|II.||Substantive International Law - Second Part|
|16.||INTERNATIONAL CRIMINAL LAW|
Arrest Warrant of 11 April 2000
(Democratic Republic of the Congo v. Belgium)
Judgment of 14 February 2002
[pp. 23-26] 56. The Court will now address Belgiums argument that immunities accorded to incumbent Ministers for Foreign Affairs can in no case protect them where they are suspected of having committed war crimes or crimes against humanity. In support of this position, Belgium refers in its Counter-Memorial to various legal instruments creating international criminal tribunals, to examples from national legislation, and to the jurisprudence of national and international courts.
58. The Court has carefully examined State practice, including national legislation and those few decisions of national higher courts, such as the House of Lords or the French Court of Cassation. It has been unable to deduce from this practice that there exists under customary international law any form of exception to the rule according immunity from criminal jurisdiction and inviolability to incumbent Ministers for Foreign Affairs, where they are suspected of having committed war crimes or crimes against humanity.
The Court has also examined the rules concerning the immunity or criminal responsibility of persons having an official capacity contained in the legal instruments creating international criminal tribunals, and which are specifically applicable to the latter (see Charter of the International Military Tribunal of Nuremberg, Art. 7; Charter of the International Military Tribunal of Tokyo, Art. 6; Statute of the International Criminal Tribunal for the former Yugoslavia, Art. 7, para. 2; Statute of the International Criminal Tribunal for Rwanda, Art. 6, para. 2; Statute of the International Criminal Court, Art. 27). It finds that these rules likewise do not enable it to conclude that any such an exception exists in customary international law in regard to national courts.
Finally, none of the decisions of the Nuremberg and Tokyo international military tribunals, or of the International Criminal Tribunal for the former Yugoslavia, cited by Belgium deal with the question of the immunities of incumbent Ministers for Foreign Affairs before national courts where they are accused of having committed war crimes or crimes against humanity. The Court accordingly notes that those decisions are in no way at variance with the findings it has reached above.
In view of the foregoing, the Court accordingly cannot accept Belgiums argument in this regard.
59. It should further be noted that the rules governing the jurisdiction of national courts must be carefully distinguished from those governing jurisdictional immunities: jurisdiction does not imply absence of immunity, while absence of immunity does not imply jurisdiction. Thus, although various international conventions on the prevention and punishment of certain serious crimes impose on States obligations of prosecution or extradition, thereby requiring them to extend their criminal jurisdiction, such extension of jurisdiction in no way affects immunities under customary international law, including those of Ministers for Foreign Affairs. These remain opposable before the courts of a foreign State, even where those courts exercise such a jurisdiction under these conventions.
60. The Court emphasizes, however, that the immunity from jurisdiction enjoyed by incumbent Ministers for Foreign Affairs does not mean that they enjoy impunity in respect of any crimes they might have committed, irrespective of their gravity. Immunity from criminal jurisdiction and individual criminal responsibility are quite separate concepts. While jurisdictional immunity is procedural in nature, criminal responsibility is a question of substantive law. Jurisdictional immunity may well bar prosecution for a certain period or for certain offences; it cannot exonerate the person to whom it applies from all criminal responsibility.
61. Accordingly, the immunities enjoyed under international law by an incumbent or former Minister for Foreign Affairs do not represent a bar to criminal prosecution in certain circumstances.
First, such persons enjoy no criminal immunity under international law in their own countries, and may thus be tried by those countries courts in accordance with the relevant rules of domestic law.
Secondly, they will cease to enjoy immunity from foreign jurisdiction if the State which they represent or have represented decides to waive that immunity.
Thirdly, after a person ceases to hold the office of Minister for Foreign Affairs, he or she will no longer enjoy all of the immunities accorded by international law in other States. Provided that it has jurisdiction under international law, a court of one State may try a former Minister for Foreign Affairs of another State in respect of acts committed prior or subsequent to his or her period of office, as well as in respect of acts committed during that period of office in a private capacity.
Fourthly, an incumbent or former Minister for Foreign Affairs may be subject to criminal proceedings before certain international criminal courts, where they have jurisdiction. Examples include the International Criminal Tribunal for the former Yugoslavia, and the International Criminal Tribunal for Rwanda, established pursuant to Security Council resolutions under Chapter VII of the United Nations Charter, and the future International Criminal Court created by the 1998 Rome Convention. The latters Statute expressly provides, in Article 27, paragraph 2, that [i]mmunities or special procedural rules which may attach to the official capacity of a person, whether under national or international law, shall not bar the Court from exercising its jurisdiction over such a person.
