Jul01
The Princeton Principles on Universal Jurisdiction.
ContentsSteering Committee Preface by Stephen Macedo Foreword by Hon. Mary Robinson Introduction Principles Drafting Committee
Steering Committee
Stephen Macedo, Project Chair
Laurance S. Rockefeller Professor of Politics and The University Center for Human Values; Founding Director, Program in Law and Public Affairs, 1999-2001, Princeton UniversityGary J. Bass
Assistant Professor of Politics and International Affairs, Princeton UniversityWilliam J. Butler
Former Chairman, Executive Committee of the International Commission of Jurists, 1975-1990; President, American Association for the International Commission of JuristsRichard A. Falk Albert G. Milbank Professor of International Law and Practice, Professor of Politics and International Affairs, Princeton University
Cees Flinterman
Professor of Human Rights, Utrecht University; Director of the Netherlands Institute of Human Rights and the Netherlands School of Human Rights ResearchBert B. Lockwood
Distinguished Service Professor of Law; Director of the Urban Morgan Institute for Human Rights; University of Cincinnati College of LawStephen A. Oxman
Board of Directors, American Association for the International Commission of Jurists; Former U.S. Assistant Secretary of State for European and Canadian Affairs
Preface
The Princeton Project began with a visit to Princeton by William J. Butler and Stephen A. Oxman in January 2000. They came, representing the International Commission of Jurists and the American Association for the International Commission of Jurists, to propose the idea of formulating principles to help clarify and bring order to an increasingly important area of international criminal law: prosecutions for serious crimes under international law in national courts based on universal jurisdiction, absent traditional jurisdictional links to the victims or perpetrators of crimes. Dean Michael Rothschild of the Woodrow Wilson School of Public and International Affairs asked me to join the meeting in my capacity as Founding Director of Princeton’s new Program in Law and Public Affairs. The idea had great appeal as a chance to bring scholars and jurists together to reflect upon an important problem in the law, and to think about how to address it. Our hope all along has been to wed theory and practice: to study a set of difficult problems of international justice and law with the goal of formulating consensus principles.
The Princeton Project has consisted mainly of various working groups, assembled on the basis of expertise, and with an eye to representing a variety of points of view. Our aim has been to study the problems raised by universal jurisdiction, but also to produce principles in a timely manner. An initial draft of the Principles was produced by Professor M. Cherif Bassiouni. This was discussed at Princeton University on November 10-11, 2000, by a group of leading scholars who also contributed working papers on various aspects of universal jurisdiction. A drafting committee helped redraft the Principles, which were then forwarded along with the revised working papers to an international group of jurists who met at Princeton, January 25-27, 2001. The January meeting of the Princeton Project included jurists from around the world who met to hammer out consensus principles. The Princeton Principles, including the introductory matter, emerged in their present form from this meeting, and were re-circulated in February 2001 to Project participants and dozens of human rights organizations around the world, some of whom offered us comments.
We have tried to keep the process of formulating these Principles as open and transparent as possible, while also taking seriously the need to assemble representative and workable groups of participants. Professor M. Cherif Bassiouni deserves special thanks for his lead role in drafting and revising the principles over the course of many months. His vast expertise and tireless energy have been essential at every stage.
My thanks to the scholars who contributed essential intellectual underpinnings to this Project, and also to the jurists who assembled from around the world in January: their acuity and moral seriousness were all that we could have hoped for and more. Thanks to the many others who provided valuable assistance, including three at Princeton: Professors Gary J. Bass, Richard A. Falk, and Diane Orentlicher (who was here as Fellow, 2000-2001, in the Program in Law and Public Affairs).
Thanks finally to Bill Butler and Steve Oxman for bringing this idea to Princeton University. They furnished me with an unexpected but rewarding inaugural project for the Program in Law and Public Affairs. Steve Oxman’s careful attention to matters large and small improved every aspect of this Project. Bill Butler’s well-known energy and depth of commitment to justice under law have powered this Project from the start.
These Principles will not, and are not intended to, end the many controversies that surround universal jurisdiction. I do hope that they clarify what universal jurisdiction is, and how its reasonable and responsible exercise by national courts can promote greater justice for victims of serious crimes under international law.
