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333 Seventh Avenue, 13 th Floor New York, New York 10001-5004 USA Telephone (212) 845 5200 Facsimile (212) 845 5299 E-mail: [email protected] http://www.lchr.org Washington, D.C. Office: 100 Maryland Avenue, N.E. Suite 500 Washington D.C. 20002-5625 Telephone (202) 547 5692 Facsimile (202) 543 5999 E-mail: [email protected] Board of Directors Chair, William D. Zabel President, Tom A. Bernstein Chair Emeritus, Marvin E. Frankel M. Bernard Aidinoff Joseph L. Brand Raymond Brown Lynda Clarizio Craig Cogut Daniel Doctoroff Mitchell F. Dolin Donald Francis Donovan A. Whitney Ellsworth Kenneth R. Feinberg R. Scott Greathead Martina A. Hone Robert D. Joffe Lewis B. Kaden Kerry Kennedy Cuomo Philip A. Lacovara Jo Backer Laird R. Todd Lang Li Lu Barbara A. Schatz Steven R. Shapiro George A. Vradenburg III Sigourney Weaver National Council Chair, Talbot D’ Alemberte Robert Bernstein Jeffrey L. Bleich Derek Bok David Brink James J. Brosnahan Benjamin Civiletti William K. Coblentz Lloyd Cutler Michael I. Davis Robert F. Drinan, S.J. Jerome B. Falk, Jr. Larry A. Hammond Mark Harrison Donald Hubert Helene Kaplan John W. Keker Paul Liebenson Samuel R. Miller Patrick G. Moran Steven A. Nissen Duane C. Quaini Bruce Rabb Randall S. Rapp Calvin P. Sawyier Chesterfield Smith W. Reece Smith Jerold S. Solovy Rose Styron Stephen D. Susman Michael W. Zavis Executive Director, Michael Posner Universal Jurisdiction: Meeting the Challenge through NGO Cooperation Report of a Conference Organized by the Lawyers Committee for Human Rights With the assistance of the Human Rights Program School for International and Public Affairs, Columbia University Wednesday 3 April – Friday 5 April 2002 New York City

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  • 333 Seventh Avenue, 13th Floor New York, New York 10001-5004 USA

    Telephone (212) 845 5200 Facsimile (212) 845 5299 E-mail: [email protected] http://www.lchr.org

    Washington, D.C. Office: 100 Maryland Avenue, N.E. Suite 500 Washington D.C. 20002-5625 Telephone (202) 547 5692 Facsimile (202) 543 5999 E-mail: [email protected]

    Board of Directors Chair, William D. Zabel President, Tom A. Bernstein Chair Emeritus, Marvin E. Frankel

    M. Bernard Aidinoff Joseph L. Brand Raymond Brown Lynda Clarizio Craig Cogut

    Daniel Doctoroff Mitchell F. Dolin Donald Francis Donovan A. Whitney Ellsworth Kenneth R. Feinberg

    R. Scott Greathead Martina A. Hone Robert D. Joffe Lewis B. Kaden Kerry Kennedy Cuomo

    Philip A. Lacovara Jo Backer Laird R. Todd Lang Li Lu Barbara A. Schatz

    Steven R. Shapiro George A. Vradenburg III Sigourney Weaver

    National Council Chair, Talbot D Alemberte

    Robert Bernstein Jeffrey L. Bleich Derek Bok David Brink James J. Brosnahan Benjamin Civiletti

    William K. Coblentz Lloyd Cutler Michael I. Davis Robert F. Drinan, S.J. Jerome B. Falk, Jr. Larry A. Hammond

    Mark Harrison Donald Hubert Helene Kaplan John W. Keker Paul Liebenson Samuel R. Miller

    Patrick G. Moran Steven A. Nissen Duane C. Quaini Bruce Rabb Randall S. Rapp Calvin P. Sawyier

    Chesterfield Smith W. Reece Smith Jerold S. Solovy Rose Styron Stephen D. Susman Michael W. Zavis

    Executive Director, Michael Posner

    Universal Jurisdiction: Meeting the Challenge through NGO Cooperation

    Report of a Conference Organized by the Lawyers Committee for Human Rights

    With the assistance of the Human Rights Program

    School for International and Public Affairs, Columbia University

    Wednesday 3 April Friday 5 April 2002

    New York City

  • Universal Jurisdiction: Meeting the Challenge through NGO Cooperation

    ii Lawyers Committee for Human Rights

    Table of Contents

    Part One: Introduction......................................................................................................... 1 Part Two: Summary of Issues ............................................................................................. 3 Part Three: Law Reform...................................................................................................... 5

    A. ICC implementation and other opportunities .............................................................. 5 1. Overview ............................................................................................................. 5 2. Specific Approaches............................................................................................ 6

    B. Universal jurisdiction filters ..................................................................................... 8 1. Presence requirement: ......................................................................................... 9 2. Political or other control.................................................................................... 11 3. Immunities......................................................................................................... 12 4. Hierarchy of jurisdiction ................................................................................... 14

    C. Further hurdles to the successful adoption of universal jurisdiction ......................... 16 Part Four: Casework.......................................................................................................... 17

    A. Standards and criteria in choosing cases ................................................................... 17 B. Specific obstacles to bringing cases and succeeding with cases ............................... 19 C. Corporations as defendants: northern big fish........................................................... 22

    Part Five: Public education ............................................................................................... 25 A. Information clearinghouses & website development efforts..................................... 25 B. Mechanisms and focus areas for public education .................................................... 26

    Part Six: Regional Group Discussions .............................................................................. 30 A. Africa Group: ............................................................................................................ 30 B. Asia Group:................................................................................................................ 31 C. Latin America Group:................................................................................................ 32 D. United States Group .................................................................................................. 36

    Part Seven: ConclusionIntensifying and harmonizing future work .............................. 39 ANNEX A: REFERENCE MATERIAL ..................................................................................... 41 ANNEX B: LIST OF PARTICIPANTS ...................................................................................... 43 ANNEX C: ARGENTINE CASE LAW ..................................................................................... 50

  • Universal Jurisdiction: Meeting the Challenge through NGO Cooperation

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    Universal jurisdiction: Meeting the Challenge through NGO Cooperation

    Report of a Conference Organized by the Lawyers Committee for Human Rights1

    With the assistance of the Human Rights Program School for International and Public Affairs, Columbia University2

    Part One: Introduction The meeting Universal Jurisdiction: Meeting the Challenge through NGO Cooperation, convened by the International Justice Program of the Lawyers Committee for Human Rights, with the support of the Ford Foundation and the assistance of the Human Rights Program at Columbia Universitys School for International and Public Affairs, took place from 3-5 April 2002 in New York City. This was the fourth in an informal series of meetings that was first prompted by the 1998 arrest of former Chilean President Augusto Pinochet, and followed similar meetings in Geneva, London, and Paris.3 These meetings have aimed to provide a forum for exchange of information, ideas and strategies, and for enhancing cooperation among organizations committed to making universal jurisdiction over crimes under international law an effective legal reality. The need for such a forum, and for concerted action in this area, has only become more apparent with the passage of time. The Rome Statute of the International Criminal Court, which will enter into force on 1 July 2002, has created an important window of opportunity for law reform as governments review national law for compliance with ICC obligations and to ensure that international crimes can be prosecuted domestically. Taking advantage of this opportunity requires capacity, awareness and coordination on the part of non-governmental organizations (NGOs). In turn, a broader base of national legislation will make it all the more vital that national, regional and international NGOs act intensively and in coordination, both within and across borders, to ensure the best possible development of the resulting jurisprudence. Cases that have recently engaged courts in West Africa, Latin America, Europe and elsewhere demonstrate this need. Our conference brought together leading organizations and lawyers for victims in the international justice field for two and a half days of discussion immediately in advance of the ninth session of the United Nations Preparatory Commission (PrepCom) for the ICC, which took place between 8 19 April 2002, and which saw the deposit of those

    1 This report was produced by Bruce Broomhall, Director, International Justice Program, at [email protected] or 1-917-44-8388; Carol Pollack, Fellow, International Justice Program, at [email protected]; and Lee Che Leong, Program Assistant, International Justice Program, at [email protected]. A number of participants also contributed comments. 2 Contact Peter Danchin, Human Rights Program, School of International and Public Affairs, Columbia University, at [email protected] or 1-212-854-6224. 3 The Geneva meeting took place in May 1999 and was organized by the International Council on Human Rights Policy; the London meeting was convened by Redress in September 1999; and FIDH (the Fdration internationale des ligues des droits de lhomme) organized the Paris meeting in May 2000.