[pp. 42-44 S.O. Guillaume] 12. ... international law knows only one true case of universal jurisdiction: piracy. Further, a number of international conventions provide for the establishment of subsidiary universal jurisdiction for purposes of the trial of certain offenders arrested on national territory and not extradited to a foreign country. Universal jurisdiction in absentia as applied in the present case is unknown to international law.
13. Having found that neither treaty law nor international customary law provide a State with the possibility of conferring universal jurisdiction on its courts where the author of the offence is not present on its territory, Belgium contends lastly that, even in the absence of any treaty or custom to this effect, it enjoyed total freedom of action. To this end it cites from the Judgment of the Permanent Court of International Justice in the Lotus case:
Far from laying down a general prohibition to the effect that States may not extend the application of their laws and the jurisdiction of their courts to persons, property and acts outside their territory, [international law] leaves them in this respect a wide measure of discretion which is only limited in certain cases by prohibitive rules ...1
Hence, so Belgium claimed, in the absence of any prohibitive rule it was entitled to confer upon itself a universal jurisdiction in absentia.
14. This argument is hardly persuasive. Indeed the Permanent Court itself, having laid down the general principle cited by Belgium, then asked itself whether the foregoing considerations really apply as regards criminal jurisdiction2. It held that either this might be the case, or alternatively, that: the exclusively territorial character of law relating to this domain constitutes a principle which, except as otherwise expressly provided, would, ipso facto, prevent States from extending the criminal jurisdiction of their courts beyond their frontiers3. In the particular case before it, the Permanent Court took the view that it was unnecessary to decide the point. Given that the case involved the collision of a French vessel with a Turkish vessel, the Court confined itself to noting that the effects of the offence in question had made themselves felt on Turkish territory, and that consequently a criminal prosecution might be justified from the point of view of this so-called territorial principle4
15. The absence of a decision by the Permanent
Court on the point was understandable in 1927, given
the sparse treaty law at that time. The situation is
different today, it seems to me - totally different.
The adoption of the United Nations Charter proclaiming
the sovereign equality of States, and the appearance
on the international scene of new States, born of decolonization,
have strengthened the territorial principle. International
criminal law has itself undergone considerable development
and constitutes today an impressive legal corpus.
It recognizes in many situations the possibility, or
indeed the obligation, for a State other than that
on whose territory the offence was committed to confer
jurisdiction on its courts to prosecute the authors
of certain crimes where they are present on its territory.
International criminal courts have been created. But
at no time has it been envisaged that jurisdiction
should be conferred upon the courts of every State
in the world to prosecute such crimes, whoever their
authors and victims and irrespective of the place where
the offender is to be found. To do this would, moreover,
risk creating total judicial chaos. It would also be
to encourage the arbitrary for the benefit of the powerful,
purportedly acting as agent for an ill-defined international
community. Contrary to what is advocated by certain
publicists, such a development would represent not
an advance in the law but a step backward.
16. States primarily exercise their criminal jurisdiction on their own territory. In classic international law, they normally have jurisdiction in respect of an offence committed abroad only if the offender, or at least the victim, is of their nationality, or if the crime threatens their internal or external security. Additionally, they may exercise jurisdiction in cases of piracy and in the situations of subsidiary universal jurisdiction provided for by various conventions if the offender is present on their territory. But apart from these cases, international law does not accept universal jurisdiction; still less does it accept universal jurisdiction in absentia.
17. Passing now to the specific case before us, I would observe that Mr. Yerodia Ndombasi is accused of two types of offence, namely serious war crimes, punishable under the Geneva Conventions, and crimes against humanity.
As regards the first count, I note that, under Article 49 of the First Geneva Convention, Article 50 of the Second Convention, Article 129 of the Third Convention and Article 146 of the Fourth Convention:
Each High Contracting Party shall be under the obligation to search for persons alleged to have committed, or to have ordered to be committed, [certain] grave breaches [of the Convention], and shall bring such persons, regardless of their nationality, before its own courts. It may also, if it prefers, and in accordance with the provisions of its own legislation, hand such persons over for trial to another High Contracting Party concerned ...
