FIGHTING IMPUNITY: POSITIVE CONFLICTS OF JURISDICTION AND THE

PRINCIPLE OF UNIVERSALITY

Gabriel ChavezTafur

Geneva Academy of International Humanitarian Law and Human Rights

Abstract
The prosecution of suspected international criminals based on the principle of universal
jurisdiction continues to damage the international relations of States and, as a
consequence, the development of an effective tool to fight impunity. The doctrine, prone
to controversy, has already been labelled a form of neo-colonialism. With this in mind,
the following paper will attempt to tackle some of the issues currently being debated, in
three Chapters: Chapter One will attempt to establish the current legal basis under which
a State may have the right or even the duty to exercise universal jurisdiction in
compliance with international law, focusing on how at least two different rationales
currently applied to the concept may affect the potential prosecution of international
crimes today. Secondly, Chapter Two shall discuss the potential consequences a decision
to prosecute could bring with regards to proceedings carried out in other States,
particularly the State where the crimes were committed. The discussion of such positive
conflicts of jurisdiction between two or more States shall include, first, a review of norms
of general international law, followed by an analysis of the law and practice of more
specific bilateral agreements, namely extradition treaties, as guidance for the existence of
a hierarchy of principles of jurisdiction, and whether they should apply to prosecution of
international crimes. Finally, these potential conflicts of jurisdictions when resorting to
universality shall be analysed in Chapter Three in the light of the complementarity regime
found in the Statute of the International Criminal Court. It shall raise the questions
whether proceedings before the ICC would make universal jurisdiction unnecessary,
followed by how would the rules on complementarity apply to States acting under such
principle of jurisdiction. It will finalize with a reflection on the potential effect the
Security Council, through its capacity to take action under Chapter VII of the Charter of
the United Nations, may have on such proceedings, including if its actions went against
jus cogens norms.
Fighting Impunity: Positive Conflicts of Jurisdiction and the Principle of Universality

TABLE OF CONTENTS

Foreword iv
Prosecuting international crimes v
The option of universal jurisdiction vii
Introduction ix
Chapter One 1
The exercise of extraterritorial jurisdiction under international law 2
Universal Jurisdiction: definition, rationales and applicable norms 6
Definition and origins 6
The rationales behind the principle 7

Moving beyond the debate: universal jurisdiction as provided in treaty and customary
law 14
War crimes 14
Crimes against humanity 16

Genocide 17

Potential obstacles in the exercise of universal jurisdiction 18

Non bis in idem 18
Immunities 19

Practical considerations 21

Concluding remarks 22
Chapter Two 23
Conflicts arising from concurrence of jurisdictions under international law 24
Bilateral agreements: the law of extradition 27
Interpreting the rules: the case for different solutions to positive conflicts of
jurisdiction 33
Establishing a Hierarchy of Jurisdictions and the Principle of inter-State Subsidiarity 33
Establishing the best forum, disregarding hierarchies 37

Concluding remarks 41
Chapter Three 43
The Jurisdiction of the International Criminal Court: overview 44
Ratione materiae, ratione tempore, ratione personae: triggering the ICC’s jurisdiction 44
Admissibility or the complementarity regime 46

ii
 Gabriel ChavezTafur
Geneva Academy of International Humanitarian Law and Human Rights

The ICC Statute and universal jurisdiction 47

Positive conflicts of jurisdiction: universal jurisdiction vs. the ICC 50

Establishing a hierarchy: should the ICC necessarily prevail over universal jurisdiction? 51
Positive conflicts of jurisdiction: the Security Council as a third party 56
Security Council referrals and the exercise of universal jurisdiction 56
Security Council deferrals under Article 16 of the Statute 57

The question of the Security Council acting under Chapter VII vs. jus cogens obligations 62

Concluding remarks 65
Conclusions 66
Bibliography 68
Books 68
Papers 69
Reports 71
Cases 72
Legislation, guiding principles 73
Internet websites 75

iii
Fighting Impunity: Positive Conflicts of Jurisdiction and the Principle of Universality

FOREWORD

“Mister Minister of Defence, send ten battalions to the border, including the tanks”.1
With such decisive order, given live during his weekly TV show, Venezuela’s President
Hugo Chavez reacted to Colombia’s bombardment of a FARC2 camp situated 1.8kms
inside Ecuadorian territory.3 Colombia reacted unexpectedly; while the Ministry of
Defence announced the mobilization of “not one single soldier to the border”,4
President Uribe declared that Colombia would formally accuse Chavez before the
International Criminal Court (ICC) for charges of genocide.5 After an emergency
presidential meeting held by the Organization of American States in Dominican
Republic, hands were shaken, tanks withdrawn and judicial accusations forgotten.6

A week after the attack, an op-ed in Spain’s El País highlighted an unusual consequence
of the recent crisis: the realization that “the threat of being brought to trial before the
International Criminal Court can weigh as much in the mind of a president as the threat
of ten battalions, tanks and bombers.”7 Indeed, there is a new world tendency, the article
continued, by which crimes committed in one country are no longer the internal affairs
of one State, but of the world; the rule that allowed criminal and murderous dictators to
retire peacefully by the French Riviera has now given way to an attitude by which military
officers from Argentina to Congo are extradited from their countries of origin to face
charges in tribunals in other countries. “We live now in a world where in some
circumstances it is possible to reply with lawyers to those who threat with tanks. And
that is certainly good news.”8

1 See El País, ‘Chávez rompe relaciones con Colombia y envía el Ejército a la frontera’, 3 March 2008. Available at:
http://www.elpais.com/articulo/internacional/Chavez/rompe/relaciones/Colombia/envia/Ejercito/frontera/elpepii
nt/20080303elpepiint_8/Tes (last visited on 9 January 2009).
2 Fuerzas Armadas Revolucionarias de Colombia, a rebel group labelled as terrorist by the United States, represents one of

the parties to the region’s longest lasting non-international armed conflict.

3 The attack resulted in the killing of Raúl Reyes, second-in-command of the organization, and the seizure of

computers with valuable inside information on FARC operations and, perhaps most worrying to Chavez, dealings with
Venezuelan officials. Soon thereafter, the US Treasury froze assets from three Venezuelan high intelligence officials,
under suspicion of having provided weapons and other support to FARC.
4 Naím, M. infra note 7.
5 See El País, ‘Uribe intenta sentar a Chávez en el banquillo por apoyar a las FARC’, 5 March 2008,

http://www.elpais.com/articulo/internacional/Uribe/intenta/sentar/Chavez/banquillo/apoyar/FARC/elpepiint/200
80305elpepiint_1/Tes (last visited on 9 January 2009).
6 The full text of the Resolution may be accessed at: http://www.eltiempo.com/archivo/documento/CMS-3987373#
(last visited on 12 December 2008).
7 Naím, Moises, El País. ‘Tanques, abogados y merengue’, 9 March 2008. Available at http://www.elpais.es (last visited on 9

January 2009).
8 Idem.

iv
 Gabriel ChavezTafur
Geneva Academy of International Humanitarian Law and Human Rights

It is undeniable that certain developments of the last 15 years do support such an

optimistic view of international justice. The creation of the ad hoc international criminal
tribunals for Yugoslavia9 and Rwanda10 (ICTY and ICTR, respectively), followed by the
establishment of an international criminal court,11 added to such notorious cases as the
request for extradition of former Chilean dictator Augusto Pinochet from the United
Kingdom to Spain,12 all provide basis to admit that, in effect, there would be a growing
sense among the international community that the responsibility to ‘respect and ensure
the respect’13 of human rights falls upon all and that impunity cannot or should not be
tolerated any further.

Reality, however, is not so promising.

Prosecuting international crimes

Three alternatives may be considered for the prosecution of international crimes: a trial
in the domestic courts of a State with a link to the crime, usually accepted to be that
where the crime was committed or that of which the perpetrator or victims are nationals;
two, prosecution in an international court, be it an ad hoc tribunal or the ICC; and to face
proceedings in the court of a State with no link to the crime committed, but where
jurisdiction is exercised over the offences based on the principle of universality.

As for the first option, one main problem usually arises: States’ authorities too often find
it extremely difficult to initiate proceedings against their own nationals. Not only will
governments not prosecute their own officials out of complicity,14 but in many grave
cases they could even find the stability of the country compromised if they try to
prosecute other parties, such as members of a rebel group with which the State continues

9 International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International
Humanitarian Law Committed in the Territory of the Former Yugoslavia since 1991, created via Resolution 827
(1993), 25 May 1993.
10 International Tribunal for the Prosecution of Persons responsible for genocide and other serious violations of

International Humanitarian Law committed in the territory of Rwanda and Rwandan citizens responsible for genocide
and other such violations committed in the territory of neighbouring States, created via Resolution 955 (1994), 8
November 1994.
11 The International Criminal Court (ICC) was created after the adoption of the Rome Statute on 18 July 1998. The

treaty entered into force on 1 July 2001.

12 R. v. Bow Street Metropolitan Stipendiary Magistrate and Others, ex parte Pinochet Ugarte (No. 3), 2 All E.R. 97 (H.L. 1999).
13 Paraphrasing the wording found in Article 1 common to the four 1949 Geneva Conventions.
14 As the recent history of Latin America shows, prosecutions are always held only after the collapse of the regime

committing the crimes, in some cases more than 30 years later. See, for example, the case against Pinochet, in Chile,
and Vladimiro Montesinos, in Peru.

v
Fighting Impunity: Positive Conflicts of Jurisdiction and the Principle of Universality

to struggle.15 The same could be said of former members of a military regime whom
negotiated their way out of government and still hold considerable power.16 Such
examples as the most recent sentence by an Argentinean federal court of General
Menéndez to life in prison for crimes committed 31 years ago,17 commendable as they
are, can be as telling for their rare occurrence as for the number of years victims had to
wait before the judiciary found it appropriate to prosecute a now 81-year-old man.18

With regards to the ICC, much hope has been posed on its role as an effective world
criminal court,19 particularly since its creation was awaited for more than fifty years.20
However, it contains inherent limitations which must be taken into account: inevitably,
the Court will only be able to deal with a handful of selected cases per year,21 necessarily
discarding all other grave violations of human rights. Further, even from the Preamble to
the ICC Statute, States were clear to underscore that the main responsibility to prosecute
international crimes would continue to fall upon themselves;22 with this in mind, the
Court was assigned a subsidiary role to that of domestic tribunals, provided for in detail
under its complementarity regime.23 Thirdly, even in those cases where the Court finds
itself to have jurisdiction and admits a case, it will still strongly depend on the willingness
and ability of States to cooperate in such practical matters as the arrest and surrender of
the suspects, the obtaining and processing of evidence, and the protection of witnesses
and their testimonies.24 It is possibly this love-hate relationship with States – its creation
as an instrument of the international community to fight impunity, on one hand, while
depending so heavily on the will of States, on the other – which has led to seven years

15 See, for example, the debate resulting from the granting of amnesty to rebel groups in the Democratic Republic of

Congo, on 12 July 2008. ‘DR Congo: Amnesty controversy grows’, Institute for War and Peace Reporting, 22 August
2008. Available online at http://www.reliefweb.int (last visited on 10 December 2008).
16 Precisely the cases of Chile and Argentina in the 1980s.
17 General Menéndez was one of the most powerful military commanders during the military dictatorship that ruled

Argentina from 1976 to 1983. He is believed responsible for thousands of deaths and enforced disappearances.
18 He was sentenced to life in prison.
19 Cf. Delmas-Marty, M. ‘Interactions between National and International Criminal Law in the Preliminary Phase of

Trial at the ICC’, 4 Journal of International Criminal Justice, 2006, p. 2-11.

20 The notion of an international criminal court was born out of the Nurnberg trials. Reference to the creation of such

a court was included into the 1948 Genocide Convention. Unfortunately, the Cold War made the initiative remain
dormant until the 1990’s.
21 See Delmas-Marty, M., supra note 19.
22 Cf. Paragraphs 6 and 10, Preamble to the ICC Statute.
23 Found in Articles 17 and 19 of the ICC Statute. For a general discussion of the complementarity regime, see below

Chapter Three.
24 As established under Chapter 9 of the ICC Statute.

vi
 Gabriel ChavezTafur
Geneva Academy of International Humanitarian Law and Human Rights

since the entry into force of the ICC Statute without a single conviction and only three
cases currently awaiting trial.25

The option of universal jurisdiction

The third option is the exercise of universal jurisdiction, i.e. prosecution of a suspected
offender when there is no direct link between the forum and the crime committed. The
doctrine, which has been part of international law for centuries, recently found
invigorated support in new domestic penal legislation passed in relation to international
crimes.26 This led, most notably in Belgium and Spain, to the filing of proceedings against
high-profile personalities such as Pinochet, Yasser Arafat, Ariel Sharon, George W. Bush,
Collin Powell, and others.27 Scholars, groups of experts and important non-governmental
organizations have also drawn their attention to the notion of universality, producing
inter alia the Princeton Principles on Universal Jurisdiction,28 a resolution by the Institute
of International Law,29 extensive work by Amnesty International30 and Human Rights
Watch31, and a most recent report by the International Association of Penal Law, where
the doctrine was labelled “the favourite technique used to prevent impunity for
international crimes” and “one of the most effective methods to deter and prevent
international crimes by increasing the likelihood of prosecution and punishment of its
perpetrators”.32

The initial enthusiasm, however, has also met with strong resistance from diverse fronts.
It could be first mentioned the Arrest Warrant case,33 brought by the Democratic
Republic of Congo against Belgium before the International Court of Justice (ICJ).
Although it dealt primarily with the immunities afforded to high-officials by international

25 Namely, Prosecutor v. Thomas Lubanga Dyilo; Prosecutor v. Germain Katanga and Mathieu Ngudjolo Chui; and Prosecutor v. Jean-

Pierre Bemba Gombo. Further warrants of arrest have been issued but not yet executed.
26 Most notably legislation passed in Germany, Belgium, the Netherlands, Japan, Hungary, Finland, Croatia, Turkey

and others. Cf. Global Report on Universal Jurisdiction, infra note 32.
27 See infra note 31, Human Rights Watch Report on Universal Jurisdiction in Europe, footnote 141, p. 37.
28 Princeton University Program in Law and Public Affairs, The Princeton Principles on Universal Jurisdiction, 2001. Available

at http://www.1.umn.edu/humanrts/instree/princeton.html (last visited on 12 November 2008).

29 Institute of International Law, Seventeenth Commission ‘Universal Criminal Jurisdiction with regard to the crimes of

genocide, crimes against humanity and war crimes’, Krakow Session, 26 August 2005.
30 Amnesty International, ‘Universal Jurisdiction: the Duty of States to Enact and Implement Legislation’, Chapter Five

(Crimes Against Humanity, The legal basis for universal jurisdiction), Report, AI Index: IOR 53/008/2001, Distr:
SC/CO/PG/PO.
31 Human Rights Watch, ‘Universal Jurisdiction in Europe’, Report Human Rights Watch, Volume 18, No. 5(D).
32 International Association of Penal Law, ‘Universal Jurisdiction, Global Report’ (Report), prepared by Isidoro Blanco

and published in the Revue International de Droit Pénal, Volume 79, 2008.
33 Case Concerning the Arrest Warrant of 11 April 2000 (Belgium v. Congo) 2002, available at: www.icj-cij.un.org (last

visited on 15 November 2008).

vii
Fighting Impunity: Positive Conflicts of Jurisdiction and the Principle of Universality

law, the ICJ held in a highly criticized obiter that ministers could only be prosecuted by
States other than their own (thus including those exercising universal jurisdiction) for
acts committed while in office only if such acts were performed in a private capacity.34 As
the most serious cases of international crimes very often involve a ‘public’ policy and are
not isolated private acts, the Court’s dictum could effectively mean the barring from
prosecution those massive violations of human rights committed as part of a government
policy.

This was followed by a reform to the Belgian legislation, originally among the most
liberal on the matter of universality, succumbing to pressure from the United States (US)
authorities. This resulted in an amendment process in April 2003, and then
embarrassingly a second one in August of the same year.35 As it stands today, only
victims of the alleged crime and legally residing in Belgium for more than three years may
file a case against a non-Belgian national for crimes committed outside Belgian territory.36
Already in 2003 these and other minor examples led Professor Antonio Cassese to
wonder whether, in fact, the principle of universal jurisdiction over international crimes
was not on its last legs, if not already in its death throes.37

Since then, much has been said about the need to develop an appropriate legal
framework through which to exercise universal jurisdiction in a way that would be both
predictable and effective – that is, one in which States, human rights advocates and
scholars would find themselves comfortable and which would allow the number of
heinous crimes going unpunished to be considerably reduced. As will be seen
immediately below, that is yet to be achieved.

Focused specifically on the issue of positive conflicts of jurisdiction, this paper will
attempt to contribute to such an effort.38

34 Arrest Warrant case, Idem, para. 61.

35 Loi relative aux violations graves du droit international humanitaire, 5 August 2003, Moniteur Belge (Law Gazzette),
No. 286, 7 August 2003.
36 Criminal Code of 1867 (Code Penal), Articles 136 bis – 136 octies, available online at http://www.juridat.be (last

visited on 9 September 2008)

37 Cassese, A. ‘Is the Bell Tolling for Universality? A Plea for a Sensible Notion of Universal Jurisdiction’, 1 Journal of

International Criminal Justice, 2003, p. 589-595.

38 Special mention must be made, however, of the Spanish Constitutional Court’s ruling on the Guatemalan Generals case

(cf. infra note 93), by which it explicitly denied the Supreme Tribunal’s assertion that the exercise of jurisdiction is
strictly conditioned to the existence of a link between the crime and the forum State. This absolute defence of
universality, however, stands for now as an exceptional case.

viii
 Gabriel ChavezTafur
Geneva Academy of International Humanitarian Law and Human Rights

INTRODUCTION

On 23 June 2008, the General Assembly of the African Union approved a highly critical
report presented by a Commission on The Use of the Principle of Universal Jurisdiction by some
non-African States (hereinafter the AU Report),39 passing a resolution by which it
highlighted the urgent need to discuss the issue of universal jurisdiction with the
European Union and establish clearly defined parameters of action. The AU Report
developed its arguments in three parts: first, it questioned the very existence of the
principle of universal jurisdiction, introduced as an unconditional and unilateral decision
taken by some States to prosecute foreign State officials. This was done by revising both
the provisions on jurisdiction found in some international treaties dealing with
international crimes, such as the 1949 Geneva Conventions,40 the 1984 Convention
against Torture,41 the 1948 Genocide Convention42 and a number of agreements dealing
with terrorism-related offences; and the practice of States, with particular mention of
Belgium and Spain.43

Based on such review, the AU Report then passed on to raise caution as to the possibility
that universal jurisdiction, so understood, in essence could develop “as a tool of
discrimination against nationals of certain States, especially less developed States”.44
Finally, it recommended that States of the African Union should refer cases to the ICC,
under Article 14 of the Rome Statute, as “this would check the excesses and whims
[emphasis added] of individual States as well as address some of the concerns of potential
for abuse highlighted earlier in the Report”.45

39 Report of the Commission on the Use of the Principle of Universal Jurisdiction by Some Non-African States as

Recommended by the Conference of Ministers of Justice / Attorneys General, presented to the Executive Council on
its Thirteenth Ordinary Session, 24-28 June 2008. Ex.CL/411 (XIII). Available online at http://www.africa-union.org
(last visited on 14 September 2008).
40 Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field

(12 August 1949) 75 UNTS 31; Geneva Convention for the Amelioration of the Condition of the Wounded, Sick, and
Shipwrecked Members of the Armed Forces at Sea (12 August 1949) 75 UNTS 85; Geneva Convention Relative to the
Treatment of Prisoners of War (12 August 1949) 75 UNTS 135; Geneva Convention Relative to the Protection of
Civilian Persons in Time of War (12 August 1949) 75 UNTS 287.
41 Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, UNGA Res 39/46,

UN Doc A/39/51, 1984.

42 Convention on Prevention and Punishment of the Crime of Genocide, 9 December 1948; 78 UNTS 277.
43 AU Report, para. 59 – 78.
44 AU Report, para. 83.
45 AU Report, para 91.

ix
Fighting Impunity: Positive Conflicts of Jurisdiction and the Principle of Universality

Undoubtedly, the AU Report presents some inaccuracies and in some respects important
flaws.46 However, the position adopted by the African Union does prove the necessity to
analyse a number of questions surrounding universal jurisdiction, namely: what exactly, in
the understanding of States and international law, is universal jurisdiction, and when and
under what conditions may it be exercised by foreign courts? Is universal jurisdiction a
means of unilateral action, by which impertinent States can indeed ‘harass’ foreign Heads
of State47 and other senior officials? May the ICC and its complementarity regime, as the
Report suggests, put a check on the ‘abusive’ exercise of universal jurisdiction?

The following paper will attempt to tackle these issues, in three Chapters: starting from
the point of view of a State not traditionally linked to the crime in question, Chapter One
will attempt to establish the current legal basis under which a State may have the right or
even the duty to exercise universal jurisdiction in compliance with international law. For
such purpose, the text shall analyse the principles of law applicable to jurisdiction in
general, as particularly developed by State practice and international jurisprudence,
moving then from territorial to extra-territorial scenarios. Following, the review shall
focus on the specific principle of universal jurisdiction, as a particular form of extra-
territorial jurisdiction, including its origins and raison d’être, but most importantly how the
different rationales when approaching these issues may affect the potential prosecution
of international crimes today. A third argument for universal jurisdiction will be sought
in treaties and customary law, from the generally accepted human rights treaties and State
obligations arising from them, to the more specific texts concerning international crimes
and their prosecution under international criminal law.

Secondly, and once established a legal basis for universal jurisdiction, Chapter Two shall
discuss the potential consequences a decision to prosecute could bring with regards to
proceedings in other States, particularly the State where the crimes were committed. The
discussion of such positive conflicts of jurisdiction between two or more States shall
include, first, a review of norms of general international law, followed by an analysis of
the law and practice of more specific bilateral agreements, namely extradition treaties, as
guidance for the existence of a hierarchy of principles of jurisdiction, and whether they

46 The main one being the assumption, perhaps for the sake of argument, that universal jurisdiction may only be

understood to mean an unconditional exercise of jurisdiction, with no regard to the numerous conditions found in
treaty law and domestic legislation.
47 AU Report, para. 83.

x
 Gabriel ChavezTafur
Geneva Academy of International Humanitarian Law and Human Rights

should apply to prosecution of international crimes. Based on scholarly opinion and

some State practice, some guidelines as to the resolution of these conflicts shall be
suggested.

Finally, these potential conflicts of jurisdictions when resorting to universality shall be

analysed in Chapter Three, in the light of the complementarity regime found in the
Statute of the International Criminal Court. It shall raise the questions whether
proceedings before the ICC would make universal jurisdiction unnecessary, as the AU
Report suggests; followed by how would the rules on complementarity apply to States
acting under such principle of jurisdiction. It will finalize with a reflection on the
potential effect the Security Council, through its capacity to take action under Chapter
VII of the Charter of the United Nations, may have on such proceedings, including if
acting against jus cogens norms.

xi
 Gabriel ChavezTafur
Geneva Academy of International Humanitarian Law and Human Rights

CHAPTER ONE

As briefly discussed in the Introduction, the prosecution of international crimes often

depends greatly on the availability of an appropriate forum able and willing to carry out
the proceedings. This would include the investigation, arrest, trial and sentence of the
suspects, with due respect for the rights of the accused, the proper handling and
obtaining of evidence and the protection of the victims and witnesses. Unfortunately,
while ordinary domestic offences are routinely investigated and prosecuted there where
the offences were committed, this has not ceased to become an extraordinary event
when it involves international crimes. As Amnesty International provides,

Despite the millions of acts of genocide, crimes against humanity, war crimes, cases of
torture, extrajudicial executions and ‘disappearances’ committed since the end of the
Second World War, only a handful of individuals have ever been brought to justice by
national courts in the territories or jurisdictions where they occurred. …Indeed, in most
cases when suspects are at liberty abroad, one can presume, absent a convincing showing
by the territorial State to the contrary, that the reason is that the territorial State has not
only failed to fulfil its responsibilities under international law, but also that it is unlikely
to do so.48

This concern for the impunity of those responsible for international crimes, and the
inherent difficulties States often find to try their own nationals was expressly behind the
Nuremberg49 and Tokyo50 trials after the Second World War and, past the Cold War, in
the creation of the International Tribunals for Yugoslavia (ICTY)51 and Rwanda
(ICTR),52 other internationalized forums (Special Tribunal for Lebanon (STL),53
Extraordinary Chambers in the Courts of Cambodia (ECCC),54 and the Special Court for
Sierra Leone (SCSL)55) and most notably the International Criminal Court (ICC). It has
also pushed some States to exercise their criminal jurisdiction extra-territorially,

48 Amnesty International Report, supra note 30, at IV.

49 Cf. Trial of the Major War Criminals before the International Military Tribunal at Nuremberg, 14 November 1945 -
1 October 1946. Available at http://www.loc.gov/rr/frd/Military_Law/NT_major-war-criminals.html (last accessed
on 9 January 2009).
50 International Military Tribunal for the Far East. The tribunal convened on May 3, 1946, and was adjourned on

November 12, 1948.

