Essay: Would you argue for or against ideas of Universal Justice?

Universal Justice, ‘despite all the attention it receives from both its critics and supporters alike, remains one of the most prominent and confusing doctrines of international Law’. (Colangelo, A 2006). It requires no territorial or national binding to the accountable act or actors but is based entirely on the accusation of universal crimes taking place. The visage of Justice being ‘universal’ stems from the act being that of a crime against humanity’ or other atrocious crimes effecting the International community therefore, they attract a collective international cooperation to prosecute and deliver justice upon the responsible party.
According to the International Criminal Court, Article 5 states that ‘The International Tribunal shall have the power to prosecute persons responsible for the following crimes when committed in armed conflict, whether international or internal in character, and directed against any civilian population: murder; extermination; enslavement; deportation; imprisonment; torture; rape; persecutions on political, racial and religious grounds and other inhumane acts’ (International Criminal Tribunal 1993). Universal Justice has of recent, been the focus of debate; being hailed ‘a catalyst in the global struggle to bring to justice elusive international criminals like tyrants and terrorists, while on the other hand described as a dangerously pliable tool for hostile states to damage international relations by initiating unfounded proceedings against each other’s officials and citizens’ (Colangelo, 2006: Kissinger 2001). This debate has sparked a spectrum of discussion on the ideas of Universal Justice and its role on a global scale in contemporary society. Whilst it is known that universal justice creates a central power of authority that is viewed as necessary, especially in cases of holding actors accountable for heinous acts, as demonstrated in the Rwanda and Bosnia atrocities and in the tribunal for the former Yugoslavia; it also creates tension between states based on sovereignty and authority given that any state can in theory proclaim universal crimes have been committed regardless of who they involve or where they have taken place. This essay will examine two key principles both for and against the ideas of Universal Justice. The legal strand of Justice through the principle of Universal jurisdiction and an ethical perspective, based on the principle of universal Morality and individual responsibility. Through the use of these principles and relevant case studies, we will seek to break down the key foundations of the term ‘Universal Justice’ and asses its role in contemporary society.
Universal Justice stems from the Justice distributed by the international criminal court (ICC) trying the most serious international crimes, consisting of war crimes, genocides and crimes against humanity. (UN International Law & Justice). The first of such cases involved the prosecution of high ranking Nazi’s during the Nuremburg trials after world war 2, resulting in the hanging of 12 prominent figures of the former Nazi regime. ‘Although the legal justifications for the trials and their procedural innovations were controversial at the time, the Nuremberg trials are now regarded as a milestone toward the establishment of a permanent international court’ (Nuremberg Trials 2010) and the first recognition of Justice on a global scale effecting the future of International Criminal Courts. One such effect was the ‘United Nations Resolution, issued up in December 1946, stating that “…genocide is a crime under international law, contrary to the spirit and aims of the United Nations and condemned by the civilized world”( UN Treaty 1946) Deriving from the Nuremberg concept of Crimes Against Humanity, and the crimes conducted by the Nazis in their war, this declaration was finally embodied two years later in the Convention on the Prevention and Punishment of the Crime of Genocide of 1948. ‘This convention criminalized genocide and related activities in the international sphere, and the convention itself is heavily influenced by many of the Nuremberg principles’ (Rosen T 2018). It also extended the notion of ‘crimes against humanity’ beyond the glare of war and out of the frame specifically associated with world war two and paved the way for the development of the International Criminal court (ICC).
