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“All Citizens are Equal before Law and are Entitled to Equal Protection of Law”-Article 27 of the Constitution of the People’s Republic of Bangladesh

Issue No: 175
January 30, 2005

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Law opinion

Universal jurisdiction under international law

Barrister Harun ur Rashid

The application of universal jurisdiction of a crime under international law has come again into full play when an Afghan citizen, Faryadi Sarwar Zardad, known as "Commander Zardad" now living temporarily in Britain, has been charged in a British Court. The charges against him include conspiracy to torture perpetrated in Afghanistan between 1992 and 1996. This is the first time that an alleged torturer has been prosecuted in one jurisdiction (Britain) for offences said to have carried out in another (Asfghanistan).

Ordinarily, a state exercises criminal jurisdiction over persons in two cases:
(a) Over crimes committed in its territory (known as territorial jurisdiction) or
(b) Over crimes overseas if the person happens to be its citizen (known as national jurisdiction).
This implies that if a crime is committed in Britain by a person or if a crime is committed abroad by a British citizen, the alleged offender will be liable to be charged in Britain. So also is in the case of Bangladesh. If a crime is committed in Bangladesh by a person including a foreigner or if a Bangladeshi citizen commits a crime abroad, Bangladesh has the right to prosecute the alleged offender under Bangladesh Criminal Code.

Universal jurisdiction and globalisation of crimes
In the case cited above in Britain, it is noted that the alleged crime of torture has not been committed in Britain ( It took place in Afghanistan) nor is the person a British citizen
( the alleged offender is an Afghan citizen, temporarily living in Britain), yet he has to face the British Court for his alleged commission of conspiracy to torture because it is a crime of universal jurisdiction

It means that under universal jurisdiction, a state may exercise its power to prosecute an alleged offender, irrespective of the fact whether or not the universal crime has occurred or not in its territory. It is a jurisdiction, often called globalisation of crimes.

Torture has been categorized as one of the crimes of universal jurisdiction under the 1984 UN Convention on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment ( came into effect in 1987). Under Article 5 of the Convention, torture has been listed as a crime of universal jurisdiction. This implies that each state- party shall take measures, as may be necessary, to establish its jurisdiction over such offences in cases where the alleged offender is present in the territory under its jurisdiction.

Britain ratified the 1984 UN Convention on Torture in 1988 and thereafter passed an enabling law to enforce the provisions of the Convention. Therefore any offender who allegedly committed torture in Britain or elsewhere after Britain ratified and enacted the law will be accountable to his crimes. Under British law, any prosecution for alleged crime of torture committed abroad requires authorization from the Attorney General.

The 1998 Pinochet case
This is not for the first time that Britain has exercised its powers under universal jurisdiction. In 1998, former President of Chile, General Augusto Pinochet came to Britain for medical treatment. He thought he was safe in Britain, but little did he realise that he could be arrested for his past-alleged crimes of torture.

In October 1998, Spain (Spanish judge Baltasar Garzon issued the order of extradition) asked for Pinochet's extradition to Spain to face for alleged crime of torture on Spanish citizens in Chile during his 17- year iron fist rule from 1973-1990. Pinochet was arrested in Britain under orders of the Home Secretary (Home Minister).

There was a legal challenge before the British Court by Pinochet claiming his immunity from prosecution. It legal proceedings went before the highest court in Britain, the House of Lords. Seven Law Lords, the largest bench, held that Pinochet was not immune from prosecution and therefore could be charged for torture that was committed after 1988. Later Pinochet was released in March, 2000, after 16-month detention, on medical grounds of unfitness to stand trial (he was then 84 years of age).

Human rights activists all around the world called Pinochet's arrest the most important case in international law since the Nuremberg trials of German Nazi leaders in 1946. The case has demonstrated that former heads of state are not safe abroad if they have committed crimes of universal jurisdiction.

Other crimes listed as universal jurisdiction
Other universal crimes include genocide, war crimes, crimes against humanity, crime against peace (unprovoked armed attack), piracy, slavery, illicit trafficking in drugs, hijacking, and taking of hostages.

In 1961, Adolf Eichmann, a German Nazi, who was accused of committing genocide innocent Jews in Germany and Poland, was kidnapped by Israel's secret agents from Argentina. Israel exercised its universal jurisdiction and put him to trial. Later he was convicted and sentenced to death. The issue of kidnapping of Eichmann from Argentina was considered a separate legal issue between Israel and Argentina as it grossly violated the territorial sovereignty of Argentina.

It is strongly argued in some quarters that if Dr. Henry Kissinger, the former US Secretary of State during the time of the Bangladesh War of Liberation in 1971, visits Bangladesh, he could be arrested for his alleged complicity in genocide and crimes against humanity by Pakistani army on the people of Bangladesh.

International vs state trial
Both international and universal crimes have global reach. This implies that each state party to the relevant international conventions or international legal tribunal is empowered to put on trial an alleged offender for commission of or complicity in crimes of universal jurisdiction. A trial may be held by an international tribunal, such as the International Criminal Court at the The Hague,( the Rome Treaty came into effect from July 2002) or a state can exercise its jurisdiction under universal jurisdiction.

The course of remedy is the same, that is no offender of universal crime should go unpunished, but the forums could be different. For example, former President of Yugoslavia, Milosevic is being tried since 2002 at the Ad-hoc International Criminal Tribunal at The Hague for his commission or complicity in genocide or crimes against humanity on Kosovo Muslim population. It is reported recently that the Cambodian Mixed Tribunal in Phnom Penh will put on trial persons who are accused of commission of genocide on innocent Cambodians during the Khemer Rouge rule (1975-78).

The universal jurisdiction of crimes is a deterrent for dictators not to commit universal crimes of genocide or torture. In future, the offenders will think more carefully about their travel plans abroad. Curtailing their ability to move freely represents a victory for the human rights movement.

Human rights law has always been an area of high ideals and incremental gains. It has taken almost 50 years (since the 1948 UN Universal Declaration of Human Rights) to arrest Pinochet or Milosevic for facing justice. The joke that " the man who kills another goes to prison, the man who kills 20 goes to an insane asylum but the man who kills tens of thousands of people goes to Geneva for peace negotiations" is not current any more. This is no small feat for protection of human rights.

The author is former Bangladesh Ambassador to the UN, Geneva.


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