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    ratifications needed to trigger the entry into force of the ICC Statute.4 Our discussions were broad enough to encompass the subject of universal jurisdiction, but also had a practical and legal emphasis intended to meet our needs as organizations engaged in making universal jurisdiction effective in practice. The conference agenda was divided into four major themes: law reform, casework, public education (including raising awareness among judges, prosecutors, policy-makers, and NGOs), and information exchange (including development of databases). A final session on the third morning allowed organizations with a regional and country focus (on Africa, Asia, Latin America, and the United States) to meet separately in order to focus on issues and details particular to the geographical area of greatest interest to them. A broader aim of this meeting was to contribute to the development of networks among organizations and lawyers for victims, in order to facilitate our ongoing work. As a result, we encouraged the participation of organizations from around the world that have a sustained history of involvement in this area, or which show potential for such involvement in the future. It has been our hope that the conference would assist in the identification of major needs among NGOs, especially in Africa, Asia and Latin America, as a precondition to the accomplishment of our objectives, in particular through working towards the creation of effective global, regional and sub-regional networks on universal jurisdiction. We also hoped that in the course of the conference participants would develop new strategies with which to better promote the development of universal jurisdiction through law reform, casework and education/awareness-raising. This report aims to provide a reference point for these needs and strategies and, crucially, to stimulate coordinated efforts to implement these aims.

    4 See Secretary-General Addresses Preparatory Commission for International Criminal Court as it Concludes Ninth Session, U.N. Press Release L/3003 (19 April 2002); Rome Statute of the International Criminal Court to Come into Force; Treaty Event to be Held at UN Headquarters on 11 April, U.N. Press Release L/T/4365/Rev.1 (1 April 2002).

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    Part Two: Summary of Issues

    A. Maximizing the legitimacy of universal jurisdiction 1. Increasing the capacity of courts in Africa, Asia and Latin America to try perpetrators

    from these and other regions. 2. Increasing the incidence of northern courts trying northern perpetrators. 3. Developing links between northern actors and atrocities in Africa, Asia and Latin

    America.

    B. Increasing the capacity of NGOs in Africa, Asia and Latin America 1. Organizing training missions to educate and mobilize judges, academics, prosecutors

    and NGOs. 2. Ensuring that effective training materials exist in all relevant languages. 3. Identifying increased resources for African, Asian and Latin American NGOs.

    C. Continuing to promote legislative reform 1. Supporting the drafting of implementing legislation for the Rome Statute of the

    International Criminal Court. 2. Promoting the adoption of universal jurisdiction legislation, keeping in mind concerns

    regarding such filters as presence requirements, political or other forms of control, immunities and hierarchies of jurisdictions.

    D. Developing resources for universal jurisdiction litigation 1. Building the capacity of African, Asian and Latin American actors to bring universal

    jurisdiction cases. 2. Developing transnational networks of lawyers with wide areas of specialization. For

    example, with respect to actions against corporations and efforts to seize assets of perpetrators, forming alliances with lawyers in environmental and corporate law, where significant expertise in trans-boundary action exists (e.g. in creditors remedies law).

    3. Developing financial resources for the cases and for education and capacity building work.

    E. Developing a universal jurisdiction global network and regional networks 1. Compiling data on universal jurisdiction laws, cases, news and advocacy and making

    this information available both physically and electronically. With regard to website publications, keeping in mind the issues of defamation and access to information laws. Identifying translation and interpretation resources that can be incorporated into website and training materials.

    2. Building and improving civil society capacity to track defendants. 3. Taking stock of available jurisdiction, rules of procedure, etc. Where there are

    universal jurisdiction laws, civil society should share strategies regarding how to bring them to life.

    4. Maintaining multiple copies of evidence stored in different locations. 5. Working to ensure security of investigators, victims and witnesses.

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    F. Areas for future focus 1. Civil remedies. 2. Suits against corporations and their assets. 3. Protection, storage and handling of evidence. 4. Protection of witnesses 5. Funding cases, and the fair distribution of funding. 6. Data compilation and legal issues related to information access and storage,

    especially in Europe. 7. Concerted creative thinking regarding barriers to universal jurisdiction prosecutions. 8. Areas of overlap between international criminal justice and counter-terrorism

    measures, and how to turn counter-terrorism initiatives to our advantage (for example, as credit card companies track potential terrorists, so might they track international criminals).

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    Part Three: Law Reform

    A. ICC implementation and other opportunities

    1. Overview The Rome Statute of the International Criminal Court has 139 signatories and, as of 11 April 2002, 66 ratifications. It will enter into force on 1 July 2002. Under the Rome Statute, the International Criminal Court will have jurisdiction over genocide, war crimes and crimes against humanity committed by the nationals or on the territory of its States Parties. Its jurisdiction is complementary to national jurisdictions, which will have primary responsibility for investigating and prosecuting Rome Statute crimes. Unless states cede cases to it or are inactive, the Court will defer to proceedings undertaken by national authorities, unless it is clearly shown that the state is unwilling or unable to proceed genuinely. Under the regime of the Rome Statute, then, ending impunity for the most serious crimes will be achieved primarily through the justice systems of states, and only secondarily through the Court, with the indispensable assistance of states. The Courts effectiveness therefore relies on the successful incorporation of the Rome Statute into national law to enable both national prosecution of international crimes and effective cooperation with the Court. Because of the international impetus that the International Criminal Court currently enjoys, and because of the incentive the Rome Statute provides to domestic law reform, it is widely believed that the process of Rome Statute implementation provides an unparalleled opportunity for law reform aimed at building the capacity of national systems to address the most egregious crimes, including through universal jurisdiction. Rome Statute implementation is, however, currently in its early days. To date only Canada, New Zealand and the United Kingdom have adopted comprehensive implementing legislation (facilitating both domestic prosecution and cooperation with the ICC), although a number of others (including Finland, France and Switzerland) have adopted legislation on cooperation alone. In addition, a number of countries are known to be in either the late (Argentina, Australia, Belgian, Germany, South Africa) or the early (Senegal) stages of developing implementing legislation. The process of adopting implementing legislation creates an ideal opportunity for governments to adopt universal jurisdiction over ICC crimes. While the Rome Statutes complementarity principle creates an incentive to prosecute only those crimes committed by the nationals or on the territory of States Parties, universal jurisdiction will frequently be necessary if impunity is not to result from the limited resources of the ICC or from the unwillingness or inability of the primary states to take action. A number of counties have responded to this argument by adopting

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    (Belgium, Canada, New Zealand) or proposing (Argentina, Germany, South Africa) universal jurisdiction over Rome Statute crimes. It is hoped and expected that a number of other governments from an array of regions and legal systems will follow suit. It was understood at the conference that such a result depended in significant part on the intensification and effective coordination of NGO efforts to this end. Participants also sounded a cautionary note regarding the possibility of countries ratifying the ICC with the intention of using the Court as a means to resist or reduce the exercise of universal jurisdiction. For example, it was noted that there is currently a Belgian proposition to restrict use of universal jurisdiction, and perhaps to restrict the competence of Belgian courts essentially to cases that cannot be heard by the ICC the reverse of complementarity.5 Overall, participants agreed that, in addition to creating strategies for the promotion of universal jurisdiction, it is also necessary to be prepared to challenge any tendency on the part of governments to use the ICC as an excuse to forego domestic legislation on universal jurisdiction.

    2. Specific Approaches

    Participants outlined existing approaches and suggested new ones for ensuring that NGOs take maximum advantage of the opportunities presented by Rome Statute implementation around the world.

    a. Education and capacity building. Many governments, including their prosecutors and investigating judges, as well as NGOs in Africa, Central and Eastern Europe, Latin America and Asia are relatively unfamiliar with the International Criminal Court and the subject of universal jurisdiction. NGO collaboration in organizing education missions have improved understanding of the concepts and helped to mobilize local NGOs on both issues. Missions have been led in recent months in countries throughout Asia, Africa, Latin America, Central and Eastern Europe and the Former Soviet Union, organized in most cases by the NGO Coalition for the ICC (CICC) and its Steering Committee members,6 working in collaboration with national and regional organizations. Education and capacity building are necessary precursors to the adoption of ICC implementing legislation and universal jurisdiction in countries where informed support for international justice is not already well developed. b. Building on existing universal jurisdiction laws. According to research undertaken by Amnesty International, approximately 125 countries currently have

    5 Decision in the Yerodia Case, JUDICIAL DIPLOMACY, CHRONICLES AND REPORTS ON INTERNATIONAL CRIMINAL JUSTICE, April 16, 2002, (visited April 24, 2002) . 6 Amnesty International, Asociacin Pro Derechos Humanos, ELSA International, Federation Internationale des ligues des droits de lHomme , Human Rights Watch, International Commission of Jurists, No Peace without Justice, The Lawyers Committee for Human Rights, Parliamentarians for Global Action, Rights & Democracy, Womens Caucus for Gender Justice, World Federalist Movement.