Stephen Macedo
Project Chair
May 2001
Foreword by Hon. Mary Robinson
The subject of universal jurisdiction is of great relevance to all who work for human rights. I regard the search for ways to end impunity in the case of gross violations of human rights as an essential part of the work of my Office, and an essential instrument in the struggle to defend human rights. I welcome the initiative of the Princeton Project and trust that the wide dissemination of these Principles will play a positive role in developing and clarifying the principle of universal jurisdiction.
In my daily work as High Commissioner for Human Rights I see many situations involving gross, and sometimes widespread, human rights abuses for which the perpetrators often go unpunished. Torture, war crimes — including abuses involving gender-based violence — and enforced disappearances are but a few of these crimes. The recent increase in transnational criminal activity, encouraged by globalization and open borders, has added to the challenges we face in fighting against impunity for such abuses. Trafficking of persons, and of women and children specifically, is an issue of particular concern to my Office. These disturbing trends have given me cause to ref lect on the possibilities for alternative means of securing justice and accountability.
Two important and complementary means currently exist for the implementation of international criminal jurisdiction: prosecution by international criminal tribunals and the domestic application of the principle of universal jurisdiction. As far as the former is concerned, I am encouraged by the increasing number of states that are signing and ratifying the Statute of the International Criminal Court, and I hope that this permanent Court will soon be a reality. Even before the Court’s establishment, the ICC Statute has proved an invaluable tool in the struggle against impunity. The Statute codifies crimes against humanity for the first time in a multilateral treaty, and it enumerates certain acts as war crimes when committed in non-international armed conflicts.
Through its cornerstone principle of complementarity, the ICC Statute highlights the fact that international prosecutions alone will never be sufficient to achieve justice and emphasizes the crucial role of national legal systems in bringing an end to impunity. The sad reality is that territorial states often fail to investigate and prosecute serious human rights abuses. The application of universal jurisdiction is therefore a crucial means of justice.
The principle of universal jurisdiction is based on the notion that certain crimes are so harmful to international interests that states are entitled—and even obliged—to bring proceedings against the perpetrator, regardless of the location of the crime or the nationality of the perpetrator or the victim. Human rights abuses widely considered to be subject to universal jurisdiction include genocide, crimes against humanity, war crimes and torture. While the principle of universal jurisdiction has long existed for these crimes, however, it is rapidly evolving as a result of significant recent developments. I applaud the fact that the Princeton Principles acknowledge that this doctrine continues to develop in law and in practice.
One aspect which might be mentioned is the application of universal jurisdiction to other offenses in international law, since this has been raised recently in various fora. The UN Declaration on the Protection of all Persons from Enforced Disappearances, for example, provides for the exercise of universal jurisdiction for alleged acts of forced disappearances, a vision already contained at the regional level in the Inter-American Convention on Forced Disappearance of Persons. The international community is currently also considering a draft international convention on the protection of all persons from enforced disappearance. Universal jurisdiction was discussed recently at the symposium on the challenge of borderless cyber-crime to international efforts to combat transnational organized crime, held in conjunction with the signing conference for the UN Convention against Transnational Organized Crime in Palermo, Italy. Discussions in treaty negotiations have raised the question of allowing civil jurisdiction for conduct which constitutes an international crime, in the context of the draft Hague Conference on Jurisdiction and Foreign Judgments in Civil and Commercial Matters. These negotiations are of concern to my Office, as they may have important implications regarding the access to courts for victims seeking remedies for human rights violations. The International Court of Justice is also considering issues related to universal jurisdiction in the ongoing case concerning the arrest warrant against the former Minister for Foreign Affairs of the Democratic Republic of Congo by a Belgian investigating judge, who was seeking his provisional detention for alleged serious violations of international humanitarian law.
These developments suggest that new ground is being broken with regard to the application of the principle of universal jurisdiction. This is not to say, however, that the exercise of universal jurisdiction is an easy matter. There are significant practical and legal challenges regarding the application of this principle. The obstacles faced by universal jurisdiction were recently elaborated by the International Law Association in its very informative report on the subject.
