel came in existence.

The Supreme Court of Israel, sitting as a Court of Appeal, relied in part upon the Universal jurisdiction principle in upholding the conviction of Eichmann for war crimes, thereby overruling objections that Eichmann's actions occurred in Europe during the Second World War before the State of Israel was actually founded, and that his offences were committed against people who were not citizens of that State. 

4. Traditional View: Universal Jurisdiction principle is a Watertight Compartment

The conservative approach to the Universal jurisdiction principle has found favour with writers such as Starke. This approach clearly demarcates the Universal jurisdiction principle into two spheres viz. Piracy jure gentium and war criminals. According to Starke:
" Crimes or delicts jure gentium, other than piracy jure gentium and war criminals, raise somewhat different considerations. Thus the offences of drug trafficking, trafficking in women and children, have been brought within the scope of international conventions, but have been dealt with on the basis of aut punire, aut dedere, i.e. the offenders are either to be punished by the State on whose territory they are found or to be extradited to the State which is competent and desirous of exercising jurisdiction over them."

5. Modern View: Dynamism of the Universal jurisdiction principle

However, over the past decade, due to major political and economic changes across the globe, it now seems pertinent to read the Universal jurisdiction principle as inclusive and not exhaustive.

There is considerable force in the argument that the Universal jurisdiction principle ought to include all crimes against humanity. It also seems as an inevitable consequence in the aftermath of September 11 2001, where the international community, led by the United States, recognised international terrorism as a scourge against the international community 

The gravity of 'crimes against humanity' has been recognised in the United Nations Secretary- General's Report on the Establishment of an International Tribunal for the Former Yugoslavia , which noted that:
" Crimes against humanity are aimed at any civilian population and are prohibited regardless of whether they are committed in an armed conflict, international or internal in character and refer to inhumane acts of a very serious nature, such as willful killing, torture, rape committed as a part of a widespread or systematic attack against any civilian population on national, political, ethnic, racial or religious grounds."

The Rome Statute of the International Criminal Court (1998) is another manifestation of the Universal jurisdiction principle. Its objective has been the establishment of an International Criminal Court to try and punish offenders, accused of crimes against the interest of the international community.
Article 5 of the Statute deals with the crimes, which are within the jurisdiction of the International Criminal Court. These are,
(a) Crimes against Genocide
(b) Crimes against Humanity
(c) War Crimes
(d) Crimes against Aggression
The basic test of whether a 'crime is against humanity' as provided for in the Statute is 'if it is a widespread or systematic attack against any civilian population'.

6. International Terrorism

The events of September 11 reiterate to the world a sinister proposition----- "Anyone, in any part of the world can be the victim of International terrorism. Lord Lloyd of Berwick, a former member of the House of Lords had once observed:
"A country which seeks to protect itself against International terrorism will not succeed if its defenses are confined to its own soil. The activities of International terrorists abroad, whether or not British interests are directly affected, are of concern to the Government because of. Government's policy must be and is that the United Kingdom should take an active part in securing International cooperation in fighting terrorism."

A proposition that has been gaining momentum in the past few years, in the United Kingdom is that the United Kingdom can only expect other states to take measures to combat terrorists who target the United Kingdom or its citizens if the United Kingdom, for its part, reciprocates by combating terrorists who target states other than the United Kingdom.

That this proposition should be elevated into a universal law applicable to all nations seems only inevitable if Planet Earth is to have a future. 

Hence, since the beginning of the last decade of the 20th Century, the developed nations have realized that they must unite with third world nations if they are to succeed in eradicating international terrorism once and for all. International terrorism, today, is seen as against the interests of the international community and satisfies all the pre-requisites to be considered as a crime in respect of which the Universal jurisdiction principle ought to apply.

7. International Terrorism poses a Threat to the International Community

After the Black Tuesday attacks, there has been a growing intolerance towards terrorism around the world, with more urgency than ever before. Terrorists are being treated as a malady, and the legal enforcement agencies of most Western nations seem to have a malaise in allowing persons, suspected of having links to known terrorist groups, to remain in their nations.

In light of the current mood and predicament, the House of Lords in Secretary of State for the Home Department vs. Rehman apparently give the term 'National Security' a very broad definition. Lord Slynn of Hadley (as per majority) observed,

"It seems to me that, in contemporary world conditions, action against a foreign state may be capable indirectly of affecting the security of the United Kingdom. The means open to terrorists both in attacking another state and attacking international or global activity by the community of nations, whatever the objectives of the terrorist, may well be capable of reflecting on the safety and well-being of the United Kingdom or its citizens. The sophistication of means available, the speed of movement of persons and goods, the speed of modern communication, are all factors which may have to be taken into account in deciding whether there is a real possibility that the national security of the United Kingdom may immediately or subsequently be put at risk by the actions of others. To require the matters in question to be capable of resulting "directly" in a threat to national security limits too tightly the discretion of the executive in deciding how the interests of the state, including not merely military defense but democracy, the legal and constitutional systems of the state need to be protected. I accept that there must be a real possibility of an adverse affect on the United Kingdom for what is done by the individual under inquiry but I do not accept that it has to be direct or immediate. Whether there is such a real possibility is a matter which has to be weighed up by the Secretary of State and balanced against the possible injustice to that individual if a deportation order is made."