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    laws that provide for universal jurisdiction to one extent or another.7 For example, in Africa alone, universal jurisdiction covering certain conduct amounting to war crimes exists in Algeria, Botswana, Burundi, Cameroon, Cote dIvoire, the Democratic Republic of the Congo, Egypt, Ethiopia, Gambia, Ghana, Kenya, Lesotho, Malawi, Mauritius, Nigeria, Seychelles, Sierra Leone Swaziland, Tanzania, Uganda and Zimbabwe. Other African states are expected to provide for universal jurisdiction in their legislation implementing the Rome Statute, including Angola, Senegal and South Africa. In promoting the adoption of universal jurisdiction for international crimes, existing laws can serve as important and practical examples of what such legislation signifies. Such examples demonstrate to governments that universal jurisdiction is already part of their legal traditions and can facilitate understanding of the concept. c. Encouraging the establishment of inter-ministerial committees to examine the issue of implementing legislation in specific countries. Such focal points can be an important first step in concentrating expertise, disseminating information and building momentum within a government, and have been established in Argentina, Ghana, Senegal, South Africa, and a number of other states in Latin America and Europe. Participants recognized, however, that more is needed than simply the establishment of such processes; rather, ongoing input and encouragement must be provided by civil society in order to ensure a steady progress of work and a commitment to clear results within a defined schedule. d. Mobilizing support for the criminalization of international crimes in domestic law. Some states, including most recently France, have made progress on legislating with respect to their obligation to cooperate with the ICC, but have neglected the complementarity side, which would ensure that domestic authorities are able to prosecute crimes within the full scope of ICC jurisdiction. Ensuring a commitment to the domestic criminalization of Rome Statute crimes is the first step in securing support for the provision of universal jurisdiction with respect, in particular, to these crimes. The process for securing such a commitment will vary from one state to another, but in general requires that NGOs work together to identify the most effective ways to reach out to opinion leaders in government, the parliament, the media and the wider public.

    e. Support the drafting of implementing legislation. This is easiest either where government drafters and NGOs work together (for example, in the context of an experts workshop, such as that held in Dakar, Senegal, in October 2001) on preparing legislative recommendations. Where governments work alone, NGOs should encourage circulation of a consultation draft, such as that produced by Australia, Switzerland, Argentina, the United Kingdom and others, in order to give input to the drafters prior to the tabling of the bill before the respective parliament. Where universal jurisdiction has not been included in draft legislation,

    7 See, e.g., AMNESTY INTERNATIONAL , UNIVERSAL JURISDICTION: THE DUTY OF STATES TO ENACT AND IMPLEMENT LEGISLATION, AI INDEX: IOR 53/002-018/2001, CHAPTER 4, PARTS A AND B. (2001). This report is obtainable either from: http:/www.amnesty.org or from [email protected], as a CD ROM.

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    NGOs can encourage its addition. For example, Argentinas first draft ICC implementing legislation did not include universal jurisdiction, but this was included in the final draft, after a joint statement by Amnesty International and Human Rights Watch to the drafting committee. Where such consultation prior to introduction of the bill is not possible, NGOs must either appear before parliamentary committees, issue public recommendations, or recruit friendly parliamentarians or other proxies to support their proposed changes.

    B. Universal jurisdiction filters The well known recent experience in Belgium has shown the enormous potential of national processes to provide justice for victims of gross violations of human rights and humanitarian law.8 The Belgian experience, however, has given rise to concerns both in Belgium and in other countries about the resource and political implications arising from the exercise of universal jurisdiction. The recent decision of the International Court of Justice in the Congo v. Belgium case may restrict Belgiums future action against certain foreign officials, and may be used as an excuse by other states to refrain from following Belgiums lead in making universal jurisdiction an effective reality.9 Participants agreed that NGOs must turn their minds to the issues and concerns raised by the experiences of Belgium and of other states, and by universal jurisdiction legislation more generally, in order to maximize momentum towards the effective national implementation of universal jurisdiction, and to minimize any chilling effect that may have been caused by reactions to such experiences.10 The following were identified as key factors to be considered in the formulation of any principled but politically sustainable universal jurisdiction package.11

    8 Investigations, prosecutions or agreements to extradite based on universal jurisdiction have also occurred in a number of other countries since the Second World War, including Australia, Austria, Canada, Denmark, France, Germany, Mexico, Paraguay, Senegal, Switzerland, the United Kingdom and the United States. 9 This reaction has already occurred in Belgium itself through the 16 April 2002 decision in the Yerodia case, which found that the Belgian universal jurisdiction law applies only when the accused is found in Belgium. Decision in the Yerodia Case, supra n.5. If this decision is affirmed on appeal, it will affect ongoing universal jurisdiction cases in Belgium, such as the Sabra-Shatila case against Ariel Sharon, and an amendment currently under discussion at the Ministry of Justice that aims to limit the scope of Belgian universal jurisdiction legislation: ibid. See also SABRA-SHATILA, MAJOR PROPOSITION OF LAW TO AMEND THE GENOCIDE ACT IS MISLEADING AND A FIRST CLASS FUNERAL FOR THE SHARON CASE (visited 3/28/02) . 10 A major concern in responses to the Belgian experience has been the absence of a presence requirement for proceeding with cases under Belgian law; however, setbacks unrelated to the Belgian experience or to any presence requirement issue have arisen in universal jurisdiction cases in other countries, including Argentina, Mexico, Spain and the United Kingdom. 11 This section is derived from a brief discussion paper presented to the meeting by LCHR, as well as from responses the discussions of the meeting itself.

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    1. Presence requirement: The law of different states varies on the question of whether the physical presence of an accused in the territory of a state is a precondition to the exercise of universal jurisdiction. New Zealand, for example, has no presence requirement, and Germany is prepared to follow suit.12 Belgian universal jurisdiction legislation does not currently require the presence of the accused in order to initiate proceedings and adjudicate his or her rights. However, the 16 April 2002 decision in the Yerodia case, which found that universal jurisdiction applies only when the accused is found in Belgium, may result in the legislative imposition of a presence requirement.13 The legislation of Canada and the draft legislation of South Africa make universal jurisdiction conditional on the presence of the accused within their territory, although experts have disagreed regarding whether or not these states legislation allows for the opening of investigations in anticipation of later presence.14

    International law does not require states to ensure that the accused is present in order to initiate universal jurisdiction proceedings. As Judges Higgins, Kooijmans and Buergenthal stated in their joint separate opinion in the ICJs Democratic Republic of Congo v. Belgium case, [i]f the underlying purpose of designating certain acts as international crimes is to authorize a wide jurisdiction to be asserted over persons committing them, there is no rule of international lawwhich makes illegal co-operative overt acts designed to secure their presence within a State wishing to exercise jurisdiction.15 NGOs generally support the right of the accused to be present at trial and seldom promote trials in absentia. However, the due process right to be present during trial is distinct from the law defining the legitimate exercise of jurisdiction, which does not require presence when proceedings first commence.

