Universal Criminal Jurisdiction and an International Criminal Court

An International Criminal Court as a Corrective to Universal Criminal Jurisdiction

Some objections which have continually arisen in the context of universal criminal jurisdiction must be taken seriously. Though one need not fear that states with no specific interest in prosecution of an offence will arbitrarily punish a perpetrator or that chaotic hysteria for punishment will break out,⁸⁶ one cannot summarily reject doubts as to the extent to which national courts are appropriately objective. In addition, there are legitimate concerns about differing degrees of punishment in different states, and the possibility that a defendant will suffer dual punishment or be unfairly punished. It is not hard to find practical examples of these things in recent history.

All states convinced that a code of offences against the peace and security of mankind is a necessary and effective instrument for strengthening the international legal order should thus be interested in ascertaining both a precise definition of the grave international offences that threaten the peace and safety of mankind and the most effective means of implementing such a code. A code that remains on paper is no use to anyone. But this means that an implementing mechanism has to be developed which is achievable in practice, has a chance of being accepted and applied by most states and contributes to an institutional strengthening of the UN security system. There is not much sense in setting up institutions which may look good but are known to have no prospect of becoming effective in the foreseeable future.

Today there is a need to develop international standards aimed at insuring that the peaceful co-existence of states may be protected through criminal law. Over the last twenty years the number of agreements on universal criminal prosecution of international crimes has increased considerably; states now agree that sovereignty neither entitles states to cover up international crimes nor to hide behind the cloak of immunity. We are, however, now faced with the task of developing a means to combine the existing criminal jurisdiction of states with an international mechanism suitable for compensating for the shortcomings of a further extension of universal criminal jurisdiction. At the same time, we must develop a means of promoting international cooperation in the prosecution of international crimes in such a way as to strengthen the international legal order.

To attain this goal we should:

1. Take the existing and functioning criminal jurisdiction of states as a basis and strengthen it through universal application and recognition and through appropriate international cooperation in the preservation of evidence and in the arrest and extradition of offenders.

2. Set up an international criminal court which does not function in place of national justice or in competition with it, but rather provides the possibility for, and has the task of insuring, the objectivity and uniformity of adjudication. To this end it is necessary and sufficient for the international criminal court to be competent to review judicial decisions taken by national courts under the Code of Offences against the Peace and Security of Mankind on application by a state involved, and to take a final decision in the matter. The international criminal court should also be competent to hand down a binding legal opinion on application by a national court dealing with a case involving application of the Code. In this way, it could act in the interest of the sovereignty of all states and guarantee the functioning of the international legal order. It would limit or eliminate the arbitrary element inherent in national courts and hence the existing weaknesses in the present system of universal criminal jurisdiction. This would help both the implementation of the Code and the protection of states against unjustified interferences in their sovereignty.

As long ago as 1953, when the Committee on International Criminal Jurisdiction discussed the statutes of an international criminal court, some suggested that an international criminal court be used "to resolve conflicts in the decisions of national courts."⁸⁷ Such proposals were at the time, as Graven writes, rejected on rather unconvincing grounds.⁸⁸ Today these questions are arising in other circumstances and in a different context. And it is thoroughly worthwhile taking them up, since they are suitable for discussions aimed at developing a realistic model for implementing the Code of Offences against the Peace and Security of Mankind.⁸⁹

In accordance with the practice of states relating to international crimes, prosecution of crimes against the peace and security of mankind must be predicated on the notion that every state on whose territory a person suspected of having committed such crimes is to be found has the duty to try or extradite that person. The present Article 4 of the Draft Code of Crimes against the Peace and Security of Mankind stands for this proposition. This is in line with the system applied in recent agreements on international offences. These agreements, however, generally proceed in the opposite direction. They start by specifying the usual bases for criminal jurisdiction and then require states to ensure that they have jurisdiction over the offences concerned, at least in cases where offenders are on their territory and they do not extradite them to another state. This practically guarantees universal criminal jurisdiction, as it is scarcely to be expected that states not directly concerned either through nationality or through the offence itself will have an interest in, or possibility for, criminal prosecution where the offender is not on their territory. In practice, the area of universal criminal jurisdiction of prime importance is covered by this restricted formula as long as states are obliged to cooperate in areas of information and securing of evidence; and recent treaties provide numerous examples of cooperation in information exchange and securing of evidence.⁹⁰ Particular reference should, however, be made in this connection to UN General Assembly Resolution 3074 (XXVIII) of 3 December 1973. It summarizes the most important principles that should apply to international cooperation in identifying, arresting, extraditing and punishing persons guilty of having committed war crimes and crimes against humanity.⁹¹