In the instant case, the appellant, Shafiq ur Rehman, came to the United Kingdom in 1993 as a Minister of Religion with the Jamait Ahle-e-Hadith in Oldham from his native country, Pakistan. However, when he applied for indefinite leave to remain in the United Kingdom, it was rejected. The Secretary of State was of the opinion that the appellant was involved with an Islamic terrorist organization Markaz Dawa Al Irshad (MDI) whose mujahidin fighters are also known as the Lashker-e-Toiba (LeT) in Pakistan. On this basis, the Secretary of State held that the appellant's departure from the United Kingdom was conducive to the public good and in the interests of national security. The Secretary of State went further on to observe that in light of the appellant's association with the MDI, it would be undesirable to permit the appellant to remain and that his continued presence in the United Kingdom represented a danger to national security.

The Federal Court of Appeal in Canada apparently has taken an even grimmer view of terrorism than the House of Lords, in the case of Minister of Citizenship and Immigration vs. Parminder Singh Saini . In this case, the Respondent, Parminder Singh Saini was a citizen of India who was convicted in 1984 in Pakistan of hijacking an Indian airliner traveling from India to Pakistan. After the Respondent served 10 years in prison he was released on parole for medical reasons in 1994, was granted full parole in January, 1995 and was then ordered to leave Pakistan. He departed Pakistan for Canada, claiming refugee status. Upon learning of the Respondent's antecedents, the Canadian authorities took steps to obtain a deportation order. While the Respondent was in custody in Canada pursuing appeals, in April 1998, the then President of Pakistan granted a pardon to the Respondent. The main issue before the Hon'ble Court was whether the Respondent could still be deported even after a pardon was granted by the President of Pakistan on conviction/term of imprisonment already undergone by Parminder Singh Saini, awarded by the Special Court at Lahore, on the charges of hijacking of an Indian Airline's plane from Srinagar to Pakistan? Justice Linden, speaking for a unanimous Court replied in the affirmative. Justice Linden observed that:
"Canada has ratified international treaties, such as the Convention for Suppression of Unlawful Seizure of Aircraft, 16 December 1970, U.N.T.S. No. 12325 , and the Convention for the Suppression of Unlawful Acts Against the Safety of Civil Aviation, 23 September 1971, U.N.T.S., No. 14118, which recognize that hijacking aircraft jeopardizes the safety of persons and property, seriously affects the operation of air services, and undermines the confidence of the peoples of the world in the safety of civil aviation. These international instruments do not require Canada to deny entry to any person convicted of hijacking, but strongly emphasize the serious nature of the crime and encourage signatories to severely punish hijacking, take actions to discourage it, and generally cooperate in the international condemnation of this crime. It is clear that hijacking is considered to be among the most serious of criminal offences. Hijacking may combine, in one act, numerous offences including kidnapping, unlawful confinement, theft, assault, extortion, and potentially murder. It entails the violation of individual human rights such as the right to life, personal security and freedom of movement. It financially damages airlines, associated industries and the economy as a whole. Hijacking is not the mere seizure of an aircraft for its own sake; it exploits control over the aircraft as "as a weapon of psychological coercion and extortion directed against governments" (see P. Wilkinson, Terrorism and The Liberal State, (London: MacMillan Press, 1977) at 207).

Moreover, the victims of this crime are not limited to those persons unfortunate enough to be physically affected, nor are the effects of hijacking limited to one government. Hijacking terrorizes all nations and society as whole

(emphasis supplied)

Justice Linden went further onto observe that, "In our view, the gravity of the offence can and should be considered when deciding whether or not to give effect to a foreign pardon. Even if the Pakistani legal system were similar, and even if the pardon were given under a law similar to Canadian law, the conviction in this case was for an offence so abhorrent to Canadians, and arguably so terrifying to the rest of the civilized world, that our Court is not required to respect a foreign pardon of such an offence."

Conclusion

It has been observed in recent years, that stringent measures ought and are being enforced to tackle terrorism. That any one nation can exist and tackle this problem by itself has become a deplorable myth. Even though, the law relating to international terrorism is governed by International Conventions, the consentaneous opinion of the community of nations seems to be leading to the inevitable conclusion that international terrorism, within the coming decades will become an integral part of the Universal jurisdiction principle.

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