    The presence of the accused before trial is not required by international law. Indeed, the Geneva Conventions of 1949 expressly permit states to request the extradition of

    12 New Zealand, International Crimes and International Criminal Court Act 2000, Part 2 8(c)(i), (ii), (iii), (1 October 2000); Belgium, Loi relative la rpression des violations graves de droit international humanitaire (10 February 1999), (23 March 1999) Moniteur blege, s.7.; Germany, Draft of an Act to Introduce the Code of Crimes against International Criminal Law (CCAICL Introductory Act) Articles 1 and 3, (28 December 2001). However, the German draft legislation would require that extradition be likely to occur and some of the factors to be considered in making this determination would include the suspects links to Germany. 13 Decision in the Yerodia Case, supra n.5. 14 Canada, Crimes Against Humanity and War Crimes Act, Statutes of Canada 2000, c. 24; South Africa, International Criminal Court Bill Part 2, 4.(2(a-d)) (4 July 2001). See also AMNESTY INTERNATIONAL, supra note 7, at Chapter 4, Part A, 40-41. 15 Case Concerning the Arrest Warrant of 11 April 2000 (Congo v. Belg.), 2002 I.C.J. (Joint Separate Opinion of Judges Higgens, Kooijmans and Buergenthal) at para. 58 . Similarly, the Princeton Principles of Universal Jurisdiction state that a judicial body may try accused persons on the basis of universal jurisdiction, provided the person is present before such judicial body. PROGRAM IN LAW AND PUBLIC AFFAIRS, PRINCETON UNIVERSITY, THE PRINCETON PRINCIPLES ON UNIVERSAL JURISDICTION (2001), at 28 . That language does not prevent a state from initiating the criminal process, conducting an investigation, issuing an indictment or requesting extradition, when the accused is not present: ibid., at 32.

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    suspects outside the country. Nevertheless, states are drawn to a strict presence requirement because it serves as a filter that prevents their jurisdiction from becoming a litigation magnet. However, because it is based on the location of the accused and not on other circumstances of the case, a strict presence requirement is also a blunt instrument, imposing an imperfect limit on the exercise of universal jurisdiction and creating disadvantages by restricting the power to open an investigation to the point at which it can be proven that a suspect is within the territory of the state exercising universal jurisdiction. There will be cases in which a country will want to commence proceedings and issue warrants and extradition requests prior to the presence of the accused in its territory. For example, the country may be aware that the suspect is likely to visit it on a short stay and will wish to be able to act before that person leaves. Indeed, it may sometimes be the case that the international community will favor extradition and trial in another country, as in the case of persons suspected of grave breaches of the Geneva Conventions, which would be precluded by a strict presence requirement.

    In light of the above considerations, it is felt that presence can be a factor in deciding whether to commence universal jurisdiction proceedings, but should not be determinative. It should be seen as one of several factors, such as appropriateness of the forum and the likelihood of obtaining presence through extradition.

    It is possible that where presence is required under international law, broad interpretations can be promoted to yield the needed result. For example, both the South African ICC implementing legislation bill and the Canadian implementing legislation permit the exercise of jurisdiction over individuals who allegedly committed crimes outside the states respective territories, but who are later present in their territories. Interpretations of such laws could be promoted in order that they be read to allow the opening of investigations in anticipation of later presence, e.g. through extradition. With respect to the Canadian legislation, this reading has been supported by some domestic voices.16 However, several of the government officials connected with the drafting of the Canadian provision have claimed that there would be no jurisdiction to open an investigation if a suspect was not present in Canada.17 Also, it may be that the burden of proving that the accused is present in the territory can be shifted in some circumstances from the victims (or parties civiles).18 Ultimately, NGOs will have to work to ensure that judicial authorities accept favorable interpretations (notably through submission of amicus curiae briefs).

    16 AMNESTY INTERNATIONAL, supra note 7, at CHAPTER 4, PART A. 40-44. 17 See Id. 18 In France, for example, the burden of proof of showing the defendants presence in French territory has, for some time, been impermissibly placed on petitioners, rather than on prosecutors or investigating judges. However, in a relevant development, this burden of proof was changed to a burden of going forward during the course of procedures for the Derouiche case, the criminal complaint for which was filed in France in November 2001 on behalf of 6 Tunisian victims of torture. In this case, the Prosecutor of Paris simply required plaintiffs to show some evidence that the accused was in the territory. The burden then passed to the investigating judge to make further determinations regarding the defendants presence.

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    2. Political or other control Legislation in common-law jurisdictions such as Canada, South Africa and the United Kingdom requires the consent of the Attorney General, a government minister as well as a law officer, to commence proceedings with respect to Rome Statute crimes (including under universal jurisdiction).19 This contrasts with the situation in Belgium where the decision to proceed is initially in the hands of investigating magistrates (juges dinstruction) alone. An intermediary stance is taken by New Zealand, which requires Attorney General consent, but which allows the investigation and detention of individuals charged with the crimes set out in the Rome Statute prior to its receipt.20

    An Attorney General consent requirement would undoubtedly provide a degree of comfort to national authorities considering the inclusion of universal jurisdiction in their national law. Indeed, one proposed amendment to Belgiums law suggests an analogous requirement.21 Attorney General consent typically gives rise, however, to serious problems.

    In particular, Attorney General discretion often includes facts of national interest, which are not necessarily consistent with the interests of justice. In certain states, such as the United Kingdom and Canada, the situation is made less accessible to potential plaintiffs by the fact that the discretion of the Attorney General is not subject to explicit criteria or judicial review. The dual position of the Attorney General as a government minister and a law officer gives rise to a potential conflict of interest, particularly in politically sensitive cases, and creates the appearance of a lack of impartiality and independence.

    From an NGO perspective, the discretion whether to proceed is probably better placed in the hands of independent legal officials. Amnesty International insists that that there be no political interference in decisions to investigate or prosecute. Amnesty goes on to state that decisions to start or stop an investigation or prosecution of grave crimes under international law should be made only by the prosecutor, subject to appropriate judicial scrutiny which does not impair the prosecutors independence, based solely on legal considerations, without any outside interference.22 Where states insist upon Attorney General discretion, such discretion

    19 Canada, Crimes against humanity and war crimes act, s.9(3); South Africa, International Criminal Court Bill 2001, Part 2(3)-(6). 20 New Zealand, International Crimes and International Criminal Court Act 2000, Part 2, Section 13. 21 This proposed amendment would eliminate the public prosecutors ability to initiate penal proceedings or ask for additional proceedings in instances in which a defendant is granted a form of immunity called privilege of jurisdiction. Indictments against individuals benefiting from the privilege of immunity would be controlled by the Prosecutor General. SABRA-SHATILA, supra, note 9. 22AMNESTY INTERNATIONAL, UNIVERSAL JURISDICTION: 14 PRINCIPLES ON THE EFFECTIVE EXERCISE OF UNIVERSAL JURISDICTION principle (1999). The Amnesty report continues: Decisions to start, continue or stop investigations or prosecutions should be made on the basis of independence and impartiality. As Guideline 14 of the UN Guidelines on the Role of Prosecutors makes clear, Prosecutors shall not initiate or continue prosecution, or shall make every effort to stay proceedings, when an impartial investigation shows the charge to be unfounded. Moreover, Guidelines 13 (a) and (b) provide that decisions to initiate or

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    should at least be made subject to explicit criteria and judicial review, and should follow the approach taken by New Zealand, in which investigations can be initiated prior to Attorney General consent.

    Moreover, civil law based systems will not support political controls of the same sort as are tolerated in common law jurisdictions, as these would be seen as interfering with the separation of powers between the executive and the judiciary (the Attorney General, who makes the decision in common law jurisdiction, being typically an elected member of parliament as well as a member of the governing cabinet). This strengthens the argument that any discretion that exists under national law be exercised by judicial officials, and that such discretion be structured to take into account only legitimate factors that are consistent with international law (including the duty to extradite or prosecute under the Geneva Conventions, the Convention Against Torture, etc.) and to be maximally transparent and subject to review.23 Whether exercised by judicial officials or the Attorney General, there may be a need in some countries for NGOs to outline the workings of any such a discretion (that is, what factors it is to consider and how it is to be reviewed), if governments are to attain a sufficient comfort level to proceed with the implementation of universal jurisdiction in a way that does not involve undue political controls. However, in many civil law countries, where there is sufficient evidence to prosecute a suspect, the prosecutor has no discretion to refuse to prosecute, as such a refusal would lead to impunity for criminals.