51 ICTY, supra note 9.
52 ICTR, supra note 10.
53 Special Tribunal for Lebanon, created through an Agreement with Lebanon, annexed to Resolution 1757,

S/RES/1757, 30 May 2007.

54 Extraordinary Chambers in the Courts of Cambodia for the Prosecution of Crimes Committed during the Period of

Democratic Kampuchea, formally established through an Agreement between Cambodia and the United Nations
which entered into force on 29 April 2005.
55 Established through the Agreement between the United Nations and the Government of Sierra Leone on the

Establishment of the Special Court for Sierra Leone, signed on 16 January 2002. Available online at http://www.sc-
sl.org/DOCUMENTS/ImportantCourtDocuments/tabid/200/Default.aspx (last visited on 8 January 2009).

1
Fighting Impunity: Positive Conflicts of Jurisdiction and the Principle of Universality

effectively prosecuting before their domestic courts crimes committed by foreigners

against foreigners in foreign territory.

The practice, as could be expected, has raised many questions, particularly among those
States whose nationals have been indicted. With this in mind, this Chapter will attempt to
provide the legal basis found in international law for the exercise of universal jurisdiction
for international crimes. It will do so in four parts: firstly, it will review the exercise of
criminal extraterritorial jurisdiction by States, their rights and obligations as accepted by
practice and case-law. This will be followed by a brief discussion on the principle of
universality as a special form of extraterritorial jurisdiction, the intended purpose behind
its development and its relationship with the principles of jus cogens and erga omnes
obligations. Thirdly, a legal basis for universal jurisdiction shall be searched for in
international treaties, particularly specific agreements dealing with international crimes, as
well as the practice and opinio juris of States. Finally, this Chapter will discuss the
applicability of limiting factors and other conditions to the lawful exercise of universal
jurisdiction, such as the requirement for the suspect to be present in the forum State
before initiating proceedings, the question of immunities for State officials, the principle
of non bis in idem, and others.

The exercise of extraterritorial jurisdiction under international law

There is no doubt that States posses the power to prosecute individuals for offences
committed in their territory, as “jurisdiction is one of the most obvious forms of the
exercise of sovereign power”.56 From this starting point, the question arises whether they
are also entitled to exercise their jurisdiction for offences committed beyond their
borders.

The issue was first tackled by the Permanent Court of Justice (PCIJ or Court) in the SS.
Lotus case.57 The dispute, brought before the Court by Turkey against France in 1927,
revolved around the intention of Turkey to prosecute, before its domestic courts and
applying Turkish law, a French national for a case of manslaughter. The case arose from
a collision occurred in the high-seas between a ship flying a French flag and a Turkish
vessel which resulted in the sinking of the latter and the death of eight Turkish nationals.

56The Case of the Legal Status of Eastern Greenland, PCIJ Judgment, PCIJ Series A-B, 1933, p. 48.
57The Case of the SS. Lotus (France v. Turkey), PCIJ Judgment of 7 September 1927, PCIJ Rep., Series A, No. 10, pp.
18-19.

2
 Gabriel ChavezTafur
Geneva Academy of International Humanitarian Law and Human Rights

Each State presented before the PCIJ confronting views as to the legal basis in
international law for the exercise of extraterritorial jurisdiction: on one hand France
argued that Turkey had to provide the principle which allowed it to exercise jurisdiction.
On the other, Turkey argued sufficient to show that its actions did not come into conflict
with any principle of international law. In a highly disputed verdict (decided by the
President of the Court’s casting vote), the PCIJ resolved in Turkey’s favour, in the
following terms:

International law emanates from relations between independent States, meaning any rules
binding them emanate from their free will. Restrictions upon such independence cannot
therefore be presumed; and although international law does impose a restriction upon
States in that they may not exercise their power in any form in the territory of another
State, “it does not, however, follow that international law prohibits a State from
exercising jurisdiction in its own territory, in respect of any case which relates to acts
which have taken place abroad, and in which it cannot rely on some permissive rule of
international law”.58 In other words, each State has the right to exercise its jurisdiction for
acts committed abroad as long as there is no international obligation to the contrary. By
adopting “the principles it regards best and most suitable”,59 this would clearly entail the
possibility for any State to exercise its domestic jurisdiction, including universal
jurisdiction, for international crimes committed abroad, by foreigners against foreigners.

The judgment, highly controversial even at the time,60 has been severely criticized on
various counts,61 of which the most important refers to the Court’s failure to explicitly
state which ‘obligations to the contrary’ would international law recognize to limit the
free reign of States concerning their power to prosecute. In addition, further analysis of
the International Court of Justice’s (ICJ) jurisprudence provides a number of examples
where the liberty of States to exercise their jurisdiction over acts occurred abroad were
not so easily assumed a priori, as had been the case with Lotus. This has been commonly
interpreted from the Fisheries62 and Nottebohm63 cases, where the Court seemed to shift

58 Idem, p. 18.
59 Ibid.
60 See Brierly, J., ‘Règles générales du droit de la paix’, 58 Hague Recueil, 1936, IV, 146-8, 183-4.
61 Among them, that the Court’s view did not reflect the state of customary law at the time of ruling, an argument

reinforced by the minority view of the dissenting judges. Cf. Brownlie, in Principles: “In most respects the Judgment of
the Court is unhelpful in its approach to the principles of jurisdiction, and its pronouncements are characterized by
vagueness and generality”. In Brownlie, (infra note 68, p. 305. .)
62 The Fisheries Jurisdiction Case (FR Germany v. Iceland), ICJ Reports, 1974, p. 3.

3
Fighting Impunity: Positive Conflicts of Jurisdiction and the Principle of Universality

from the ‘free reign’ approach to a clearly more restrictive position. However, it must be
borne in mind that in none of those cases or any other since Lotus did the ICJ or its
predecessor directly tackle the question of extraterritorial jurisdiction.

As for possible restrictions to the exercise of jurisdiction, clearly the one most commonly
argued by States is the principle of non-interference in their internal affairs. The
argument, which simply upholds the notion that no State has legal power or authority
over other States, finds its base in the principle of independence and equality of States as
enshrined in the Charter of the United Nations Organization (UN Charter),64 and has
been reaffirmed in numerous occasions via treaties and UN resolutions.65 A most
relevant example for the purposes of universal jurisdiction may be found in the affaire
Pinochet,66 where Chile resorted to the principle of non-interference to challenge the
United Kingdom and Spain’s intention to institute proceedings against the former
dictator, affirming that such decision would constitute a threat to the process of Chilean
national reconciliation, which was to be considered an absolutely internal affair.67

Further clarification on the matter was attempted by Professor Ian Brownlie, in his
authoritative study on the Principles of International Law.68 After distinguishing between the
power of States to enforce their domestic laws via territorial and extraterritorial
jurisdictions, he proposes three conditions for the lawful exercise of the latter: first, that
there should be a substantial and bona fide connection between the subject-matter and the
source of the jurisdiction; secondly, that the principle of non-intervention in the
domestic or territorial jurisdiction of other States should be observed; and thirdly, that a
principle based on elements of accommodation, mutuality and proportionality should be
applied, by which nationals resident abroad should not be constrained to violate the law
of the place of residence.69 However, he goes on to admit that these basic principles,
perfectly valid for the prosecution of common offences, ‘do not apply or do not apply

63 The Nottebohm Case (Liechtenstein v. Guatemala), Second Phase, ICJ, 1955.

64 Article 2 para. 1 of the UN Charter. Available at http://www.un.org/aboutun/charter/pdf/uncharter.pdf (last
visited on 8 January 2009).
65 Cf. Marc Henzelin, M. Le Principe De L'universalite En Droit Penal International. Droit Et Obligation Pour Les Etats De

Poursuivre Et Juger Selon Le Principe De L'universalite, (2001) Helbing & Lichtenhahn, 2001; footnote 744.
66 Ex parte Pinochet, supra note 12.
67 Henzelin, supra note 65, p. 165.
68 Brownlie, I. Principles of Public International Law, 5th Edition, Oxford University Press, 1998.
69 Idem., p. 313.

4
 Gabriel ChavezTafur
Geneva Academy of International Humanitarian Law and Human Rights

very helpfully’ to crimes against international law, the gravity of which can alter their
applicability and an area where special rules have evolved.70

Those in favour of such an exception when it comes to international crimes, left mostly
undeveloped in the Principles, find initial support in the jurisprudence of the ICJ, most
particularly the Barcelona Traction case.71 In an often-cited passage, in the midst of
resolving a conflict of competences between Spain and Belgium, the Court stated that

An essential distinction should be drawn between the obligations of a State towards the
international community as a whole, and those arising vis-à-vis another State…. By their
very nature the former are the concern of all States. In view of the importance of the
rights involved, all States can be held to have a legal interest in their protection; they are
obligations erga omnes.72

Such obligations, the Court continued, derive, for example, “from the outlawing of acts
of aggression, and of genocide, as also from the principles and rules concerning the basic rights of the
human person [emphasis added], including protection from slavery and racial
discrimination.”73 In other words, for the Court those ‘principles and rules’ protecting
human rights, and by extension the most serious violations of such rights as embodied in
the definitions of international crimes, would indeed transcend the internal affairs of the
territorial State and can be held to generate a legal interest in any State, qua representative
of the ‘international community as a whole’. This would, consequently, justify the resort
to the ‘protection’ of such rights via the effective prosecution of the alleged perpetrators
of international crimes through the exercise of extraterritorial jurisdiction.74

A similar interpretation is accepted and was made explicit by the Institut de Droit
International in a resolution adopted on 13 September 1989, where it stated in Article 1
that “Les droits de l’homme … cessent d’appartenir à la catégorie des affaires qui relevant
essentiellement de la compétence nationale des Etats”,75 allowing States to take diplomatic,
economic or other measures to ensure their protection, individual or collectively, and as

70 Ibid., p. 314.
71 The case of Barcelona Traction, Light and Power Co. Ltd. (Belgium v. Spain), ICJ, 5 February 1970, 3, at 32.
72 Idem., at 33.
73 Ibid., at 33.
74 The classification of international crimes as generating obligations erga omnes is closely linked to that which labels

them examples of jus cogens norms. This line of argument and its consequences for the exercise of universal jurisdiction
shall be further developed in the next subsection.
75 Institute de Droit International, 1991, as cited in Henzelin, supra note 65, p. 170.

5
Fighting Impunity: Positive Conflicts of Jurisdiction and the Principle of Universality

long as they were admitted by international law. These measures “ne peuvent pas être
considérées comme une intervention illicite dans les affaires intérieures de l’Etat…”.76

In sum, there would seem to be fair grounds to believe that, although the principle of
non-interference does and will continue to hold a primal position in the international
relations of States, its scope would not be absolute. As stated by Professor Gaeta,

[…] la nécessité de préserver le principe de non-ingérence peut survenir à l’égard des infractions de droit
commun, soit celles dont l’interdiction découle du droit pénal national de tout Etat souverain. […] À
l’inverse, les crimes internationaux, […] ont une nature et une portée entièrement différentes: leur
interdiction vise à protéger des valeurs reconnues comme fondamentales par toute la communauté
internationale, et revêtent donc une dimension universelle. La conséquence naturelle en est que tout État
doit se voir accorder le droit d’assurer le respect de ces valeurs au niveau juridictionnel, en dehors de tout
rattachement territorial ou personnel avec l’intéressé.77

Universal Jurisdiction: definition, rationales and applicable norms

International law recognizes at least four principles of extraterritorial jurisdiction: the

active personality principle (by which jurisdiction is exercised based on the nationality of
the offender), passive personality (based on the nationality of the victim), protective
jurisdiction (based on the protection of a State’s national interests) and universal
jurisdiction. Evidently, for reasons that will become clear below, the latter has become
the most controversial form, as the ‘interference’ in the internal affairs of another State
would seem to be less explicitly justified than in any of the other cases. The following
section will attempt to shed some light on the main issues surrounding the application of
such principle, some of which will remain central throughout this paper.

Definition and origins

Much of the political friction surrounding universal jurisdiction may depend greatly on
what is understood by the concept. For the purposes of this discussion and as a starting
point, it shall be assumed to be that which “authorizes the tribunals of all states to take
cognizance of certain international crimes, regardless of where the offence has been
committed and regardless of the nationality of the perpetrator or the victim.”78 Evidently,
its main difference with any other grounds of jurisdiction is precisely the lack of a
necessary link to the crime committed.

76 Idem.
77 Gaeta, P. ‘Les règles internationals sur les critères de compétence des juges nationaux’, in Cassese, Delmas-Marty
(Eds.) Crimes internationaux et juridictions internationales, Presse Universitaires de France, 2002, p. 196.
78 La Rosa, A. ‘Sanctions as a means of obtaining greater respect for humanitarian law: a review of their effectiveness’.

90, 870 International Review of the Red Cross, 1990, pp. 221-248.

6
 Gabriel ChavezTafur
Geneva Academy of International Humanitarian Law and Human Rights

As for its limitation ratione materiae, that is, the relevant crimes for which a court may
resort to universality, most scholars readily admit to the list the core crimes of
international law, namely war crimes (at least those in the Geneva Conventions 1949),
crimes against humanity, genocide and torture – although justification for each is found
in different sources of law and is still subject to challenge. More specific treaties allow for
universality against other international crimes such as hijacking of airplanes, crimes
against internationally protected persons, the taking of hostages and others.79

Regarding its origins, the first examples of universal jurisdiction are generally attached to
the prosecution of the crime of piracy, as far back as the 16th Century.80 The initiative, a
response against the attack on their vessels in the high-seas, led States to join ranks and
label the perpetrators as hostis humanis generis, or common enemy of mankind. In practice,
this meant any State could apprehend and prosecute a pirate without the need to have
been especially affected by that particular pirate’s deeds. Although some differences
between the original crime of piracy and human rights violations can easily be
distinguished,81 in the last 60 years several international treaties and State practice,
together with scholarly opinions, have extended a similar notion of universality to the
most serious violations of human rights.

The rationales behind the principle

Such simple definition and account of the origin of universal jurisdiction remain fairly
uncontroversial. Further analysis into its scope and rationale, however, reveal two
important and substantially different approaches to its application, and most importantly,
the legal basis behind its exercise by a State.82

The first of these revolves around the notion that certain acts are so heinous that they
cease to constitute an affront against the local community or even the State in whose

79 For a comprehensive review of each treaty, see generally Henzelin, supra note 65.
80 Some authors defend the existence of universal jurisdiction for war crimes dating to at least the 14th Century. Cf infra
notes 85, 86 and 87.
81 See Orentlicher, D. ‘Settling Accounts: The Duty to Prosecute Human Rights Violations of a Prior Regime’, 100 The

Yale Law Journal 8, 1991, p. 2557, footnote 78.

82 Similar distinctions into the way to approach universal jurisdiction were suggested by Cassese in “Bell tolling…”

(supra note 37). Mark Henzelin, in his extremely comprehensive study on the topic, distinguished three: the unilateral
application of universal jurisdiction, its deferred exercise and the absolute approach. Only the last two will be used for
the present analysis. (See Henzelin, M. Le Principe De L'universalite En Droit Penal International. Droit Et Obligation Pour Les
Etats De Poursuivre Et Juger Selon Le Principe De L'universalite, Helbing & Lichtenhahn, 2001). The International
Association of Penal Law Global Report on Universal Jurisdiction recognized four: representing the international
community, acting under a treaty obligation, preventing non-punishment of a perpetrator of international crimes and
fighting against organized crime. (See supra note 32.)

7
Fighting Impunity: Positive Conflicts of Jurisdiction and the Principle of Universality

territory they occur and become an offence against humanity as a whole. As the UN
High Commissioner for Human Rights stated in 2001,

the principle of universal jurisdiction is based on the notion that certain crimes are so
harmful to international interests that states are entitled - and even obliged - to bring
proceedings against the perpetrator, regardless of the location of the crime or the
nationality of the perpetrator or victim.83

Similarly, for Professor Broomhall the imperative to defend the fundamental interests of
the international community through criminal process is what “[endows] national courts
exercising universal jurisdiction with the de facto status of agents of the international
community, the declared values of which the proceedings vindicate.”84 Such position can
be traced back almost four centuries to the writings of prominent jurists, such as Richard
Zouche85 and Emerich de Vattel,86 as well as Hugo Grotius. In his famous work De Jure
Belli et Pacis, he writes,

The fact must also be recognized that kings, and those who possess rights equal to kings,
have the right of demanding punishments not only on account of injuries committed
against themselves or their subjects, but also on account of injuries which do not directly
affect them but excessively violate the law of nature or of nations [emphasis added] in regards to
any persons whatsoever.87

A similar contention was strongly developed after the Second World War to justify the
proceedings before the Nuremberg, Tokyo and other similar tribunals. There, the
prosecution by an international court of crimes committed by German nationals against
German nationals was justified in that such “conduct, by its nature, offended humanity
itself. Because the crime originated in ‘humanity’ – presumably under natural law – its
legal status and consequences transcended the province of municipal law”.88 Although
severely contested during the Cold War years, the argument and its two main pillars –
namely, the gravity of the crime as justification and the placing of the international
community as a whole as ‘victim’ of such crimes – has regained important momentum in
the last two decades, most particularly in the work of scholars and human rights
advocates. According to the Global Report on the topic published by the International

83 Forward by the UN High Commissioner to the Princeton Principles on Universal Jurisdiction, supra note 28.
84 Broomhall, B. International Justice and the International Criminal Court: Between Sovereignty and the Rule of Law. Oxford
University Press, 2003, pp. 108-109.
85 See Zouche, R., Iuris et Iudicii Fecialis, sive, iuris inter gentes, et Quaestionum de Eodem Explicatio, 1650. Reprinted in The

Classics of International Law, 1911.

86 See De Vattel, E. Le droit des Gens, 1758, Chapter XIX, paras. 232-33. Both de Vattel and Zouche cited in

Orentlicher, D. ‘Settling Accounts: The Duty to Prosecute Human Rights Violations of a Prior Regime’. 100, No. 8.
The Yale Law Journal, June 1991, p. 2556.
87 Grotius, H. De Jure Belli et Pacis, 1625. Chapter XX, § XL, para 1.
88 Orentlicher, D. ‘Settling Accounts…’ Supra note 81, p. 2557.

8
 Gabriel ChavezTafur
Geneva Academy of International Humanitarian Law and Human Rights

Association of Penal Law, this would also be the approach taken by Germany, Croatia
and Spain when implementing universal jurisdiction to their domestic legal codes.89

The second approach to universal jurisdiction finds support in a more conservative

interpretation of international law and the international relations between States, namely,
that which depends exclusively on their explicit consent, be it through their participation
in multilateral agreements or via their opinio juris and practice. For the supporters of this
view, universal jurisdiction – far from representing the international community – finds
its legal basis only in a pre-arranged deferral of jurisdiction from the territorial State (or
one other entitled to prosecute) to another State, a process which only in a limited
number of occasions would include States acting under the principle of universal
jurisdiction. In other words, it is a regime of jurisdictional rights and obligations arising
among States, inter partes, where and under such conditions as were agreed to in advance.
Such approach would be the logic behind the laws of Finland, Hungary, Turkey,
Romania and Japan.90

Whichever of the two approaches is taken inevitably affects the exercise of universal
jurisdiction in at least three ways:

It does so, firstly, by establishing distinct conditions and limitations as to the initiation of
proceedings. Of particular relevance in this regard becomes the requirement (and in what
measure, or not at all) of a nexus to the crime, of which the presence of the alleged
offender in the territory of the forum State is the most commonly cited. In this sense, for
the internationalist approach, which –as already mentioned – focuses primarily on the
gravity of the crime and for which any State can act as ‘affected party’ – no such
traditional nexus is necessary. It would be sufficient for a court to have before it
substantial evidence regarding the commission of an international crime in order to allow
for the prosecution of the alleged offender.

The position, which includes the possibility of exercising universal jurisdiction in absentia,
was defended by Judges Higgins, Buergenthal and Koojimans of the ICJ in their joint
separate opinion in the Arrest Warrant case,91 albeit together with a caveat suggesting the
need to develop safeguards in order to prevent abuse. It has also been accepted in a

89 Global Report, supra note 32, page 61.

90 Idem., page 62.
91 Arrest Warrant, supra note 33.

9
Fighting Impunity: Positive Conflicts of Jurisdiction and the Principle of Universality

number of domestic codes (Hungary, Finland, Croatia)92 and cases at the national level
(most notably Guatemalan Generals,93 in Spain) and was included into the Princeton Principles
on Universal Jurisdiction,94 for the purposes of “seeking the extradition of the person
accused or convicted of committing a serious crime [and] provided that [the court] has
established a prima facie case of the person’s guilt”.95 Evidently, it has also been severely
criticized, by States and scholars, both in terms of its incompatibility with long-
established international law on jurisdiction (arguably prioritizing prosecution based on
the territoriality principle) as for its procedural shortcomings (difficulty to apply in
practice) regarding evidence available for trial, rights of the victims and the accused, and
immunities (discussed further below).

On the contrary, the inter partes or conditional approach, which would appear to find
greater support among States,96 does demand that a State have a nexus to the case other
than the sole fact of being a member of the international community. Usually this comes
in the form of the physical presence of the suspected offender in the territory of the
forum State, and is expressly provided for in treaty law, and most specifically as part of
the common formula aut dedere aut judicare.97 As the texts provide, a State is not only
conditioned by the suspect’s presence in order to initiate proceedings, but also by the
decision not to extradite him or her to another State, including of course the State where
the alleged crime was committed. In the words of Cassese, such limitations to the
exercise of universal jurisdiction would indeed reflect the state of the law, as the opposite
“would seem contrary to the logic of current State relations”.98

A second yet connected issue arising from the distinction between the two approaches to
universal jurisdiction concerns differentiating between issues of jurisdiction proper
(which questions the appropriateness of the forum to which the claim is presented) and
admissibility (which questions the appropriateness of the claim itself). Indeed, under an

92 Global Report, supra note 32, p. 65.

93 Guatemalan Generals, Constitutional Tribunal, judgment of 26 September 2005, STC 237/2005, available at:
http://www.tribunalconstitucional.es (last visited on 15 January 2009).
94 Princeton Principles, supra note 28.
95 Idem., Principle 3.
96 It is worth noting, however, that at least in the specific case of war crimes, the ICRC found domestic State practice

‘not uniform’. While the requirement that some connection exist between the accused and the forum State was indeed
reflected in the military manuals, legislation and case-law of many States (Canada, France, India, etc.) the Study also
found such link unnecessary in numerous other cases. Cf. Henckaerts and Doswald-Beck, Customary International
Humanitarian Law, Cambridge University Press, 2005, p. 606.
97 Such approach is found in several texts, including the Convention against Torture (CAT) and a number of treaties

on offences related to terrorism.

98 Cassese, supra note 37, p. 592.

10
 Gabriel ChavezTafur
Geneva Academy of International Humanitarian Law and Human Rights

internationalist approach, for a case to fall under the jurisdiction of a domestic court it
would be sufficient to consider whether the crime in question is indeed one of the most
serious violations of international law. Concerns regarding the practical implications of
such case progressing into a full-fledged trial, as for example the requirement to have the
suspect present during the proceedings, would be decided on admissibility grounds (or
resolved through the successful issuance of a request for extradition).

This was, precisely, the position of the Constitutional Tribunal of Spain in the Guatemalan
Generals case,99 where it overturned a decision of the Tribunal Supremo not to prosecute
due to the fact that there was not a sufficient link between the case and the forum
(including but not restricted to the fact that the suspects were not in Spanish territory,
and considering Spanish law does not allow trials in absentia). Clearly favouring an
absolutist approach to universal jurisdiction, the highest Tribunal argued that
international law allowed for the Spanish courts to exercise jurisdiction over the most
heinous crimes,100 and that the presence of the accused or availability of evidence could
result in a dismissal of the case, but only as a decision to be considered at a later stage in
the proceedings. The position, as will become clearer from the analysis of treaty law, runs
counter to the provisions establishing extraterritorial jurisdiction. Similarly, the Tribunal’s
decision constitutes an oddity in any review of the most recent State practice.101

Thirdly, both approaches provide different answers to the question whether there exists
an international obligation, as opposed to just a discretionary right, to prosecute suspects
for the commission of international crimes.

For the first approach, the logic would be that certain crimes violate universal values
embodied in imperative norms of international law or jus cogens,102 which concern all

99 Guatemalan Generals, supra note 93.

100 In the words of Ascensio, “According to the Tribunal, Article 23(4) of the Organic Law broadens the scope of
Spanish jurisdiction to universality because of the gravity of the crimes concerned and because of the correlative
protection established by international law. … [I]t establishes unconditional universal jurisdiction, without any kind of
procedural limit (except res judicata by foreign courts) and without any hierarchy between different bases of jurisdiction.
This is justified by the specific nature of the crimes prosecuted under this law”. In Ascensio, H. ‘The Spanish
Constitutional Decision in Guatemalan Generals’, 4 Journal of International Criminal Justice, 2006, p. 589.
101 As shall be discussed infra, most of States’ legislation are following a tendency to add diverse limitations to the

exercise of universal jurisdiction, moving away from such an absolutist approach.