The first key principle of Universal Justice that will be addressed; one that sparks controversy is the notion of jurisdiction under International law. ‘Universal jurisdiction is classically defined as a legal principle allowing or requiring a state to bring criminal proceedings in respect of certain crimes irrespective of the location of the crime and the nationality of the perpetrator or the victim’ (Randall K, C 1988). Universal Jurisdiction is conventionally rationalized by two main key focuses. Firstly, some crimes are to grave for a single entity or body of power to judge over as they effect the international community. These Crimes include Genocides, War crimes and Crimes against Humanity examples of which include the Rwanda Genocide that saw the tragic deaths of 800,000 within 100days and former Yugoslavia war crime tribunals that also saw hundreds of thousands perish and millions abandoning their livelihoods. The second focus is that no safe havens globally should be available for those who have committed these atrocities and thus, a call to justice is more likely. Due to this, it’s apparent as to why Universal Jurisdiction is a key matter of concern for all regarding universal justice and why it needs to be addressed amongst the international community. It is widely considered that given these circumstances, a state’s sovereignty is subordinate to universal jurisdiction. This has been seen in several high-profile cases including the Eichmann Case in 1961 that saw the accused abducted by Israeli forces from Argentina and brought back to Jerusalem for war crimes against the Jewish people and the 2005 Scilingo case in Spain against a former Argentine Navy commander for Crimes against Humanity during the 1980’s, accused of throwing political prisoners from airplanes during Argentina’s ‘Dirty war’( Wash post 2005). These examples illustrate the ongoing dire importance to maintain a universal jurisdiction to achieve Universal Justice however, on the grounds of legality, what basis does this jurisdiction hold? ‘It is presently contrary to international law for one state to extend unilaterally its prescriptive jurisdiction into the territory of another state absent some territorial or national link to the matter over which the first state claims competence’ ( Colangelo A 2006). According to Colangelo, states cannot project their laws onto other states or their nationals yet in the case of Universal Jurisdiction, all states can prosecute universal crimes regardless of where the crimes occur or who’s nationals are affected. To understand the legality of this, a closer inspection of domestic laws within states that grant them this right is necessary.
Many states have enacted legislation granting their courts the power of Universal Jurisdiction although not identical. Many countries interpret the legislation differently and don’t include the same justification or offences to enable universal jurisdiction. ‘An Amnesty International study in 2001 found that over 125 states have universal jurisdiction over at least one serious international crime; that since the end of the Second World War, more than 15 countries have exercised universal jurisdiction in investigations or prosecutions of persons suspected of crimes under international law. (Thorp A 2010: Amnesty Int. 2001). ‘The UK has universal jurisdiction under the Geneva Conventions Act 1957 (and other legislation) for war crimes and a limited number of other serious international crimes. The UK has complied with the requirements in the 1949 Geneva Conventions, their ‘Protocol I’ and the CAT to make grave breaches of the convention and torture crimes under domestic law, regardless of where they are committed or by or against whom’ (Thorp A 2010). However, in accordance with the convention; it stems further than having the power to exercise but is an obligation that must be fulfilled. The UK is obligated to comply and must prosecute the responsible who have been alleged to committing said offences or extradite them to a state that has the ability to do so.
To achieve universal justice, appropriate measures must be undertaken with a positive co-operation from all party states. In this sense; the right of Universal Jurisdiction becoming a dominant factor in legislation over that of domestic law. ‘States Parties shall cooperate in criminal matters in accordance with articles 44 to 50 of this Convention. Where appropriate and consistent with their domestic legal system, States Parties shall consider assisting each other in investigations of and proceedings’ (Art 43- Corruption 2005). Rationale dictates that many states do not attempt to pursue justice within their own borders due to several reasons including corruption, lack of political will or simply not the effective judiciary systems to deal with certain cases thus it falls on ‘third party’ states to assist and prosecute when necessary. An example of such was seen in Argentina. The military government at the time passed a law extending amnesty to itself before relinquishing power to escape prosecution and mask their involvement in war crimes during the late 70’s and early 80’s leading to minor prosecution until 2005 when an international involvement on the basis of Human rights brought the accused to justice. ‘The crimes of the ‘dirty war’ are far too serious to be amnestied and forgotten, the Supreme Court’s ruling shows that no matter how many years go by, laws that block justice for gross abuses of human rights remain a thorn in the side of democratic governments’ (Vivanco J,M 2005). However, there has been a lot of controversy regarding when the ICC and OHCHR has sovereignty over states, particularly non-party states. ‘ The ICC does not currently have Universal Jurisdiction’ (Hoover, D 2011: Ryngaert 2009) yet, through the participation of legislation and acknowledgement of key crimes against humanity states have consented to the effort of the ICC and thus, Universal Jurisdiction. Article 12 of the Rome statute of the ICC states that ‘If the acceptance of a State which is not a Party to this Statute, is not required under paragraph 2, that State may, by declaration lodged with the Registrar, accept the exercise of jurisdiction by the Court with respect to the crime in question’ (ICC Statute 1998). Meaning that the ICC will exercise jurisdiction against nationals of non-party states that have committed a crime in the territory of a party state. This has caused scrutiny amongst non-party states regarding this as a breach of their individual sovereignty and domestic rights. The United States, for instance, ‘argued that the exercise of the jurisdiction by the ICC over U.S. nationals without its consent violates international law on the ground that a treaty cannot impose obligations on non-party States without their consent.’( Hoover, D 2011: Akande, D 2003). Although since then, the US has agreed and approved of the UN security council and ICC’s measures to prosecute war criminals, including the mass shooting of Libyan civilians by the military under the control of Gadhafi. (Resolution 1973).