Obstacles to the exercise of universal jurisdiction include the question of the application of sovereign immunity defenses. In this regard, the decision of the British House of Lords in the Pinochet case confirming that former heads of state do not enjoy immunity for the crime of torture under UK law was refreshing and, along with other recent cases, has seriously challenged the notion of immunity from criminal liability for crimes under international law committed in an official capacity.
An additional area that I am particularly concerned about is the issue of amnesty laws. I stress that certain gross violations of human rights and international humanitarian law should not be subject to amnesties. When the United Nations faced the question of signing the Sierra Leone Peace Agreement to end atrocities in that country, the UN specified that the amnesty and pardon provisions in Article IX of the agreement would not apply to international crimes of genocide, crimes against humanity, war crimes and other serious violations of international humanitarian law. We must be cautious not to send the wrong message regarding amnesties for serious violations of human rights and international humanitarian law, and I believe that the Princeton Principles correctly express the position that certain crimes are too heinous to go unpunished.
The exercise of universal jurisdiction holds the promise for greater justice for the victims of serious human rights violations around the world. My Office will continue to monitor developments in this rapidly evolving area, including the ongoing efforts of the Princeton Project to strengthen universal jurisdiction as a tool to end impunity. I encourage the wide dissemination of the Princeton Principles on Universal Jurisdiction.
Mary Robinson
United Nations High Commissioner for Human Rights
The Princeton Principles on Universal Jurisdiction.
Introduction
The Challenge
During the last century millions of human beings perished as a result of genocide, crimes against humanity, war crimes, and other serious crimes under international law. Perpetrators deserving of prosecution have only rarely been held accountable. To stop this cycle of violence and to promote justice, impunity for the commission of serious crimes must yield to accountability. But how can this be done, and what will be the respective roles of national courts and international tribunals?
National courts administer systems of criminal law designed to provide justice for victims and due process for accused persons. A nation’s courts exercise jurisdiction over crimes committed in its territory and proceed against those crimes committed abroad by its nationals, or against its nationals, or against its national interests. When these and other connections are absent, national courts may nevertheless exercise jurisdiction under international law over crimes of such exceptional gravity that they affect the fundamental interests of the international community as a whole. This is universal jurisdiction: it is jurisdiction based solely on the nature of the crime. National courts can exercise universal jurisdiction to prosecute and punish, and thereby deter, heinous acts recognized as serious crimes under international law. When national courts exercise universal jurisdiction appropriately, in accordance with internationally recognized standards of due process, they act to vindicate not merely their own interests and values but the basic interests and values common to the international community. Universal jurisdiction holds out the promise of greater justice, but the jurisprudence of universal jurisdiction is disparate, disjointed, and poorly understood. So long as that is so, this weapon against impunity is potentially beset by incoherence, confusion, and, at times, uneven justice.
International criminal tribunals also have a vital role to play in combating impunity as a complement to national courts. In the wake of mass atrocities and of oppressive rule, national judicial systems have often been unable or unwilling to prosecute serious crimes under international law, so international criminal tribunals have been established. Treaties entered into in the aftermath of World War II have strengthened international institutions, and have given greater clarity and force to international criminal law. A signal achievement of this long historic process occurred at a United Nations Conference in July 1998 when the Rome Statute of the International Criminal Court was adopted. When this permanent court becomes effective, the international community will acquire an unprecedented opportunity to hold accountable some of those accused of serious crimes under international law. The jurisdiction of the International Criminal Court will, however, be available only if justice cannot be done at the national level. The primary burden of prosecuting the alleged perpetrators of these crimes will continue to reside with national legal systems.
Enhancing the proper exercise of universal jurisdiction by national courts will help close the gap in law enforcement that has favored perpetrators of serious crimes under international law. Fashioning clearer and sounder principles to guide the exercise of universal jurisdiction by national courts should help to punish, and thereby to deter and prevent, the commission of these heinous crimes. Nevertheless, the aim of sound principles cannot be simply to facilitate the speediest exercise of criminal jurisdiction, always and everywhere, and irrespective of circumstances. Improper exercises of criminal jurisdiction, including universal jurisdiction, may be used merely to harass political opponents, or for aims extraneous to criminal justice. Moreover, the imprudent or untimely exercise of universal jurisdiction could disrupt the quest for peace and national reconciliation in nations struggling to recover from violent conflict or political oppression. Prudence and good judgment are required here, as elsewhere in politics and law.