102 According to the Vienna Convention on the Law of Treaties of 1969, a peremptory norm of general international

law is a norm accepted and recognized by the international community of States as a whole as a norm from which no
derogation is permitted and which can be modified only by a subsequent norm of general international law having the
same character. (Article 53, available at
http://untreaty.un.org/ilc/texts/instruments/english/conventions/1_1_1969.pdf ) Last visited on 8 January 2009.

11
Fighting Impunity: Positive Conflicts of Jurisdiction and the Principle of Universality

States, and thus all States have an obligation not to tolerate their commission.103 This
would be further justified in the fact that, as Professor Thomas Franck explains, these
fundamental rules, “contrary to the ordinary practice of international law, are not
themselves subject to the specific consent of States, except in the very act of accepting
membership in the [international] community itself”.104 Bassiouni concurs, arguing that

the implications of jus cogens are those of a duty and not of optional rights; otherwise jus
cogens would not constitute a peremptory norm of international law. Consequently, these
obligations are non-derogable in times of war as well as peace. Thus, recognizing certain
international crimes as jus cogens carries with it the duty to prosecute or extradite, the non-
applicability of statutes of limitation for such crimes, and universality of jurisdiction over
such crimes irrespective of where they were committed,… Above all, the
characterization of certain crimes as jus cogens places upon States the obligatio erga omnes
not to grant impunity to the violators of such crimes.105

Such approach has also been used by domestic courts to justify the prosecution of
international crimes that would have otherwise gone against local procedural norms, such
as statutes of limitations. This was and continues to be precisely the argument used by
the Supreme Court of Argentina in numerous cases dealing with atrocities committed by
former military commanders during General Videla’s military regime – crimes that, when
typified as domestic offences, would ordinarily fall under a statute of limitations of 15
years.106

Similar arguments, albeit less compelling, in this regard have also been presented through
resorting to more general international human rights treaties, and more specifically the
duty to investigate violations of human rights falling on State parties.107 It should be

103 What exactly provides an international crime with the status of jus cogens is not firmly established. For Bassiouni, this

would entail the fulfilment of at least two conditions: the crime should affect the interests of the world community as a
whole because it threatens the peace and security of mankind; and it should shock the conscience of humanity. “If
both elements are present in a given crime, it can be concluded that the crime is part of jus cogens”. Cf. Bassiouni, C.,
‘The Sources and Content of International Criminal Law: A Theoretical Framework’, in International Criminal Law, 1999,
Vol. 1. As cited in Broomhall, B., infra note 104.
104 Franck, Fairness in the International Legal and Institutional System. The Hague: Academy for International Law, 1993, p.

57. Cited in Broomhall, B. International Justice and the International Criminal Court: Between Sovereignty and the Rule of Law,
Oxford University Press, 2003, p. 42.
105 Bassiouni, C. ‘International Crimes: “Jus Cogens” and “Obligatio Erga Omnes”’, 59,4 Law and Contemporary Problems,

Autumn 1996, page 66.

106 As the argument goes, international norms of jus cogens such as the prohibition against mass violations of human

rights would impede a court the possibility of applying statutes of limitations as a valid defence against prosecution.
See further ChavezTafur, G. ‘Using International Law to By-pass Domestic Legal Hurdles: Applicability of the Statute
of Limitations in the Menéndez Case’ 6, 4 Journal of International Criminal Justice, December 2008.
107 Concretely, the UN Human Rights Committee, the Inter-American Court of Human Rights and the European

Court of Human Rights have taken this stand.

12
 Gabriel ChavezTafur
Geneva Academy of International Humanitarian Law and Human Rights

noted, however, that even if it were accepted that international crimes do hold such
peremptory status, some would contend prosecution would not necessarily follow.108

The second option, which again undeniably finds extensive support in the analysis of
State practice and opinio juris, would hold that universal jurisdiction is not more than a
default principle of jurisdiction, resorted to when the most traditional grounds fail,109 and
even then only when a specific provision so allows (which in turn would apply only
between those States who previously agreed to it).110 This is confirmed in the various
formulas used in treaties to regulate the possibility of prosecution by a third State: on one
extreme one finds the 1949 Geneva Conventions,111 perhaps the most proactive in the
spelling out of a State party’s obligation to take action against an offender present in its
territory;112 on the other, the 1963 Tokyo Convention on Offences and Certain Other
Acts Committed on Board Aircraft (and other treaties following the same model) which
limits itself to requiring States to pass legislation providing for specific grounds of
jurisdiction, but not to actually prosecute anyone under those grounds.113

At any rate, what is clear is that agreement on a set of rules is much needed, even if these
fall on one extreme or the other. Domestic courts relying exclusively on their own
interpretation of the principle – even those strongly favouring a liberal approach to
universality, like the Spanish Constitutional Tribunal – can dangerously jeopardize the
development of an international standard that could then be applied by and – most
importantly – be demanded from any national court. This is something which would, in
effect, counter the current efforts to bring international criminals to justice.114 Although
reaching some degree of agreement was the intention behind the Princeton Principles

108 A substantive prohibition to commit a crime does not necessarily entail an imperative procedural obligation to

prosecute the suspects at all costs, as many factors can provide alternative solutions, be it through positive conflicts of
jurisdiction by which another forum becomes more suited, or the community affected decides to resort to non-judicial
truth and reconciliation methods, to provide two examples. Cf. A. Gattini, A. ‘War crimes and State immunity in the
Ferrini decision’, 3 Journal of International Criminal Justice, 2005, pp. 224-242.
109 See Cassese, A. ‘Is the Bell Tolling for Universality? A Plea for a Sensible Notion of Universal Jurisdiction’ (supra

note 37); and Abi-Saab, G. ‘The Proper Role of Universal Jurisdiction’, in 1 Journal of International Criminal Justice, 2003.
110 Discussed further in Chapter Two.
111 Geneva Conventions, supra note 40.
112 Discussed further below.
113 The model may also be found in the 1999 Second protocol to the Convention for the Protection of Cultural

Property in the Event of Armed Conflict (signed at the Hague, 14 May 1954. Entered in force: 7 August 1956).
114 The consequences of this can already be seen in the case of Belgium, where the proliferation of cases against several

world leaders, including George W. Bush, Ariel Sharon and Saddam Hussein, led to strong US pressure on the Belgian
parliament to amend the laws on jurisdiction twice, eliminating all traces of absolute universality and effectively raising
the alarm on its potential abuse. See supra note 35.

13
Fighting Impunity: Positive Conflicts of Jurisdiction and the Principle of Universality

project, scholarly papers115 and the latest call for discussions between the European
Union and African States made by the Assembly of the African Union,116 so far,
however, no such consensus exists and further work and consultations are required.

Moving beyond the debate: universal jurisdiction as provided in treaty and

customary law
Although commendable as an attempt to fight impunity, positive international criminal
law does not contain an explicit norm characterizing a certain crime as part of jus cogens,
nor does State practice conform to the scholarly writings that espouse these views.117
Moving beyond the debate presented above, the following section will attempt to briefly
review the existence of universal jurisdiction for the core international crimes as has
currently been agreed upon by States, both under conventional and customary law.118

War crimes

The best example of conventional universal jurisdiction is that provided for war crimes
explicitly listed as ‘grave breaches’ in the four 1949 Geneva Conventions and their 1977
Additional Protocol I. These include, inter alia, wilful killing of protected persons, torture
and inhuman treatment, unlawful deportation and depriving a protected person of a fair
trial when committed in an international armed conflict.119 Ratified by all countries in the
world, the Conventions provide that every State

shall be under the obligation to search for persons alleged to have committed, or to have
ordered to be committed, such grave breaches, and shall bring such persons, regardless
of their nationality, before its own courts. It may also, if it prefers,… hand such persons
over for trial to another High Contracting Party concerned, provided such High
Contracting Party has made out a prima facie case.120

115 Cassese sums it up to five conditions: that universal jurisdiction be only applied to international crimes, when the
alleged offender is on the territory of the forum State, only as a substitute for other countries that would be in a better
position to prosecute (territorial or active nationality jurisdiction), and fully respecting the personal immunities of high
officials. See supra note 37.
116 AU Report, see supra note 39.
117 Bassiouni, supra note 105.
118 For a complete analysis of universal jurisdiction as found in treaty law, see Henzelin, supra note 82. Of particular

interest results his nuanced classification of conventions, distinguishing between those that require only the passing of
legislation (Tokyo model), and those that require actual prosecution or extradition (Hague model).
119 The full list of grave breaches as found in the Geneva Conventions include: wilful killing, torture or inhuman

treatment, including biological experiments, wilfully causing great suffering or serious injury to body or health,
unlawful deportation or transfer or unlawful confinement of a protected person, compelling a protected person to
serve in the forces of a hostile Power, or wilfully depriving a protected person of the rights of fair and regular trial
prescribed in the present Convention, taking of hostages and extensive destruction and appropriation of property, not
justified by military necessity and carried out unlawfully and wantonly. (Article 146 GC IV, supra note 40.)
120 Text common to all four 1949 Geneva Conventions, found in Articles 50/51/130/146 respectively. Supra note 40.

14
 Gabriel ChavezTafur
Geneva Academy of International Humanitarian Law and Human Rights

Although the provision makes no reference to the location where the crime was
committed, the phrase ‘regardless of their nationality’ clearly establishes an obligation for
States to give priority to the prosecution of grave crimes, wherever or by whoever
committed, over any other consideration. As Pictet explains,

The obligation on the High Contracting Parties to search for persons accused to have
committed grave breaches imposes an active duty on them. As soon as a Contracting
Party realizes that there is on its territory a person who has committed such a breach, its
duty is to ensure that the person concerned is arrested and prosecuted with all speed.
The necessary police action should be taken spontaneously, therefore, not merely in
pursuance of a request from another State.121

A similar and unequivocal interpretation is given by Henzelin, who agrees that the
Conventions, in a quite sui generis fashion, establish an obligation primo prosequi secundo
dedere, namely, to search for and prosecute suspected offenders, “avec la possibilité facultative pour
l’Etat où se trouve le prévenu de le remettre à un autre Etat, pour autant que celui-ci retienne également
des charges suffisantes contre ce prévenu.”122 The possible effects of such prioritization shall be
further discussed in Chapter Two.

As for the customary nature of this obligation, little controversy arises in the case of the
1949 treaties, as all States are now parties and thus have expressly consented to the
repression regime found therein. Their customary status had also been previously
confirmed in Nicaragua by the ICJ, in 1986.123 With regards to those war crimes only
found in the 1977 Protocol,124 as well as those committed in non-international armed
conflicts, customary law would also seem to accept a State’s exercise of universal
jurisdiction, albeit in the form of a right to prosecute, not an obligation. Such was the
conclusion of the ICRC Study on Customary International Humanitarian Law,
specifically Rule 157.125

121 Pictet, J. Commentary, IV Geneva Convention Relative to the Protection of Civilian Person in Time of War of

August 12, 1949, p. 593, available at http://www.icrc.org/ihl.nsf/COM/380-600055?OpenDocument (last visited on

18 November 2008).
122 Henzelin, supra note 82. p. 353.
123 The Case concerning military and paramilitary activities in and against Nicaragua (Nicaragua v. United States), ICJ, 1986,

available at http://www.icj-cij.org/docket/files/70/6503.pdf (last visited on 19 October 2007), pp. 218–219.

124 Currently 168 States are party to the Additional Protocol I.
125 “State practice establishes [States have the right to vest universal jurisdiction in their national courts over war

crimes] as a norm of customary law with respect to war crimes committed in both international and non-international
armed conflicts.” In Henckaerts, J. and Doswald-Beck, L. Customary International Humanitarian Law. Cambridge
University Press, 2005.

15
Fighting Impunity: Positive Conflicts of Jurisdiction and the Principle of Universality

Crimes against humanity

The case for crimes against humanity is much less clearly established. Included in the
Nuremberg Charter,126 annexed to the London Agreement, they were most recently
defined in the Statutes of the former Yugoslavia and Rwanda Tribunals,127 and now fall
under the jurisdiction of the ICC.128 However, no specific convention on crimes against
humanity has been agreed to by States, and thus no explicit grounds for traditional or
extraterritorial exercises of jurisdiction have been determined.

Two treaties may be cited, however, dealing with specific crimes that may amount to the
underlying offence of a crime against humanity. The first is the 1973 International
Convention on the Suppression and Punishment of the Crime of Apartheid, particularly
Article IV, which requires State parties to take measures to suppress, prosecute, try and
punish “in accordance with their jurisdiction”129 persons responsible for apartheid. As
per Amnesty International, this should be read “in accordance with their jurisdiction
under international law, which includes universal jurisdiction”.130 The second refers to
the 1984 Convention Against Torture and Other Cruel, Inhuman or Degrading
Treatment or Punishment which, in much clearer terms requires all State parties to
establish jurisdiction over the crime both under the principle of territoriality, as well as
for “cases where the alleged offender is present in any territory under its jurisdiction and
it does not extradite him” (Article 5).131 Should the situation arise, the State would be
obliged to, “if it does not extradite him, submit the case to its competent authorities for
the purpose of prosecution” (Article 7).132 Certainly if applicable to torture as a discrete
crime, it would necessarily apply as a crime against humanity.

In terms of customary law, most scholars agree in that the opinio juris of States does
indeed provide crimes against humanity with special gravity under international law, and

126 Agreement for the Prosecution and Punishment of the Major War Criminals of the European Axis, and Charter of

the International Military Tribunal. London, 8 August 1945. Available at

http://www.icrc.org/ihl.nsf/FULL/350?OpenDocument (last visited on 9 January 2009).
127 Article 5, ICTY Statute, Article 3 ICTR Statute.
128 Article 7, ICC Statute.
129 International Convention on the Suppression and Punishment of the Crime of Apartheid, adopted and opened for

signature, ratification by General Assembly resolution 3068 (XXVIII) of 30 November 1973, entry into force on 18
July 1976, in accordance with article XV. 1015 UNTS 244 (1973).
130 Amnesty International, Universal Jurisdiction: the Duty of States to Enact and Implement Legislation (Report) Chapter Five.

(Crimes Against Humanity, The legal basis for universal jurisdiction), AI Index: IOR 53/008/2001, Distr:
SC/CO/PG/PO, p. 3.
131 Convention Against Torture, supra note 41, Article 5§2.
132 Idem., Article 7§1.

16
 Gabriel ChavezTafur
Geneva Academy of International Humanitarian Law and Human Rights

would allow for the right to prosecute under universal jurisdiction.133 Such was the
position of domestic judges in Pinochet and other cases,134 as well as the conclusion of
comprehensive studies on these crimes.135 As for State practice, more than a 100 States
are known to provide for their courts to domestically prosecute some forms of crimes
against humanity under universal jurisdiction.136 However, “prosecutors have only
opened investigations or commenced prosecutions in a dozen of these States since the
Second World War, […] or have arrested persons at the request of States seeking to
exercise such jurisdiction”.137

Genocide

The commission and punishment of genocide, sometimes labelled ‘the crime of crimes’,
was clearly codified in the 1948 Convention on the Prevention and Punishment of the
Crime of Genocide.138 Quite surprisingly, however, it does not provide for universal
jurisdiction, but limits prosecution to “a competent tribunal of the State in the territory
of which the act was committed, or by such international penal tribunal as may have
jurisdiction with respect to those Contracting Parties which shall have accepted its
jurisdiction”.139

Such limited jurisdiction was broadened by the ICJ, both in its Advisory Opinion on
Reservations To The Convention On The Prevention And Punishment Of The Crime
Of Genocide (Advisory Opinion of 28 May 1951), the Barcelona Traction case (where it
listed genocide as a crime against the community of nations, already cited) and most
recently the Genocide case (Bosnia-Herzegovina v. Serbia and Montenegro),140 where it
confirmed that “the rights and obligations enshrined by the Convention are rights and

133 Scholars justify this assertion based on the Nuremberg trials, the Convention on the non-Applicability of Statutes of
Limitations, the Statutes of the ad hoc tribunals, the ICC Statute, plus the fact that these crimes embody exactly the
theory that certain offences go against humanity as a whole, and thus any member of that community should be
allowed to prosecute a suspect if the opportunity arises.
134 “[W]e consider that there exists a customary rule of international law, indeed jus cogens, recognizing universal

jurisdiction and authorizing national authorities to prosecute and bring to justice, in all circumstances, persons
suspected of crimes against humanity.” Decision of the Tribunal de première instance, Brussels, 6 November 1998
determining that it had jurisdiction over Augusto Pinochet. In supra note 130.
135 Cf. Bassiouni, Crimes Against Humanity in International Criminal Law Kluwer Law International, 1999, pp. 237-240.
136 See Amnesty International Report, supra note 130.
137 Including Austria, Belgium, Canada, Germany, Israel, Mexico, the Netherlands, Paraguay, Senegal, Spain, the UK

and the US. In Beigbeder, Y. International Justice Against Impunity: Progress and New Challenges, Martinus Nijhoff Publishers,
2005, p. 50.
138 Genocide Convention, supra note 42.
139 Idem., article VI.
140 The Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v.

Serbia and Montenegro), ICJ case 91, The Hague, 26 February 2007. Available at http://www.icj-
cij.org/docket/files/91/13685.pdf (last visited on 13 December 2008).

17
Fighting Impunity: Positive Conflicts of Jurisdiction and the Principle of Universality

obligations erga omnes. The Court notes that the obligation each State thus has to prevent
and to punish the crime of genocide is not territorially limited by the Convention”.141
Still, only a handful of national courts have actually exercised universal jurisdiction over
persons suspected of genocide, or authorized their extradition to other States willing to
do so, among them Germany, Israel,142 Mexico and Spain.143

In short, it would seem reasonable to conclude that at least under treaty and customary
law,

the clearly prevailing view is that genocide, crimes against humanity, and war crimes
(including not only grave breaches of the Geneva Convention but the ‘Hague law’
applicable in international armed conflict, as well as crimes arising in non-international
armed conflicts) give rise to permissive universal jurisdiction at international law.144

Potential obstacles in the exercise of universal jurisdiction

Whether or not a State decides to initiate proceedings against a suspected offender under
universal jurisdiction, even when acting under a firmly recognized international
obligation, will inevitably require consideration of two further sets of potential
difficulties: one of them, legal, in the form of potential conflicts between universality and
other international norms such as the principle of non bis in idem, amnesties for past
crimes or immunities enjoyed by public officials. The second, more practical, would
include such matters as lack of appropriate domestic legislation, international comity (or
the fear of abuse), access to evidence, availability of extradition mechanisms and other
considerations. Some will be reviewed next.

Non bis in idem

Non bis in idem, or double jeopardy, is a general principle of law by which a person may
not be tried for a second time based on the same charges and the same facts.145
Evidently, the forum where this second trial may be held is irrelevant, as what is at stake
is the respect for the humanity and dignity of every individual, including suspected
criminals. Difficult issues arise, however, when dealing with international crimes subject
to the exercise of universal jurisdiction. If no traditional link is required between the

141 Idem., Preliminary objections, para. 31, 11 July 1996. Available at http://www.icj-cij.org/docket/files/91/7349.pdf

(last visited on 9 January 2009).

142 Eichmann v. Attorney General of Israel, 36 ILR Supreme Court of Israel, 1968.
143 Beigbeder, supra note 137, p. 52.
144 Broomhall, infra note 155, p. 405
145 In the US, this means that a not-guilty verdict is final. In other countries the restriction applies only for the same

acts, however legally characterized. Cf. generally, Global Report, supra note 32.

18
 Gabriel ChavezTafur
Geneva Academy of International Humanitarian Law and Human Rights

crime and the forum State, potentially courts in every country could decide to install
proceedings against the same person. If, then, to fight impunity implicitly means to find,
prosecute and punish, would the courts of one State respect a decision of acquittal by
courts in other States? If the crime offends the international community as a whole, what
stops each member of such community from seeking a guilty verdict? According to
Professor Fletcher, universal jurisdiction indeed provides “no guarantee whatsoever
against hounding an accused in one court after another until the victims are satisfied that
justice has been done”.146

Clearly, the above scenario could be avoided by a strict respect for the non bis in idem
principle. However, as Fletcher continues, this would also mean that if a court in a third
State acting under the principle of universality tried and acquitted a suspected criminal,
those directly affected by the crime, namely the local community where the crimes were
committed, the direct victims and witnesses, would again be impeded from obtaining
justice. In a way, “the supposed cure of joining non bis in idem with universal jurisdiction
would be worse than the disease. It would give the first court to hear the case the power
to decide the fate of the accused and the whole world would have to defer to their
possibly idiosyncratic judgment”.147

Important as the courts in the local communities are, however, it should be noted that
the fight against impunity through universal jurisdiction, in effect, derives from their
generalized failure to prosecute the most heinous crimes, not from an over-eagerness on
the part of foreign judges in third States. In effect, as Professor Abi-Saab points out, the
problem is not that of establishing which court should hold priority, but that of finding
any judge willing and able to prosecute.148 As such, universal jurisdiction, far from a
violation of the rights of the accused, continues to be merely “a fail-safe solution called
for by urgency and necessity”.149

Immunities

Most of States’ apprehension towards universal jurisdiction, even when their official
discourse favours the international movement against impunity, derives from their

146 Fletcher, G. ‘Against Universal Jurisdiction’, 1 Journal of International Criminal Justice, December 2003, pp. 580 - 584.
147 Idem.
148 Abi-Saab, supra note 109.
149 Idem. See further Chapter Two, on prioritisation of principles of jurisdiction for international crimes.

19
Fighting Impunity: Positive Conflicts of Jurisdiction and the Principle of Universality

concern for the effect prosecutions abroad could have on the immunities of public
officials as currently recognized under international law. Of course, this is easily
understood when absolutist arguments in favour of universal jurisdiction are misread to
mean that all other norms of international law should yield to the ‘higher purpose’ of
punishing and preventing violations of human rights. It should be borne in mind,
however, that the norms on jurisdiction do not contradict or alter the current rules on
immunities.150 The latter may be summarized as follows:

Two general categories of immunities are recognized under international law. Personal
immunities, on one hand, are those granted to Heads of State, Ministers of Foreign
Affairs, Heads of Mission and arguably other very high State officials. They cover all acts,
private or public, and prohibit the initiation of proceedings against them, providing a
procedural bar against prosecution. This responds to the logic that, while in office, these
high authorities should not be tried, cited or summoned by foreign courts, at least
without their consent, as that could seriously affect the running of government, the
international relations between theirs and other States, and be potentially embarrassing to
the nation as such. As the ICJ stated in the Arrest Warrant case, however, immunity from
jurisdiction should not be made to mean impunity.151 According to the Court, any of the
above mentioned public officers could be tried under an extra-territorial basis of
jurisdiction if the State they represent decides to waive their immunity, or once they
cease to hold office they are prosecuted for acts committed prior or subsequent to their
time in office, or committed during their time in office in a private capacity.152 The whole
question here would be to define the extent of the concept of "private capacity" as
applied to such high-level States' representatives while in office and whether international
crimes could be considered as falling under such concept.

On the other hand, functional immunities attach to the acts of any public official, included
those mentioned above, committed while carrying out their functions (or in an official
capacity). They are a substantial bar, which means the person may be brought before a
court, where the defence of immunities might then be raised. Acts committed privately
are not covered and, as the immunities attach to the act, and not the person, they remain

150 Arrest Warrant case, supra note 33, §60.

151 Idem.
152 Ibid., §61.

20
 Gabriel ChavezTafur
Geneva Academy of International Humanitarian Law and Human Rights

an applicable defence in court regardless of whether or not the person left his or her
official post.

As for the prosecution of international crimes specifically, there is a strong trend among
international jurisprudence and some scholars to state that, while personal immunities
would normally preclude prosecution of even the core crimes (genocide, crimes against
humanity, war crimes), the functional type, however, no longer constitutes an allowable
defence.153 In practical terms, this means that while an incumbent Head of State or
similar may not be indicted or prosecuted for international crimes in a foreign court, she
or he would still be subject to proceedings once his or her term in office expires.154 As
for lesser officials, they could be prosecuted for international crimes (not any other
offences) even while holding public office.

Practical considerations

The decision to prosecute on the principle of universal jurisdiction also raises special
challenges concerning more practical issues. Some of these include, first, the fact that the
major part of the evidence will most probably be found in the territory of the State where
the crimes were committed, or more worryingly, in the hands of such State’s public
officials. This may not only make it extremely difficult to build a case but even to assess
the authenticity of the little evidence obtained.

Secondly, the prosecuting State may not be in a position to provide protection to

witnesses, either abroad or found in its territory, during the duration of the trial or even
less in the long term. Without sufficient assurances from the forum State, victims or
witnesses may remain understandably reluctant to participate in the trial.

This, in turn, could make it very difficult for a public prosecutor to push for a case which
has little chances of success. The exercise of universal jurisdiction is indeed cumbersome
and costly, which will inevitably lead authorities to consider whether they indeed wish to
spend their limited resources in a case with no direct link to their jurisdictions, and
potentially very problematic.

153Cf. Cassese, A. International Criminal Law’ 2nd Edition, Oxford University Press, March 2008, Chapter 14.
154The view would, at least apparently, contradict the literal meaning of paragraph 61 of the Arrest Warrant judgment
(see supra note 33), for which reason it has been severely criticized.