When a criminal prosecution is brought under this system and a final verdict is handed down, there may be cases where an interested state - one whose citizen has been acquitted or condemned abroad, or one on whose territory the offence was committed - could raise objections if it viewed the results of the trial or punishment levied by another state's municipal courts as improper. In these cases it would be beneficial for an international criminal court to be able to review the case and take a definitive decision. This would necessarily lead to some harmonization of adjudication in these cases, something of importance to mankind as a whole. Even the mere possibility of review by an international criminal court would make national courts take particular care when adjudicating and would encourage them to orient themselves more strongly towards the implementation of international security interests.

Mock trials could be largely ruled out, thereby avoiding the possibility of the re-opening of such proceedings, something left open in Article 7(4) of the International Law Commission's draft.⁹² The system proposed here would promote international cooperation in prosecuting offences against the peace and security of mankind and help to break down mutual mistrust among states.

A system based on the universal criminal jurisdiction of states which sees the international criminal court as a supplemental review body would also have the advantage of building on, and developing, the international norms on the criminal prosecution of international offences now in force. The problem of amending or incorporating existing multilateral treaties and their specific criminal prosecution provisions could largely be avoided, since the treaties are either based on the principle of universal criminal jurisdiction or could be so amended once the possibility of review of individual conclusive judgements by an international criminal court is available.

Only states involved should be eligible to be plaintiffs. These would be states whose nationals had been punished abroad or states on whose territory the offence had been committed or against which the offence was directed, where the offender had been acquitted or condemned in another country. In the bulk of cases this will be quite sufficient to ensure both just punishment of offenders and the objective and largely uniform judicial assessment of offences. For some cases, such as genocide, additional legal remedies will perhaps have to be created since no other state need be directly affected by the crime. But acceptable solutions can undoubtedly be found to these problems once there is a decision in principle for a combination of universal criminal jurisdiction and an international criminal court. Similarly, details such as the staffing of an international criminal court and other questions could be left to a later stage of discussion. Experience shows that they cause the least difficulties. Moreover, there is a great deal of serious preliminary work on this to which recourse can be had.

If universal criminal jurisdiction is combined with an international criminal court, an international prosecutorial department need not be set up. States involved will appear as prosecutors. It may be assumed that they will only prosecute cases in which they have a serious interest. Thus, the court would not be encumbered with an onslaught of cases. In addition, as a rule, it could rely on previously reviewed evidence that the parties would make available. Moreover, even if the international court were to hear the condemned, such hearings would not require extensive material or staff resources; the offender could be briefly brought before the court by the state having custody, or interrogated by a judge at the place of custody. In sum, if universal criminal jurisdiction is combined with the establishment of an international court, many of the practical problems usually associated with the creation of an international criminal court would largely cease to exist.

The combination of universal criminal jurisdiction of states and an international criminal court is a system which meets the criteria for effective implemention of the Code of Offences against the Peace and Security of Mankind. In present international circumstances, with our highly decentralized legal order of sovereign states that want to, and have to, protect a minimum of common values, joint jurisdiction is achievable in practice because it is based primarily on the existing criminal jurisdiction of states. An international criminal law regime predicated on the combination of universal criminal jurisdiction and an international criminal court would, on the one hand, facilitate effective criminal prosecution using existing machinery, and, on the other hand, considerably strengthen the legal security for all states and persons involved. It would make it possible to review national judicial decisions on matters pertaining to the Code.

86 Thus, for instance, Tomuschat feared that "to declare every state competent to try an alleged perpetrator of an offence against the peace and security of mankind would lead to chaos ... a race could well start to obtain the extradition of persons whom the state arresting them did not wish to try; or again a state on one continent might call for the extradition of persons charged with committing atrocities on another continent." YbILC (Vol. I) (1986) 153, para. 32.

87 See UN Doc. A/2645, at 15, paras. 103-105.

88 See Graven, supra note 12, at 204.

89 See Graefrath, UN Doc. A/CN.4/SR.2101, at 11.

90 See, e.g., the Convention on the Prevention, Prosecution and Punishment of Offences against Persons Protected in International Law, Including Diplomats, of 14 December 1973 in Völkerrecht, Dokumente Teil 3 (1980) 893.

91 See text in Resolutionen zur Abrüstung und zur Kodifizierung des Völkerrechts (1981) 318.

92 See UN Doc. A/43/10, at 178.

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