This provision requires each contracting party to search out alleged offenders and bring them before its courts (unless it prefers to hand them over to another party). However, the Geneva Conventions do not contain any provision on jurisdiction comparable, for example, to Article 4 of The Hague Convention already cited. What is more, they do not create any obligation of search, arrest or prosecution in cases where the offenders are not present on the territory of the State concerned.
They accordingly cannot in any event found
a universal jurisdiction in absentia. Thus Belgium
could not confer such jurisdiction on its courts on
the basis of these Conventions, and the proceedings
instituted in this case against Mr. Yerodia Ndombasi
on account of war crimes were brought by a judge who
was not competent to do so in the eyes of international
The same applies as regards the proceedings for crimes against humanity. No international convention, apart from the Rome Convention of 17 July 1998, which is not in force, deals with the prosecution of such crimes. Thus the Belgian judge, no doubt aware of this problem, felt himself entitled in his warrant to cite the Convention against Torture of 10 December 1984. But it is not permissible in criminal proceedings to reason by analogy, as the Permanent Court of International Justice indeed pointed out in its Advisory Opinion of 4 December 1935 concerning the Consistency of Certain Danzig Legislative Decrees with the Constitution of the Free City5. There too, proceedings were instituted by a judge not competent in the eyes of international law.
If the Court had addressed these questions, it seems to me that it ought therefore to have found that the Belgian judge was wrong in holding himself competent to prosecute Mr. Yerodia Ndombasi by relying on a universal jurisdiction incompatible with international law.
[p. 58 Decl. Ranjeva] 11. I sum, the issue of universal jurisdiction in absentia arises from the problem created by the possibility of extraterritorial criminal jurisdiction in the absence of any connection between the State claiming such jurisdiction and the territory in which the alleged offences took place of any effective authority of that State over the suspected offenders. This problem stems from the nature of an instrument of criminal process: it is not a mere abstraction; it is enforceable, and, as such, requires a minimum material basis under international law. It follows that an explicit prohibition on the exercise, as construed by Belgium, of universal jurisdiction does not represent a sufficient basis.
[pp. 79-80 J.S.O. Higgins, Kooijmans, Buergenthal] 53. This brings us once more to the particular point that divides the Parties in this case: is it a precondition of the assertion of universal jurisdiction that the accused be within the territory?
54. Considerable confusion surrounds this
topic, not helped by the fact that legislators, courts
and writers alike frequently fail to specify the precise
temporal moment at which any such requirement is said
to be in play. Is the presence of the accused within
the jurisdiction said to be required at the time the
offence was committed? At the time the arrest warrant
is issued? Or at the time of the trial itself? An examination
of national legislation, cases and writings reveals
a wide variety of temporal linkages to the assertion
of jurisdiction. This incoherent practice cannot be
said to evidence a precondition to any exercise of
universal criminal jurisdiction. The fact that in the
past the only clear example of an agreed exercise of
universal jurisdiction was in respect of piracy, outside
of any territorial jurisdiction, is not determinative.
The only prohibitive rule (repeated by-the Permanent
Court in the Lotus case) is that criminal
jurisdiction should not be exercised,
without permission, within the territory of another State. The Belgian arrest warrant envisaged the arrest of Mr. Yerodia in Belgium, or the possibility of his arrest in third States at the discretion of the States concerned. This would in principle seem to violate no existing prohibiting rule of international law.
55. In criminal law, in particular, it is said that evidence-gathering requires territorial presence. But this point goes to any extraterritoriality, including those that are well established and not just to universal jurisdiction.
56. Some jurisdictions provide for trial in absentia; others do not. If it is said that a person must be within the jurisdiction at the time of the trial itself, that may be a prudent guarantee for the right of fair trial but has little to do with bases of jurisdiction recognized under international law.
57. On what basis is it claimed, alternatively, that an arrest warrant may not be issued for non-nationals in respect of offences occurring outside the jurisdiction? The textual provisions themselves of the 1949 Geneva Convention and the First Additional Protocol give no support to this view. The great treaties on aerial offences, hijacking, narcotics and torture are built around the concept of aut dedere aut prosequi. Definitionally, this envisages presence on the territory. There cannot be an obligation to extradite someone you choose not to try unless that person is within your reach. National legislation, enacted to give effect to these treaties, quite naturally also may make mention of the necessity of the presence of the accused. These sensible realities are critical for the obligatory exercise of aut dedere aut prosequi jurisdiction, but cannot be interpreted a contrario so as to exclude a voluntary exercise of a universal jurisdiction.