21
Fighting Impunity: Positive Conflicts of Jurisdiction and the Principle of Universality

Finally, and as has already been mentioned, universal jurisdiction may cause seemingly
unnecessary political friction between the State attempting to prosecute and the States
where the crimes were committed or whose alleged criminal is a national. This, which
explains why so many countries provide political bodies (such as the Office of the
Attorney-General) with the final decision concerning extraterritorial proceedings,155 was
also behind the fear of ‘jurisdictional imperialism’156 that triggered the latest resolution on
universal jurisdiction by the General Assembly of the African Union.157

Concluding remarks
By briefly reviewing the distinct legal and practical issues, the above text has intended to
provide an overview for States on the exercise of universal jurisdiction. As should have
become clear, the current state of international law allows each country to determine its
own bases of domestic jurisdiction, including extraterritorial jurisdiction based on the
principle of universality, as long as such bases do not go against international law.
Regarding universal jurisdiction proper, it should be borne in mind that, while both the
internationalist and conditional approaches allow for the initiation of proceedings based on
universality, each is based on a substantially different view of the current state of
international law, and thus arrive at different conclusions regarding States’ rights or
obligations to prosecute. This uncertainty is clearly less when based exclusively on treaty
law. However, even in those cases like the 1949 Geneva Conventions where the text
provides for clear parameters of action, States willing to prosecute should remain aware
of the potential difficulties they shall encounter in their attempt to fight impunity. One of
such hurdles, the positive conflict of jurisdictions with another State, shall be discussed
in detail in the next Chapter.

155 Broomhall, B. ‘Towards the Development of an Effective System of Universal Jurisdiction for Crimes Under

International Law’, 35:2 New England Law Review, 2001, p. 416

156 International Council on Human Rights Policy, Thinking ahead on Universal Jurisdiction, 1999, p. 26.
157 AU Report, supra note 39.

22
 Gabriel ChavezTafur
Geneva Academy of International Humanitarian Law and Human Rights

CHAPTER TWO

Chapter One attempted to provide an overview of the legal bases for the exercise of
universal jurisdiction when prosecuting the core international crimes. After discussing the
general rules regarding extraterritorial judicial enforcement, it presented two alternative
approaches to universality: one, based on the protection of common international values
and legally justified mostly via the responsibility arising erga omnes from the hierarchically
superior norms of jus cogens; the other, more conservatively dependent on explicit
multilateral State consent, and found primarily in treaty law and State opinio juris. Both
approaches, it was concluded, would at least allow – in given circumstances – for the
lawful exercise of jurisdiction over certain crimes.

Evidently, the exercise of jurisdiction based on universality carries with it certain

implications: precisely the lack of a traditional link between the forum State and the
crime means that there will always be other States, most commonly the State in whose
territory the crimes were committed and that of which the suspect is a national, with a
legitimate interest in the case. This interest may be even greater if the case involves the
accusation of foreign public officials, as can be a common occurrence in the case of
international crimes.158 Although some examples of collaboration do exist,159 States’
reactions will most probably range from inter-State negotiations to interrupt the
proceedings,160 formal extradition requests, up to an open challenge to the forum State’s
actions,161 or even a full-blown international dispute.162

The following Chapter will focus on this inter-State conflict of jurisdictions, in two steps:
first, it will review the existence of general norms of international law available for any
conflict of jurisdiction, discussing whether they provide sufficient guidance for the
solution of these matters. This will include general principles of law, provisions found in
multilateral treaties and, finally, those established in bilateral agreements dealing with
extradition issues. Such analysis of positive rules shall be followed by the presentation

158 This was the case of Pinochet, Scilingo, the Guatemalan Generals, Eichmann, and others.
159 Cf. Kirgis, F. ‘Request for Extradition of Miguel Cavallo from Mexico to Spain for Alleged Torture in Argentina’,
American Society of International Law, Insights, 2000. Available online at http://www.asil.org/insigh49.cfm (last visited on 8
January 2009).
160 Perhaps the most noted case was that of the US on Belgium. See Introduction, above.
161 As did Chile during the Pinochet proceedings in the UK. Cf. Supra note 12.
162 The most commonly cited is the Arrest Warrant before the ICJ (cf. supra note 33), although it focused on the

question of immunities and did not deal with universal jurisdiction as such.

23
Fighting Impunity: Positive Conflicts of Jurisdiction and the Principle of Universality

and further discussion of two more interpretative approaches to the solution of conflicts
of jurisdiction, mainly proposed by scholars and some State practice: namely, one
favouring an emphasis on the nexus between the forum and the crime as grounds for the
establishment of a hierarchy of jurisdictions, vis-à-vis another that promotes a weighing
of different conditions and interests, ad hoc to each case. Both approaches shall be
reviewed in light of their potential as effective guidelines for States willing to prosecute
those suspect of committing international crimes under the principle of universality.

Conflicts arising from concurrence of jurisdictions under international law

International law recognizes two types of potential conflicts in the exercise of
jurisdiction. The first is known as a negative conflict of jurisdiction, and arises every time a
crime goes unpunished for lack of a competent forum to try the perpetrator. This can
easily occur if criminal conduct is penalized in one State but not in another, or is only
penalized subject to the condition that the crime occurs within the territory of the forum
State, and the offender commits the act in the former State but then travels to the
territory of the latter. In the case of an international crime, such would be the case if, to
take an example from above, domestic legislation established jurisdiction over the crime
of genocide according to a strict interpretation of the conditions set by the Genocide
Convention.163 Indeed, while under Article 5, the treaty requires States to enact the
necessary legislation to give effect to the provisions criminalizing genocide and, in
particular, to provide effective penalties,164 however under Article 6 such legislation limits
the possibility of prosecution only to those Courts operating in the territory where the
crime was committed, and not elsewhere.165 It is to avoid such jurisdictional gaps, and
hence impunity, that international law has long recognized the possibility for States to
establish jurisdictions which they regard ‘best and most suitable’,166 for domestic offences
as much as for international crimes. Such jurisdictional regime was discussed in Chapter
One.167

163 Cf. Chapter One.

164 Article 5 reads: “The Contracting Parties undertake to enact, in accordance with their respective Constitutions, the
necessary legislation to give effect to the provisions of the present Convention, and, in particular, to provide effective
penalties for persons guilty of genocide or any of the other acts enumerated in article III”. Available at:
http://www.unhchr.ch/html/menu3/b/p_genoci.htm (last visited on 8 January 2009).
165 Article 6 states persons ‘shall be tried by a competent tribunal of the State in the territory of which the act was

committed’. Available at: http://www.icrc.org/ihl.nsf/FULL/357?OpenDocument (last visited on 11 November

2008).
166 Cf. SS. Lotus case, supra note 57.
167 See ‘The exercise of extraterritorial jurisdiction under international law’, Chapter One, p. 2

24
 Gabriel ChavezTafur
Geneva Academy of International Humanitarian Law and Human Rights

The second type of conflict, and which will occupy the rest of this Chapter, is known as a
positive conflict of jurisdictions, and arises every time two or more States claim jurisdiction
over the same suspect and for the same events. Following the logic just mentioned
regarding potential for impunity, such concurrence of jurisdictions is deemed “acceptable
and convenient; and forbearance by States in the exercise of their jurisdictional powers
avoids conflicts in all but a small (although important) minority of cases”.168 However, it
is precisely such alleged ‘lack of forbearance’ by a recently increased number of States
willing to prosecute under the principle of universality that currently centres other States’
criticisms.

Unfortunately, and albeit developing into a highly contentious area of international

relations,169 scholars agree in that international law still does not provide with a general
norm establishing a hierarchy of jurisdictions that would thus enable for a more
standardized approach to the resolution of positive conflicts of jurisdiction.170 Although
in the Barcelona Traction case, Judge Fitzmaurice asserted international law does involve
for every State

an obligation to exercise moderation and restraint [emphasis added] as to the extent of the
jurisdiction assumed by the courts in cases having a foreign element, and to avoid undue
encroachment [emphasis added] on a jurisdiction more properly appertaining to, or more
appropriately exercisable by, another State.171

Still the questions as to what would be considered ‘encroachment’ or in what situations a

given jurisdiction would be more appropriately exercised by another State were left and
remain open today. As was already mentioned in the previous Chapter, even when in
certain cases States have indeed argued for the preponderance of the principle of
territoriality as an exclusive ground for prosecution, this has been always expressly
rejected: such was precisely the position of the PCIJ in the Lotus case, in which the Court
– though recognizing that the principle of territoriality was fundamental - established that
matters of jurisdiction should ‘by no means coincide’ with matters of sovereignty, thus
rejecting the notion that the exercise of jurisdiction could be the exclusive competence of
only one State.172

168 Jennings and Watts, (eds.) Oppenheim’s International Law, Vol. 1, Peace (9th ed.), Oxford University Press, 2008,

Section 136.
169 The AU Report, mentioned supra, is a clear example of this.
170 See Bantekas, I. and Nash, S. International Criminal Law. Routledge Cavendish, 2003, p. 144
171 Barcelona Traction case, supra note 71, as cited in Inazumi, infra note 199, p. 162.
172 SS. Lotus case, supra note 57.

25
Fighting Impunity: Positive Conflicts of Jurisdiction and the Principle of Universality

With regards to any relevant provisions found in treaty law, most of the conventions
dealing with international crimes are either silent on the matter or limit themselves to
determining the different grounds of jurisdiction under which the crimes may be
prosecuted, but without specifying a hierarchy in case of positive conflicts of jurisdiction
or providing for alternative solutions. Examples of these include the Geneva
Conventions,173 the Genocide Convention174 and the Convention against Torture175 –
briefly reviewed in the previous Chapter – as well as most of the treaties dealing with
other international criminal offences, usually related to terrorism, and which provide for
a conditional exercise of universal jurisdiction.176

Only in a handful of exceptions does a convention provide for an explicit reference to

potential conflicts of jurisdiction. Unfortunately, little help is obtained as the provisions
mainly limit themselves to no more than a call for cooperation. One such an example is
Article 7§5 of the International Convention for the Suppression of the Financing of
Terrorism,177 the first anti-terrorism text to include a provision on the matter, opened for
signature in 2000. The provision reads:

When more than one State Party claims jurisdiction over the offences set forth in article
2 [i.e. providing or collecting funds with the intention that they be used for terrorism
offences as defined in nine other treaties dealing with terrorism], the relevant States
parties shall strive to coordinate their actions appropriately [emphasis added], in particular
concerning the conditions for prosecution and the modalities for mutual legal assistance.

Again, it must be noted that no further details are provided for determining the
“appropriateness” of the coordination nor are States obliged to do more than “strive” to
achieve it. More importantly, no mention is made of any pre-established hierarchy
concerning the “conditions for prosecution”, effectively levelling the possibility for a
State to exercise extraterritorial jurisdiction – allowed conditionally under Article 7§4 of
the Convention178 – with the more traditional grounds found in §1 and §2.179

173 Geneva Conventions, supra note 40.

174 Genocide Convention, supra note 42.
175 Convention Against Torture, supra note 41.
176 See Chapter One.
177 International Convention for the Suppression of the Financing of Terrorism, Adopted by the General Assembly of

the United Nations in resolution 54/109 of 9 December 1999, 39 I.L.M. 270, 2000.
178 Article 7§4 of the Convention reads: “Each State Party shall likewise take such measures as may be necessary to

establish its jurisdiction over the offences set forth in article 2 in cases where the alleged offender is present in its
territory and it does not extradite that person to any of the States Parties that have established their jurisdiction in
accordance with paragraphs 1 or 2”. Available at: http://untreaty.un.org/english/Terrorism/Conv12.pdf (last visited
on 8 January 2009).
179 Particularly the principles of territoriality, active personality and when on board a vessel flying the flag of the State.

26
 Gabriel ChavezTafur
Geneva Academy of International Humanitarian Law and Human Rights

Bilateral agreements: the law of extradition

Lacking more specific provisions in universal agreements, it is worth reviewing whether

some positive guidance may however be found in inter-State arrangements at the bilateral
level, and more specifically in those related to conditions for the extradition of
individuals facing criminal charges. Evidently, the provisions of any bilateral treaty apply
only inter partes; however, it is widely accepted that in the case of extradition agreements,
most apply the same rules with minimum variations, making them a reliable source of
State practice and potentially customary international law. As the U.S. Restatement
(Third) of the Law on Foreign Relations explains, matters of extradition are

generally governed by treaty and subject to various limitations. A network of bilateral

treaties, differing in detail but having a considerable similarity in principle and scope, has
spelled out these limitations, and in conjunction with State legislation, practice, and
judicial decisions has created a body of law with substantial uniformity in major
respects.180

It should also be borne in mind that, in the case of positive conflicts of jurisdiction, a
dispute will almost always comprise no more than two or three States, making its
resolution a bilateral affair to which – in most cases – the terms of any pre-existent
bilateral agreement would prevail as lex specialis over a general rule of international law.181

A request for extradition may arise in a case involving the exercise of universal
jurisdiction in the following scenarios: one is when the accused is detained in the territory
of a State, proceedings are initiated in situ under the principle of universality and then
another State, usually that of which the accused is national or where the crimes were
committed, requests the extradition of the person for prosecution before its own courts.
It may also arise with the parties reversed, that is, if a State willing to prosecute
individuals not present in its territory decides to file a request for extradition with the
State of nationality or residence of the persons indicted.182 In both cases, two aspects of
general extradition law and practice may shed light on the resolution of conflicts of
jurisdiction: one, the development of a set of conditions under which a State may
unilaterally decide not to extradite a person to the requesting State. The other, the

180 Restatement of the Law, Third, Foreign Relations Law of the United States, The American Law Institute Publishers,
1987.
181 Exception being jus cogens norms, see supra note 103.
182 Both scenarios were discussed, albeit from a different angle, when reviewing the different rationales of universal

jurisdiction, and within these rationales, the importance given to the presence of the accused in the forum State. The
second scenario above described was at the centre of the Spanish Constitutional Court’s judgment in the Guatemala
Generals case, cf. supra note 93.

27
Fighting Impunity: Positive Conflicts of Jurisdiction and the Principle of Universality

inclusion in numerous extradition treaties of explicit criteria under which the requested
State may solve competing petitions of extradition from two or more States. Each shall
be discussed below:

Most extradition treaties demand different conditions be met in order for a State to
detain and send a person to another State for the purposes of prosecution. These
generally include the principle of double criminality, under which the acts committed by
the suspect must constitute a penalized offence in both the custodial and requesting
States; and the principle of speciality, by which the requesting State is bound to try the
extradited person only for those crimes it included in the request and which were
accepted to by the custodial State.183 Some States include conditions under which they
may never grant extradition, most commonly in the form of a prohibition to extradite
their own nationals.184

The particularity of both these sets is that the decision to extradite involves an evaluation
of circumstances mostly within the custodial State (as discussed, the inclusion of the
crimes in question in its domestic criminal code and the nationality of the person held in
the custodial State, inter alia). Most importantly, however, custodial States may also reject
an extradition request after an evaluation of certain conditions existing in the requesting
State.185 This may occur in at least four situations:

The first and most recognized is that of a request for extradition involving the
commission of a political offence. Extradition may be denied if the requested State
considers that the charges against the person constitute a political crime, most commonly
involving acts aimed not at personal gain, but for a higher political purpose.186 Although
the practice used to be well-established in international relations, its application is now
expressly prohibited in cases involving international crimes, mainly via the inclusion of

183 Brownlie, supra note 68, p. 319.

184 Such was the argument posed by Japan in the infamous Fujimori case, to deny extradition of Alberto Fujimori to
Peru to face charges of crimes against humanity. Fujimori, president of Peru from 1990-2000, consistently denied
holding Japanese nationality during his time in office, an allegation proved false only after he resigned to the presidency
during an official trip to Asia, after which he established himself in Tokyo. In a quite unexpected move, he flew to
Chile in 2007, where he was detained and finally extradited to Peru. He is currently standing trial in Peru and faces
charges for crimes against humanity. The US-Peru Extradition Agreement, on the other hand, expressly prohibits
refusal on the ground that the person is a national of the requested State (Article III, see infra note 204).
185 Although this could be seen as interference in the internal affairs of another State, in most cases it would be allowed

based on previous consent (an extradition treaty). In others, however, it would not, as will be seen later.
186 Cf. Kellet, M. ‘Extradition – the concept of the political offence’, 8, 1 Liverpool Law Review, March 1986.

28
 Gabriel ChavezTafur
Geneva Academy of International Humanitarian Law and Human Rights

explicit provisions in multilateral conventions.187 All crimes here analysed and subject to
universal jurisdiction would be exempt from this categorization.

Secondly, a person may not be extradited if there is risk of such person being subjected
to torture, inhuman or degrading treatment. Embodied in the principle of non-refoulement
and largely developed in the context of refugee law, it has been emphatically confirmed
and sustained by the European Court of Human Rights (ECHR),188 Some would argue
the principle has attained jus cogens status.189

Closely linked to the condition just mentioned is the prohibition to extradite if the
person could be subjected to the death penalty. Although not expressly prohibited by
international human rights instruments,190 many countries have raised their doubts as to
the appropriateness of such form of punishment, establishing an internal prohibition to
extradite to any country where a guilty verdict could entail such possibility: an example
worth mentioning in this respect is that of Niyonteze v. Public Prosecutor,191 involving a
Rwandese national detained in Switzerland and facing an extradition request to his home
country for violations of Article 3 Common to the Geneva Conventions and other war
crimes. In a surprising decision, Swiss authorities considered preferable to prosecute the
suspect on the basis of universal jurisdiction rather than grant the extradition and allow
Rwanda to prosecute under the principle of territoriality, based primarily on the fact that
a conviction could have implied capital punishment.192 Similarly, several of the most
recent extradition treaties signed by the US – where capital punishment is still legal in

187 One such provision may be found in Article 14 of the International Convention for the Suppression of the
Financing of Terrorism: “None of the offences set forth in article 2 shall be regarded for the purposes of extradition or
mutual legal assistance as a political offence or as an offence connected with a political offence or as an offence
inspired by political motives. Accordingly, a request for extradition or for mutual legal assistance based on such an
offence may not be refused on the sole ground that it concerns a political offence or an offence connected with a
political offence or an offence inspired by political motives”. Available at
http://untreaty.un.org/english/Terrorism/Conv12.pdf (last visited on 9 January 2009).
188 Cf. Soering v. United Kingdom, (Series A, No 161; Application No 14038/88), European Court Of Human Rights,

(1989) 11 EHRR 439, 7 July 1989.

189 Cf. Newmark, Robert L. ‘Non-Refoulement Run Afoul: The Questionable Legality of Extraterritorial Repatriation

Programs’, 71 Washington University Law Quarterly, 1993, pp. 833-845.

190 See Article 6 of the International Covenant on Civil and Political Rights. Available at
http://www.unhchr.ch/html/menu3/b/a_ccpr.htm): “2. In countries which have not abolished the death penalty,
sentence of death may be imposed only for the most serious crimes in accordance with the law in force at the time of
the commission of the crime and not contrary to the provisions of the present Covenant and to the Convention on the
Prevention and Punishment of the Crime of Genocide. This penalty can only be carried out pursuant to a final
judgement rendered by a competent court”.
191 For a full account of the case, see Reydams, L. ‘Niyonteze V. Public Prosecutor. Swiss Military Trial Of Former

Rwanda Town Mayor Accused Of War Crimes For Inciting Murder Of Civilians In Rwanda’, 96, 1 American Journal of
International Law, 2002, pp. 231-236
192 The case will be further commented upon in the following section, when discussing the ‘weighing of interests’

approach to solving positive conflicts of jurisdiction.

29
Fighting Impunity: Positive Conflicts of Jurisdiction and the Principle of Universality

some States193 – include a provision by which, should the offence for which extradition is
sought be punishable by death in the requesting State but not in the requested State,

the executive authority in the Requested State may refuse extradition unless the
Requesting State provides an assurance that the person sought will not be executed. In
cases in which such an assurance is provided, the death penalty shall not be carried out,
even if imposed by the courts in the Requesting State.194

Similar provisions with minimum variations may be found in agreements with Argentina,
France, India, Republic of Korea, Poland and the United Kingdom.195

Finally, scholars identify a growing trend towards rejecting an extradition request also
based on an external evaluation of the requesting State ability and willingness to provide
a fair trial and a minimum standard of judicial guarantees. Such was expressly included in
the UN Model Treaty on Extradition,196 approved by the General Assembly on 12
December 1997, where it may be found as mandatory grounds for refusal the fact that a
person

… would be subjected in the requesting State to torture or cruel, inhuman or degrading

treatment or punishment or if that person has not received or would not receive the
minimum guarantees in criminal proceedings, as contained in the International Covenant
on Civil and Political Rights, article 14.197

Clearly, the especial relevance of these criteria for the resolution of positive conflicts of
jurisdiction arises when it is considered that, as already mentioned, most of the
conventions providing for universal jurisdiction present States with the alternative,
founded in the principle of aut dedere aut judicare,198 of either to prosecute the suspect
found in its territory or extradite the person to be prosecuted in another State. This
would entail that, at least with respect to such treaties, a State’s decision to reject an
extradition request under any of the above criteria would necessarily trigger the
obligation to prosecute the person in custody for the international crimes imputed, based
on the principle of universality provided for in the same treaties. Such a decision would,
in effect, solve the positive conflict of jurisdiction arising out of the two States willing to
prosecute the same person for the same facts.

193 Most famously, Texas.

194 Article V, Peru-US 2003 Extradition Treaty. Infra note 204.
195 Murphy, S. (Ed.) ‘New U.S./EU and U.S./UK Extradition Treaties’, American Journal of International Law, Vol. 98,

No. 4, Oct., 2004, pp. 848-850.

196 United Nations Model Treaty on Extradition, GA A/RES/52/88, 70th Plenary meeting, 12th December 1997.
197 Art. 3, Idem.
198 Although some authors have tried to establish whether the conventional rule means first extradite, secondly

prosecute or vice-versa, this remains unclear. For the purposes of this discussion it shall be assumed States may choose
equally between both options. For further detail on the debate see Henzelin, op.cit.

30
 Gabriel ChavezTafur
Geneva Academy of International Humanitarian Law and Human Rights

Many extradition treaties also provide specific criteria for situations where two or more
States pose competing extradition requests, forcing the custodial State to choose between
them. While some establish a fairly simple decision-making process, demanding
consideration of only one determining factor, most present a range of elements to be
taken into account.

Indeed, a brief analysis of some of such agreements199 showed that, in the case of the US
and the UK, for example, an extradition treaty concluded in 1931 established that the
decision was to be made based entirely on the date of the competing requests, giving
obvious preference to that filed at an earlier time.200 In the case of the US and Hong
Kong, however, the relevant provision in an agreement signed in 1995 states that, should
concurrent requests arise with a third State,

the executive authority of the requested Party shall make its decision having regard to all
the circumstances, including the relevant provisions [of agreements concluded between
the US or Hong Kong and the requesting third State], the place of commission of the
offences, their relative seriousness, the respective dates of the requests, the nationality of
the fugitive offender, the nationality of the victim, and the possibility of subsequent
surrender to another jurisdiction.201

Falling along the same line, the European Convention on Extradition requires States to
“make its decision having regard to all the circumstances and especially the relative
seriousness and place of commission of the offences”,202 together with the respective
dates of the requests, the nationality of the person claimed and the possibility of
subsequent extradition to another State.203

Certainly, the explicit mention of such factors as where the crime was committed, the
seriousness of the crime and the nationality of the person claimed do provide a State
with further guidance than international treaties and custom. Evidently, their inclusion is
an obvious reference to the well-accepted principles of jurisdiction based on territoriality
and active and passive nationalities. However, it is also a fact that none of the agreements
provide for an express hierarchy to be applied by the custodial State. Such is still the case

199 Performed by M. Inazumi in Universal Jurisdiction in Modern International Law: Expansion of National Jurisdiction for
Prosecuting Serious Crimes under International Law, Utrecht: Intersentia, 2005, pp. 173 and following.
200 Article 10: “If the individual claimed by one of the High Contracting parties in pursuance of the present Treaty

should be also claimed by one or several other Powers on account of other crimes or offences committed within their
respective jurisdictions, his extradition shall be granted to the Power whose claim is earliest in date, unless such claim is
waived”. In Inazumi, Idem., p. 173.
201Agreement for the Surrender of Fugitive Offenders between Hong Kong and the United States, reprinted on 36, 4

International Legal Materials, July 1997, p. 842, as cited in Inazumi, supra note 199.
202 European Convention on Extradition, CETS No. 024, entered into force on 18 April 1960, Article 17.
203 Idem.

31
Fighting Impunity: Positive Conflicts of Jurisdiction and the Principle of Universality

even in the new set of extradition treaties recently concluded by the US which, though
presenting clearer formatting and language, would seem to purposefully fall short of the
mark.

