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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: 77
July 19 , 2008

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How universal jurisdiction empowers national courts?

Barrister Harun ur Rashid

State exercises three different kinds of jurisdiction. Under the ambit of territorial jurisdiction, states exercise jurisdiction over all individuals including foreign citizens within the territory. They must abide by the law of the states within the territory.

Under extra-territorial jurisdiction, states exercise jurisdiction over their citizens in foreign states. For example, if a Bangladeshi citizen commits a murder in Britain, that individual may be tried in Bangladesh on the basis of extra-territorial jurisdiction. However ordinarily that individual will be put on trial in Britain under territorial jurisdiction.

Under universal jurisdiction, states can in certain circumstances exercise jurisdiction over acts committed by foreign nationals on a foreign territory. This jurisdiction is based on a principle in international law whereby states claim criminal jurisdiction over persons whose alleged crimes were committed outside the boundaries of the prosecuting state, regardless of nationality, country of residence, or any other relation with the prosecuting country.

In the past, universal jurisdiction was restricted to piracy, drug trafficking or hijacking of airplanes. But in recent years, it has extended its jurisdiction on crimes against humanity and genocide.

There is a joke in the corridors of the UN that if a man who kills another goes to prison, the man who kills 20 goes to insane asylum, but the man who kills 200,000 goes to Geneva for peace negotiations. The days of such immunity for mass murderer have gone and states have been alert to implement universal jurisdiction.

The state backs its claim on the grounds that the crime committed is considered a crime against all, which any state is authorized to punish, as it is too serious to tolerate for protection of human dignity.

The doctrine of universal jurisdiction allows national courts to try cases of the gravest crimes against humanity, even if these crimes are not committed in the national territory and even if they are committed by government leaders of other states.

According to Amnesty International, a proponent of universal jurisdiction, certain crimes pose so serious a threat to the international community as a whole, that states have a logical and moral duty to prosecute an individual responsible for it; no place should be a safe haven for those who have committed genocide, crimes against humanity, extrajudicial executions, war crimes, torture and forced disappearances.

The concept of universal jurisdiction is therefore closely linked to the idea that certain international norms are erga omnes, or owed to the entire world community, as well as the concept of jus cogens -- that certain international law obligations are binding on all states and cannot be modified by treaty.

The concept received a great deal of prominence with the case of late Chilean dictator President Augusto Pinochet in the late 1990s. Brought by a magistrate in Spain and involving an extradition request to the United Kingdom, former President was arrested in England. However this case never came to trial for medical reasons, but it had a very broad legal impact.

Before Pinochet's case, the implementation of humanitarian law was more a proposition than one which governments were willing to act on.

As a result of the precedents of the Pinochet case, other leaders who have committed well-documented crimes have been pursued, including former US Secretary of State Henry Kissinger and Prime Minister Ariel Sharon of Israel.

Kissinger has restricted his international travel, because he is wanted in so many jurisdictions either for trial or as a prosecution witness. Curtailing Kissinger's ability to move freely represents a victory for universal jurisdiction.

In recent years, the Libyan leader had to surrender two intelligence officers for trial over the Lockerbie bombing under Scottish law on an American airbase in the Netherlands. Later one was convicted and now spends his prison sentence in Scotland.

Opponents, such as Henry Kissinger, argue that universal jurisdiction is a breach on each state's sovereignty: all states being equal in sovereignty, as affirmed by the United Nations Charter. According to Kissinger, as a practical matter, since any number of states could set up such universal jurisdiction tribunals, the process could quickly degenerate into legal chaos.

Universal jurisdiction and international tribunals
Universal jurisdiction asserted by a state must also be distinguished from the jurisdiction of an international tribunal, such as the International Criminal Court, established in 2002 (the US is not signatory to the treaty), the International Criminal Tribunal for Rwanda (1994) and International Criminal Tribunal for the Former Yugoslavia (1993), or the Nuremberg Trials (1945-49).

The Generals and Prime ministers were on trial for crimes committed in Bosnia, Rwanda and In these cases criminal jurisdiction is exercised by an international organization, not by a state. The legal jurisdiction of an international tribunal is dependent on powers granted to it by the states which established it

The creation of the International Criminal Court (ICC) in 2002 by the UN reduced the perceived need to create universal jurisdiction laws, although the ICC is not entitled to judge crimes committed before 2002.

Universal jurisdiction and domestic legislation:
Enforcing international humanitarian law remains essentially the province of governments. Universal jurisdiction can be exercised by states if there are corresponding laws in the states in conformity with international treaties and conventions.

Therefore to invoke universal jurisdiction, parliament has to enact laws giving jurisdiction over foreigners committed international crimes in foreign territories. Universal jurisdiction cannot be exercised without domestic laws in place. Therefore universal jurisdiction certainly influences domestic laws.

Belgium currently has the broadest universal jurisdiction laws and cases and the authorities there are testing new possibilities for the doctrine.

One negative aspect of states' behavior is the fact that governments ratified conventions and protocols but they have not enacted legislation to implement universal jurisdiction.

Former Bangladesh Ambassador to the UN, Geneva.


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