    3. Immunities Since the Nuremberg Charter in 1945, it has been well accepted that immunities for high officials are not applicable with respect to international tribunals. This has been illustrated by the Milosevic case before the ICTY; it was also upheld by the Pinochet case.24

    continue prosecutions should be free from political, social, religious, racial, cultural, sexual or any other kind of discrimination and should be guided by international obligations of the state to bring, and to help bring, perpetrators of serious violations of human rights and international humanitarian law to justice, the interests of the international community as a whole and the interests of the victims of the alleged crimes: ibid., Principle 7. 23 Under a draft German law, it is the State Prosecutor who will consider whether or not to defer to prosecutions before an international court or by a state on whose territory the offence was committed, whose national is suspected of its commission or whose national was harmed by the offense. The State Prosecutor will also have discretion over whether to bring proceedings against individuals that allegedly committed crimes outside of Germany or on foreign ships or aircraft, and who are unlikely to be found within Germany territory. Germany, Draft of an Act to Introduce the Code of Crimes against International Criminal Law (CCAICL Introductory Act) Article 3(5), (28 December 2001). However, the State Prosecutor does not have such discretion to refuse to prosecute in cases not based on universal jurisdiction. 24 As stated, for example, by Lord Slynn of Hadley, [t]here isno doubt that States have been moving towards the recognition of some crimes as those which should not be covered by claims of State or Head of State or other official or diplomatic immunity when charges are brought before international tribunals. Regina v. Bartle and the Commissioner of Police for the Metropolis and others Ex Parte Pinochet (on appeal from a Divisional Court of the Queen's Bench Division, 25 Nov. 1998). Lord Lloyd of Berwick also stated that international tribunals provide the answer to those who say, with reason, that there must be a means of bringing such men as Senator Pinochet to justice. There is. He may be tried.before the

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    Article 27 of the Rome Statute and relevant constitutional amendments (Colombia, France, Portugal) or national implementing legislation, (Canada, New Zealand and the UK) will allow countries to surrender their own heads of state and other officials to the ICC in response to requests for cooperation, reinforcing the Milosevic precedent. However, NGOs will have to seek to ensure that ICC jurisprudence recognizes no immunities when States Parties are asked to surrender the officials of other States Parties to the Court.

    The direction in which international law develops with respect to immunities of non-State Parties sought by the ICC, or with respect to immunities before national courts exercising universal or other forms of jurisdiction, will depend on a number of factors and is very much under development at present.

    Not least among these is the reception of the recent judgment of the ICJ in the Democratic Republic of the Congo v. Belgium case. According to this judgment, an incumbent foreign minister enjoys absolute immunity under customary international law, as well as inviolability protecting him or her from any act of authority by another State that would hinder him or her in the performance of duties during the duration of office, although no state practice or opinio juris was cited as evidence of such a rule. The same reasoning cited by the ICJ in support of such a rule is likely to apply to heads of state and heads of government who, like foreign ministers, represent the State in international affairs and must travel to carry out their duties.25

    Other aspects of the Democratic Republic of the Congo v. Belgium decision are equally problematic, particularly with respect to whether former officials enjoy immunities for crimes committed while in office, and whether crimes under international acts are considered official or private acts. While these are partially matters of judicial interpretation, the law reform opportunity presented by the process of ICC implementation will provide many opportunities to educate parliamentarians and others about rationale for the progressive recognition at international law of an exception to immunities with respect to former officials accused of international crimes. In addition, NGOs can hope to see further progress in the adoption of constitutional amendments and laws that facilitate the surrender, in spite of immunities, of a States own officials to the ICC, although law reform efforts aimed at narrowing the immunity of officials from other states is likely to meet stiff resistance in some places. Participants were in agreement on the need to seize upon both the law reform and the educational potential of the ICC implementation opportunity with respect to the laws of immunity.

    International Criminal Court when it is established, orbefore a specially constituted international court: ibid. 25 Pieter H.F. Bekker, World Court Orders Belgium to Cancel an Arrest Warrant Issued Against the Congolese Foreign Minister, ASIL INSIGHTS, February 2002 ; see also Katie Nguyen, Belgian Court sets May 15 for Sharon Hearing, Reuters, March 6, 2002.

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    4. Hierarchy of jurisdiction In circumstances where more than one state is prepared to initiate proceedings, when should one state defer to the jurisdiction of another?

    It is generally considered that justice is best served when genuine and fair trials occur in a jurisdiction that is the territorial state of the crime, or the national state of the accused or of the victims. A report by the International Council on Human Rights Policy stated, [n]ational prosecutions are clearly better able to deter ongoing abuses and combat impunity within the country where abuses are occurring. They have a much more direct ability to support the rule of law and restore faith in the legal system. Finally, national prosecutions will likely be most effective in eliciting a real dialogue concerning past crimes, and in facilitating social healing and reconciliation. From a practical standpoint, prosecution of crimes where they occurred is preferable for a number of reasons, including the availability of evidence and witnesses.26

    Unfortunately, the judicial systems of states in which egregious international crimes are being committed are often in no position to perform legitimate investigations and prosecutions of perpetrators who are often officials of their own military, police, and government.

    One approach to the issue of hierarchy is to allow states with direct connections to the crimes in question to have primary jurisdiction over a case, but to proceed with trials in other jurisdictions where a state is incapable of conducting a trial, or is unable or unwilling to proceed genuinely. A step towards this approach is taken by Germany in its International Criminal Code, which adds to its Code of Criminal Procedure to allow public prosecutors to dispense with proceedings in instances where the offence is being prosecuted before an international court or 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.27 Regrettably, the German draft legislation does not require that the proceedings in the other state be fair and genuine. Indeed, it does not make clear the criteria to be considered by the prosecutor in exercising his or her discretion. Where states wish to include provisions allowing for deference to other jurisdictions, NGOs should encourage states to make explicit the criteria, such as that the state in question prosecute in a timely manner and that a fair trial be granted, to be used in making determinations. A related, but more controversial, question is whether national discretion should take into account the potential impact of the case where the country in question is in the process of transitioning to democracy, or the existence of truth commission and other transitional justice mechanisms.

    26 PEGGY HICKS, INTERNATIONAL COUNCIL ON HUMAN RIGHTS POLICY, THINKING AHEAD ON UNIVERSAL JURISDICTION: REPORT OF A MEETING HOSTED BY THE INTERNATIONAL COUNCIL ON HUMAN RIGHTS POLICY 6-8 1999 24 (1999) . 27 Germany, Draft of an Act to Introduce the Code of Crimes against International Criminal Law (CCAICL-Introductory Act), 28 December 2001, Article 3(5)(4).

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    Another approach would be to consider the first state to open a criminal investigation of a given suspect as having priority over other national jurisdictions, and as retaining that priority provided it acts promptly and genuinely. The basis of this approach, favored by Amnesty International, is the assumption that, if other states have not promptly opened a criminal investigation, then they can be presumed to have no serious intention of doing so, and should defer to the forum state. NGOs will need to give serious consideration to the question of hierarchy of jurisdictions, both with respect to the desirability and contents of any international legal rule of subsidiarity (such as that hinted at by Judges Higgins, Buergenthal and Kooijmans in their joint separate opinion in the Democratic Republic of Congo v. Belgium case),28 and with respect to the terms on which the courts of one state could legitimately defer jurisdiction to another.29

    The problems of establishing overly-rigid criteria for priority are illustrated by the decision of the Spanish Audiencia Nacional regarding Guatemala, in which the court found that the absence of a formal amnesty for genocide and torture, as well as the limited amount of time that had passed since peace accords had been signed, meant that the Guatemalan courts were not presumed to be unable or unwilling to hear the cases at home. It was unclear what further evidence or how much passage of time the court would have required to go forward. The simplest solution to these problems would be to proceed unless a prosecution was actually being diligently prosecuted (in accordance with international standards of fair trial) for the same crimes in the territorial or another jurisdiction.

    28 Case Concerning the Arrest Warrant of 11 April 2000 (Congo v. Belg.), 2002 I.C.J. (Joint Separate Opinion of Judges Higgens, Kooijmans and Buergenthal) at para. 59 . The decision stated that [a] State contemplating bringing criminal charges based on universal jurisdiction must first offer to the national State of the prospective accused person the opportunity itself to act upon the charges concerned. 29 The Princeton Principles on Universal Jurisdiction, for example set out the following criteria for consideration where there exist competing jurisdictions for a case:

    1. multilateral or bilateral treaty obligations; 2. the place of the commission of the crime; 3. the nationality connection of the alleged perpetrator to the requesting state; 4. the nationality connection of the victim to the requesting state; 5. any other connection between the requesting state and the alleged perpetrator, the crime, or the

    victim; 6. the likelihood, good faith, and effectiveness of the prosecution in the requesting state; 7. the fairness and impartiality of the proceedings in the requesting state; 8. the fairness and impartiality of the proceedings in the requesting state; 9. convenience of the parties and witnesses, as well as the availability of evidence in the requesting

    state; and 10. the interests of justice.

    THE PRINCETON PRINCIPLES ON UNIVERSAL JURISDICTION, supra, n.15, at 32, Principle 8.

