Access to Accused

Under the classical understanding of universal jurisdiction, which is in fact informed by the principle of ‘aut dedere aut judicare’, states only exercise universal jurisdiction over offenders present in their territory, the question arises whether states could also exercise universal jurisdiction over offenders who are not (yet) present in their territory (i.e. in absentia)¹⁴⁵. Or plus present, there must be some other linkage between the defendant and forum state such as residence or employee?

B-1.1: Presence of Accused:

Under the narrow notion, only the State where the accused is in custody may prosecute him or her (the so-called forum deprehensionis or jurisdiction of the place where the accused is apprehended)¹⁴⁶.Thus, the presence of the accused on the territory is a condition for the exercise of jurisdiction.¹⁴⁷

Universal jurisdiction may be exercised by a competent and ordinary judicial body of any state in order to try a person duly accused of committing serious crimes under international law, provided the person is present before such judicial body¹⁴⁸. Apart from acts of investigation and requests for extradition, the exercise of universal jurisdiction requires the presence of the alleged offender in the territory of the prosecuting state or on board a vessel flying its flag or an aircraft which is registered under its law, or other lawful forms of control over the alleged offender.¹⁴⁹ Plainly, the conditional universality principle may be tainted by a serious limitation; when applied to a former Head of State or government or senior member

145Ryngaert, op-cit, p.119passim

146Cassese, ICL2008, op-cit, p.338, margin no.4, (Judge Prof. Cassese, divided it to two versions; 1-The narrow notion (conditional universal jurisdiction); 2- The broad notion of universality ‘absolute universal jurisdiction’).

147Ibid

148From Principle 1 (2) The Princeton Principles on Universal Jurisdiction 149Principle 3(b)Resolution Krakow session -2005 Institute of International law

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of cabinet or diplomat, the principle may result in these persons never being brought to trial if they are prudent enough to avoid travelling to a country where they could become amenable to judicial process¹⁵⁰. It would, however, appear that the need to forestall possible abuses should make this eventuality acceptable, however seriously it may run counter to the fundamental imperatives of international justice.¹⁵¹

Many states have also limited the competence of their courts to try defendants on the basis of universal jurisdiction ratione personae to persons that happen to be found within their jurisdiction¹⁵².With regard to the offense of torture, states parties to the UN Convention against Torture may conceivably base such an interpretation on article 7(2) of the Convention¹⁵³.However, such a restriction is incompatible with the grave breaches provisions of the Geneva Conventions that require states parties to search for perpetrators and bring them before their own courts wherever they are.¹⁵⁴

B-1.2: Universal Jurisdiction (in absentia):

Universal jurisdiction in absentia is controversial, and the doctrine is often reluctant to endorse it¹⁵⁵. Because universal jurisdiction in absentia may reach any one anywhere, it has been argued that it creates ‘judicial chaos’ and that it violates the classical principle of non-intervention in the internal affairs of another state.¹⁵⁶ Proponents of universal jurisdiction in absentia emphasize the important role which it could play in the fight against international impunity¹⁵⁷. The exercise of universal jurisdiction in absentia, if limited to investigative acts, need therefore not

150Cassese, ICL2003,op-cit, p.454 151Ibid

152Kamminga, op-cit, p.953 153Ibid

154Geneva Convention I,Art.49,Geneva Convention II, Art.50Geneva Convention III,Art.129, Geneva Convention IV,Art.146, In: Ibid, pp.953-954 155Ryngaert,op-cit,p.120

156Ibid,p.121 157Ibid,p.122

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interfere in the domestic affairs of a foreign state any more than the exercise of universal jurisdiction does.¹⁵⁸

This principle is laid down in such national legislation as that of Spain and Belgium.¹⁵⁹ Under § 153 f (1) of the German Code of Criminal Procedure, German prosecutors and courts could exercise universal jurisdiction in absentia, if the presence of the presumed offender can be anticipated.¹⁶⁰

ICJ’s Judges Higgins, Kooijmans, and Buergenthal maintain that international customary law, in addition to authorizing universal jurisdiction properly so called over piracy, does not prohibit universal jurisdiction (in absentia) for other offences, subject to a set of conditions they carefully set out¹⁶¹.The view set out by these three Judges, means that absolute universal jurisdiction is legally admissible under international law¹⁶². However, in the arrest warrant case, the ICJ didn’t accept the joint separate opinion’s of these three judges.

