What is the status of Universal Jurisdiction?
The potential of universal jurisdiction remains untapped, although a positive trend stands out.
This is what the 2024 edition of the Universal Jurisdiction Annual Report prepared by TRIAL International, in collaboration with Civitas Maxima, the Center for Justice and Accountability (CJA), the European Center for Constitutional and Human Rights (ECCHR), the International Federation for Human Rights (FIDH) and REDRESS shows.
It should be recalled that the report not only examines cases brought under the principle of universal jurisdiction, but also those based on the principles of active personality (a state has the power to investigate and, where appropriate, prosecute crimes committed by its nationals, when the crime was committed outside its territory) and passive personality (a state has the power to investigate and, where appropriate, prosecute crimes committed abroad against its nationals).
Furthermore, the report covers events that occurred during the year 2023 and does not claim to be exhaustive, as a large number of cases are subject to the confidentiality of criminal investigations, and only reports on cases where judges or prosecutors have initiated criminal investigations for international crimes, namely genocide, crimes against humanity, war crimes, torture and enforced disappearances.
Concerning cases brought under the principle of universal jurisdiction, it is evident that this is currently being exercised in only 11 countries in the world.
France is at the forefront. The French framework of universal jurisdiction is complex and depends on the crimes prosecuted. While for crimes of torture and enforced disappearance French courts have jurisdiction as soon as the suspect is on French territory at the time the complaint is lodged (Articles 689-1, 698-2 and 689-13 of the French Code of Criminal Procedure), for other crimes under the Rome Statute, the conditions are much more restrictive.
Despite this, the French judiciary has become a promoter of universal jurisdiction concerning crimes committed in the Democratic Republic of Congo (Roger Lumbala Tshitenga case), Rwanda in 1994 (Eugène Rwamucyo; Jean-Marie Vianney Nzapfakumunsi; Laurent Bucyibaruta; Madjaliwa Safari; Philippe Hategekimana (Philippe Manier); Pierre Kayondo); Sosthène Munyemana, Liberia in 1989 and 1996 (Saturday T case), and Syria between 2011 and 2013 (Abdulhamid Chaban case; Majdi Nema (alias Islam Alloush)).
In the case of France, three cases related to the responsibility of economic actors also stand out: the Nexa Technologies case, a French company that sold the Egyptian regime of al-Sisi the Cerebreo software, allegedly used to locate opponents and subsequently commit acts of torture and forced disappearances between 2014 and 2021; the Amesys case, a company that later changed its name to Nexa Technologies, accused of selling surveillance technologies to the Libyan government that the Gaddafi regime (1969-2011) used to repress dissent and commit serious human rights violations; and the Lafarge case, a French cement company that in Syria allegedly entered into negotiations with ISIS to buy oil and pozzolana (a material used to make concrete) from them, as well as to obtain official ISIS passes to cross checkpoints to maintain its production in the area. On 16 January 2024, the Supreme Court made its final decision and upheld the indictment of the Lafarge company for complicity in crimes against humanity.
The United Kingdom follows in second place. The criminal law of England and Wales expressly provides for universal jurisdiction over crimes of torture and grave breaches of the Geneva Conventions, allowing national authorities to investigate and prosecute these crimes under certain conditions when committed abroad by foreign nationals. Also, a very restricted form of universal jurisdiction over three of the crimes of the Rome Statute of the International Criminal Court, war crimes, crimes against humanity and genocide is prescribed under the International Criminal Court Act 2001 (ICCA).
The cases dealt with by the English justice system concern crimes committed in Afghanistan, Angola, Eritrea, Iran, Iraq, Liberia, Libya, Sierra Leone, Sri Lanka, Syria and The Gambia.
In Germany, where, since 2002, German prosecutors have been able to exercise universal jurisdiction under the Code of Crimes against International Law (Völkerstrafgesetzbuch). Investigations and prosecutions can be initiated for genocide (§ 6 VStGB), crimes against humanity (§ 7 VStGB) and war crimes (§§ 8-12 VStGB), and trials deal with crimes committed in Syria, Iraq, and Gambia.