For example, the agreement between Peru and the US establishes a list of criteria, headed
by “(a) whether the requests were made pursuant to treaty; (b) the place where each
offense was committed; (c) the respective interests of the requesting States; (d) the
gravity of each offense;”204, and only then the possibility of further extradition and the
dates of the competing requests. As is common with the interpretation of lists found in
treaties, this could be read to provide for a hierarchy in the factors to be considered by
the requested State, giving priority to the existence of a previous extradition agreement
with the competing State (and thus favouring the fulfilment of previous treaty
obligations), followed by the territory where the crime was committed (that is, the
principle of jurisdiction based on territoriality). In spite of this, the provision itself leaves
clear that “in making its decision, the Requested State shall consider all relevant factors
[emphasis added]”,205 including – and thus not restricted to – the ones mentioned. Such a
wording clearly rejects any mechanical “checklist” approach to solving the issue, and
rather demands a comprehensive consideration of the situation as a whole.

In sum, it would seem clear that extradition law, much like the general principles of
public international law and multilateral conventions analysed before it, has been
explicitly developed by States to leave a wide range of discretion to the State where the
suspect is present. As recently discussed, such custodial State may resort to multiple
arguments to justify whether it should establish proceedings in its domestic courts,
including under universal jurisdiction, or it should proceed to extradite the person to
another State. Lacking a clear hierarchy in the rules, such discretion and the decision
making process that entails is the subject of multi-tiered interpretations, to be reviewed
below.

204 Extradition Treaty Between The United States Of America And The Republic Of Peru, Signed At Lima On July 26,

2001. Article XI on Concurrent Requests. Available at: http://www.oas.org/juridico/mla/en/traites/en_traites-ext-

usa-per.pdf (last visited on 9 January 2009).
205 Idem., Article XI.

32
 Gabriel ChavezTafur
Geneva Academy of International Humanitarian Law and Human Rights

Interpreting the rules: the case for different solutions to positive conflicts of
jurisdiction
Having analysed the multilateral and bilateral rules applicable to positive conflicts of
jurisdiction, the next section will attempt to find further guidance in the domestic
solutions proposed by some States in their penal codes and local jurisprudence, followed
by an analysis of some general rules proposed by scholars.

As with the rationales behind the exercise of universal jurisdiction, two approaches to the
solution of positive conflicts of jurisdiction may be identified: one which favours a clear-
cut prioritisation of jurisdictions, determined mainly by the nexus between the forum and
the particular criminal acts in question. The other, one in which several components,
including the particular context and circumstances, may hold different degrees of
importance for the solution of any given case, leaving each State to make a final decision
on an ad hoc basis.

Establishing a Hierarchy of Jurisdictions and the Principle of inter-State Subsidiarity

For the first approach, the initial step involves the establishment of a hierarchy of
principles of jurisdiction, by which a State would only proceed to prosecute a suspect if
no other State with higher-ranking grounds for exercising jurisdiction effectively
proceeds. Such hierarchy would be composed of, in first term, the territoriality principle,
followed or equalled by the active nationality principle, and then by the passive
nationality, protective206 and finally universality principles.

The view finds support in scholarly opinion, among it Bassiouni’s early attempt to
produce a statute for an international criminal court. In his Draft International Criminal
Code,207 he suggested that, should the proposed international tribunal refuse to take on a
given case, contracting parties would have the right to exercise their jurisdiction in
accordance with “applicable theories of jurisdiction and their priority ranking […],
starting with the territorial principle, followed by the active and passive personality
principles, the protected interest, and the universality theory”.208 Such theories, in his
view, would be based on recognised international law and practice.209 An even stricter

206 Cf. Chapter One on the extra-territorial exercise of jurisdiction.

207 Bassiouni, M. Cherif. International Criminal Law: A Draft International Criminal Code, Brill Archive, 1980, p. 145.
208 Idem, p. 146.
209 Ibid.

33
Fighting Impunity: Positive Conflicts of Jurisdiction and the Principle of Universality

position was taken by Professor Fletcher when, strongly opposing the exercise of
universal jurisdiction, he openly challenged the convenience of installing proceedings in
any other forum than that of the aggrieved community. In his opinion,

The principle of local concern is recognized in the Sixth Amendment to the American
Constitution […].210 Why should this principle of keeping trials close to home receive
constitutional status? The answer, I believe, is that […] the local community must
confront the crime that has occurred among its people and seek a nuanced resolution
that they can live with. When the local community tries the case, other countries can
recognize the legitimacy of their interest and are likely to honour the decision […].211

As such, in his view “the very idea that a totally disconnected country would bring the
case [before its courts] is an offence to the jurisdictions that have the primary
responsibility to resolve the conflicts inherent in the trial”.212

A more nuanced hierarchy was proposed by S. Z. Feller, labelling the territoriality and
protective principles as of a primary nature, “since foreign legal factors relating to an
offense committed within the territory of the state can have no effect on the applicability
of the lex loci”;213 while the active, passive and universality principles would hold a
residuary status in the scale of priorities.214

What deserves attention is that the existence of a hierarchy of jurisdictions carries with it
the consequence that a State willing to prosecute under the principle of universality will
only be permitted to do so once it is established that other States with higher-ranking
grounds for jurisdiction have effectively waived their ‘right’ to prosecute. Such was
precisely the position of the Commission of Inquiry on Darfur, when, after labelling the
territoriality and active personality principles “the traditional way to bring alleged
perpetrators of international crimes to justice”,215 it stated that

[…] before initiating criminal proceedings this State [exercising universal jurisdiction]
should request the territorial State (namely, the State where the crime has allegedly been
perpetrated) or the State of active nationality (that is, the State of which the person

210 Which reads “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an

impartial jury of the State and district wherein the crime shall have been committed”, US Constitution, available at
http://www.findlaw.com/casecode/constitution/ (last visited on 10 January 2009).
211 Fletcher, supra note 147, p. 583.
212 Idem.
213 Feller, S. Z. ‘Jurisdiction over Offenses with a Foreign Element’, in A Treatise on International Criminal Law, Vol. II.

Charles C. Thomas, 1994, p. 18.

214 Feller does acknowledge, however, that in many countries the active personality principle would in fact hold a

primary status. (See Idem., p. 31).

215 Report of the International Commission of Inquiry on Darfur to the United Nations Secretary-General, Pursuant to

Security Council Resolution 1564 of 18 September 2004, Geneva, 25 January 2005, at §611. Available online at
http://www.un.org/News/dh/sudan/com_inq_darfur.pdf (last visited on 9 January 2009).

34
 Gabriel ChavezTafur
Geneva Academy of International Humanitarian Law and Human Rights

suspected or indicted is a national) whether it is willing to institute proceedings against

that person and hence prepared to request his or her extradition. Only if the State or
States in question refuse to seek the extradition, or are patently unable or unwilling to
bring the person to justice, may the State on whose the person is present initiate
proceedings against him or her.216

This, of course, falls clearly in line with those who support the inter partes or conditional
approach to universal jurisdiction (discussed in Chapter One), which contends its
exercise should be restricted to an action of last resort.217 Professor Abi-Saab was
sufficiently explicit in this regard, warning that any “representation [of universal
jurisdiction which] assumes a positive conflict of jurisdiction between fora competing for
the prosecution of international crimes” would “ignore its origins and rationale in
international law”.218

In terms of State practice, such a strong preference for providing universality with a
subsidiary nature to that of other principles of jurisdiction may be found in various
examples. An explicit case is that of the German Code of Criminal Procedure, amended
in June 2002 by the Act Introducing the Code of Crimes Against International Law,
which allows the Prosecutor to dispense with trying an offence under universal
jurisdiction if “the offence is being prosecuted […] by a State on whose territory the offence was
committed, whose national is suspected of its commission or whose national was harmed by the offence
(emphasis added)”.219 Similar conditions may be found in Belgium,220 the Netherlands,221
Japan222 and, at least with regards to recent jurisprudence, in Spain.223

As for specific cases, a rather extreme view of the principle of subsidiarity was adopted
by the Audiencia Nacional and the Supreme Court of Spain, when they rejected on
jurisdictional grounds a case against Guatemalan high military officers.224 Filed by Nobel
Peace Prize-winner Rigoberta Manchú and more than 20 NGOs on 2 December 1999,
the indictment charged with genocide a number of Guatemalan officials allegedly
responsible for the killing and persecution of members of the Mayan ethnic group during

216 Idem., at §614.

217 See Cassese, supra note 37, p. 593.
218 Abi-Saab, supra note 109. See also Chapter One, on Non bis in Idem.
219 German Code of Criminal Procedure, Article 153f (2)(4).
220 Article 7 of the Law amending the law of 16 June 1993, concerning the prohibition of grave breaches of

international humanitarian law and Article 144 ter of the Judicial Code.
221 Human Rights Watch, supra note 31, p. 72.
222 Global Report, supra note 32, p. 65.
223 See National Court, 4th Section of the Criminal Chamber, Roll of Appeal No. 196/05, Preliminary Proceedings of

10 January 2006, concerning the Tibetan Genocide case. Cited in Human Rights Watch Report, supra note 31, p. 88.
224 Guatemalan Generals, supra note 93.

35
Fighting Impunity: Positive Conflicts of Jurisdiction and the Principle of Universality

the civil war in Guatemala, especially during the period 1980-1984. In an odd
interpretation of the Genocide Convention, the appeals court ruled that, as the treaty
imposes a duty to prosecute only upon the State on the territory of which the crime was
committed, this necessarily proved the subsidiary nature of universal jurisdiction with
regards to the territorial basis.225 The logic, which has been severely criticized226 and was
later overturned by the Constitutional Court,227 was taken by the Asamblea Nacional to the
highly debatable point of labelling subsidiarity a general principle of international law
with jus cogens character.228

Evidently, the greatest advantage of such an approach is that it presents States in the
midst of a positive conflict of jurisdiction with a uniform set of rules, applicable
objectively in all cases, no matter the circumstances. It should be noted, however, that
although a hierarchy of jurisdictions poses few problems when two or more States show
a genuine intention to prosecute (as it effectively establishes an order of priority), the
opposite occurs when Courts willing to act under the principle of universality face
complete inactivity there where the crimes were committed. In this sense, the question
which arises is when – absent explicit consent – could it be safely assumed that a State
has effectively waived its right to prosecute under the principles of territoriality or active
nationality, thus opening the door to other jurisdictions. Although some have resorted to
the common formula by which universal jurisdiction should be applied when “the justice
system of the country that was home to the violations is unable or unwilling to do so”,229
the question of when this is so, at least with regards to inter-State relations,230 remains
largely unclear.

225 Audiencia Nacional, Second ground of the decision of 13 December 2000: ‘en razón de la prevalencia de los tratados
internacionales sobre el derecho interno ( ... ), es que el artículo 6 del Convenio para la Prevención y la Sanción del delito de Genocidio
impone la subsidiariedad de la actuación de jurisdicciones distintas a las que el precepto contempla, de forma que la jurisdicción de un
Estado debería abstenerse de ejercer jurisdicción sobre hechos, constitutivos de genocidio, que estuviesen siendo enjuiciados por los tribunales
del país en que ocurrieron o por un tribunal penal internacional’. In Ascensio, H. ‘Are Spanish Courts Backing Down on
Universality? The Supreme Tribunal’s Decision on Guatemalan Generals’, 1 Journal of International Criminal Justice, 2003, p.
694, footnote 12.
226 Ascensio, H. ‘Are Spanish Courts Backing Down on Universality? The Supreme …’, 1 Journal of International Criminal

Justice, 2003, p. 690–702.

227 See supra note 93.
228 Cf. Ascensio, supra note 226, p. 694.
229 UN Secretary General Report, “The rule of law and transitional justice in conflict and post-conflict societies”

S/2004/616, para. 48.

230 More clarity, of course, exists with regard to the complementarity regime of the ICC, where the same formula,

together with brief definitions of the terms unable and unwilling, is found. This shall be discussed when dealing with
positive conflicts of jurisdiction between a State and the ICC, in Chapter Three.

36
 Gabriel ChavezTafur
Geneva Academy of International Humanitarian Law and Human Rights

Proof of this is that, while the Audiencia Nacional and the Supreme Court in Guatemalan
Generals found insufficient the plaintiffs’ allegations regarding the elapse of almost 20
years since the commission of the crimes,231 the Constitutional Court overturned the
ruling, for considering the proof of a negative fact or omission (in this case inability or
unwillingness) too close to a probatio diabolica, that is, a burden of proof impossible to
discharge.232

Further discussion on this question, namely what can “unable or unwilling” mean in the
context of positive conflicts of jurisdiction, shall be discussed below as part of the
second approach (weighing of interests), and in more detail with regards to the ICC
Statute’s interpretation of the formula in Chapter Three.

Establishing the best forum, disregarding hierarchies

The alternative approach to solving conflicts of jurisdiction does not assume any pre-
established prioritisation of principles of jurisdictions. On the contrary, it puts its
emphasis on the notion that prosecution should be exercised in the forum that offers the
best possible guarantees of efficiency and success, with only the interests of justice in
mind. Evidently, such approach involves the rejection of a simple hierarchy of
jurisdictions and necessarily entails an analysis of several factors on a case by case basis.

Such view may be found in various sources. The US Restatement (Third), for example,
establishes that “a State may not exercise jurisdiction to prescribe law with respect to a
person or activity having connections with another State when the exercise of such
jurisdiction is unreasonable”.233 In order to determine such ‘reasonableness’, the State
should include an evaluation “of all relevant factors (emphasis added), including, where
appropriate”,234 the link of the activity to the territory of the regulating State, the
connections, such as nationality, residence or economic activity between the regulating
State and the suspect, inter alia. The Restatement goes as far as to conclude that the rule

231 It noted instead the fact that Guatemalan law does allow for the prosecution of the crime of genocide and a Truth

Commission had been set up and issued a report on 25 February 1999 – that is, less than a year before the initiation of
proceedings in Spain – and discarded any indication of inability or unwillingness on the part of Guatemala.
232 Ascensio, H. ‘The Spanish Constitutional Decision in Guatemalan Generals’, 4 Journal of International Criminal Justice,

2006, p. 589.
233 US Restatement (Third), supra note 181, Section 403.
234 Idem.

37
Fighting Impunity: Positive Conflicts of Jurisdiction and the Principle of Universality

of reasonableness has become not only part of US law, but also a rule of international
law.235

A similar view is found in the Princeton Principles on Universal Jurisdiction. Indeed,

Principle 8, which deals with the specific issue of conflicts of jurisdiction, states:

Where more than one State has or may assert jurisdiction over a person and where the
State that has custody of the person has no basis for jurisdiction other than the principle
of universality, that State or its judicial organs shall, in deciding whether to prosecute or
extradite, base their decision on an aggregate balance of the following criteria (emphasis added):
(a) multilateral or bilateral treaty obligations;
(b) the place of commission of the crime; […]
And, most importantly, the requirement to evaluate

(f) the likelihood, good faith, and effectiveness of the prosecution in the requesting State;
(g) the fairness and impartiality of the proceedings in the requesting State;
(h) convenience to the parties and witnesses, as well as the availability of evidence in the
requesting State; and
(i) the interests of justice.236

Evidently, both the Restatement and the Principles bear extreme resemblance to the
approach found in numerous extradition treaties. Already discussed above, they would
provide further evidence to show a clear will from States to indeed leave matters of
jurisdiction to the discretion of the custodial State as much as possible, rather than
establish a rigid hierarchy of jurisdictions. A similar view has been expressed by
Professor Lagodny, when he argued that the State that prosecutes the suspect should be
the one whose jurisdiction offers the “best quality”, a characteristic

“not at all confined to the principles of jurisdiction (territoriality, personality, etc) but –
also if not mainly – [found in] the interests of the prosecution (e.g. in which State is the
most important evidence?) and those of the individual (e.g. where is the domicile?).237

Such a practical approach to determining the forum plus conveniens finds also support in
important cases. Perhaps the most notorious example would be Eichmann,238 where the
Supreme Court in Israel rejected the notion that the custodial State would necessarily
have to offer the suspect for extradition to the State where the crime was committed.
According to the Court,

the idea [behind giving preference to prosecution in the territory where the crime was
committed was not designed] to prevent the violation of its territorial sovereignty. Its

235 In Inazumi, supra note 200, p. 177.

236 Princeton Principles of Jurisdiction, Principle 8. Supra note 28.
237 Cited in Inazumi, supra note 200, p. 184. Full citation in footnote 71.
238 Eichmann, infra note 239.

38
 Gabriel ChavezTafur
Geneva Academy of International Humanitarian Law and Human Rights

basis is rather a purely practical one. Normally, the great majority of witnesses and the
greater part of the evidence are concentrated in that State and it is therefore the most
convenient place (forum conveniens) for the conduct of the trial.239

Observing that “we have not heard a single protest by any of [the countries where
Eichmann’s crimes were committed] against conducting the trial in Israel, and it is
reasonable to believe that in the face of Israel’s exercise of jurisdiction no other State will
demand the right to do so itself”,240 the Israeli court found itself to be the best suited
forum to provide justice, as many of the witnesses as well as much of the evidence was in
Israel, not mentioning great part of an aggrieved community expecting justice be done.

Another example could be Niyonteze v. Public Prosecutor, already mentioned above,241 where
the Swiss authorities preferred to prosecute the suspect for international crimes (namely
violations of the 1949 Geneva Conventions and their Additional Protocol II) under the
universality principle rather than extradite him to his home State, Rwanda, where the
crimes were committed, due to the possibility that the suspect could be sentenced to
death.242

As for the factors to be considered when resolving a conflict of jurisdictions, many have
already been mentioned, ranging from the date of initiation of the proceedings to the
practical possibility of obtaining the most relevant evidence and the testimonies of all the
appropriate witnesses. Considering Fletcher, especial relevance should also always be
given to the interests of the aggrieved community and the particular victims of any given
case, as they should always hold priority status in seeing justice done.243 In that sense it
can’t be ignored, however, than in many cases involving universal jurisdiction it has been
the victims themselves who, having exhausted the possibility of local remedies, resort to
judicial systems abroad where they hope to find the justice that is denied at home. Such
was precisely the case in Guatemalan Generals.244

Further, importance has also been given to the gravity of the crime. Present in
extradition treaties and the work of different international law organizations,245 the

239 Eichmann v. Attorney General of Israel, 36 ILR Supreme Court of Israel, 1968, p. 303.
240 Idem.
241 Niyonteze v. Public Prosecutor, supra note 192.
242 Idem.
243 Fletcher, supra note 147.
244 Cf. Ascensio, supra note 232.
245 Namely, the Institute of International Law, the International Law Association, and the International Commission of

Jurists. Cf. Inazumi, supra note 199, p. 185.

39
Fighting Impunity: Positive Conflicts of Jurisdiction and the Principle of Universality

criterion could become particularly relevant in prosecutions involving international

crimes, as that would necessarily impede the State where the crimes were committed, for
example, from charging the suspect with domestic offences instead of the more
appropriate international crimes, thus making the objective and subjective elements
established in international criminal law a specific judicial finding; or worse, to indict the
suspect with minor offences, in an attempt to protect the person from proceedings
involving the more serious crimes.246

Finally, special consideration must be given to the possibility of a State, whether that
where the crimes were committed or any other, to conduct a fair trial that offers the
accused and the victims with the minimum standard of judicial guarantees.247 This would
involve a two-part test: first, whether the State is actually capable of providing the
conditions necessary for a fair trial, including, but not limited to, the appropriate
inclusion of international crimes in its domestic code,248 procedural safeguards for the
accused and victims, respect for international human rights standards, and others.
Secondly, and perhaps involving a subjective element to the evaluation not unlike
determining the mens rea or intentionality inside the mind of a suspect, the test would
include establishing a State’s willingness to prosecute, and thus avoid impunity.

Both elements were included into the ICC Statute, as part of the Court’s
complementarity regime and its criteria to determine the admissibility of a case.
According to Article 17, the Court may determine a State is unwilling to carry out an
investigation or prosecution if any of the following is met: proceedings were or are being
undertaken for the purpose of shielding the person concerned from criminal
responsibility; there has been an unjustified delay in the proceedings which in the
circumstances is inconsistent with an intent to bring the person concerned to justice; and
the proceedings were not or are not being conducted independently or impartially.249

246 Although not involving universal jurisdiction, such was the strategy followed by the Government of Alberto

Fujimori with regards to the infamous Grupo Colina. A deal was cut with the members of the paramilitary group to
stand trial for minor offences, or expect an amnesty soon afterwards (as eventually happened), in order to appease the
international community. Fujimori is currently on trial for crimes against humanity, under the mode of liability known
as command responsibility.
247 Discussed for extradition rejections, Chapter Two.
248 Cf. the case of Michel Bagaragaza, accused of “conspiracy to commit genocide, genocide or complicity in

genocide”. Norway requested his extradition to the ICTR, but was rejected allegedly because of lack of appropriate
legislation establishing jurisdiction. Norway has not introduced definitions of international crimes into its domestic law.
See further, Human Rights Watch, supra note 31, p. 80.
249 Article 17, ICC Statute.

40
 Gabriel ChavezTafur
Geneva Academy of International Humanitarian Law and Human Rights

Evidently, the main criticism to the above test, as with the present approach in general,
involves the question to what extent can one expect States to be willing to apply such
criteria horizontally (that is, towards one another), particularly in those cases in which
they would be potentially jeopardizing their international relations. This was precisely the
Supreme Court’s main concern in Guatemalan Generals when, after discussing the question
of subsidiarity, the majority judges found further reasons to discard the case, arguing
that,

in evaluating the functioning of a foreign legal system, domestic courts pronounce on a

foreign sovereign State. They also interfere with international relations, a matter which
the Spanish Constitution reserves for the government. In the case at issue, this would be
all the more problematic since it concerns a sovereign State with which Spain has
maintained normalised diplomatic relations.250

What influence will the Constitutional Court’s reversal have on domestic prosecutions in
other States remains to be seen.

Concluding remarks

In sum, it would seem reasonable to accept that, as already mentioned, positive conflicts
of jurisdiction may be tackled from two different angles: one clearly influenced by a
rather State-centred view of international law, where individual States’ consent is still
regarded indispensable for actions taken at the international level. The second approach,
where emphasis is put on the interests of an international community as a whole, acting
both as victim and, thus, also as the one responsible for the prosecution of international
crimes. Evidently, both approaches may be closely linked to the rationales for the
exercise of universal jurisdiction, discussed in Chapter One: they are mere expressions of
more general discussions on the current state of international law, the international
justice movement, and the role States continue to play as the alleged sole actors with
capacity to bind themselves and other subjects to international norms.

At least one distinction is worth noting with regards to Chapter One, however. While it
remains undeniable that, for the exercise of universal jurisdiction, States have managed to
establish explicit set of rules, via conventions and custom, with which they restrict the
applicability of universal jurisdiction to international crimes, in the case of intra-State
positive conflicts of jurisdiction, it would seem that – on the contrary – States have been

250 Ascensio, supra note 226, paraphrasing the Judgement at the Sixth ground of the Decision, footnote 13.

41
Fighting Impunity: Positive Conflicts of Jurisdiction and the Principle of Universality

consistently unwilling to restrict their room to manoeuvre, rather favouring the

establishment of solutions on a case-by-case basis, and always providing the State taking
the initiative with a number of criteria to be taken into account in order to make a final
decision.251 Although vague rules will always allow for their manipulation, usually for
political rather than legal motives, at least no express restriction currently stops those
States willing to prosecute in the interests of international justice to carry on with
proceedings.

251 In words of the Global Report (cf. supra note 32), “There is no country that would establish express criteria to

decide upon competing national jurisdictions”.

42
 Gabriel ChavezTafur
Geneva Academy of International Humanitarian Law and Human Rights

CHAPTER THREE

Following from Chapter One, where the definition and rationales for a legal basis for the
exercise of universal jurisdiction were examined, Chapter Two discussed the possibility
of two or more States being in a position to prosecute the same persons for the same
acts, one of them under the principle of universal jurisdiction. Such positive conflicts of
jurisdiction raise a series of questions not easily answerable in international law, and –
just as with universality itself, or perhaps arising out of the same developments in the
fight against impunity – States’ practice and the opinions of scholars would tend to
support two alternative approaches: one favouring the explicit consent of individual
States, the other emphasising the role of the international community as a whole.

Throughout both Chapters it should also have become clear the special role an
international court with jurisdiction over the international crimes in question can and is
already playing in the struggle for justice, and most particularly in the development and
exercise of universal jurisdiction. Indeed, the creation of an international criminal court
has led to important questions being raised, ranging from those who criticize its limited
power to realize its main function effectively (that is, prosecute the perpetrators of
international crimes) to others who wonder whether its establishment, pondered for
more than 50 years, in effect eliminates the need for any further prosecutions to be
carried out by a State with no direct link to the crime, perpetrators or victims – other
than it being a representative of the international community.

With these questions in mind, Chapter Three will focus on the relationship between the
International Criminal Court (ICC or Court) and universal jurisdiction, and most
concretely in the resolution of positive conflicts of jurisdiction arising between the Court
and a State willing to prosecute under such principle. It shall do this in three parts: first, it
will briefly describe the ‘rules of the game’ or legal framework, namely, the ICC
jurisdictional regime – establishing the conditions and limitations under which the Court
may exercise its jurisdiction over a case; followed by an overview of the rules on the
principle of complementarity that should govern relations between States parties to the
ICC Statute and the Court. Secondly, this paper will attempt to provide guidance for the
solution of positive conflicts of jurisdiction between the Court and a State, explaining
potential situations in which such a conflict could arise; and discussing whether the
exercise of universal jurisdiction is compatible with the ICC Statute and analysing the

43
Fighting Impunity: Positive Conflicts of Jurisdiction and the Principle of Universality

possibility of a pre-established priority of jurisdictions (this time comparing the

international against the national) in the opinio juris of States and scholars. This will be
followed by a more detailed application of the conditions of complementarity found in
the ICC Statute to a State prosecuting under the principle of universality. Finally, this
Chapter will conclude with some reflections on the possibility of the Security Council
acting as a third party to a conflict of jurisdictions between the Court and a State,
attempting to shed some light on how such body could dictate or bear influence on the
actions of both ‘parties’.