Alternatively, one may, as Cassese has proposed, limit the exercise of universal jurisdiction in absentia to low-key perpetrators, and abolish it for high-ranking officials, since the former class of offenders may presumably have less legitimate international reputational concerns¹⁶³. The International Law Institute claims,

158Ibid, p123, [However, as many legal systems do not permit trials in absentia, the presence of the accused on the territory is then a condition for the initiation of trial proceedings. Clearly, this conception of universality allows national authorities to commence criminal investigations of persons suspected of serious international crimes, and gather evidence that about these alleged crimes, as soon as such authorities are seized with information concerning an alleged criminal offence. They may thus exercise criminal jurisdiction over such persons, without requiring that the person first be present, even temporarily, in the country. In: Cassese, ICL2008, op-cit, p.338, margin no. 4]

159Cassese, ICL2003, op-cit, p.287, [In Spain, the new universal jurisdiction law took effect in November 2009; under article 23(4), Spanish courts cannot assert universal jurisdiction unless the accused is on Spanish territory, or there is another relevant link between Spain and the case, In: Langer Maximo, The Diplomacy of Universal Jurisdiction: The Political Branches and The Translational Prosecution of International Crimes, 105 AJIL2011, p.40], (In Belgium, under a Law of 1993 there was a pure universal jurisdiction, but this Law replaced by 2003 Law, that don’t allow for universal jurisdiction in absentia. See more information in this Chapter under the part of ‘Belgium Legislation’)

160 Ryngaert, op-cit, p.125, margin no.212

161 Cassese Antonio, When May Senior State Officials be Tried for International Crimes? Some Comments on the Congo v. Belgium Case,13 EJIL 2002, p.856 [hereinafter Cassese, When may Senior] [These conditions are as follows: (i)the State intending to prosecute a person must first ‘offer to the national state of the prospective accused person the opportunity itself to act upon the charges concerned’; (ii)the charges may only be laid by a prosecutor or investigating judge who is fully independent of the government;(iii)the prosecution must be initiated at the request of the persons concerned, for instance at the behest of the victims or their relatives;(iv)criminal jurisdiction is exercised over offences that are regarded by the international community as the most heinous crimes;(v)jurisdiction is not exercised as long as the prospective accused is a foreign minister(Head of State, or diplomatic agent)in office; after he leaves office, it may be exercised over private acts., In:

Cassese, ICL2003, op-cit, p.294, margin no.33]

162Ibid, p.859

163A Cassese, The Twists and Turns of Universal Jurisdiction: foreword(2006)4 JCIJ 559, In: Ryngaert, op-cit,p.125

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however, to restrain the exercise of universal jurisdiction by default, in cases of international crimes, except for acts of investigation and demand of extradition.¹⁶⁴

B-1.3: Legitimizing Link:

Under StGB, apart from the presence of the accused in German territory, there is a need for a ‘Legitimizing link’, in order to respect the principle of non-intervention.

In Case of genocide, the German Federal Supreme Court recalled that:

‘German criminal law is applicable pursuant to § 6, Paragraph 1, to an act of genocide committed abroad independently of the law of the territorial State (principle of so-called universal jurisdiction)’.

