Chapter 4: The ICC‟s contribution to war crimes trials in the DRC
5.3 The attempts of the universal jurisdiction system
As result, people have lost confidence in the justice system.522 Very few of the decisions which have been rendered by different Courts can be considered as case law. Magistrates need training in general, as well as training in the investigation and prosecution of international crimes in line with international standards.
5.2.3 The challenges facing the international criminal justice system in dealing with war crimes in the DRC
The crimes that have been committed in the Congo are of international concern and cannot go unpunished. Although the ICC has attempted to prosecute some alleged war criminals, its jurisdiction is limited, as explained above.
Therefore there is a need to explore another judicial solution which could fit with the Congolese context, considering the framework, and the time and nature of the crimes that have been committed.
judges to prosecute war crimes thus far have been criticized.525 However, the principle of universality is important, as it may contribute to fighting impunity if it is properly applied by States. This might address the issue of impunity in the DRC.526
5.3.1 Notion
The application of the embryonic principle of universality was used to fight the impunity of vagabonds, assassins, exiles and robbers, who could not be found, who had fled to other territories, or who were continuing with crime.527
The basic principle was judex deprensionis, or the judge of arrest. The judge of place of arrest was required to prosecute the criminal in compliance with the principle aut dedere, aut punire, to extradite or to punish the offender. The principle of universality has evolved and been affirmed throughout history. However the first time that this principle was truly admitted in international law was the prosecution of piracy.528 Some have cited the Lotus529 case as the sole judicial decision relating to the right of a state to apply a broad, criminal jurisdiction.
The universal jurisdiction is classified in several types: the co-operative general universality principle, the co-operative limited universality principle or principle of representation, and the unilateral limited universality principle.530
The co-operative general universality considers the principle, as the national judge should apply it, where the suspect is arrested when it is not possible to extradite the
525 L Reydams „Belgium reneges on universality: the 5 August 2003 Act on Grave Breaches of International Humanitarian Law‟ (2003) (1) 679-681 in Journal of International Criminal Justice; H Kissinger „Pitfalls of Universal Jurisdiction‟ available at
www.globalpolicy.org/component/content/article/163/28174.html, accessed on 12 June 2011.
526 UNOHCRH (note 3 above; para 1027-1039); CAD (note 280 above; 15).
527 L Reydams (note 353 above; 29). The ground of the right and/or duty of any national judge to prosecute those responsible for an international offence regardless of their nationality, the nationality of their victim or the place of perpetration of the crime can be traced back to the past .See N M Songo (note 32 above; 113).
528 N M Songa (note 32 above; 115).
529 See R O‟Keefe „Universal jurisdiction:clarifying the basic concept‟ (2004) (2) in Journal of International Criminal Justice 735,736; L Reydams (note 353 above; 11). See also Lotus case
Judgement available at http://www.worldcourts.com/pcij/eng/decisions/1927.09.07_lotus.htm, accessed on 19 July 2011.
530 L Reydams (note 353 above; 28).
suspect. The co-operative limited universality principle distinguishes between domestic and international offences. It applies only to crimes of international concern.
Finally, the unilateral limited universality principle allows any national judge to exercise criminal jurisdiction to try offence of an international character even in abstentia.531
While this classification may not be perfect, it illustrates the evolution of the principle under analysis, which has been subjected to several criticisms regarding its grounds in terms of legality, legitimacy, efficiency, and feasibility.532
Notwithstanding these criticisms, the principle of universality is in line with a globalized world, in which people travel more easily than in the past, and information technology has transformed the world into a global village.533 This means that the perpetrators of grave crimes are unlikely to be confined within the territory of one State.
This principle is considered by several international organizations, NGOs and human rights defendants as an important tool, which may help to fight unpunished grave crimes worldwide, and in the DRC in particular.534
What is the legal basis of the principle of universal jurisdiction? Is it consistent with modern international law?
531 L Reydams (note 353 above; 29-42).
532 Note 525 above; S Bula-Bula „Senegalese jurisdiciton versus Belgian Universal jurisdiction
judgement of November 25 2005 of the Court of appeals of Dakar concerning the lack of jurisdiction in the extradition of Mr Hissène Habré‟ (2006) 319, 333.
533 J Seroussi Les Tribunaux de l’humanité les ajustements cognitifs dans la mobilisation pour la competence universelle des juges nationaux (2007) (unpublished PhD thesis) University of Paris Sorbonne 11-12 available at
http://www.cess.paris4.sorbonne.fr/dossierpdf/Les%20tribunaux%20de%20l'humanit%E9.pdf, accessed on 10 May 2011.
534 See „Universal jurisdiction’ available at http://www.amnesty.org/en/international- justice/issues/universal-jurisdiction, accessed on 12 July 2011.
5.3.2 Legal basis
As noted above it is not easy to achieve universal agreement on prosecution of different offences against the international order. For different reasons relating to imperialistic foreign policy, States regard consent to a criminal jurisdiction as a serious threat. Hence it is not surprising that until now the universal jurisdiction is not grounded on a global convention.535 Although several treaties exist on specific offences, extradition, and above all, the commitment of the international community to bring to justice to all those responsible for serious violations of human rights,536 “at present there is no global convention on criminal jurisdiction, and it seems unlikely that such an instrument will be adopted in the near future”.537
According to Dugard, the true universal jurisdiction applies only in the case of crimes under customary international law538 and signatory states to multilateral treaties may exercise a “type of quasi-universal jurisdiction”.539
Searching for evidence of universal jurisdiction in international Conventions, Reydams540 notes that although roughly 100 multilateral treaties relating to crime were agreed during the period before World War Two, only three deal in some way or another with the principle of universality. However after World War Two, he found about 30 international Conventions pertaining to universal jurisdiction.
International offences in respect of which any national judge may exercise universal jurisdiction are limited to piracy, slave-trading, war crimes, crimes against humanity, genocide and torture.541
However this list is not exhaustive of what may constitute international crimes in terms of international criminal law. In line with the focus of this dissertation, the
535 L Reydams (note 353 above; 16).
536 Ibidem 17.
537 Ibidem 16.
538 J Dugard et al. (note 48 above; 156).
539 Ibidem157.
540 L Reydams (note 353 above; 79).
541 J Dugard et al. (note 48 above; 157).
following section will highlight the exercise of criminal jurisdiction relating to war crimes.
In terms of article 49 (2)542 of the First Geneva Convention, all States party to the Convention shall take necessary measures to avoid war criminals going unpunished.
States are obliged to try those responsible for grave breaches of that Convention regardless of their nationality before their national courts or to extradite them for trial in another party State.
Today, most States are party to this Convention. Effective exercise of this jurisdiction may help to stop impunity for serious crime all over the world, especially in the DRC.
This would entail national jurisdictions acting on behalf of the international community to protect the human values common to all nations.543
Some are opposed to the principle of universality, arguing that it will lead to a tyranny of judges.544 For others, the exercise of universal jurisdiction may contribute significantly to the fight against impunity. But to be successful in practice, two conditions must be taken into account: reasonableness and non-interference in the internal domestic affairs of other States.545
Among the States cited as most likely to be capable in virtue of their municipal law to exercise a form of universal jurisdiction are Australia, Austria, Belgium, Canada, Denmark, France, Germany, Israel, The Netherlands, Spain, Switzerland, the United Kingdom, and the United States of America.546