The Jurisdiction of the International Criminal Court: overview

Evidently, a pre-requisite for a positive conflict of jurisdiction to arise is that the courts
involved have a legal basis to exercise their jurisdiction over a particular case. For the
ICC, such regime involves a two-part test: jurisdiction proper, which involves the
limitations imposed by the ICC Statute to the prosecution of crimes before the Court;
and admissibility, or the requirement to determine the appropriateness and possibility of
a specific case being tried by the Court, based on the principle of complementarity. Each
shall be described below.

Ratione materiae, ratione tempore, ratione personae: triggering the ICC’s jurisdiction

The Statute of the International Criminal Court allows for the Court to exercise its
jurisdiction over four international crimes: aggression, war crimes, crimes against
humanity and genocide. For the first one, however, Article 5(2) provides that “the Court
shall exercise jurisdiction over the crime once a provision is adopted […] defining the
crime and setting out the conditions under which the Court shall exercise jurisdiction
[…].”252 The adoption of such a provision is expected to be developed during the
Assembly of State Parties, to be held in early 2010.

In the case of war crimes, the Court shall have jurisdiction over crimes committed both
in international and non-international armed conflicts, providing under Article 8 of the
Statute quite a comprehensive list of offences, including those found in the ‘grave
breaches’ provisions of the 1949 Geneva Conventions and their additional Protocol I.253

252Art. 5 ICC Statute.

253Articles 50, 51, 130 and 147 of the Geneva Conventions (Supra note 40). Not all grave breaches found in Additional
Protocol I were included in the Statute, however, namely launching an attack against works or installations containing
dangerous forces, the unjustified delay in the repatriation of prisoners of war or civilians, and the practice of apartheid,

44
 Gabriel ChavezTafur
Geneva Academy of International Humanitarian Law and Human Rights

Crimes against humanity include a list of acts committed as part of a widespread or

systematic attack directed against any civilian population, such as murder, extermination,
enslavement, torture, rape and persecution. As for genocide, the Statute took the
definition of the crime found in the 1948 Genocide Convention,254 which demands the
act be committed with an intent to destroy, in whole or in part, a national, ethnical, racial
or religious group.255

Such crimes must have been committed after the Statute’s entry into force, that is, on 1
July 2002.256 For States becoming parties to the Statute at a later date, the Court shall
have jurisdiction over crimes committed after the treaty’s entry into force for that
State.257

Being a criminal court, the ICC may exercise its jurisdiction over individuals, aged 18 or
above,258 should the crime comply with any of two conditions: that it was committed by a
national of a State party to the Court, with no regard to the act’s location; or it was
committed in the territory, vessel or aircraft of a State party to the Court, with no regard
to the perpetrator’s nationality.259

Finally, the ICC may seize itself of a situation via one of three alternatives: by the
initiative of the Prosecutor, who by proprio motu, initiates an investigation in respect of
crimes under the jurisdiction of the Court;260 a State party to the Statute refers to the
Court a situation where one or more crimes in Article 5 appear to have been
committed;261 and finally if a situation is referred to the Prosecutor by the Security
Council acting under Chapter VII of the UN Charter.262

From such provisions, it should be noted that the ICC has, in effect, a very limited
jurisdiction with regards to human rights violations, particularly excluding those not
found in the relevant provisions of the Statute, not amounting to a situation grave

although the latter was included as a crime against humanity. All these may be considered as part of customary law, as
found in the ICRC study on the subject. Cf. supra note 96.
254 Genocide Convention, see supra note 42.
255 For a complete review of the crimes’ objective and subjective elements, please cf. ICC Statute, Articles 6, 7 and 8;

Triffterer, O. (Ed.), Commentary on the Rome Statute of the International Criminal Court, Aufl. – Baden-Baden: Nomos Verl,
1999.
256 Art. 11, ICC Statute.
257 Idem.
258 Art. 26, ICC Statute.
259 Art. 12, ICC Statute.
260 Art. 15 (1), ICC Statute.
261 Art 14, ICC Statute.
262 Art. 13 ICC Statute.

45
Fighting Impunity: Positive Conflicts of Jurisdiction and the Principle of Universality

enough to trigger action by the Court, or committed prior to the entry into force of the
treaty.263 As for those violations committed in the territory and by a national of a non-
State party, the Statute only provides the possibility of proceedings after obtaining
consent from the State concerned,264 or when requested by the Security Council.265 As is
currently the case with Sudan,266 the latter option is always binding on any State member
to the United Nations, based on the application of Articles 24,267 25,268 103269 and
Chapter VII of the UN Charter.270

Admissibility or the complementarity regime

Once the different criteria of jurisdiction are fulfilled, it shall be for the Court to rule on
the admissibility of the case. According to the wording in Article 17, a case shall be
deemed inadmissible by the Court if a State – party or not to the Statute – is already
carrying out proceedings, concerning the same persons for the same acts.271 This, in
effect, clearly provides States with an overall primacy over the Court, something that was
made clear from the beginning and included into the Statute’s Preamble. There it reads
that it shall be “the duty of every State to exercise its criminal jurisdiction over those
responsible for international crimes”,272 while further “emphasizing that the International
Criminal Court established under this Statute shall be complementary to national criminal
jurisdictions”.273

Such primacy of States may be overturned, however. The Court may find a case
admissible in the following conditions: first, if it considers the State to be “unwilling or
unable genuinely to carry out the investigation or prosecution”.274 Secondly, if the case

263 Most notably, those massive violations committed during former military regimes in Latin America, the Balkan wars

in the 90s, the aftermath to Rwanda, etc.

264 Art. 12 ICC Statute.
265 Art. 13 (b) ICC Statute.
266 Sudan referral, see infra note 334.
267 Article 24 (1) reads: “In order to ensure prompt and effective action by the United Nations, its Members confer on

the Security Council primary responsibility for the maintenance of international peace and security, and agree that in
carrying out its duties under this responsibility the Security Council acts on their behalf.”
268 Article 25 reads: “The Members of the United Nations agree to accept and carry out the decisions of the Security

Council in accordance with the present Charter”.

269 Article 103 reads: “In the event of a conflict between the obligations of the Members of the United Nations under

the present Charter and their obligations under any other international agreement, their obligations under the present
Charter shall prevail”.
270 While Article 24 defers powers to the Security Council, Chapter VII allows it to take such measures as seen

necessary to secure peace and security. Article 103 prevents any conflicting obligations on States by giving preference
to the Council over any international treaty.
271 Art. 17 ICC Statute.
272 Paragraph 6, Preamble ICC Statute.
273 Paragraph 10, Preamble ICC Statute.
274 Art. 17(a) ICC Statute.

46
 Gabriel ChavezTafur
Geneva Academy of International Humanitarian Law and Human Rights

was already investigated by a State and such State decided not to prosecute the person
concerned, but the decision resulted from the unwillingness or inability of the State
genuinely to prosecute.275 Thirdly, if the person concerned was already tried for the same
acts, but the trial was held for the purpose of shielding the person concerned from
criminal responsibility, or the proceedings were not conducted independently or
impartially in accordance with norms of due process recognized by international law.276
The application of these norms to the exercise of universal jurisdiction shall be discussed
further below.

The ICC Statute and universal jurisdiction

As mentioned above, the negotiations in Rome277 and the resulting ICC Statute left very
clear States’ intentions to continue to hold primary responsibility in the prosecution and
punishment for the most serious crimes. With regards to the exercise of universal
jurisdiction, however, opposing views have been raised concerning the general role it
should play now that the ICC Statute has entered into force.278

On one hand, some have argued that, given that universal jurisdiction was conceived to
permit a State to represent the interests of the international community, the creation of
an international criminal court would turn such domestic prosecutions unnecessary, as
“in fact, the ICC would probably do so with greater authority than national courts and be
better equipped to adjudicate cases.”279 Such a view finds support, as already mentioned
in Chapter One, in Article VI of the Genocide Convention, where the prosecution of
such crime was effectively restricted to the courts of the State in whose territory it was
committed or by an international tribunal.280

Evidence in this regard may also be found in the practice of some States which, when
implementing their obligations arising from becoming a party to the ICC Statute, limited
their jurisdiction over the crimes contained in the treaty (war crimes, crimes against
humanity, genocide) to the same main legal grounds delimiting the jurisdiction of the

275 Art. 13(b) ICC Statute.

276 Art. 13(c) and 20 ICC Statute.
277 United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal

Court, 15 June-17 July 1998.

278 It did so on 1 July 2002.
279 Kleffner, J. ‘The impact of complementarity on National Implementation of Substantive Criminal Law’, 1 Journal of

International Criminal Law, 2003, p. 108.

280 As expressed in Chapter One, such limitation as found in the Genocide Convention has been authoritatively

discarded by the ICJ, making it beyond debate that the crime may be subject to the exercise of universal jurisdiction.

47
Fighting Impunity: Positive Conflicts of Jurisdiction and the Principle of Universality

Court, namely territoriality and active personality. Such is the case, for example, of the
United Kingdom’s International Criminal Court Act 2001.281 Others such as Congo have
gone to the extent of arguing that implementing universal jurisdiction in its criminal code
would actually run counter to their international obligations arising from the Statute of
the Court.282 In a way, this has been interpreted as strong, albeit tacit support for the
view that prosecution of international crimes should only be exercised under the more
traditional principles of jurisdiction, discarding – or at least discouraging – the resort to
universal jurisdiction following the ICC as example.283 Such view was supported by
Henzelin, when he stated that

… le Préambule ne dit pas clairement que les Etats, compétents à titre complémentaire pour poursuivre
et juger les crimes décrits, le sont selon le principe de l’universalité. Rien ne laisse en effet entendre que le
Statut n’envisage pas tout simplement que les Etats soient compétents pour poursuivre et juger les crimes
décrits selon leur competence actuelle, territoriale, personnelle et de protection.284

Such arguments fail to see, however, that while indeed it would be desirable to perceive
the ICC as the court of the international community, the truth remains that its Statute is
still far from acquiring universal status, not only due to the number of parties currently
bound by it,285 but also for the fact that some of the major international players, including
three permanent members of the Security Council, are yet to become parties to the Court
and there is little expectation that they will become so in the near future.286 In addition, it
should also be borne in mind that, as is usual with international tribunals, the Court shall
only be capable of handling a handful of cases a year, resulting from the most serious
situations, thus leaving the majority of crimes to be dealt with through resort to domestic
courts.287 Unfortunately, such a reality, when restricted to the State where the crime was
committed or that of the nationality of the perpetrators, has failed to produce – as
already noted in the Introduction and Chapter One, the desired impact on the overall
fight against impunity.

281 Available at the Office of Public Sector Information,

http://www.opsi.gov.uk/acts/acts2001/ukpga_20010017_en_1 (last visited on 9 January 2009).
282 Memorial of Congo in Arrest Warrant, ICJ judgment of 14 February 2002, para. 59. In Kleffner, supra note 279, p.

108.
283 Inazumi uses the argument that the ICC provides only for territoriality and active personality as support for an

alleged superiority of these grounds over universal jurisdiction. Cf. Supra note 200.
284 Henzelin, supra note 82, p. 447.
285 108 State parties to date.
286 US, Russia and China.
287 This is clear from the preamble “the most serious crimes”, and from Article 17(1)(d).

48
 Gabriel ChavezTafur
Geneva Academy of International Humanitarian Law and Human Rights

The alternative position towards the role of the ICC would seem to be precisely based on
concern for such failure. This was the view of Judge Louise Arbour when, after
questioning whether States party to the ICC Statute have undertaken an additional
obligation to establish and exercise universal jurisdiction for crimes falling under the
scope of the Court, she stated that

I postulate that the Preamble to the Rome Statute is a call for the fullest exercise by
States of their own international criminal jurisdiction, and that includes, of course, not
only their permissive universal jurisdiction, but also their compulsory one.288

Such stance also finds support in some States’ opinio juris, the most notorious example of
which would be the explicit statement given by the Netherlands, in the context of an
Explanatory Memorandum, where it mentioned that

Although not expressly provided for in the Statute, the majority of States – including the
Kingdom – were always of the opinion that the principle of complementarity entails that
States parties to the Statute are obliged to criminalise the crimes that are subject to the
International Criminal Court’s jurisdiction in their natural laws and furthermore to establish
extra-territorial, universal jurisdiction [emphasis added] which enables their national criminal
courts to adjudicate these crimes even if they have been committed abroad by a foreign
national.289

Finally, such a positive role for universal jurisdiction in connection with the Court was
also agreed upon by a group of experts debating the complementarity regime of the ICC
in practice (hereinafter Group of Experts),290 when they stated that, in effect, nothing in
the Statute impeded States from resorting to universal jurisdiction.291 Further, they
concluded that, just as with proceedings being carried out in the territory where the crime
was committed, “a genuine investigation by such third States would preclude the ICC
from exercising jurisdiction, provided they are indeed able to secure the surrender of
offenders and obtain access to evidence.”292 Such conclusion will be further analysed
next.

288 Arbour, L. ‘Will the ICC have an impact on Universal Jurisdiction?’, 1 Journal of International Criminal Justice, 2003, p.

587.
289 In Kleffner, supra note 279, footnote 18.
290 The Group was set up as an Expert Consultation Process on Complementarity in Practice, in April 2003, by the

Director of Common Services of the ICC, by suggestion of the Court’s Office of the Prosecutor. The resulting
“informal paper” may be accessed at: http://www.icc-cpi.int/otp/complementarity.html&l=fr (last visited on 9
January 2009).
291 Idem, p. 24.
292 Ibid.

49
Fighting Impunity: Positive Conflicts of Jurisdiction and the Principle of Universality

Positive conflicts of jurisdiction: universal jurisdiction vs. the ICC

If it is accepted that States may continue to prosecute suspects of committing
international crimes under the principle of universal jurisdiction, the issue that now arises
is whether them, or the ICC, would hold priority over a case potentially prosecutable by
any of the two.

In a best-case scenario, such a situation would be resolved via true cooperation between
the ICC and the State, resulting in the choice of the forum plus conveniens. Thus, while in
certain cases the ICC would have a true interest in allowing or even collaborating with
domestic proceedings, perhaps providing expertise or in a quasi-supervisory role,293 in
others the State would acknowledge the Court to be in a better position to secure
cooperation294 of other States affected by the crimes, or guarantee access to evidence or
the accused.

Unfortunately, it is still conceivable that a conflict of jurisdictions could arise in the

following scenarios:

From the side of the State, a situation could develop by which a court would push for
domestic prosecution of an international crime due to a genuine intention to best serve
the interests of justice at the local level. This could be the case if the presence of the
accused were secured for trial, sufficient evidence was available to build a prima facie case,
and the victims, which in many instances would be the party pushing for action, found
the domestic courts their preferred option. It should be remembered that proceedings
before the ICC, in their view, could be unfamiliar ground (or too remote, too Western?),
not really road-tested yet, and carry the risk of further delay in obtaining justice, added to
the possibility that the case’s admissibility be challenged by the State of nationality of the
suspects or that where the crime was committed (precisely the forums, as in Guatemalan
Generals, not providing an adequate solution to the victims in the first place).

A second option would involve additional non-judicial considerations. Given that the
exercise of universal jurisdiction is often subject to the prosecutorial discretion of the
Attorney General or Public Prosecutor, proceedings at the domestic level could become

293 Clearly this would be the ideal situation in those cases not to be taken up by the ICC Prosecutor. Discussion of an
ICC supervisory role may be found in Stahn, C. ‘Complementarity: A Tale of Two Notions’, 19, 1 Criminal Law Forum,
March 2008, pp. 87-113.
294 As provided for in Chapter 9 of the ICC Statute.

50
 Gabriel ChavezTafur
Geneva Academy of International Humanitarian Law and Human Rights

a priority for political reasons, ranging from the high-official’s personal ambition to carry
out a high-publicity case, to the State’s policy decision to pursue proceedings in an
attempt to show a Government’s tough stance against impunity before the international
community. Evidently, a political decision could also be made for prosecution with the
sole intention of barring, or at least endlessly stalling substantive action by the ICC,
gaining time while the ICC resolves the necessary jurisdictional and admissibility issues295.
Such inter-State cooperation to avoid justice being done – that is, a third State acting to
protect the government of the State where the crimes were committed – would not be
entirely rare, as the extensively documented case of the military regimes of the 1970s in
South America would show.296

From the side of the ICC, a situation could arise by which a State would be willing and
able to prosecute – impeding a possible resort to Articles 17 and 19 of the Statute – but,
due to the complexity, impact of the case or magnitude of the crimes, indeed it would be
desirable, in the best interests of international justice, for the person to be tried (and be
seen being tried) by the international community, and not by the courts of any particular
State. Such was precisely the objective behind the Nuremberg and Tokyo trials, which
were preferred to the traditional approach of bringing war criminals before the courts of
the victorious powers.297

Establishing a hierarchy: should the ICC necessarily prevail over universal jurisdiction?

As for resolving a positive conflicts of jurisdiction between the ICC and a State
exercising universal jurisdiction, guidance may be found primarily in the Statute and State
legislation.298

Concerning the Statute, the first provisions requiring consideration would be those
directly concerning the complementarity regime, applicable to parties and non-parties to

295 As provided for by the complementarity regime, Articles 17 and following, ICC Statute.
296 See, for example, Uceda, R. Muerte en el Pentagonito, Editorial Planeta, Lima, 2004.
297 “Secretary of War Henry Stimson […] pushed for some sort of tribunal, believing that the rule of law needed to be

reinforced where the Nazis had mocked it. He considered the Nazi activities as war crimes that called for a judicial
response - and therefore, his counter-proposal called for trying Nazi leaders in open court. Stimson eventually
convinced Roosevelt, who gave his approval for the Tribunal only months before he died in April 1945. That approval
paved the way for the U.S. to become the prime mover behind the trials.” Cf. Levitt, N. Nuremberg At 60: How the
United States is Turning Away from its Proud History’ February 21, 2006, available at
http://www.globalpolicy.org/intljustice/general/2006/0221history.htm (last visited on 10 January 2009).
298 The ICC clearly departed from previous practice regarding primacy of jurisdiction in international forums, as may

be seen from the ad hoc criminal tribunals. In the case of the ICTY and ICTR, Article 9 and Article 8 of their respective
statutes allows them to require national courts, at any stage of their procedure, “to defer to the competence of the
International Tribunal”, thus providing absolute primacy over domestic proceedings.

51
Fighting Impunity: Positive Conflicts of Jurisdiction and the Principle of Universality

the Statute.299 Discussed briefly above, these would include paragraphs 6 and 10 of the
Preamble to the Statute, by which priority is clearly placed on States’ duty to “exercise
[their] criminal jurisdiction over those responsible for international crimes”300; and
Articles 17 and 19, through which the ICC would be barred from a case if a State “which
has jurisdiction over it”301 genuinely carries out an investigation or prosecution. The fact
that no distinction or limitation is found in the provisions regarding the different
principles of jurisdiction which a State may lawfully exercise to prosecute a case, makes it
fairly clear, at least a priori, that it would be the State exercising universal jurisdiction
indeed holding priority of prosecution over the ICC.302 Such view was also proposed by
the Commission of Inquiry on Darfur.303

As already mentioned, the Court may still find a case admissible, should the State – even
if it’s one exercising universal jurisdiction – be “unwilling or unable genuinely”304 to carry
out the investigation or prosecution. Each of such criteria – genuineness, unwillingness
and inability – could be the determining factor in a case being admitted by the Court.
Each is comprised of the following elements:

With regards to ‘genuine’ proceedings, the term acts as an overall qualifier to any analysis
of a State’s investigation or prosecution. It includes two elements: first, a subjective
evaluation, by which the Court shall determine whether a State is acting in good faith.
This could be inferred, for example, from the broader context, including the general
laws, procedures, practices and standards of the State concerned. As the Group of
Experts pointed out,

One may credibly draw inferences from the general to the particular. Where a system is
shown to be independent, impartial and meeting standards of genuineness, this may
contribute to an inference of genuineness in the particular case. Conversely, where a
system shown to be plagued with political interference, scripted trials and unwillingness

299 Evidently, States not party to the ICC Statute are not bound by it. However, the Court may still rule on the

admissibility of a case based on the inability or unwillingness to prosecute of a non-party State.

300 Para. 6 of Preamble, ICC Statute.
301 Art. 17 ICC Statute.
302 As concluded by the Expert Group – See supra note 290.
303 Commission of Inquiry, see supra note 216, at §616: “The Commission takes the view that complementarity would

also apply to the relations between the ICC and those national courts of countries other than Sudan. In other words,
the ICC should defer to national courts other than those of Sudan which genuinely undertake proceedings on the basis
of universal jurisdiction. While, as stated above, a referral by the Security Council will normally be based on the
assumption that the territorial State is not administering justice because it is unwilling or unable to do so, there is
instead no reason to doubt a priori the ability or willingness of any other State asserting either universal jurisdiction or
jurisdiction based on any of the basis for extra-territorial jurisdiction mentioned above”.
304 Art. 17 ICC Statute.

52
 Gabriel ChavezTafur
Geneva Academy of International Humanitarian Law and Human Rights

to pursue certain groups of offenders or offences, this may contribute to an inference of

a lack of genuineness in the particular case.305

More importantly, however, “genuine” proceedings would also connote a minimum

degree of objective quality that a State may need to guarantee in order for the case to
remain inadmissible before the Court. Although during the drafting of the Statute it
remained extremely important for States that the Court would not consider action not to
be genuine only because of lack of resources,306 it was still accepted that such standard
would be, at least, that which is provided for by international human rights law, and most
particularly that found in the international treaties and developed by UN and regional
bodies.307

For ‘unwillingness’, a first attempt to a definition was included into Article 17 of the
Statute itself.308 It would involve a finding toward any of three options: first, proceedings
undertaken for the purpose of shielding the person concerned from criminal
responsibility; two, an unjustified delay in the proceedings which, under the
circumstances, would be inconsistent with an intent (genuine intent) to bring the person
concerned to justice; or three, proceedings not conducted independently or impartially, in
a manner, under the circumstances, which would be inconsistent with an intent to bring
the person to justice.

In the case of ‘inability’, the Statute provides for a cumulative test:309 first, the national
judicial system must have totally or substantially collapsed or be unavailable; and due to
this, the State should be unable to carry out the proceedings, or obtain the accused, the
necessary evidence and testimony. Although the Court is still to use this criteria on any
given State, the Commission of Inquiry on Darfur did label Sudan “unable or unwilling
to prosecute and try the alleged offenders”, and vouched for a Security Council referral
of the situation to the ICC.310

305 Expert Group, supra note 291, p. 11.

306 During the negotiations, the word “effective” was discarded for these reasons. Cf. Commentary, supra note 255, p.
392.
307 Sufficient case law has been produced at the international and regional level as to produce a minimum standard of

judicial guarantees that could be considered universal. Anything below that would necessarily fail to fulfil the “genuine”
quality of the proceedings, thus making the Court take over..
308 Art. 17(2) ICC Statute, (a)-(c).
309 Art. 17(3) ICC Statute.
310 It based its conclusion mainly on six arguments, some against Sudan, others in favour of an ICC prosecution,

namely: (1) the existence of crimes threatening peace and security; (2) the difficulty in investigating and prosecuting in
Sudan persons wielding control over the State apparatus; (3) the need for the authority of the ICC to convince
Sudanese leaders and rebel chiefs to submit to investigation; (4) the fair trial guarantees offered by the Court; (5) the

53
Fighting Impunity: Positive Conflicts of Jurisdiction and the Principle of Universality

Evidently, any determination that a State is unwilling or unable to carry out genuine
proceedings could be a politically sensitive issue at the international level. Thus the
Court, in making its decision, should be able to rely on credible and sufficient evidence.
The burden of proof, however, would remain at a simple balance of probabilities.311

A second section of the Statute worth reviewing would be the Chapter on International
Cooperation and Judicial Assistance, and more particularly Article 90, where it provides
specific provisions should a State receive an extradition request from another State, and a
competing request for surrender issued by the Court. Similar to the approach taken in
Chapter Two resorting to extradition law, such Article could also be seen to shed light on
the solution of positive conflicts of jurisdiction as follows:

It provides for at least three situations: first, where both the custodial and requesting
States are parties to the Statute, the custodial State shall be bound to respect an ICC
determination on admissibility of the case, and – should the case be admitted – proceed
to surrender the suspect to the Court.312 Secondly, should the custodial State receive a
request from a State not party to the Statute, and a competing request from the Court,
the custodial State should again give priority to the Court, if two conditions are met: the
case is deemed admissible by the ICC, and the custodial State is not under an
international obligation to extradite the person to the requesting State.313

Thirdly, in those cases where the custodial State does have an international obligation to
extradite the person to the requesting State, Article 90 provides the former should decide
its actions based on “all relevant factors, including but not limited to: (a) the respective
dates of the requests; the interests of the requesting State including, where relevant,
whether the crime was committed in its territory and the nationality of the victims and of
the person sought; and (c) the possibility of subsequent surrender between the Court and
the requesting State.”314

Translated to the conflict under analysis, it would be fair to conclude that a State
exercising universal jurisdiction would only hold priority of jurisdiction over a case

ability to intervene immediately; and (6) the lack of a significant financial burden on the international community. Cf.
Marty, ‘Harmonizing International and National jurisdictions’, 4 Journal of International Criminal Justice, 2006, pp. 2-11.
311 Expert Group, supra note 291, p. 12.
312 If the case is not deemed admissible, no conflict of jurisdiction arises.
313 Article 90 (4) ICC Statute.
314 Article 90 (6) ICC Statute.