What is needed are principles to guide, as well as to give greater coherence and legitimacy to, the exercise of universal jurisdiction. These principles should promote greater accountability for perpetrators of serious crimes under international law, in ways consistent with a prudent concern for the abuse of power and a reasonable solicitude for the quest for peace.
The Princeton Project
The Princeton Project on Universal Jurisdiction has been formed to contribute to the ongoing development of universal jurisdiction. The Project is sponsored by Princeton University’s Program in Law and Public Affairs and the Woodrow Wilson School of Public and International Affairs, the International Commission of Jurists, the American Association for the International Commission of Jurists, the Urban Morgan Institute for Human Rights, and the Netherlands Institute of Human Rights. The Project convened at Princeton University in January 2001 an assembly of scholars and jurists from around the world, serving in their personal capacities, to develop consensus principles on universal jurisdiction.
This assembly of scholars and jurists represented a diversity of viewpoints and a variety of legal systems. They are, however, united in their desire to promote greater legal accountability for those accused of committing serious crimes under international law.
The Project benefited from the indispensable efforts of leading scholars whom it had commissioned to write working papers on various aspects of universal jurisdiction and who gathered in Princeton in November 2000 to discuss these papers and an early draft of these Principles. On January 27, 2001, those assembled at Princeton University to participate in the Princeton Project on Universal Jurisdiction, after considerable and thoughtful debate, arrived at a final text. Each participant might have chosen different words to restate existing international law and to identify the aspirations implicit in international law, but in the end the Principles were adopted.
The development and adoption of these Principles is part of an ongoing process taking place in different countries and involving scholars, researchers, government experts, international organizations, and other members of international civil society. Those involved in these efforts share the goals of advancing international criminal justice and human rights.
These Principles on Universal Jurisdiction are intended to be useful to legislators seeking to ensure that national laws conform to international law, to judges called upon to interpret and apply international law and to consider whether national law conforms to their state’s international legal obligations, to government officials of all kinds exercising their powers under both national and international law, to nongovernmental organizations and members of civil society active in the promotion of international criminal justice and human rights, and to citizens who wish to better understand what international law is and what the international legal order might become.
The assembly is as mindful of the importance of universal jurisdiction as it is of the potential dangers of the abusive or vexatious exercise of criminal jurisdiction, including universal jurisdiction. It has therefore reaffirmed throughout the Principles legal and judicial safeguards to help deter potential abuses. These safeguards established in international due process norms to protect persons accused of crimes are especially important in the case of a person facing prosecution, based solely on universal jurisdiction, in a state that is not that person’s state of nationality or residence.
Furthermore, the assembly recognizes that a scarcity of resources, time, and attention may impose practical limitations on the quest for perfect justice, and that societies emerging from conflict must sometimes allocate priorities among initiatives that contribute to a just and lasting peace, including accountability for international crimes. Moreover, the assembly acknowledges that a range of reasonable disagreement sometimes exists within societies and among societies about the culpability of alleged criminals, the good faith of prosecutions, and the wisdom and practicality of pursuing alleged perpetrators. For these reasons, universal jurisdiction should be exercised with prudence and in a way that ensures the application of the highest standards of prosecutorial fairness and of judicial independence, impartiality, and fairness.
The assembly commends these Principles to states in the belief that their implementation will promote justice, reinforce the rule of law, and advance the other values and goals described above.
The Princeton Principles on Universal Jurisdiction
The participants in the Princeton Project on Universal Jurisdiction propose the following principles for the purposes of advancing the continued evolution of international law and the application of international law in national legal systems:
Principle 1 -- Fundamentals of Universal Jurisdiction
1. For purposes of these Principles, universal jurisdiction is criminal jurisdiction based solely on the nature of the crime, without regard to where the crime was committed, the nationality of the alleged or convicted perpetrator, the nationality of the victim, or any other connection to the state exercising such jurisdiction.
2. Universal jurisdiction may be exercised by a competent and ordinary judicial body of any state in order to try a person duly accused of committing serious crimes under international law as specified in Principle 2(1), provided the person is present before such judicial body.