58. If 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 law (and certainly not the aut dedere principle) which makes illegal co-operative overt acts designed to secure their presence within a State wishing to exercise jurisdiction.
[pp. 80-81 J.S.O. Higgins, Kooijmans, Buergenthal] 59. If, as we believe to be the case, a State may choose to exercise a universal criminal jurisdiction in absentia, it must also ensure that certain safeguards are in place. They are absolutely essential to prevent abuse and to ensure that the rejection of impunity does not jeopardize stable relations between States.
No exercise of criminal jurisdiction may occur which fails to respect the inviolability or infringes the immunities of the person concerned. We return below to certain aspects of this facet, but will say at this juncture that commencing an investigation on the basis of which an arrest warrant may later be issued does not of itself violate those principles. The function served by the international law of immunities does not require that States fail to keep themselves informed.
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. The Court makes reference to these elements in the context of this case at paragraph 16 of its Judgment.
Further, such charges may only be laid by a prosecutor or juge dinstruction who acts in full independence, without links to or control by the government of that State. Moreover, the desired equilibrium between the battle against impunity and the promotion of good inter-State relations will only be maintained if there are some special circumstances that do require the exercise of an international criminal jurisdiction and if this has been brought to the attention of the prosecutor or juge dinstruction. For example, persons related to the victims of the case will have requested the commencement of legal proceedings.
[pp. 81-83 J.S.O. Higgins, Kooijmans, Buergenthal] 60. It is equally necessary that universal criminal jurisdiction be exercised only over those crimes regarded as the most heinous by the international community.
61. Piracy is the classical example. This jurisdiction was, of course, exercised on the high seas and not as an enforcement jurisdiction within the territory of a non-agreeing State. But this historical fact does not mean that universal jurisdiction only exists with regard to crimes committed on the high seas or in other places outside national territorial jurisdiction. Of decisive importance is that this jurisdiction was regarded as lawful because the international community regarded piracy as damaging to the interests of all. War crimes and crimes against humanity are no less harmful to the interests of all because they do not usually occur on the high seas. War crimes (already since 1949 perhaps a treaty-based provision for universal jurisdiction) may be added to the list. The specification of their content is largely based upon the 1949 Conventions and those parts of the 1977 Additional Protocols that reflect general international law. Recent years have also seen the phenomenon of an alignment of national jurisdictional legislation on war crimes, specifying those crimes under the statutes of the ICTY, ICTR and the intended ICC.
62. The substantive content of the concept of crimes against humanity, and its status as crimes warranting the exercise of universal jurisdiction, is undergoing change. Article 6 (c) of the Charter of the International Military Tribunal of 8 August, 1945, envisaged them as a category linked with those crimes over which the Tribunal had jurisdiction (war crimes, crimes against the peace). In 1950 the International Law Commission defined them as murder, extermination, enslavement, deportation or other inhuman acts perpetrated on the citizen population, or persecutions on political, racial or religious grounds if in exercise of, or connection with, any crime against peace or a war crime (YILC 1950, Principle VI (c), pp. 374-377). Later definitions of crimes against humanity both widened the subject-matter, to include such offences as torture and rape, and de-coupled the link to other earlier established crimes. Crimes against humanity are now regarded as a distinct category. Thus the 1996 Draft Code of Crimes Against the Peace and Security of Mankind, adopted by the International Law Commission at its 48th session, provides that crimes against humanity
means any of the following acts, when committed in a systematic manner or on a large scale and instigated or directed by a Government or any organization or group:
(e) Persecution on political, racial, religious or ethnic grounds;
(f) Institutionalized discrimination on racial, ethnic or religious grounds involving the violation of fundamental human rights and freedoms and resulting in seriously disadvantaging a part of the population;
(g) Arbitrary deportation or forcible transfer of population;
(h) Arbitrary imprisonment;
(i) Forced disappearance of persons;
(j) Rape, enforced prostitution and other forms of sexual abuse;
(k) Other inhumane acts which severely damage physical or mental integrity, health
(l) or human dignity, such as mutilation and severe bodily harm.
63. The Belgian legislation of 1999 asserts a universal jurisdiction over acts broadly defined as grave breaches of international humanitarian law, and the list is a compendium of war crimes and the Draft Codes of Offences listing of crimes against humanity, with genocide being added. Genocide is also included as a listed crime against humanity in the 1968 Convention on the Non-Applicability of Statutes of Limitation to War Crimes and Crimes against Humanity, as well as being included in the ICTY, ICTR and ICC Statutes.