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    C. Further hurdles to the successful adoption of universal jurisdiction

    In lobbying and advocating universal jurisdiction to governments, NGOs must be prepared to encounter and address obstacles to the successful implementation of universal jurisdiction.30 In addition to the factors considered in section B above, obstacles are presented where:

    1. Legislation provides universal jurisdiction for ordinary domestic crimes, but not for crimes under international law, or legislation includes some, but not all, international crimes. 2. Definitions of international crimes in existing legislation are not consistent with international law. 3. Legislation allows for inappropriate defenses, such as superior orders. 4. Countries recognize amnesties and similar measures of impunity granted by other states to perpetrators of international crimes, or have statutes of limitation that preclude prosecution. 5. National law provides inadequate procedures to secure justice and insufficient fairness protections. For example, if legislation mandates that relevant cases be considered by military courts or if criminal procedure codes provide inadequate arrest procedures.

    30 This report describes such obstacles only briefly. For fuller treatment, see AMNESTY INTERNATIONAL, supra n.7 at CHAPTER 14 (2001), pages 142.

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    Part Four: Casework A. Standards and criteria in choosing cases31 Conference participants discussed the following factors as key ones in determining whether or not to pursue a case:

    1. Likelihood of a successful outcome: Given the controversial nature of universal jurisdiction cases, it is important to consider (1) whether a case can be won (that is, the likelihood of conviction or award of a judgment in favor of the plaintiffs), and (2) whether the case has the potential to result in the development of harmful jurisprudence. Participants agreed that there are sometimes good reasons to pursue cases even where victory is uncertain or even unlikely (see below), but also recognized that building a base of positive precedents could be invaluable in promoting universal jurisdiction.

    It was also noted that success should not be judged solely on the basis of the outcome of a case. For example, some participants considered that universal jurisdiction has succeeded insofar as universal jurisdiction cases have imprisoned alleged perpetrators in their own countries, for fear of arrest abroad, and have provided victims with a sense of public vindication by providing a forum for public testimony and by marginalizing their tormentors.

    2. Availability of evidence: Cases are most likely to succeed where they are well documented and where prosecutors are able to access evidence. Universal jurisdiction cases present unique challenges to the gathering of evidence because prosecutors are often far removed from the place of the crime and have limited access to witnesses. Therefore, the ability to obtain adequate evidence will depend largely on the cooperation of local authorities, which often may not be forthcoming, or on the ability of the prosecutor to investigate the crime him or herself. The success of a number of cases in European courts through the 1990s depended on the presence in the forum state of eye-witnesses willing to testify, although more recent experience involves creative forms of cooperation including jury visits to examine massacre sites, visits by investigating magistrates to take testimony from victims, and other evidence-gathering visits.32

    31 For a list of criteria compiled during other conferences and by other NGOs, see Hicks, supra n.26 at 22-36; Bruce Broomhall, Towards the Development of an Effective System of Universal Jurisdiction for Crimes under International Law35 New Eng. L. Rev. 399, 416-418; THE PRINCETON PRINCIPLES ON UNIVERSAL JURISDICTION, supra n.15 at 42-54; AMNESTY INTERNATIONAL, supra n.7 at 1631. 32 For example, as indicated by Menno Kamminga in the International Law Association report on universal jurisdiction, in order to reduce reliance on oral testimony at trial, a Belgian investigating magistrate has conducted extensive rogatory missions to Rwanda, Togo and Ghana when investigating crimes comitted in Rwanda. A Swiss court has visited Rwanda to visit the site of the crimes and to collect statements from witnesses unwilling or unable to come to Switzerland. MENNO T. KAMMINGA, INTERNATIONAL LAW ASSOCIATION, LONDON CONFERENCE (2000), FINAL REPORT ON THE EXERCISE OF UNIVERSAL JURISDICTION IN RESPECT OF GROSS HUMAN RIGHTS VIOLATIONS 17 (2000) (available at: "http://www.ila-hq.org/pdf/Human%20Rights%20Law/HumanRig.pdf") (citing Damien Vandermeersch, La rpression en droit belge des crimes de droit international, 68 International Review of Penal Law 1093, 1121-1122

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    3. Identification of a likely forum state: Participants agreed that efforts would be well spent identifying fora that have universal jurisdiction over particular crimes and that are likely to accept a case, and then to build the case with a view to the legal requirements of that jurisdiction. This raises issues of the need to raise awareness of universal jurisdiction and related issues of international law among the public in general, and among judicial and prosecutorial authorities in particular and to identify local experts and partners, especially in such potential forum states.

    4. Educational value of the case: Even where a case is unlikely to result in conviction or a favorable judgment, it may merit prosecution if it has educational value (and will not create bad law). For example, while plaintiffs have yet to win a civil lawsuit against multinational corporations in United States courts, past cases have established that foreign nationals can use U.S. legislation to prosecute corporations for human rights violations. Similarly, while the House of Lords decision in the Pinochet case did not ultimately result in his extradition to Spain, the decision provided support for the argument that former heads of state do not enjoy immunity for torture and, by extension, certain other egregious crimes. These cases have clarified important questions of law. Even where cases do not affect the law, they may have value in educating the public on the crime at issue, drawing sympathy to the victims and opprobrium to the alleged perpetrator.

    5. Deterring ongoing violence and sending a message: Even where cases may not be won, they may, through the attention they generate, focus the international spotlight on an ongoing situation and perhaps spur international action in response. Given that deterrence is one of the major goals of criminal prosecution generally, and universal jurisdiction specifically, the possibility of increasing political pressure and even of stopping ongoing crimes weighs very much in favor of pursuing litigation. At the same time, the unclear prospects of universal jurisdiction at present make this effect more than a little uncertain (witness the ongoing violence in Israel and the Occupied Territories, notwithstanding investigations of both Prime Minister Sharon and Palestinian Authority leader Yassar Arafat by Belgian magistrates). Those participants that engage in litigation against multinational corporations indicated that their decisions to take on certain cases often involved considerations of whether litigation could actually stop corporations from condoning, tolerating, or participating in local terrorism and torture.

    6. Support of victims: Participants agreed that a prerequisite for cases should be that local civil society, victims, and refugee communities are involved and supportive. Some participants stressed that the wishes of the victims should be the most important of all considerations and that, even where cases are unlikely to be won, or where

    (1997); Jugement en la cause Fulgence Niyonteze, Tribunal militaire de division 2, Lausanne, Apr. 30. 1999). Similarly, in the Habr case, currently pending in Belgium, a Belgian investigating magistrate visited Chad in order to gather evidence: see Pierre Hazan, Enqute belge sur les crimes d'Hissne Habr: Le juge Fransen a entendu au Tchad des victimes de l'ex-tyran Libration, 8 Mars 2002.

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    political considerations do not favor prosecution, a case should be pursued if litigation is desired by the victims. Other participants, however, expressed serious reservations about this suggestion.

    7. Ability to protect victims and witnesses: Given the instability of countries in which egregious crimes are frequently committed, victims, witnesses and NGOs that promote universal jurisdiction cases may find themselves at risk. Any attempts to bring universal jurisdiction cases must take into consideration at every stage the security of the individuals involved.

    8. Maintaining a balance: Throughout the conference, participants emphasized that, to increase support for universal jurisdiction, cases must be brought in a fair and balanced way against perpetrators from both north and south,33 and against perpetrators who committed their crimes in the name of both left- and right-wing causes.

    It was argued that, for universal jurisdiction to be seen as legitimate, jurisdictions in the north would need to prosecute their own (i.e. northern actors), as well as southern ones. Some participants felt it preferable to have universal jurisdiction cases in countries that are not politically connected to the crime in question, and argued that universal jurisdiction appears (neo-)colonialist when northern countries contribute to atrocities in the south (through e.g. Cold War support for southern dictatorships) and then prosecute southern, but not northern, perpetrators for related crimes in the same countries. It was also considered necessary that the north recognize its historical links with the atrocities committed in the south.

    The need was also widely recognized to promote the adjudication of universal jurisdiction cases in southern courts. While disappointed that the case was not ultimately adjudicated in Senegal, participants expressed approval regarding the filing of the complaint against Habr in Senegal, and stressed that work should be undertaken to ensure that other southern jurisdictions are able and willing to undertake such cases. This need to develop potential southern jurisdictions for action was felt by many to be one of the major needs of work in this area in the immediate future.