The Court added, however, that ‘a condition precedent is that international law does not prohibit such action;’ it is only, moreover, where there exists in the case in question a ‘link’ legitimizing prosecution in Germany “that it is possible to apply German criminal law to the conduct of a foreigner abroad. In the absence of such a link with the Forum State, prosecution would violate the principle of non-interference, under which every State is required to respect the sovereignty of other States”.¹⁶⁵

The applicability of the principle of universal jurisdiction under §6(1) StGB was restricted when the Supreme Court, in a highly controversial decision, demanded the presence of an unwritten element of the crime, a ‘special legitimizing link’.¹⁶⁶ In the unambiguous words of §6 StGB, the crimes listed in §6 are subject to universal jurisdiction, regardless of the nationality of the perpetrator, the law of the place of the crime, or the place the crime was committed¹⁶⁷. Nevertheless, as an unwritten condition, the court developed the requirement of a ‘legitimizing domestic link’

164Warsaw Session, Resolution of 26 August 2005, §3(b) (2005), In: David Eric, The Belgian Experience, In: Bassiouni, M. Cherif, International Criminal Law, Third Edition, 2008, Vole. III, p.371

165Bundesgerichtshof, 13 February 1994, 1BGs 100.94, in Neue Zeitschrift fur Strafrecht 1994, pp.232-233. Similarly, Dusseldorf Oberlandesgericht, 26 September 1997, Budesgerichtshof, 30 April 1999, Jorgic; Dusseldorf Oberlandesgericht, 29 November 1999, Bundesgerichtshof, 21ary 2001, Sokolvic, (In that case, the Federal Court held that there was such a link by reason of the fact that the accused had been voluntarily residing for some months in Germany, that he had established his centre of interests there and that he had been arrested on German territory), In: Separate Opinion of President Guillaume, Judgment 14 February 2002, 41 ILM 2002, p.561 166Kaleck Wolfgang, German International Criminal Law in Practice: From Leipzig to Karlsruhe, In: International Prosecution of Human Rights Crimes, op-cit, p.99 167Ibid

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whereby prosecution must have a direct domestic relationship in order to justify German jurisdiction.¹⁶⁸

On 21 February 2001, the Federal High Court, in contrast to its former jurisprudence commented that such an additional link could at least not be demanded when German courts based their jurisdiction on §6(9) StGB.¹⁶⁹The Court pointed out that it could hardly be regarded as a violation of the principle of non-intervention when German courts prosecuted perpetrators in compliance with binding treaty obligations.

Under §1 of the Code of Crimes against International Law (VStGB), clearly mentioned that:

This act shall apply to all criminal offences against international law designated under this Act, to serious criminal offences designated therein even when the offence was committed abroad and bears no relation to Germany.¹⁷⁰

With these plain words, the legislature unmistakably rejected the law as heretofore applied by the Federal Supreme Court.¹⁷¹

The only ‘link’ necessary for the applicability of German criminal law is the crime itself, which affects the international community as a whole¹⁷². Thus the (German) Federal Supreme Court’s [Bundesgerichtshof] different opinion on universal jurisdiction under former § 6(1) StGB is irrelevant to the applicability of VStGB.¹⁷³ It seems to me that when German courts prosecuted perpetrators under conventional international law, pursuant to last aforementioned decision of Federal Supreme Court, there is no need to legitimizing link. But when German courts prosecuted under customary international law with reference to the VStGB, as

168 In a 2001 judgment, the Supreme Court found that the perpetrator’s permanent residency in Germany formed a direct link to domestic prosecution, but leaned towards no longer requiring any ‘legitimizing link in individual cases going beyond the wording of § 6 of the Criminal Code’, at least for § 6(9), In: Ibid 169Geneuss Julia, Sokolovic, In: The Oxford Companion to International Criminal Justice, op-cit, p.929

170Werle Gerhard and Jessberger FLorian, International Criminal Justice is coming Home: The New German Code of Crimes against International Law, 13CLForum 2002,p.214

171Jessberger, Complementarity, op-cit, p.215 172Werle, ICL2005, op-cit, p.88

173Ibid

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correctly was written by Kaleck ‘Because of the entry into force of the Code of Crimes against International Law and §153f of the Code of Criminal Procedure, this problem became less serious or shifted from the justification of German criminal authority to the determination of prosecutorial discretion’.¹⁷⁴

As a result, in fact exercise of universal jurisdiction under customary international law by German courts needs for respecting the principle of non-intervention pursuant to §153f of the Code of Criminal Procedure, just via determination of the Federal Prosecutor in Karlsruhe.