64. The arrest warrant issued against Mr. Yerodia accuses him both of war crimes and of crimes against humanity. As regards the latter, charges of incitement to racial hatred, which are said to have led to murders and lynchings, were specified. Fitting of this charge within the generally understood substantive context of crimes against humanity is not without its problems. Racial hatred would need to be assimilated to persecution on racial grounds, or, on the particular facts, to mass murder and extermination. Incitement to perform any of these acts is not in terms listed in the usual definitions of crimes against humanity, nor is it explicitly mentioned in the Statutes of the ICTY or the ICTR, nor in the Rome Statute for the ICC. However, Article 7 (l) of the ICTY and Article 6 (l) of the ICTR do stipulate that any person who planned, instigated, ordered, committed or otherwise aided or abetted in the planning, preparation or execution of a crime referred to [in the relevant articles: crimes against humanity being among them] shall be individually responsible for the crime. In the Akayesu Judgment (96-4-T) a Chamber of the ICTR has held that liability for a crime against humanity includes liability through incitement to commit the crime concerned (paras. 481-482). The matter is dealt with in a comparable way in Article 25 (3) of the Rome Statute.
65. It would seem (without in any way pronouncing upon whether Mr. Yerodia did or did not perform the acts with which he is charged in the warrant) that the acts alleged do fall within the concept of crimes against humanity and would be within that small category in respect of which an exercise of universal jurisdiction is not precluded under international law.
[pp. 91-92 S.O. Rezek] 4. By ruling first on the jurisdictional issue, the Court would have had the opportunity to point out that domestic criminal jurisdiction based solely on the principle of universal justice is necessarily subsidiary in nature and that there are good reasons for that. First, it is accepted that no forum is as qualified as that of the locis delicti to see a criminal trial through to its conclusion in the proper manner, if for no other reasons than that the eveidence lies closer to hand and that that forum has greater knowledge of the accused and the victims, as well as a clearer appreciation of the full circumstances surrounding the offence. It is for political rather than practical reasons that a number of domestic systems rank, immediately after the principle of territoriality, a basis of criminal jurisdiction of a different kind, one which applies irrespective of the locus delicti: the principle of the defence of certain legal interests to which the State attaches particular value: the life and physical integrity of the sovereign, the national heritage, good governance.
5. With the exception of those two basic principles, complementarity is becoming the rule: in most countries, criminal proceedings are possible on the basis of the principles of active or passive nationality where crimes have been committed abroad by or against nationals of the forum State, but on condition that those crimes have not been tried elsewhere, in a State where criminal jurisdiction would more naturally lie, and provided that the accused is present on the territory of the forum State, of which either he himself or his victims are nationals.
6. In no way does international law as it now stands allow for activist intervention, whereby a State seeks out on another States territory, by means of an extradition request or an international arrest warrant, an individual accused of crimes under public international law but having no factual connection with the forum State. It required considerable presumption to suggest that Belgium was obliged to initiate criminal proceedings in the present case. Something which is not permitted cannot, a fortiori, be required. Even disregarding the question of the accuseds immunity, the Respondent has been unable to point to a single other State which has in similar circumstances gone ahead with a public prosecution. No nascent customary law derives from the isolated action of one State; there is no embryonic customary rule in making, notwithstanding that the Court, in addressing the issue of jurisdiction, acceded to the Respondents request not to impose any restraint on the formative process of the law.
[pp. 93-94 S.O. Rezek] 9. ... If the application of the principle of universal jurisdiction does not presuppose that the accused be present on the territory of the forum State, co-ordination becomes totally impossible, leading to the collapse of the international system of co-operation for the prosecution of crime6. It is important that the domestic treatment of issues of this kind, and hence the conduct of the authorities of each State, should accord with the notion of decentralized international community, founded on the principle of the equality of its members and necessarily requiring the co-ordination of their efforts. Any policy adopted in the name of human rights but not in keeping with that discipline threatens to harm rather than serve that cause.