In June 2023, Switzerland announced its first conviction for crimes against humanity. The case concerned Liberian citizen Alieu Kosiah, a former commander of the rebel militia ULIMO (United Liberation Movement of Liberia for Democracy), who lived in Switzerland. He was convicted of killing and executing civilians during the armed conflict in Liberia between 1993 and 1995.
Currently, according to the Swiss criminal code, the authorities have universal jurisdiction to prosecute the crimes of genocide, crimes against humanity, war crimes and enforced disappearance (as an autonomous offence), when committed abroad by a foreigner against foreign nationals, as established by the Swiss criminal code.
Universal jurisdiction has been exercised in cases involving acts committed in Algeria between 1992 and 1994, Belarus in 1999, Liberia between 1993 and 1995, Syria, and Gambia between 2000 and 2016.
In Belgium, which, like Spain, ended up limiting the exercise of so-called pure universal jurisdiction, this principle has been activated in relation to crimes committed in Iraq in 2009-2010, Rwanda in 1994, and Syria.
Other investigations have been triggered under the principle of universal jurisdiction in the Netherlands for crimes committed in Ethiopia and Syria, in Sweden for acts committed in Iran, and in Finland for acts committed in Sierra Leone.
Notably, Argentina is leading the exercise of universal jurisdiction outside Europe in the Colombia, Nicaragua, Venezuela and Mohammed bin Salman cases.
In June 2023, the Clooney Foundation for Justice filed a suit under universal jurisdiction before the Argentinean federal courts on behalf of the relatives of two victims of indiscriminate violence and indiscriminate killings in Venezuela in 2014.
In November 2023, victims of crimes against humanity committed in Colombia filed a complaint in Argentina under the principle of Universal Jurisdiction against former President Álvaro Uribe Vélez concerning the so-called “false positives”. Between 2002 and 2008, state agents, in particular members of the national army, executed and enforced the disappearance of at least 6,402 civilians and other persons protected by international humanitarian law. The victims were mostly young men of modest origin, lured with promises of work and executed by soldiers. They were subsequently dressed in guerrilla costumes and/or had weapons in their hands and were illegitimately presented as guerrilla fighters killed during the fighting. These crimes were committed to increase statistics and create the impression that the army was winning the war.
Also in November 2023, Argentina’s national prosecutor’s office formally requested the statements of Daniel Ortega and Rosario Murillo, president and vice-president of Nicaragua accused of crimes against humanity committed in the crackdown following the mass protests of April 2018.
The investigation also remains open against Saudi Prince Mohamed Bin Salman for his role in war crimes allegedly committed by the Saudi-led coalition in Yemen, as well as in acts of torture and ill-treatment of Saudi nationals and the murder of Khashoggi.
To these must be added the case against San Suu Kyi and other genocide and crimes against humanity committed in Myanmar against the Rohingya people since 2017 and the so-called Argentinean lawsuit against Rodolfo Martín Villa for crimes against humanity, including acts of torture, allegedly committed in Spain between July 1936 and June 1977.
It is recalled that Argentine law enshrines the principle of “pure” universal jurisdiction, included in Article 118 of the Constitution, which allows for trials for crimes under public international law committed outside Argentina. Furthermore, Article 5 of Law 26, 200/06 expressly grants federal courts criminal jurisdiction over crimes mentioned in the Rome Statute of the ICC, among others.
Apart from the Southern Cone country, only the United States appears to have exercised universal jurisdiction in the case of Michael Sang Correa, allegedly a former member of the Junglers death squad who answered directly to then Gambian President Jammeh between 1994 and 2016.
The US anti-torture law allows the US government to prosecute anyone in the United States, regardless of nationality, for torture committed outside the country.
As established in October 2023 by the Colorado District Court, the torture trial against Correa will take place as of 16 September 2024.
Alessia Schiavon, Director of FIBGAR
