Law
opinion
Universal
jurisdiction under international law
Barrister
Harun ur Rashid
The
application of universal jurisdiction of a crime under
international law has come again into full play when an
Afghan citizen, Faryadi Sarwar Zardad, known as "Commander
Zardad" now living temporarily in Britain, has been
charged in a British Court. The charges against him include
conspiracy to torture perpetrated in Afghanistan between
1992 and 1996. This is the first time that an alleged
torturer has been prosecuted in one jurisdiction (Britain)
for offences said to have carried out in another (Asfghanistan).
Ordinarily,
a state exercises criminal jurisdiction over persons in
two cases:
(a) Over crimes committed in its territory (known as territorial
jurisdiction) or
(b) Over crimes overseas if the person happens to be its
citizen (known as national jurisdiction).
This implies that if a crime is committed in Britain by
a person or if a crime is committed abroad by a British
citizen, the alleged offender will be liable to be charged
in Britain. So also is in the case of Bangladesh. If a
crime is committed in Bangladesh by a person including
a foreigner or if a Bangladeshi citizen commits a crime
abroad, Bangladesh has the right to prosecute the alleged
offender under Bangladesh Criminal Code.
Universal
jurisdiction and globalisation of crimes
In the case cited above in Britain, it is noted that the
alleged crime of torture has not been committed in Britain
( It took place in Afghanistan) nor is the person a British
citizen
( the alleged offender is an Afghan citizen, temporarily
living in Britain), yet he has to face the British Court
for his alleged commission of conspiracy to torture because
it is a crime of universal jurisdiction
It
means that under universal jurisdiction, a state may exercise
its power to prosecute an alleged offender, irrespective
of the fact whether or not the universal crime has occurred
or not in its territory. It is a jurisdiction, often called
globalisation of crimes.
Torture
has been categorized as one of the crimes of universal
jurisdiction under the 1984 UN Convention on Torture and
Other Cruel, Inhuman or Degrading Treatment or Punishment
( came into effect in 1987). Under Article 5 of the Convention,
torture has been listed as a crime of universal jurisdiction.
This implies that each state- party shall take measures,
as may be necessary, to establish its jurisdiction over
such offences in cases where the alleged offender is present
in the territory under its jurisdiction.
Britain
ratified the 1984 UN Convention on Torture in 1988 and
thereafter passed an enabling law to enforce the provisions
of the Convention. Therefore any offender who allegedly
committed torture in Britain or elsewhere after Britain
ratified and enacted the law will be accountable to his
crimes. Under British law, any prosecution for alleged
crime of torture committed abroad requires authorization
from the Attorney General.
The
1998 Pinochet case
This is not for the first time that Britain has exercised
its powers under universal jurisdiction. In 1998, former
President of Chile, General Augusto Pinochet came to Britain
for medical treatment. He thought he was safe in Britain,
but little did he realise that he could be arrested for
his past-alleged crimes of torture.
In
October 1998, Spain (Spanish judge Baltasar Garzon issued
the order of extradition) asked for Pinochet's extradition
to Spain to face for alleged crime of torture on Spanish
citizens in Chile during his 17- year iron fist rule from
1973-1990. Pinochet was arrested in Britain under orders
of the Home Secretary (Home Minister).
There
was a legal challenge before the British Court by Pinochet
claiming his immunity from prosecution. It legal proceedings
went before the highest court in Britain, the House of
Lords. Seven Law Lords, the largest bench, held that Pinochet
was not immune from prosecution and therefore could be
charged for torture that was committed after 1988. Later
Pinochet was released in March, 2000, after 16-month detention,
on medical grounds of unfitness to stand trial (he was
then 84 years of age).
Human
rights activists all around the world called Pinochet's
arrest the most important case in international law since
the Nuremberg trials of German Nazi leaders in 1946. The
case has demonstrated that former heads of state are not
safe abroad if they have committed crimes of universal
jurisdiction.
Other
crimes listed as universal jurisdiction
Other universal crimes include genocide, war crimes, crimes
against humanity, crime against peace (unprovoked armed
attack), piracy, slavery, illicit trafficking in drugs,
hijacking, and taking of hostages.
In
1961, Adolf Eichmann, a German Nazi, who was accused of
committing genocide innocent Jews in Germany and Poland,
was kidnapped by Israel's secret agents from Argentina.
Israel exercised its universal jurisdiction and put him
to trial. Later he was convicted and sentenced to death.
The issue of kidnapping of Eichmann from Argentina was
considered a separate legal issue between Israel and Argentina
as it grossly violated the territorial sovereignty of
Argentina.
It
is strongly argued in some quarters that if Dr. Henry
Kissinger, the former US Secretary of State during the
time of the Bangladesh War of Liberation in 1971, visits
Bangladesh, he could be arrested for his alleged complicity
in genocide and crimes against humanity by Pakistani army
on the people of Bangladesh.
International
vs state trial
Both international and universal crimes have global reach.
This implies that each state party to the relevant international
conventions or international legal tribunal is empowered
to put on trial an alleged offender for commission of
or complicity in crimes of universal jurisdiction. A trial
may be held by an international tribunal, such as the
International Criminal Court at the The Hague,( the Rome
Treaty came into effect from July 2002) or a state can
exercise its jurisdiction under universal jurisdiction.
The
course of remedy is the same, that is no offender of universal
crime should go unpunished, but the forums could be different.
For example, former President of Yugoslavia, Milosevic
is being tried since 2002 at the Ad-hoc International
Criminal Tribunal at The Hague for his commission or complicity
in genocide or crimes against humanity on Kosovo Muslim
population. It is reported recently that the Cambodian
Mixed Tribunal in Phnom Penh will put on trial persons
who are accused of commission of genocide on innocent
Cambodians during the Khemer Rouge rule (1975-78).
Conclusion
The universal jurisdiction of crimes is a deterrent for
dictators not to commit universal crimes of genocide or
torture. In future, the offenders will think more carefully
about their travel plans abroad. Curtailing their ability
to move freely represents a victory for the human rights
movement.
Human
rights law has always been an area of high ideals and
incremental gains. It has taken almost 50 years (since
the 1948 UN Universal Declaration of Human Rights) to
arrest Pinochet or Milosevic for facing justice. The joke
that " the man who kills another goes to prison,
the man who kills 20 goes to an insane asylum but the
man who kills tens of thousands of people goes to Geneva
for peace negotiations" is not current any more.
This is no small feat for protection of human rights.
The
author is former Bangladesh Ambassador to the UN, Geneva.