Article 17 of the Rome Statute permit authority to the ICC to investigate accused criminals of international crimes if a State is unable or unwilling to investigate or prosecute the crime domestically more directly, ‘The proceedings were or are being undertaken or the national decision was made for the purpose of shielding the person concerned from criminal responsibility for crimes within the jurisdiction of the Court’. An example of which, conducted in South Africa saw the creation of the ‘truth and reconciliation commission for amnesty’ in 1995. Created to extend complete legal immunity to those who had committed crimes associated with a political objective in the course of the conflict of the past’ but only if they were prepared to offer a full disclosure of all relevant facts in the proceedings’ (Hesse & Post 1999: Act 34: Section 20). The rationale behind such a commission was ‘factual truths inform political thought’ (Arendt, H 1968)- to vanquish the wrongs of the past for the sake of progress and modernisation. ‘if amnesty can enable true reconciliation in a divided state, it can contribute to the establishment of legal institutions that transcend factions and hold the allegiance of a reconstituted nation’ (Hesse & Post 1999) However, this image of forgiveness comes into conflict with the above act for dismissing past crimes that cannot be ignored bringing to light a complicated domestic vs international affair. ‘Amnesty, even amnesty offered in exchange for truth, is no better than a lesser evil’ (Huyse, L 1995). Human rights watch, ‘whilst praising South Africa’s stance for investigating past aggressions that violate human rights, went on record opposing in principle to the granting of indemnity because governments are under a duty in international law to prosecute those who have committed serious abuse of human rights, including murder’ (Hesse & Post 1999: HRW1995). This mounts pressure on states to operate within the eye of the International community regardless of the legal scripture already in place to proceed with the dealings of crimes in the domestic states, as in the case with South Africa. Despite this however, international prosecutions can only exist within the legal limits of domestic states as their reach isn’t beyond the most serious of crimes (Crimes against humanity, war crimes etc) thus making international observation that of only observation deeming it subordinate to domestic law as was the case in South Africa. ‘In every nation emerging from a period of oppression and violence, the imperatives of punishment, reconciliation and creating a culture of law stand in a complicated and tense triangular relationship’ (Hesse & Post 1999). Personal rights and individual justice are contended against public interest, revenge against reconciliation and the interests of the present against the potential as seen within South Africa. ‘If amnesty can empower reconciliation within a divided state, it can contribute to the establishment of legal institutions that Transcend factions and hold the allegiance of a reconstituted state’ (Hesse & Post 1999). This is what Nelson Mandela has in mind when he spoke of ‘amnesty as bound up in the “renewal of our country” as an integral aspect of the “effort to act together as a united people, for national reconciliation, for national building and for the birth of a new world” (Hesse & Post 1999: Mandela 1994).
The principle of universal jurisdiction remains widely accepted by states owing to the specific nature of international crimes. This universal consideration for such crimes is one of the main strengths of the principle. Despite this however, Universal Jurisdiction still welcomes an abundance of critics who doubt its legitimacy, its precise meaning and its legal implications that continue to forefront debate. Looking at the limitations of Universal Jurisdiction from the standpoint of the UK. There are key issues that restrict the UK in appropriate handling of universal Jurisdiction, one of which being the scope of legislation. The range of offences covered by Universal Jurisdiction depends on a States legislation, thus varies from country to country. ‘In the UK, because each extension of universal jurisdiction has been in response to specific treaties rather than as the result of a general assessment of the appropriate approach and scope, the UK courts do not have jurisdiction to try everything that might be considered a serious international crime’ (Thorp, A 2010). A second key issue is that of a time frame. The International Criminal Court Act covered only crimes committed after 2001 which subsequently prevented the prosecution of war criminals including suspects in relation to the Rwandan genocide of 1994. New legislation however, was brought about in 2010 allowing the ICC Act to consider crimes dating back to 1991, 10years prior to its original legal limits. Despite this however, in accordance with freedom of information requests made to the home office, many war criminals have emigrated to the UK and still reside within (Evening Standard 2013), free from prosecution. A final key issue is that of obtaining evidence if the crime was committed overseas by a non-national on other non-nationals remains incredibly hard. Setbacks include a lack of witnesses and the complexity with arranging travel for said witnesses to give evidence within a UK court. Also, the UK would need to be directly in contact with the governing body of the country where said offences took place, this may be problematic if the country is corrupt or suffers from a lack of stability and legislature.