    B. Specific obstacles to bringing cases and succeeding with cases

    1. Lack of political motivation: While specific legal obstacles to the successful prosecution of crimes under international law, such as amnesty laws, must be addressed in certain jurisdictions (notably in Latin America), the use of universal jurisdiction legislation is more widely hindered by inaction and lack of political will. The problem of impunity typically exists not because individuals have been pardoned,

    33 While the terms north and south can be applied in too rigid a fashion to what are complex international relationships, they were used as a convenient shorthand throughout the conference, and are used in the same spirit in this report.

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    but rather because of a simple inability or lack of political will to try them. It was noted that, even where there are no political constraints to the exercise of universal jurisdiction, there are often financial constraints. In order to facilitate the bringing of universal jurisdiction cases, as well as getting countries to expend the financial resources required by such cases, a starting basic point for civil society is to inspire the necessary political will to enact effective legislation, where it does not exist, and then to put it into practice. 2. Lack of understanding regarding universal jurisdiction/need for capacity building: Many NGOs around the world are not acquainted with the concepts of the ICC and universal jurisdiction. In order to succeed with universal jurisdiction cases, organizations must have a better understanding both of the significance of such cases and the practical aspects of pursuing them. NGOs must work together to ensure that national organizations are equipped to prosecute visiting suspects and must know what jurisdictions are potentially available for a given crime. To address this, civil society must educate itself about the universal jurisdiction that exists throughout the different regions and build a network that can help to bring such legislation to the notice of judiciaries and civil society, particularly in southern regions.

    3. Lack of financing: Universal jurisdiction cases can be very expensive, as, for example, were the Pinochet extradition hearings in the United Kingdom (although the costs of lawyers in the U.K are much higher than in many other states). Fear that expenses will be similarly high will deter many countries from initiating universal jurisdiction cases even when the cost of litigation in their own countries is likely to be much less than in the United Kingdom. In addition to the expenses upon governments, victims and their organizations can face insurmountable obstacles through the costs of legal representation, travel, and other matters. To address the latter in particular, some participants raised the possibility of NGOs setting up some form of joint financing or a standing trust fund to support casework.

    4. Collection and preservation of evidence: Absence of evidence or access to evidence in a country that wishes to exert universal jurisdiction can impede successful litigation. In part because of lack of cooperation from the countries where the crime took place, many universal jurisdiction cases have been based on the availability of witness testimony in the forum jurisdiction. NGOs have to weigh carefully the adequacy of such evidence, and the likelihood of obtaining corroborating evidence, before proceedings are launched.34 In addition, one participant raised the possibility of recruiting volunteer legal services to identify and gather testimony from, for example, immigrant and refugee communities in potential forum jurisdictions. Attention then needs to be given to the proper recording, preservation and storage of evidence in a manner appropriate for use in criminal proceedings.

    34 Supra, n.32.

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    5. Problems with existing legislation: See discussion of legislative barriers in Part III. In instances where legislation provides universal jurisdiction for ordinary domestic crimes, but not for crimes under international law, NGOs and victims will have to take creative approaches to litigation, for example, where states maintain unfavorable statutes of limitations or fail to adopt adequately defined doctrines of command responsibility. 6. Immunities: In many instances it will be difficult to prosecute officials due to the immunities accorded to them by domestic or international law. For example, both domestic35 and international courts36 have recognized the immunity of incumbent heads of state or foreign ministers. This raises the questions of whether it is advisable (for the reasons listed above) to proceed with a cases against sitting leaders and officials regardless of the likelihood of failure, or whether it is better to focus on small fish, with the aim of building up jurisprudence over time.

    It is worth noting that, even where immunities are recognized, there may be opportunities to erode the protection they afford. For example, in the recent Mugabe case, brought in a United States District Court, petitioners were not able to proceed with their claim against Zimbabwean President Mugabe due to his immunity as head of state. They were, however, able to proceed with their claim against the ZANU-PF political party. The U.S. court gained jurisdiction over this party after petitioners served process on President Mugabe, in his personal capacity as head of the party. In light of recent international and national law on the issue, proponents of universal jurisdiction cases against incumbent officials must work together to develop strategies on how best to press for relatively progressive judicial interpretations of the international law of immunities.

    35 R.. v. Bow Street Metropolitan Stipendiary Magistrate and others, ex parte Pinochet Ugarte (Amnesty International and others intervening) (No. 3), [1999] 2 All E.R. 97 (H.L.). On 13 March 2001, the Cour de Cassation ruled that Mouammar Ghadaffi, as head of state of Libya, was entitled to immunity from the jurisdiction of French courts for alleged involvement in the terrorist bombing of a civilian aircraft: see Salvatore Zappal, Do heads of state in office enjoy immunity from jurisdiction for international crimes? The Ghaddafi case before the French Cour de Cassation (2001) 12 E.J.I.L. 595. On 30 October 2001, a United States court of first instance dismissed a suit, alleging torture and other crimes, against the current President and Foreign Minister of Zimbabwe, accepting a Suggestion of Immunity from the U.S. Department of State: Tachiona et al. v. Mugabe et al., Decision and Order, 31 October 2001 (00 Civ. 6666 [VM], unreported) (U.S. Dist. Ct., S.D.N.Y.). 36 Case Concerning the Arrest Warrant of 11 April 2000 (Congo v. Belg.), 2002 I.C.J. (Feb. 14). This case concerned Belgiums issuing of an international arrest warrant against the Foreign Minister of the Congo. It is ruling, the ICJ held that sitting foreign ministers and, by implication, heads of state and heads of government, enjoy absolute immunity. This decision was based on customary international law. The Court listed several examples of exceptions to immunity. Among these was the option of prosecuting former officials for acts undertaken during office in a private capacity. A concurring opinion by Judges Higgens, Kooijmans and Buergenthal adds that it is increasingly recognized that grave international crimes cannot be regarded as official acts.(Case Concerning the Arrest Warrant of 11 April 2000 (Congo v. Belg.), 2002 I.C.J. (Feb. 14) (Joint Separate Opinion of Judges Higgens, Kooijmans and Buergenthal, para 85).

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    C. Corporations as defendants: northern big fish

    There was widespread agreement among participants regarding the need to pursue accountability of northern corporations and the officials that encouraged their activities, as these corporations were identified as major sources of support for ongoing oppression by governments in Africa, Asia and Latin America. Southern governments are frequently unwilling to impose or effectively enforce conditions on foreign corporations. Consequently, action by authorities and courts in the jurisdiction of origin was seen as highly useful by conference participants.

    1. United States cases

    U.S. courts seem to have accepted that corporations can be sued in U.S. courts for human rights violations committed abroad. Some participants characterized such civil jurisdiction as universal jurisdiction; others preferred to reserve that term to describe criminal jurisdiction. Current U.S. cases include:

    a. Jota, et al. v. Texaco: A civil action suit brought under the Alien Tort Claims Act against Texaco for its pollution of the Ecuadorian Amazon and the effects of this pollution on Ecuadorian and Peruvian indigenous and campesino populations.

    b. Doe v. Unocal: This case charges UNOCAL with corporate complicity in the use of slave labor, murder, rape and forced relocation of villagers by the Burmese Military.37 c. Wiwa v. Royal Dutch Petroleum: This case charges Royal Dutch Petroleum Company and Shell Transport and Trading Company with complicity in human rights abuses in Nigeria.38

    d. Bowoto v. Chevron: This case charges Chevron with corporate complicity in a series of three machine gun attacks upon unarmed environmental protesters and people in their homes in Nigeria.39

    e. Gurab v. Federal Laboratories: A suit filed against the manufacturers of CS gas, a "riot control" weapon used by Israeli troops, by the families of two Palestinians killed by the gas.40

    f. Manzanarez v. Chentex: A suit against a Nicaraguan garment factory, its Taiwanese parent, and their American subsidiary, for allegations of violence, arrest, and other union busting tactics.41

    37 Center for Constitutional Rights: . 38 See id. 39 See id. 40 See id. 41 See id.

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    2. French cases:

    Sherpa Project. The purposes of this project are to organize new types of procedures to bring corporations to justice for a range of abuses, including human rights violations; to determine how to freeze money stolen by heads of state and government officials, and to better use legislation on money laundering for human rights purposes; and to try to invent new types of proceedings against international institutions. The Project is attempting to arrange a network of lawyers with various specializations (for example, corporate law, international law, tax law) to help with desired new types of proceedings. It is also addressing the issue of security for victims and witnesses.

    On March 22nd, 2002, the Sherpa Project initiated civil proceedings against the French Rougier Group, a corporation exploiting resources in Cameroon, and its Cameroonian affiliate. The charges against the company condemn it for the illicit pillaging of forest resources to the detriment of Cameroonian populations.