54
 Gabriel ChavezTafur
Geneva Academy of International Humanitarian Law and Human Rights

admitted by the ICC in those scenarios where, first, such State is not a party to the ICC
Statute, and secondly, it requests the extradition of the person sought to a State with
which it contracted a right to such extradition being granted. In cases involving State
parties, they shall remain bound to an ICC determination on admissibility, falling back,
then, on Articles 17 and 19 of the Statute – already reviewed.

Finally, a potential solution for conflicts of jurisdiction has been included into the
domestic legislation of some State parties. Although not a common practice, some
examples may be mentioned: in Germany, the newly enacted Criminal Code includes a
provision that states

(2) In the cases referred to under Section 153c subsection (1), numbers 1 and 2, the
public prosecution office can, in particular, dispense with prosecuting an offence
punishable pursuant to sections 6 to 14 of the Code of Crimes against International Law,
if […] 4. the offence is being prosecuted before an international court […].315

The public prosecutor may also refrain from prosecuting an offence if the ICC declares
to the Ministry of Justice that, in the event proceedings in Germany should be
discontinued, the ICC would seek the surrender of the suspect.316

A similar case would be that of Belgium, where the Prosecutor may refrain from
referring a complaint to the investigative judge if, “taking into consideration the interests
of justice and Belgium’s international obligations, the particular complaint should be
brought before an international tribunal”.317 Should the public officer decide the ICC is
the appropriate forum, the Minister of Justice may, after consultations, refer the case to
the Court.318

Other examples would include Finland, where a request for surrender of a suspected
offender made by the ICC would have priority over domestic proceedings, while in
Croatia domestic courts may only exercise universal jurisdiction to prosecute perpetrators
if criminal proceedings cannot be conducted before the ICC.319

315 Code of Criminal Procedure, Article 153f, introduced with the coming into force of the German Code of Crimes

Against International Law, BGBI.2002 I, P 2254, 26 June 2002.

316 Global Report, supra note 32, p. 79.
317 Belgian legislation, supra note 31, p. 72.
318 Belgian law, supra note 220.
319 Global Report, supra note 32, p. 79.

55
Fighting Impunity: Positive Conflicts of Jurisdiction and the Principle of Universality

Positive conflicts of jurisdiction: the Security Council as a third party

During the preparations to the creation of the ICC, the International Law Commission
envisaged three potential ways in which the Security Council and the Court could
interact: first, by impeding the Court from dealing with complaints of or directly related
to acts of aggression unless the Council so labelled a given situation; additionally, by
determining that the Council would be able to refer matters to the Court pursuant to
Chapter VII of the Charter; finally, providing that the Court would not, in the absence of
approval by the Council, commence a prosecution if it arose out of a situation which was
being dealt with by the Council under Chapter VII of the Charter.320 While the first one
was eventually replaced by the final inclusion of the crime of aggression within the
Court’s jurisdiction (albeit currently awaiting a definition), the other two found their way
into the Statute and currently rule all relations between the Court and the Council. Their
effect on potential conflicts of jurisdiction between a State exercising universal
jurisdiction and the ICC shall each be analyzed below.

Security Council referrals and the exercise of universal jurisdiction

As briefly discussed at the beginning of the Chapter, one of the mechanisms established
by the ICC Statute through which to ‘trigger’ the jurisdiction of the Court is that of a
Security Council referral.321 It was also established that the complementarity regime
allows for the primacy of proceedings in domestic forums over those of the Court, even
when the former proceed on the basis of universal jurisdiction. Combining both
elements, a few questions arise: namely, does the complementarity regime apply
differently to cases referred to the Court by the Security Council? Could a State, willing
and able to exercise universal jurisdiction, still challenge the admissibility of a case
referred to the Court by the Council?

Tackling the questions from a policy perspective, it is to be considered that, previous to a

referral, the Security Council would have had to debate, agree upon and pass a resolution
labelling a situation as a threat to international peace and security. An argument could
thus be made that if a situation of massive crimes evolved to a point where the Security
Council had to seize itself of the matter, then this would clearly consist of matters of
sufficient gravity for the State or States involved in or affected by the crimes to – in

320 Lee, R. (ed.) The International Criminal Court, Kluwer Law International, 1999, p. 146.
321 Article 13(b) ICC Statute.

56
 Gabriel ChavezTafur
Geneva Academy of International Humanitarian Law and Human Rights

accordance with Article 24 of the UN Charter – agree for the Council to act on their
behalf and withhold from challenging the jurisdiction of the Court. This would be
particularly applicable to States considering the exercise of universal jurisdiction, as
arguably their role as representatives of an aggrieved international community would
already be filled by both the Security Council and the Court.

From the point of view of the ICC Statute, however, there would seem to be no
exception contemplated for Security Council referrals in the Court’s complementarity
regime. Indeed, neither Article 17 nor 19 of the Statute establish any differences between
the mechanisms employed to trigger the jurisdiction of the Court, something which does
occur, providing for an a contrario argument, in the notification procedure found in
Article 18. Such was the unanimous position of the Group of Experts,322 as well as the
Commission of Inquiry on Darfur, when it stated that

The Commission wishes to emphasise that the triggering of the ICC jurisdiction by the
Security Council should be without prejudice to the role that the national criminal courts
of other States can play. Indeed, other States might exercise the so-called universal
jurisdiction over crimes allegedly committed in Darfur.323

Concerning challenges arising from States exercising universal jurisdiction, again the
Statute leaves all options open by using the wording “a State which has jurisdiction over
[a case]”.324

Security Council deferrals under Article 16 of the Statute

As for the possibility of restricting the jurisdiction of the Court, negotiations up to and
during the Rome Conference substantially modified it from an implicit and automatic
veto given to the Council by the ILC text (against proceedings involving matters being
dealt with under Chapter VII), onto an arrangement whereby the Court may exercise its
jurisdiction unless the Council explicitly asks her not to.325 More concretely, Article 16 of
the Statute allows the Security Council to defer proceedings before the Court, but only as
a response to a potential threat to international peace and security. The provision reads:

No investigation or prosecution may be commenced or proceeded with under this

Statute for a period of 12 months after the Security Council, in a resolution adopted

322 Group of Experts, supra note 291, p. 21.

323 Commission of Inquiry, supra note 216, at §607.
324 Article 17(a) and (b), Article 19(2)(b) ICC Statute.
325 Proposed by Singapore, the formulae was supported by the United Kingdom, the first permanent member of the

Security Council to back the initiative.

57
Fighting Impunity: Positive Conflicts of Jurisdiction and the Principle of Universality

under Chapter VII of the Charter of the United Nations, has requested the Court to that
effect; that request may be renewed by the Council under the same conditions.326

Its wording, which was finally agreed upon only in the last stages of the Rome
Conference,327 was the result of arduous negotiations that reflected widely divergent
views on what the link should be between the Court, a judicial body, and the Council, a
political organ.328 Debate around it followed even after the entry into force of the Statute,
when a mere eleven days later (on 12 July 2002) it was already invoked by the United
States as a precondition to lift a veto it was holding on a Security Council resolution
aimed at extending the UN peacekeeping mission in Bosnia and Herzegovina.329

The article contains three main elements: firstly, the fact that a deferral may be applied to
both “an investigation or prosecution”, thus covering even the investigative actions
undertaken by the Prosecutor before the confirmation of charges against an individual by
the pre-Trial Chamber.330 Secondly, Article 16 allows the Council to stop proceedings
before their commencement, or at any moment thereafter, for a period of 12 months,
renewable if a new resolution is passed. Thirdly, and most importantly, the Council must
first identify and determine a given situation to constitute “a threat to the peace, breach
of the peace or act of aggression”,331 as provided for by Article 39 of the Charter. Only
once this is done may the Council make reference to Chapter VII and pass a legally
binding decision “requesting”332 the Court not to proceed.

As for its impact on potential positive conflicts of jurisdiction between a State and the
ICC, it is clear that resort to Article 16 would effectively terminate the conflict by forcing
one of its parties, the Court, to step aside. What would remain necessary to contemplate
is whether a Security Council deferral would also have an effect in proceedings
contemplated by a State willing to prosecute based on the principle of universal
jurisdiction. Two possibilities may arise in this regard:

326 Article 16 ICC Statute.

327 Cf. Commentary, supra note 255.
328 Idem., p. 373, on Article 16 ICC Statute.
329 Cf. Macpherson, B. ‘Authority of the Security Council to exempt peacekeepers from ICC proceedings’, American

Journal of International Law, ASIL Insights, July 2002. The US was concerned that US personnel would be subject to
unwarranted, politically motivated prosecutions by the newly established Court.
330 It would not, however, cover the initial preliminary examination of facts, conducted before the Pre-Trial Chamber’s

authorization of an investigation. Cf. Commentary, supra note 255, p. 379.

331 Article 39, UN Charter.
332 The term should be “decide”, as is common use for Chapter VII resolutions. Article 16 of the ICC Statute.,

however, uses the term “request”. The different words were used as an argument against the binding character, upon
the ICC, of the resolution deferring the prosecution of peacekeeping personnel. Cf. MacPherson, supra note 329.

58
 Gabriel ChavezTafur
Geneva Academy of International Humanitarian Law and Human Rights

The first is one by which the Security Council would consider prosecution by the ICC to
be a potential risk to international peace and security, but only if it is the Court which
prosecutes, and not if proceedings were to occur in the domestic courts of a State. The
situation is not hard to imagine, considering the highly politicized cases the Court is
facing and thus the inevitable role politics may play in the choice of forum. The situation
in Darfur and the potential indictment of the President of Sudan, Mr. Omar Hassan
Ahmad Al-Bashir, could prove to be a case in point, as shown below.333

The situation may be traced back to 14 July 2008, when the Prosecutor at the ICC
requested Pre-Trial Chamber I to issue a warrant of arrest against the incumbent
president, for the crimes of genocide, war crimes and crimes against humanity.334
President Al-Bashir’s reactions to such measure have been a mix of alleged indifference
and veiled threats of more violence to come335 (especially against members of
international organizations providing assistance to the victims of the conflict)336 and
more recently efforts to show some willingness to bring perpetrators to domestic
justice.337 While there has been no official statement by the Security Council as yet,
formal and informal requests have been made by the African Union,338 Sudan339 and
others to the effect that, given the highly sensitive nature of the case, the permanent
members would consider a deferral of the investigation. On 3 December 2008, the

333 Cf. “ICC Prosecutor presents case against Sudanese President, Hassan Ahmad AL BASHIR, for genocide, crimes

against humanity and war crimes in Darfur.”, press release available at http://www.icc-
cpi.int/press/pressreleases/406.html (last visited on 8 January 2009).
334 The situation in Darfur, Sudan, was referred to the International Criminal Court by the United Nations Security

Council under resolution 1593 of 31 March 2005. The Prosecutor opened an investigation into the situation on 6 June
2005. More information available at: http://www.icc-cpi.int/cases/Darfur.html (last visited on 9 January 2009).
335 Cf. “Sudan: ICC case could provoke violence,” Associated Press, 13 July 2008,

Available at: http://ap.google.com/article/ALeqM5inqUzmH0M_JwO_wre74Z0-3h3-2gD91T27080.

336 ‘International aid workers and peacekeepers in the troubled Sudan region of Darfur are at risk after the indictment

against President Omar Hassan al-Bashir for war crimes’, his adviser said on Tuesday. […] 'If there is an indictment of
the president of the Sudan, how can the international community hold Sudan responsible for the protection of the
many international bodies that are working in Darfur?' Bona Malwal told a news conference. […].. “Sudan says Darfur
aid workers at risk over ICC”, Reuters, 22 July 2008,. Available at:
http://africa.reuters.com/wire/news/usnL221009408.html (last visited on 10 December 2008).
337 “The newly appointed special prosecutor for Darfur said that he will review allegations that were brought against a

militia leader indicted by the International Criminal Court (ICC) last year. […]. Cf. “Sudan may file charges against
militia leader indicted by ICC”, Sudan Tribune, 12 August 2008. Available at:
http://www.sudantribune.com/spip.php?article28238 (last visited on 12 November 2008).
338 “The African Union urged the U.N. Security Council on Monday to put on hold the International Criminal Court's

moves to indict Sudanese President Omar Hassan al-Bashir over war crimes in Darfur. The call, after a meeting of the
African Union Peace and Security Council in Ethiopia, followed a similar appeal by the Arab League and boosted to
Khartoum's diplomatic efforts to block any indictment.” […]. “AU seeks to block charges against Sudan leader”,
Reuters, 21 July 2008. Available at: http://africa.reuters.com/wire/news/usnMCD148656.html.
339 “Sudan calls on UNSC to void possible arrest warrant for Al-Bashir”, Sudan Tribune, 25 August 2008. Available at:

http://www.sudantribune.com/spip.php?article28386.

59
Fighting Impunity: Positive Conflicts of Jurisdiction and the Principle of Universality

Court’s Chief Prosecutor, Luis Moreno-Ocampo, in his eighth bi-annual report to the
Security Council,340 summed up the situation well when he warned that

President Al Bashir, personally or through his subordinates, claims that the Court is
attacking Africa, affecting peace, and affecting victims and international personnel as
there could be retaliation against them if he is indicted. The facts are that victims of
crimes committed in Darfur are 3 million African citizens; that justice will promote
peace in Darfur, as determined by UNSCR 1593, reasserted in Presidential Statement 21
of June 2008; UNAMID, for all its efforts, cannot bring safety to civilians when the
most serious perpetrators still hold official positions in Khartoum, and continue to
implement a criminal strategy.341

What remains to be seen is whether the Security Council will be convinced by such
arguments that an ICC prosecution is the best solution. Being its “primary
responsibility”342 to guarantee peace and security, the Council will necessarily have to – in
its own assessment of the ‘peace v. justice’ dichotomy – consider further elements into its
decision, such as an evident and growing resentment within African States towards so-
called ‘Western’ institutions attempting to impose their notion of justice on the
continent,343 while imposing neo-colonialist policies to the dangerous extent of indicting

340 As required by Resolution 1593 of 31 March 2005 referring the situation of Darfur to the Court. See supra note 334.
341 Ocampo, L. ICC Chief Prosecutor, ‘Darfur: ICC Prosecutor Eighth Address to Security Council’, para. 85.
Available at: http://www.icc-cpi.int/library/organs/otp/8thUNSCreportsenttoUN-ENG.pdf (last visited on 9 January
2009).
342 In the wording of Article 24 of the UN Charter.
343 The Prosecutor’s request of an arrest warrant against Mr. Al-Bashir was not well-received by African States. Review

of some of the reactions provides a clearer picture of to what extent the ICC is considered a foreign institution. (The
examples below were collected by the Coalition for an International Criminal Court):
• “Syria Opposes Bashir Arrest Bid”, Al Alam, 18 Jul 2008.
“The official news agency SANA quoted Syrian President Bashar al-Assad as saying 'the leaders and Syrian people
reject the decision by the [ICC] prosecutor [Luis Moreno Ocampo].' [...] Assad, whose country holds the rotating
presidency of the Arab League, described the move as 'an attempt to blackmail Sudan, as well as a flagrant
interference in its internal affairs.' The Syrian leader said Damascus 'will do everything necessary to support Sudan
in the face of plans aiming at its security and stability.'
Meanwhile Algerian minister for African affairs has also said that ICC chief prosecutor's move to indict Bashir is
undermining peace in Darfur. 'The decision of the prosecutor .... endangers the process of a political and peaceful
resolution to the Darfur' conflict, Abdelkader Messahel was quoted as saying in the government daily El
Moudjahid....” Available at: http://www.alalam.ir/english/en-NewsPage.asp?newsid=031030120080722200020.
• “ICC charges against Sudan president political: Iran”, Iran mania, 18 Jul 2008.
“Iran's Parliament Speaker Ali Larijani says the International Criminal Court's accusations against Sudanese
President are political and insignificant, PressTV reported. ‘The recent charges brought against Sudan's President,
Omar Hassan al-Bashir, are politically motivated and yet trivial. The world's bullying powers hinder the process of
independence seeking states, by any possible means,' Larijani said in a meeting with the special envoy of Sudan's
President, Ghazi Salah al-Din...” Available at: http://www.iranmania.com.
• “Jordan: Majali receives the Sudanese Ambassador to Jordan”, Jordanian News Agency, 22 July 2008 (Internet
source not available).
• “Tanzania; Sudan Lauds Dar's Stand On ICC Move”, Africa News, 20 July 2008. Available at:
http://allafrica.com/stories/200807210101.html.
“Yemen: Parliament announces solidarity with Sudan over ICC decision”, Yemen News Agency, 19 July 2008.
Available at: http://www.sabanews.net/en/news159351.htm.

60
 Gabriel ChavezTafur
Geneva Academy of International Humanitarian Law and Human Rights

the highest representative of a fellow State.344 Perhaps the Ministry of Foreign Affairs of
Eritrea reflected such sentiments best, when it stated in an official press release that

"The drama that has unfolded in the past few days in the name of the 'International
Criminal Court' has baffled many observers. This phenomenon, which can only be
interpreted as an 'insult', is a manifestation of the harassment that has been
accumulating. As such it must be rejected and challenged.345

In itself, the statement is surprisingly harsh, but also quite direct. Put together with the
reactions from the rest of the continent, it would seem wise for the Council not to
underestimate the message they are sending. In this sense, should the Council consider
that such an ‘accumulated’ resentment could develop to the point of seriously
endangering the peace and security of an already fragile region,346 a compromise could be
reached by which the Security Council could agree to defer proceedings at the ICC, but
allow and promote prosecution in an African State willing and able to provide a fair trial
to Mr. Al-Bashir and others.347 In such case, a Security Council deferral would only affect
the Court, yet not the domestic courts of States.

The second situation that could arise from a Security Council deferral would be that the
resolution requesting a halt in the ICC proceedings, or a separate one passed at another
time, also expressly prohibited States to continue or commence proceedings regarding
the same situation or case, if based on the exercise of extra-territorial jurisdiction. In such
a situation, where the threat to the peace would lie in the possibility of prosecutions, and
not on the external perception of the forum, the Security Council would be lawfully
exercising its mandate under the Charter, via Articles 24348, 39349 and 41,350 in order to
restore peace and security.

344 A similar approach was taken by the AU with regards to universal jurisdiction, even when in practice there is no real
example of abuse – in effect, perceptions can be more important than actual events in international politics.
345 “The people and political forces of the Sudan should go beyond this to prevent interference in and

'internationalization' of their domestic affairs. This can only be done if mistakes done in the past are rectified to pave
the way for a genuine Sudanese internal solution...”. “Eritrea: Statement of the Foreign Ministry”, All Africa, 22 Jul
2008. Available at http://allafrica.com/stories/200807221172.html.
346 The situation was already labelled as a threat to security in the region by the African Union Security and Peace

Council. (Cf. “Sudan's Delegation to UN General Assembly Works Aggressively to Counter Ocampo's Allegations,”
Sudanese Media Center, 23 September 2008. Available at: http://english.smc.sd/enmain/entopic/?artID=14558.
Excerpt: “AU Security and Peace Council affirmed in a meeting yesterday held in New York (in response to an
invitation from Burkina Faso) that it supported Sudan stance of countering ICC prosecutor general Luis Ocampo''s
allegations against president Omar Al-Bashir. The council stresses that any attempt of indictment targets Basher
considered a threat to African continent security.)
347 Without willing to enter into the very complicated issue of the relations between ‘the West’ and other regions, it

should be borne in mind that it was arguably a similar “accumulated” resentment that gave origin and continues to fuel
trans-national terrorism groups such as Al Qaeda, a situation that has already been labelled a threat to international
peace and security in numerous occasions.
348 Art. 24, see supra note 267.

61
Fighting Impunity: Positive Conflicts of Jurisdiction and the Principle of Universality

As for States, in theory they would be compelled to agree and accept the Council’s
decision, under Articles 25351 and 103352 of the Charter, even if the request went against a
State’s obligations under any other international agreement, such as those providing for
universal jurisdiction reviewed in Chapter One. One exception, however, could be
argued against it and will be reviewed next.

The question of the Security Council acting under Chapter VII vs. jus cogens obligations

Chapter One discussed the possibility that the exercise of universal jurisdiction over
international crimes could find its legal basis on the jus cogens character of the prohibition
to commit certain offences, in turn resulting in an erga omnes obligation to install
proceedings against the alleged offender. As was already discussed, the view, albeit not
widely supported by State practice nor scholarly opinion when used to justify universal
jurisdiction, has however been utilized in the successful prosecution (under the
territoriality principle) of international crimes at the domestic level,353 and has also
received scholarly support.354

The question that now arises is whether and to what extent a resolution by the Security
Council, decided via resort to Chapter VII of the UN Charter, could effectively impose
under international law a prohibition on States to prosecute international crimes via
universal jurisdiction based on the above-described legal basis. Put differently, is the
Security Council limited by jus cogens norms?

Inevitably the issue touches upon discussions on the different theories of international
law and the international order generally, and most particularly the role to be granted to
the Security Council, the United Nations and its Charter.355 Following such debates, a
positive response to the question could be posed in the following manner: if the

349 Article 39 reads: “The Security Council shall determine the existence of any threat to the peace, breach of the peace,
or act of aggression and shall make recommendations, or decide what measures shall be taken in accordance with
Articles 41 and 42, to maintain or restore international peace and security”.
350 Article 41 reads: “The Security Council may decide what measures not involving the use of armed force are to be

employed to give effect to its decisions, and it may call upon the Members of the United Nations to apply such
measures. These may include complete or partial interruption of economic relations and of rail, sea, air, postal,
telegraphic, radio, and other means of communication, and the severance of diplomatic relations”.
351 Article 25, see supra note 268.
352 Article 103, see supra note 269.
353 See Chapter One, above.
354 See, particularly, Bassiouni, supra note 105.
355 Woods proposes three views on theories of international law: constitutionalization, global administrative law, and

an international rule of law approach. Cf. Wood, M. The Security Council and the ‘Constitutionalization’ of International Law,
Speech at the University of Leeds, 14 March 2007.

62
 Gabriel ChavezTafur
Geneva Academy of International Humanitarian Law and Human Rights

international community of States is comparable to domestic societies, then the United

Nations Organization, which in effect unites all States, may be assumed to be the world’s
Government. The UN Charter, as the analogy goes, would then be the world’s
Constitution, that is, the ‘supreme law of the land’,356 and the Security Council its
executive body. Following the provisions found in Chapter VII and Article 103 of the
‘constitution’, then indeed it could be argued the Security Council would always have the
last word, even when the decision went against jus cogens norms, for the sake of and in all
matters concerning international peace and security.357 Needless to say, the prosecution
of international crimes would and has already been made a part of such matters in
numerous occasions.358

Further, there is nothing in the Charter to suggest that the Security Council could not, in
case of a threat to the peace, take action inconsistent with international law. As Bryan
MacPherson explains,

[Although] the argument that the Security Council must act consistently with jus cogens
norms finds some support in the Vienna Convention which provides that treaties
violating jus cogens norms are void[,] the Charter, however, is not like other treaties, and a
strong argument can be made that this provision does not apply to it.359

The above contention, however, has been criticized from at least two angles. First, the
analogy comparing the international order with the internal structure of a State would
itself be flawed, as the Charter, other than providing certain principles of international
law, is rather a constituent instrument of an international organization, to which all States
agreed to join, than a collection of core norms regulating the international community of
nations. The Security Council, executive as it may be for certain areas of international
relations, lacks any democratic legitimacy, doesn’t necessarily follow “rule of law”
principles nor is subject to any judicial review, hardly falling under the well-accepted
domestic principle of separation of powers.

Secondly, and concerning the specific question of jus cogens norms, the issue has not been
tackled directly by any of the authoritative voices of international law, such as the

356 As is mentioned in the US Constitution. See supra note 210.

357 One of the limitations imposed upon the Security Council is that it has to act in accordance with the Purposes and
Principles of the United Nations. (Cf. Article 24(2) of the UN Charter: “In discharging these duties [that is to say, the
Council’s duties under its primary responsibility for the maintenance of international peace and security] the Security
Council shall act in accordance with the Purposes and Principles of the United Nations”).
358 Most particularly, of course, when creating the ad hoc tribunals.
359 Macpherson, B. ‘Authority of the Security Council to exempt peacekeepers from ICC proceedings’, American Journal

of International Law, ASIL Insights, July 2002.