It is strongly noted that universal jurisdiction symbolises freedom and retribution for the powerless and has many overwhelmingly positives that add to the ‘in-favour’ argument off ‘Universal Justice’. Also, it cannot be mistaken that Universal jurisdiction has led to many a prosecution off perpetrators that wouldn’t have been held otherwise accountable for crimes against humanity. However, ‘without a comprehensive system of laws at the national level and without such laws adopted by a certain number of States, the principle of universal jurisdiction cannot be expected to function in practice as an effective and reliable pillar of the international justice system’ (Hoover, D 2011). Proper conduction of a universal jurisdiction is currently lacking with a primary ongoing debate amongst non-party states depicting the notion of intimidation by member states for maintaining state sovereignty against a backdrop of international law. Without proper representation and cooperation from all states, a plausible and global sense of justice cannot be reached thus undermining the legitimacy of the ICC to bring about a ‘Universal Justice’ through the principle of Universal Jurisdiction.
Whilst it can be ascertained that the ongoing legality behind achieving universal Justice remains in debate, a universal moral obligation to do so cannot be ignored. The principle of Morality is a system of values and pillars of conduct that exist in a universal moral context. ‘Aldous Huxley (1969) argued that there is a “perennial philosophy” or a core of moral principles that exist in every time and space throughout history’ (Kinnier, RT 2000: Huxley, A 1969). Even dating back to Aristotle who observed that man will always maintain the most basic of moral values and as such, in regard to the question of universal Justice; crimes against humanity are the most obvious violation of this principle. ‘Crimes against humanity are condemned by the laws of the states and by international agencies in defence of human rights because it is believed that man has an inviolable dignity, and therefore absolute rights such as the right to life, bodily integrity, to food, and not to be killed, tortured, mutilated, sold’ (De Marchi, P 2011). According to De Marchi, an individual that rebuts this notion in-tern rebuts the rational arguments for preventing Crimes against Humanity which goes against moral principle. As is expected, with ideas of ‘universal’ comes many a critique however, theorists such as Wendell Bell argued in favour of universal morals as despite the difficulty with labelling something universal, acknowledged it morally, is the right thing to do. ‘Without universal standards, we are left with no way to condemn cannibalism, physical torture, mutilation, slavery, murder or genocide’ (Bell, W 1994) which, regardless of being anti-universalist, is hard to not denounce.
De Marchi (2011) also highlight the need to address the individual moral responsibility of the accused as being a focal point when addressing Universal Justice. ‘The courts have a duty to establish and punish the objective responsibility. The sphere of the recognition and assumption of responsibility of the authors, instead, regards the individual moral conscience. It is a specific moral duty of everyone who comes into contact with these people to help them to understand the gravity of their crimes so that they can embark on a journey of repentance and repair of the harm done’ (De Marchi, P 2011). Thus, humans have an individual responsibility for each other and a moral duty to prevent crimes against humanity in not just the present but, as De Marchi describes; promoting the conditions to prevent them occurring in the future. This can be implemented through education and agencies conveying the knowledge of respect and tolerance amongst all human beings. An investment by the state in ethical education, creating a cultural appreciation for individuals in a given society. The ongoing support of improving political, social and economic conditions throughout will in turn, allow for peace amongst different religious and ethical groups and promote a cultural environment respectful of all individuals regardless of ethnicity, age, sex, gender etc. Thirdly, we must embrace a culture of co-operation instead of competition where dialogue is at the forefront, trumping violence. ‘As Havel observes, “a society in which there is cure of relations does not need a lot of rules.” And the cure of relations is incompatible with the abuse of power or the hate of some group. We can therefore share Havel’s claim that above all “we must struggle energetically against all the incipient forms of collective hatred, not only on principle, because evil must always be confronted, but in our own interests”’ (De Marchi, P 2011: Havel, V 1990).