3. A state may rely on universal jurisdiction as a basis for seeking the extradition of a person accused or convicted of committing a serious crime under international law as specified in Principle 2(1) provided that it has established a prima facie case of the person's guilt and that the person sought to be extradited will be tried or the punishment carried out in accordance with international norms and standards on the protection of human rights in the context of criminal proceedings.
4. In exercising universal jurisdiction or in relying upon universal jurisdiction as a basis for seeking extradition, a state and its judicial organs shall observe international due process norms including but not limited to those involving the rights of the accused and victims, the fairness of the proceedings, and the independence and impartiality of the judiciary (hereinafter referred to as "international due process norms").
5. A state shall exercise universal jurisdiction in good faith and in accordance with its rights and obligations under international law.
Principle 2 -- Serious Crimes Under International Law
1. For purposes of these Principles, serious crimes under international law include: (1) piracy; (2) slavery; (3) war crimes; (4) crimes against peace; (5) crimes against humanity; (6) genocide; and (7) torture.
2. The application of universal jurisdiction to the crimes listed in paragraph 1 is without prejudice to the application of universal jurisdiction to other crimes under international law.
Principle 3 -- Reliance on Universal Jurisdiction in the Absence of National Legislation
With respect to serious crimes under international law as specified in Principle 2(1), national judicial organs may rely on universal jurisdiction even if their national legislation does not specifically provide for it.
Principle 4 -- Obligation to Support Accountability
1. A state shall comply with all international obligations that are applicable to: prosecuting or extraditing persons accused or convicted of crimes under international law in accordance with a legal process that complies with international due process norms, providing other states
investigating or prosecuting such crimes with all available means of administrative and judicial assistance, and under-taking such other necessary and appropriate measures as are consistent with international norms and standards.
2. A state, in the exercise of universal jurisdiction, may, for purposes of prosecution, seek judicial assistance to obtain evidence from another state, provided that the requesting state has a good faith basis and that the evidence sought will be used in accordance with international due process norms.
Principle 5 -- Immunities
With respect to serious crimes under international law as specified in Principle 2(1), the official position of any accused person, whether as head of state or government or as a responsible government official, shall not relieve such person of criminal responsibility nor mitigate punishment.
Principle 6 -- Statutes of Limitations
Statutes of limitations or other forms of prescription shall not apply to aerious crimes under international law as specified in Principle 2(1).
Principle 7 -- Amnesties
1. Amnesties are generally inconsistent with the obligation of states to provide accountability for serious crimes under international law as specified in Principle in 2(1).
2. The exercise of universal jurisdiction with respect to serious crimes under international law as specified in Principle 2(1) shall not be precluded by amnesties which are incompatible with the international legal obligations of the granting state.
Principle 8 -- Resolution of Competing National Jurisdictions
Where more than one state has or may assert jurisdiction over a person and where the state that has custody of the person has no basis for jurisdiction other than the principle of universality, that state or its judicial organs shall, in deciding whether to prosecute or extradite, base their decision on an aggregate balance of the following criteria:
(a) multilateral or bilateral treaty obligations;
(b) the place of commission of the crime;
(c) the nationality connection of the alleged perpetrator to the requesting state;
(d) the nationality connection of the victim to the requesting state;
(e) any other connection between the requesting state and the alleged perpetrator, the crime, or the victim;
(f) the likelihood, good faith, and effectiveness of the prosecution in the requesting state;
(g) the fairness and impartiality of the proceedings in the requesting state;
(h) convenience to the parties and witnesses, as well as the availability of evidence in the requesting state; and
(i) the interests of justice.
Principle 9 -- Non Bis In Idem / Double Jeopardy
1. In the exercise of universal jurisdiction, a state or its judicial organs shall ensure that a person who is subject to criminal proceedings shall not be exposed to multiple prosecutions or punishment for the same criminal conduct where the prior criminal proceedings or other accountability proceedings have been conducted in good faith and in accordance with international norms and standards. Sham prosecutions or derisory punishment resulting from a conviction or other accountability proceedings shall not be recognized as falling within the scope of this Principle.