63
Fighting Impunity: Positive Conflicts of Jurisdiction and the Principle of Universality

International Court of Justice or the International Law Commission. However, Judge ad

hoc Elihu Lauterpacht, in his Separate Opinion at the Provisional Measures stage of the
Genocide case, did state that:

The concept of jus cogens operates as a concept superior to both customary international
law and treaty. The relief which Article 103 of the Charter may give the Security Council
in case of conflict between one of its decisions and an operative treaty obligation cannot
– as a simple hierarchy of norms – extend to a conflict between a Security Council
resolution and jus cogens.360

Similarly, the EC Court of First Instance in the Kadi case said that

international law… permits the inference that there exists one limit to the principle that
resolutions of the Security Council have binding effect: namely, that they must observe
the fundamental peremptory provisions of jus cogens. If they fail to do so, however
improbable as that may be, they would bind neither the Member States of the United
Nations nor, in consequence, the Community.361

Both examples led Professor Wood to conclude that “it does indeed seem to be assumed
by some to be beyond discussion that obligations under the Charter cannot prevail over
jus cogens obligations, and that therefore Article 103 has to be read as implicitly subject to
this exception.”362 Such conclusion was shared by some, but not all, of the members of
the Group of Experts, chaired by Mr. Darryl Robinson.363

In sum, it would seem still highly debatable, and a theoretical question for now, whether
international crimes, as jus cogens norms, would indeed entail the obligation on all States to
prosecute and, consequently, also override a Security Council resolution explicitly
requiring to the contrary. At any rate, it remains unlikely, given the already numerous
difficulties, legal and otherwise, attached to the regular exercise of universal jurisdiction,
that a State would openly disregard a Security Council resolution expressly demanding a
halt to proceedings in the name of international peace and security.

360 Lauterpacht, E. Separate Opinion, Application of the Convention on the Prevention and Punishment of the Crime of Genocide
(Bosnia and Herzegovina v. Serbia and Montenegro). Available at: http://www.icj-cij.org/docket/files/91/7323.pdf
(last visited on 17 January 2009).
361 Kadi v Council and Commission, Judgment, EC Court of First Instance, 21 September 2005, Case T-315/01. Cited in

Wood, supra note 355.

362 Wood, M. supra note 355.
363 “[Some] members noted that the Security Council does not have the power to order Member States directly not to

investigate or prosecute genocide, crimes against humanity or war crimes, crimes which violate jus cogens prohibitions
over which States have erga omnes obligations to repress”. In Informal Expert Paper: the Principle of Complementarity in
Practice, supra note 291.

64
 Gabriel ChavezTafur
Geneva Academy of International Humanitarian Law and Human Rights

Concluding remarks
As it should have become clear throughout the Chapter, the establishment of an
international criminal court has, in many ways, reinforced – rather than diminish – the
role of the State as supreme international entity, providing it with an a priori priority of
jurisdiction for the core international crimes. This would extend, albeit some examples of
prosecutorial discretion, even to States with no direct link to the acts committed, but able
and willing to prosecute under universal jurisdiction. In terms of positive conflicts of
jurisdiction, it would seem these States would, more often than not, have the upper hand
when it comes to fighting impunity. Given the limitations inherent to the Court’s
operations, the clear restrictions imposed on its possibility to take action, and the
difficulties faced by victims of heinous crimes to obtain justice in their home courts, it
can only be concluded it should be such States who, in the interests of justice and the
fight against impunity, should take such role seriously and exercise it fully.

65
Fighting Impunity: Positive Conflicts of Jurisdiction and the Principle of Universality

CONCLUSIONS

This paper has attempted to discuss two main issues: the exercise of universal jurisdiction
for the purpose of prosecuting international crimes, and the resolution of positive
conflicts of jurisdiction, arising between two or more States, and between a State and the
International Criminal Court. From such analysis, the following may be concluded:

It should hopefully have become clear that, while consensus would be easily found
around the need to prosecute and punish the commission of the most heinous crimes,
two competing rationales continue to divide the efforts of both States and scholars.
While on one hand emphasis is continuously placed on the promotion and defence of an
‘international community’ as an actor in itself, identifying it as both the primal victim of
the international crimes and also the main responsible – through its representatives, i.e.
States – for their punishment; on the other the primary role is still given to individual
States, their particular interests and, above all, the necessity to obtain their consent
previous to any extra-territorial proceedings or action. This would apply not only to the
definition and application of universal jurisdiction, but also to the different solutions
developed to tackle positive conflicts of jurisdiction between States or a State and the
ICC. Although it is certain States will maintain a degree of control over the development
of international law in this regard, the continuous appearance and strengthening of more
and more influential non-State actors will inevitably continue to push forward the notion
of a common humanity. This should be encouraged and promoted.

In this sense, this paper should also have raised relevant questions regarding the current
challenges and difficulties inherent to the fight against impunity, and particularly when
performed by resorting to the exercise of universal jurisdiction. Although the two
rationales just mentioned both find distinct legal bases in international law, at the end of
the day it should be borne in mind that it will always depend on States and their will to
take action to make a difference. As seen, regarding many of the issues raised no clear
international rule or practice exists. For such reasons, discussion and open debate on
these matters is still much needed. Hopefully this shall lead to the establishment of well-
defined, predictable rules on the exercise of universal jurisdiction and the resolution of
potential conflicts each time more than one State, or a State and the ICC, is capable of
taking action, thus effectively improving the chances of more criminals facing justice
without jeopardising international relations.

66
 Gabriel ChavezTafur
Geneva Academy of International Humanitarian Law and Human Rights

67
Fighting Impunity: Positive Conflicts of Jurisdiction and the Principle of Universality

BIBLIOGRAPHY

Books
• Bantekas, I., and Nash, S., International Criminal Law. (2003) Routledge Cavendish.
• Bassiouni, C., Crimes Against Humanity in International Criminal Law, (1999) Kluwer
Law International, pp. 237-240.
• Bassiouni, C., International Criminal Law: A Draft International Criminal Code, (1980)
Brill Archive.
• Bassiouni, C., The Sources and Content of International Criminal Law: A Theoretical
Framework (1999), Vol. 1.
• Beigbeder, Y., International Justice Against Impunity: Progress and New Challenges,
(2005) Martinus Nijhoff Publishers.
• Broomhall, B., International Justice and the International Criminal Court: Between
Sovereignty and the Rule of Law. (2003) Oxford University Press.
• Brownlie, I., Principles of Public International Law, 5th Edition (1998) Oxford
University Press.
• Cassese, A., International Criminal Law, 2nd Edition (March 2008) Oxford
University Press, Chapter 14.
• de Vattel, E., Le droit des Gens, (1758), Chapter XIX, paras. 232-33.
• Franck, T., Fairness in the International Legal and Institutional System, (1993) The
Hague: Academy for International Law.
• Grotius, H., De Jure Belli et Pacis, (1625). Chapter XX, § XL
• Henckaerts, J. and Doswald-Beck, L., Customary International Humanitarian Law,
(2005) Cambridge University Press.
• Henzelin, M., Le Principe De L'universalite En Droit Penal International. Droit Et
Obligation Pour Les Etats De Poursuivre Et Juger Selon Le Principe De L'universalite
(2001) Helbing & Lichtenhahn.
• Inazumi, M., Universal Jurisdiction in Modern International Law: Expansion of National
Jurisdiction for Prosecuting Serious Crimes under International Law, (2005) Utrecht:
Intersentia.
• Jennings and Watts, (eds.) Oppenheim’s International Law, Vol. 1, Peace (9th ed.
2008), Oxford University Press.
• Lee, R., (ed.) The International Criminal Court, (1999) Kluwer Law International.

68
 Gabriel ChavezTafur
Geneva Academy of International Humanitarian Law and Human Rights

• Pictet, J., Commentary, IV Geneva Convention Relative to the Protection of Civilian Person
in Time of War of August 12, 1949, available at
http://www.icrc.org/ihl.nsf/COM/380-600055?OpenDocument , accessed 18
November 2008.
• Triffterer, O., (ed.), Commentary on the Rome Statute of the International Criminal Court,
(1999) Aufl. – Baden-Baden: Nomos Verl.
• Uceda, R., Muerte en el Pentagonito (2004) Lima, Editorial Planeta.
• Zouche, R., Iuris et Iudicii Fecialis, sive, iuris inter gentes, et Quaestionum de Eodem
Explicatio, 1650. Reprinted in The Classics of International Law, (1911).

Papers

• Abi-Saab, G. The Proper Role of Universal Jurisdiction, (2003) 1 Journal of

International Criminal Justice.
• Arbour, L., ‘Will the ICC have an impact on Universal Jurisdiction?’ (2003) 1
Journal of International Criminal Justice.
• Ascensio, H., ‘Are Spanish Courts Backing Down on Universality? The Supreme
Tribunal’s Decision on Guatemalan Generals’ (2003) 1 Journal of International
Criminal Justice.
• Ascensio, H., ‘The Spanish Constitutional Decision in Guatemalan Generals’ (2006)
4 Journal of International Criminal Justice.
• Bassiouni, C. ‘International Crimes: “Jus Cogens” and “Obligatio Erga Omnes’,
(Autumn 1996) 59, 4 Law and Contemporary Problems.
• Brierly, J., ‘Règles générales du droit de la paix’, 58 Hague Recueil (1936, IV),
146-8, 183-4.
• Broomhall, B., ‘Towards the Development of an Effective System of Universal
Jurisdiction for Crimes Under International Law’ (2001) 35, 2 New England Law
Review.
• Cassese, A., ‘Is the Bell Tolling for Universality? A Plea for a Sensible Notion of
Universal Jurisdiction’. (2003) 1 Journal of International Criminal Justice, 589-
595.
• ChavezTafur, G. 'Using International Law to By-pass Domestic Legal Hurdles:
Applicability of the Statute of Limitations in the Menéndez Case' (December
2008) 6, 4 Journal of International Criminal Justice.

69
Fighting Impunity: Positive Conflicts of Jurisdiction and the Principle of Universality

• Delmas-Marty, M., ‘Interactions between National and International Criminal

Law in the Preliminary Phase of Trial at the ICC’ (2006) 4 Journal of
International Criminal Justice, 2-11.
• Feller, S., ‘Jurisdiction over Offenses with a Foreign Element’, in A Treatise on
International Criminal Law, Vol. II. (1994) Charles C. Thomas.
• Fletcher, G., ‘Against Universal Jurisdiction’ (December 2003) 1 Journal of
International Criminal Justice, 580 - 584.
• Gaeta, P. ‘Les règles internationals sur les critères de compétence des juges
nationaux’, in Cassese, Delmas-Marty (Eds.) Crimes internationaux et juridictions
internationales, (2002) Presse Universitaires de France.
• Gattini, A., ‘War crimes and State immunity in the Ferrini decision’, (2005) 3
Journal of International Criminal Justice, 224-242.
• Kellet, M., ‘Extradition – the concept of the political offence’, (March 1986) 8, 1
Liverpool Law Review.
• Kirgis, F., ‘Request for Extradition of Miguel Cavallo from Mexico to Spain for
Alleged Torture in Argentina’ (2000) American Society of International Law,
Insights. Available online at http://www.asil.org/insigh49.cfm (last visited on 8
January 2009).
• Kleffner, J., ‘The impact of complementarity on National Implementation of
Substantive Criminal Law’ (2003) 1 Journal of International Criminal Law.
• La Rosa, A., ‘Sanctions as a means of obtaining greater respect for humanitarian
law: a review of their effectiveness.’ (2008) 90, 870 International Review of the
Red Cross, pp. 221-248.
• Levitt, N., ‘Nuremberg At 60: How the United States is Turning Away from its
Proud History’ (February 21, 2006), available at
http://www.globalpolicy.org/intljustice/general/2006/0221history.htm (last
visited on 10 January 2009).
• MacPherson, B., ‘Authority of the Security Council to exempt peacekeepers from
ICC proceedings’, (2002) American Journal of International Law, ASIL Insights.
• Marty, ‘Harmonizing International and National jurisdictions’, (2006) 4 Journal of
International Criminal Justice 2-11.
• Newmark, R., ‘Non-Refoulement Run Afoul: The Questionable Legality of
Extraterritorial Repatriation Programs’ 71 Wash.U.L.Q.833, 845.

70
 Gabriel ChavezTafur
Geneva Academy of International Humanitarian Law and Human Rights

• Orentlicher, D., ‘Settling Accounts: The Duty to Prosecute Human Rights

Violations of a Prior Regime’ 100 The Yale Law Journal 8.
• Reydams, L., ‘Niyonteze V. Public Prosecutor. Swiss Military Trial Of Former
Rwanda Town Mayor Accused Of War Crimes For Inciting Murder Of Civilians
In Rwanda’, (2002) 96, 1 American Journal of International Law, 231-236
• Stahn, C., ‘Complementarity: A Tale of Two Notions’ (March 2008) 19, 1
Criminal Law Forum, 87-113.
• Wood, M., ‘The Security Council and the ‘Constitutionalization’ of International
Law’, Speech at the University of Leeds, 14 March 2007.

Reports

• Amnesty International, ‘Universal Jurisdiction: the Duty of States to Enact and

Implement Legislation’, Chapter Five (Crimes Against Humanity, The legal basis
for universal jurisdiction), (Report) AI Index: IOR 53/008/2001, Distr:
SC/CO/PG/PO.
• Commission on the Use of the Principle of Universal Jurisdiction by Some Non-
African States as Recommended by the Conference of Ministers of Justice /
Attorneys General, presented to the Executive Council on its Thirteenth
Ordinary Session, 24-28 June 2008. Ex.CL/411 (XIII). Available online at
http://www.africa-union.org
• Expert Consultation Process on Complementarity in Practice, set up in April
2003, by the Director of Common Services of the ICC, by suggestion of the
Court’s Office of the Prosecutor. The resulting “informal paper” may be
accessed at: http://www.icc-cpi.int/otp/complementarity.html&l=fr (last visited
on 9 January 2009).
• Human Rights Watch, ‘Universal Jurisdiction in Europe’ (Report) Human Rights
Watch, Volume 18, No. 5(D)
• Institute of International Law, Seventeenth Commission ‘Universal Criminal
Jurisdiction with regard to the crimes of genocide, crimes against humanity and
war crimes’, Krakow Session, 26 August 2005
• International Association of Penal Law, ‘Universal Jurisdiction, Global Report’
(Report), prepared by Isidoro Blanco and published in the Revue International de
Droit Pénal, Volume 79, 2008.

71
Fighting Impunity: Positive Conflicts of Jurisdiction and the Principle of Universality

• International Commission of Inquiry on Darfur to the United Nations Secretary-

General, Pursuant to Security Council Resolution 1564 of 18 September 2004,
Geneva, 25 January 2005, at §611. Available online at
http://www.un.org/News/dh/sudan/com_inq_darfur.pdf (last visited on 9
January 2009).
• International Council on Human Rights Policy (1999), Thinking ahead on
Universal Jurisdiction.
• Luis Moreno Ocampo, ICC Chief Prosecutor, ‘Darfur: ICC Prosecutor Eighth
Address to Security Council’, Available at: http://www.icc-
cpi.int/library/organs/otp/8thUNSCreportsenttoUN-ENG.pdf (last visited on 9
January 2009).
• New U.S./EU and U.S./UK Extradition Treaties (Oct., 2004) 98, 4 American
Journal of International Law, pp. 848-850
• UN Secretary General Report, “The rule of law and transitional justice in conflict
and post-conflict societies” S/2004/616.

Cases
• Eichmann v. Attorney General of Israel (1968), 36 ILR Supreme Court of Israel.
• Kadi v Council and Commission, (2005) Judgment of the EC Court of First Instance
of 21 September 2005, Case T-315/01.
• Lauterpacht, Elihu. Separate Opinion, Application of the Convention on the Prevention
and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and
Montenegro), ICJ, available at: http://www.icj-cij.org/docket/files/91/7323.pdf
• R. v. Bow Street Metropolitan Stipendiary Magistrate and Others, ex parte Pinochet
Ugarte (No. 3), 2 All E.R. 97 (H.L. 1999).
• Soering v. United Kingdom, (Series A, No 161; Application No 14038/88),
European Court Of Human Rights, 11 EHRR 439, 7 July 1989.
• The Case Concerning Military and Paramilitary Activities in and against Nicaragua
(Nicaragua v. United States) 1986, ICJ, available at http://www.icj-
cij.org/docket/files/70/6503.pdf accessed 19 October 2007.
• The Case Concerning the Arrest Warrant of 11 April 2000 (Belgium v. Congo) 2002,
ICJ, available at http://www.icj-cij.un.org, accessed on 15 November 2008.
• The Case for the Application of the Convention on the Prevention and Punishment of the
Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), ICJ case

72
 Gabriel ChavezTafur
Geneva Academy of International Humanitarian Law and Human Rights

91, The Hague, 26 February 2007. Available at http://www.icj-

cij.org/docket/files/91/13685.pdf
• The Case for the Application of the Convention on the Prevention and Punishment of the
Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), Preliminary
objections, ICJ, para. 31, 11 July 1996. Available at http://www.icj-
cij.org/docket/files/91/7349.pdf (last visited on 9 January 2009).
• The Case of Barcelona Traction, Light and Power Co. Ltd. (Belgium v. Spain), ICJ, 5
February 1970, 3.
• The Case of the Guatemalan Generals, Constitutional Tribunal, judgment of 26
September 2005, STC 237/2005, available at:
http://www.tribunalconstitucional.es
• The Case of the Guatemalan Generals, Audiencia Nacional, Second ground of the
decision of 13 December 2000
• The Case of the Legal Status of Eastern Greenland, PCIJ Judgment, PCIJ Series A-B,
1933.
• The Case of the SS. Lotus (France v. Turkey), PCIJ Judgment of 7 September 1927,
PCIJ Rep., Series A, No. 10, pp.18-19
• The Fisheries Jurisdiction Case (FR Germany v. Iceland), ICJ Reports (1974), 3.
• The Nottebohm Case (Liechtenstein v. Guatemala), Second Phase, (1955).

Legislation, guiding principles

• Agreement for the Prosecution and Punishment of the Major War Criminals of
the European Axis, and Charter of the International Military Tribunal. London, 8
August 1945. Available at
http://www.icrc.org/ihl.nsf/FULL/350?OpenDocument (last visited on 9
January 2009).
• Agreement for the Surrender of Fugitive Offenders between Hong Kong and the
United States, (July 1997) reprinted on 36, 4 International Legal Materials.
• Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment
or Punishment, UNGA Res 39/46, UN Doc A/39/51 (1984)
• Convention on Prevention and Punishment of the Crime of Genocide (9
December 1948) 78 UNTS 277
• Criminal Code of 1867 (Code Penal), Articles 136 bis – 136 octies, available
online at http://www.juridat.be

73
Fighting Impunity: Positive Conflicts of Jurisdiction and the Principle of Universality

• European Convention on Extradition, CETS No. 024, entered into force on 18

April 1960, Article 17.
• Extradition Treaty Between The United States Of America And The Republic Of
Peru, Signed At Lima On July 26, 2001. Article XI on Concurrent Requests.
Source: http://www.oas.org/juridico/mla/en/traites/en_traites-ext-usa-per.pdf
(last visited on 9 January 2009).
• Geneva Convention for the Amelioration of the Condition of the Wounded and
Sick in Armed Forces in the Field (12 August 1949) 75 UNTS 31; Geneva
Convention for the Amelioration of the Condition of the Wounded, Sick, and
Shipwrecked Members of the Armed Forces at Sea (12 August 1949) 75 UNTS
85; Geneva Convention Relative to the Treatment of Prisoners of War (12
August 1949) 75 UNTS 135; Geneva Convention Relative to the Protection of
Civilian Persons in Time of War (12 August 1949) 75 UNTS 287.
• German Code of Criminal Procedure, Article 153f (2)(4)
• ICC Statute.
• ICTR Statute.
• ICTY Statute.
• International Convention for the Suppression of the Financing of Terrorism,
Adopted by the General Assembly of the United Nations in resolution 54/109 of
9 December 1999, 39 I.L.M. 270 (2000). Available at
http://untreaty.un.org/english/Terrorism/Conv12.pdf, last visited on 9 January
2009).
• International Convention on the Suppression and Punishment of the Crime of
Apartheid, adopted and opened for signature, ratification by General Assembly
resolution 3068 (XXVIII) of 30 November 1973, entry into force on 18 July
1976, in accordance with article XV. 1015 UNTS 244 (1973).
• International Covenant on Civil and Political Rights (available at
http://www.unhchr.ch/html/menu3/b/a_ccpr.htm)
• International Criminal Court Act 2001, United Kingdom, available at the Office
of Public Sector Information,
http://www.opsi.gov.uk/acts/acts2001/ukpga_20010017_en_1 (last visited on 9
January 2009).
• Loi relative aux violations graves du droit international humanitaire, 5 August
2003, Moniteur Belge (Law Gazzette), No. 286, 7 August 2003.

74
 Gabriel ChavezTafur
Geneva Academy of International Humanitarian Law and Human Rights

• Princeton University Program in Law and Public Affairs, The Princeton

Principles on Universal Jurisdiction (2001). Available at
http://www.1.umn.edu/humanrts/instree/princeton.html (last visited on 12
November 2008).
• Restatement of the Law, Third, Foreign Relations Law of the United States, The
American Law Institute Publishers, 1987
• Second Protocol (1999) to the Convention for the Protection of Cultural
Property in the Event of Armed Conflict (signed at the Hague, 14 May 1954.
Entered in force: 7 August 1956).
• UN Charter. Available at
http://www.un.org/aboutun/charter/pdf/uncharter.pdf (last visited on 8
January 2009).
• United Nations Model Treaty on Extradition, GA A/RES/52/88, 70th Plenary
meeting, 12th December 1997
• US Constitution, available at http://www.findlaw.com/casecode/constitution/
• Vienna Convention on the Law of Treaties of 1969, available at
http://untreaty.un.org/ilc/texts/instruments/english/conventions/1_1_1969.pd
f ) Last visited on 8 January 2009.

Internet websites
• Africa News, “Tanzania; Sudan Lauds Dar's Stand On ICC Move”, Africa News,
20 July 2008 (Available at: http://allafrica.com/stories/200807210101.html)
• All Africa, “Eritrea: Statement of the Foreign Ministry”, All Africa, 22 Jul 2008,
(available at: http://allafrica.com/stories/200807221172.html)
• Associated Press, "Sudan: ICC case could provoke violence," Associated Press,
13 July 2008, (Available at:
http://ap.google.com/article/ALeqM5inqUzmH0M_JwO_wre74Z0-3h3-
2gD91T27080)
• El País, ‘Chávez rompe relaciones con Colombia y envía el Ejército a la frontera’,
3 March 2008. Source:
http://www.elpais.com/articulo/internacional/Chavez/rompe/relaciones/Colo
mbia/envia/Ejercito/frontera/elpepiint/20080303elpepiint_8/Tes (last visited
on 9 January 2009).

75
Fighting Impunity: Positive Conflicts of Jurisdiction and the Principle of Universality

• El País, ‘Uribe intenta sentar a Chávez en el banquillo por apoyar a las FARC’, 5
March 2008,
http://www.elpais.com/articulo/internacional/Uribe/intenta/sentar/Chavez/ba
nquillo/apoyar/FARC/elpepiint/20080305elpepiint_1/Tes (last visited on 9
January 2009).
• ICC Press release, “ICC Prosecutor presents case against Sudanese President,
Hassan Ahmad AL BASHIR, for genocide, crimes against humanity and war
crimes in Darfur.”, press release available at http://www.icc-
cpi.int/press/pressreleases/406.html (last visited on 8 January 2009).
• ICC website: ‘The situation in Darfur, Sudan’, information available at:
http://www.icc-cpi.int/cases/Darfur.html (last visited on 9 January 2009).
• Moises Naím, El País. ‘Tanques, abogados y merengue’, 9 March 2008. Available
at http://www.elpais.es (last visited on 9 January 2009).
• Reuters, “AU seeks to block charges against Sudan leader”, Reuters, 21 July 2008
http://africa.reuters.com/wire/news/usnMCD148656.html)
• Reuters, “Sudan says Darfur aid workers at risk over ICC”, Reuters, 22 July 2008,
last visited on 10 December 2008
http://africa.reuters.com/wire/news/usnL221009408.html)
• Sudan Tribune, “Sudan calls on UNSC to void possible arrest warrant for Al-
Bashir”, Sudan Tribune, 25 August 2008, (Available at:
http://www.sudantribune.com/spip.php?article28386 )
• Sudan Tribune, “Sudan may file charges against militia leader indicted by ICC”,
Sudan Tribune, 12 August 2008,
http://www.sudantribune.com/spip.php?article28238, last visited on 12
November 2008)
• Sudanese Media Center, “Sudan's Delegation to UN General Assembly Works
Aggressively to Counter Ocampo's Allegations”, Sudanese Media Center, 23
September 2008, (available at:
http://english.smc.sd/enmain/entopic/?artID=14558)
• Yemen News Agency, “Yemen: Parliament announces solidarity with Sudan over
ICC decision”, Yemen News Agency, 19 July 2008 (Available at:
http://www.sabanews.net/en/news159351.htm)

76