    3. Comparative approaches:

    It was noted that, in the U.K., there have been civil claims, not filed as human rights abuses, but as negligence claims. The corporate defendants have tried to dismiss claims saying that they should be filed in the country where relevant subsidiaries are located, while the petitioners have argued that the cases should be brought in the U.K., to which profits were repatriated. A House of Lords decision held that the U.K. is the proper jurisdiction to hear such civil claims. There has also been some work exploring possibilities for similar work in the Netherlands.

    4. Relationship of corporate cases to environmental law:

    It was noted that corporate cases tend to be situated in a context in which there are widespread abuses of economic, social and cultural rights. These cases are frequently based not on universal, but on nationality jurisdiction, owing to the presence of the corporations headquarters or other business office in the jurisdiction in question. Because many corporate cases implicate both human rights and environmental concerns, coordination between groups and attorneys working on both issues may provide fruitful experience and be informative as to new approaches to litigation and advocacy. Participants noted that ELAW may provide a model worth looking at, and may be an organization with which it is worth establishing coordination. ELAW is a network of public interest attorneys, scientists and other environmental advocates around the world that focus on domestic and cross-border environmental advocacy and litigation, and which has experience in environmental litigation regarding corporate accountability. For example, one relevant case, currently before Peruvian courts, was brought against Bayer for the pesticide poisoning of children. More information about the organization and environmental litigation involving corporations is available at www.elaw.org.

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    5. Complications in bringing corporate cases

    Attempts to bring suit against corporate human rights offenders can be complicated by the protection afforded to such companies by the countries in which they operate. For example, one participant noted that Guatemala tries to protect Korean sweatshops from domestic litigation. In general, lawsuits are made much more difficult when governments themselves argue that corporations have not violated internal laws. There also exists the concern that corporate headquarter states, such as the United States, will apply pressure to developing countries where corporations violate international and/or domestic human rights and environmental laws. These concerns, as well as the availability of class actions and punitive damages, may make it more attractive to bring cases against U.S. corporations before U.S. courts. Participants noted the difficulty of proving connections between corporate control/leadership and the occurrence of a particular event. In the case of UNOCAL control is not difficult to prove, as it is the U.S. corporation, and not a subsidiary, that is active in Burma. However, corporate control has been more complicated in cases involving corporate subsidiaries, such as in the Nigeria/Shell and Ecuador/Texaco cases.

    Participants also noted that corporations do not like to reach settlements in international human rights and environmental cases for fear of the implications for other, similar situations involving violations in other parts of the world.

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    Part Five: Public education

    A. Information clearinghouses & website development efforts

    1. Redress and the Center for Justice and Accountability: Redress and the Center for Justice and Accountability (CJA) are in process of developing a Universal Jurisdiction Information Network (UJ Info). The idea for this project was developed in part through input received at past universal jurisdiction conferences. The website is intended to be a resource for universal jurisdiction advocates around the world. It will not put forward the position of any particular organization, but rather will simply present and provide links to available universal jurisdiction information. Discussions have already taken place with the other projects described below concerning coordination of their work.

    The project currently has two components. The first of these is a listserve, already in operation, which sends news of universal jurisdiction developments worldwide to those registered, and allows civil society to exchange information, documents, and strategies. The second component is the website itself, which will provide users with centralized information on universal jurisdiction, including legislation, cases, advocacy and educational materials, and current and upcoming events on universal jurisdiction. The site will also allow users to identify contacts for specific types of cases or, for example, to identify lawyers that have worked on universal jurisdiction cases in particular jurisdictions. The target audience for the web site is broad, and includes civil society, academics, prosecutors, investigators, judges, domestic police, Interpol, torture treatment centers, government legal staff and others seeking to educate themselves or perform research on universal jurisdiction.

    Participants discussed the need to develop regional and national networks or focal points to coordinate and monitor universal jurisdiction development and progress, and to contribute to UJ Info itself. UJ Info explained that interested parties could contribute by sharing information that they have on latest developments on the listerve, providing legislation, case documents and their own writings on universal jurisdiction to the website and/or translating needed materials. Many participants heavily emphasized the need for high quality translation. The project is primarily in English at this time, but CJA and Redress are working on setting up materials in other languages, although this process may be slow given budgetary constraints and the high costs of translation.42

    2. World Organization against Torture: The World Organization against Torture, with the help of Yale Universitys Human Rights Center and several Washington, DC law firms, is developing a universal jurisdiction website that focuses on legal issues raised by various types of universal jurisdiction legislation and cases. The site reflects work that the World Organization against Torture is doing on universal jurisdiction

    42 This site is available at: www.u-j.info

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    and criminal accountability, and contains a compilation of the most important legal issues presented by relevant cases. In particular, the site contains extensive information regarding the issue of immunities in the Sharon case. It is anticipated that the site will also soon contain a database on United States universal jurisdiction cases.43

    3. Asser Institute: The Asser Institute, an academic institution based in The Hague, is developing a website that will consist of 2 databases: one on universal jurisdiction and one on international humanitarian law. Both databases will focus on primary materials, such as legislation and cases. The Institute also intends to publish materials that will consist of primary resources as well as analytical pieces.44

    4. Amnesty International: At the time of the Pinochet litigation, Amnesty began to compile information on universal jurisdiction for torture and other grave international crimes. The project grew and currently contains several thousand pages of legislation, cases, press reports and articles. It was decided to set up a database for it, and the information was given to the Asser Institute for this purpose.

    5. Notre Dame University: The Center for Civil and Human Rights at the University of Notre Dame intends to create a physical, rather than virtual, accountability resource center comprised of, for example, truth commission reports. It will also contribute to an online database.45

    B. Mechanisms and focus areas for public education Participants outlined goals and strategies regarding how to best educate the public about universal jurisdiction.

    1. Developing a network, making use of what already exists

    a. The Coalition for an International Criminal Court and its networks of NGOs. Participants felt that the CICCs current networks could serve as important resources for communication, for the establishment of new projects, and for identifying new participants from every region. At the same time, CICC member organizations may not have sufficient resources to bring cases on top of work that they are already doing to promote the ICC. Capacity building for universal jurisdiction will be different than it has been for the ICC, where the main strategy has been awareness raising and lobbying. In the case of universal jurisdiction, the issue is not just to lobby but also to respond to cases and to act in court.

    43 This site is available at: www.criminalaccountability.org 44 This site is available at: www.asser.nl/vr/query.htm. This site explains their project, but does not yet contain the planned databases. 45 Notre Dames information will be available at: www.universaljurisdiction.org.

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    b. The International Bar Association. Given the IBAs wide membership, participants considered that it could perhaps help with universal jurisdiction education and training.

    c. Southern hubs or southern coordination mechanisms for communications in particular regions. Regional, sub-regional and national coordinating points may be best able to distribute information and resources on universal jurisdiction, as well as to assist with local education efforts and project coordination. Such hubs should then be integrated into international networks (the CICC, UJ-info, etc.) in order to disseminate their experience more broadly and to seek support when needed.

    d. University resources. Universities with specialties in international human rights and humanitarian law can provide excellent resources and training and can assist in project coordination for universal jurisdiction proponents at various stages of their careers. For example, a participant from the University of Notre Dame noted that the universitys Center for Civil and Human Rights has a specific accountability project (not limited to transitional justice) which consists of teaching, research and fellowships at Notre Dame for individuals interested in international accountability, and internship funding for individuals that wish to work for NGOs on accountability issues or for the ICTY or ICTR.

    Notre Dame also offers an LLM program and a doctoral program on international human rights law. The university matches its LLM students with accountability projects, and participants were encouraged to discuss their research needs with the Notre Dames human rights center.

    e. Smaller regional and inter-regional collaborations on specific cases. For example, Japanese and Peruvian NGOs can coordinate and inform each other on the issue of Fujimori.

    2. Creating databases and making them widely available.

    a. Electronic databases: Participants agreed that the web-based databases mentioned in the preceding section would contribute substantially to capacity building and education efforts. The need for dissemination of basic information, of strategies, of legislation, cases, and events was stressed, as was the need to have such resources well translated into as many languages as possible.

    Europe-based participants sounded a note of caution regarding the publication of information about individuals on Internet sites. Under European Union law, the basis of the information may need to be disclosed to its subject, and the potential for defamation suits must be considered. In general, Internet and defamation law must be considered with respect to dis