2. A state shall recognize the validity of a proper exercise of universal jurisdiction by another state and shall recognize the final judgment of a competent and ordinary national judicial body or a competent international judicial body exercising such jurisdiction in accordance with international due process norms.
3. Any person tried or convicted by a state exercising universal jurisdiction for serious crimes under international law as specified in Principle 2(1) shall have the right and legal standing to raise before any national or international judicial body the claim of non bis in idem in opposition to any further criminal proceedings.
Principle 10 -- Grounds for Refusal of Extradition
1. A state or its judicial organs shall refuse to entertain a request for extradition based on universal jurisdiction if the person sought is likely to face a death penalty sentence or to be subjected to torture or any other cruel, degrading, or inhuman punishment or treatment, or if it is likely that the person sought will be subjected to sham proceedings in which international due process norms will be violated and no satisfactory assurances to the contrary are provided.
2. A state which refuses to extradite on the basis of this Principle shall, when permitted by international law, prosecute the individual accused of a serious crime under international law as specified in Principle 2(1) or extradite such person to another state where this can be done without exposing him or her to the risks referred to in paragraph 1.
Principle 11 -- Adoption of National Legislation
A state shall, where necessary, enact national legislation to enable the exercise of universal jurisdiction and the enforcement of these Principles.
Principle 12 -- Inclusion of Universal Jurisdiction in Future Treaties
In all future treaties, and in protocols to existing treaties, concerned with serious crimes under international law as specified in Principle 2(1), states shall include provisions for universal jurisdiction.
Principle 13 -- Strengthening Accountability and Universal Jurisdiction
1. National judicial organs shall construe national law in a manner that is consistent with these Principles.
2. Nothing in these Principles shall be construed to limit the rights and obligations of a state to prevent or punish, by lawful means recognized under international law, the commission of crimes under international law.
3. These Principles shall not be construed as limiting the continued development of universal jurisdiction in international law.
Principle 14 -- Settlement of Disputes
1. Consistent with international law and the Charter of the United Nations, states should settle their disputes arising out of the exercise of universal jurisdiction by all available means of peaceful settlement of disputes and in particular by submitting the dispute to the International Court of Justice.
2. Pending the determination of the issue in dispute, a state seeking to exercise universal jurisdiction shall not detain the accused person nor seek to have that person detained by another state unless there is a reasonable risk of flight and no other reasonable means can be found to ensure that person's eventual appearance before the judicial organs of the state seeking to exercise its jurisdiction.
Drafting Committee
M. Cherif Bassiouni, Chair
Princeton Project on Universal Jurisdiction
Professor of Law and President of the International Human Rights Law Institute, DePaul College of Law; Former Chair of the Drafting Committee of the United Nations Diplomatic Conference on the Establishment of the International Criminal CourtChristopher L. Blakesley
(November only)
J.Y. Sanders Professor of Law at the Paul M. Hebert Law Center, Louisiana State UniversityWilliam J. Butler
Former Chairman of the Executive Committee of the International Commission of Jurists, 1975-1990, and President of the American Association for the International Commission of JuristsStephen Macedo
Laurance S. Rockefeller Professor of Politics and The University Center for Human Values; Director of the Program in Law and Public Affairs, Princeton UniversityDiane F. Orentlicher
Law and Public Affairs Fellow, 2000-2001, Princeton University, and Professor of Law and Director of the War Crimes Research Office, American UniversityStephen A. Oxman
Member of the Board of Directors, American Association for the International Commission of Jurists, and Former U.S. Assistant Secretary of State for European and Canadian AffairsLloyd L. Weinreb
(November only)
Dane Professor of Law, Harvard Law School
Documentation Note:
Extracted from "The Princeton Principles on Universal Jurisdiction", Published by the Program in Law and Public Affairs, Produced by the Office of Communications Printed by the Office of University Printing and Mailing, Princeton University, ISBN 0-9711859-0-5.Sponsoring Organizations: Program in Law and Public Affairs and Woodrow Wilson School of Public and International Affairs, Princeton University; International Commission of Jurists; American Association for the International Commission of Jurists; Netherlands Institute of Human Rights; Urban Morgan Institute for Human Rights; Published 2001, Printed in the United States of America.
This document has been published on 23Sep02 by the Equipo Nizkor and Derechos Human Rights