10. In my view, if the Court had first considered the question of jurisdiction, it would have been relieved of any need to rule on the question of immunity. I do in any event adhere to the conclusions of the majority of my colleagues on this point. I find that under the facts and cicumstances of the present case the Belgian domestic court lacks jurisdiction to conduct criminal proceedings, in the absence of any basis of jurisdiction other than the principle of universal jurisdiction and failing, in support of that principle, the presence on Belgian territory of the accused, whom it would be unlawful to force to appear. But I believe that, even on the assumption that the Belgian judicial authorities did have jurisdiction, the immunity enjoyed by the Congos Minister for Foreign Affairs would have barred both the initiation of criminal proceedings and the circulation of the international arrest warrant by the judge, with support from the Belgian Government.
[pp. 170-172 D.O. Van den Wyngaert] 54. There is no rule of conventional international law to the effect that universal jurisdiction in absentia is prohibited. The most important legal basis, in the case of universal jurisdiction for war crimes is Article 146 of the IVth Geneva Convention of 19497, which lays down the principle aut dedere aut judicare8. A textual interpretation of this Article does not logically presuppose the presence of the offender, as the Congo tries to show. The Congos reasoning in this respect is interesting from a doctrinal point of view, but does not logically follow from the text. For war crimes, the 1949 Geneva Conventions, which are almost universally ratified and could be considered to encompass more than mere treaty obligations due to this very wide acceptance, do not require the presence of the suspect. Reading into Article 146 of the IVth Geneva Convention a limitation on a States right to exercise universal jurisdiction would fly in the face of a teleological interpretation of the Geneva Conventions. The purpose of these Conventions, obviously, is not to restrict the jurisdiction of States for crimes under international law.
55. There is no customary international law to this effect either. The Congo submits there is a State practice, evidencing an opinio juris asserting that universal jurisdiction, per se, requires the presence of the offender on the territory of the prosecuting State. Many national systems giving effect to the obligation aut dedere aut judicare and/or the Rome Statute for an International Criminal Court indeed require the presence of the offender. This appears from legislation9 and from a number of national decisions including the Danish Saric case10, the French Javor case11 and the German Jorgic case12. However, there are also examples of national systems that do not require the presence of the offender on the territory of the prosecuting State13. Governments and national courts in the same State may hold different opinions on the same question, which makes it even more difficult to identify the opinio juris in that State14.
And even where national law requires the presence of the offender, this is not necessarily the expression of an opinio juris to the effect that this is a requirement under international law. National decisions should be read with much caution. In the Bouterse case, for example, the Dutch Supreme Court did not state that the requirement of the presence of the suspect was a requirement under international law, but only under domestic law. It found that, under Dutch law, there was no such jurisdiction to prosecute Mr. Bouterse but did not say that exercising such jurisdiction would be contrary to international law. In fact, the Supreme Court did not follow the Advocate Generals submission on this point 15.
|1||Lotus, Judgment No. 9, 1927, P.C.I.J., Series A, No. 10, p. 19.|
|2||Ibid., p. 20.|
|3||Ibid., p. 20.|
|4||Ibid., p. 23.|
|5||Consistency of Certain Danzig Legislative Decrees with the Constitution of the Free City, Advisory Opinion, 1935, P.C.I.J., Series A/B, No. 65, pp. 41 et seq.|
|6||As regards the current status of the principle of universal jurisdiction, not that the States which negotiated the Rome Treaty avoided extending this principle to the jurisdiction of the future International Criminal Court.|
|7||Convention relative to the Protection of Civilian Persons in Time of War, Geneva, 12 Aug. 1949, UNTS, Vol. 75, p. 287. See also Art. 49 Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, Geneva, 12 Aug. 1949, UNTS, Vol. 75, p. 31; Art. 50 Convention for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea, Geneva, 12 Aug. 1949, UNTS, Vol. 75, p. 85; Art. 129 Convention relative to the Treatment of Prisoners of War, Geneva, 12 Aug. 1949, UNTS, Vol. 75, p. 135; Art. 85 (1) Protocol Additional (I) to the Geneva Conventions of 12 Aug. 1949, and relating to the Protection of Victims of International Armed Conflicts, Geneva, 8 June 1977, UNGAOR, doc. A/32/144, 15 Aug. 1977.|
|8||See further infra, para. 62.|
|9||See, e.g., the Swiss Penal Code, Art. 6 bis, 1; the French Penal Code, Art. 689-1; the Canadian Crimes against Humanity and War Crimes Act (2000), Art. 8.|
|10||Public Prosecutor v. T., Supreme Court (Hojesteret), Judgment, 15 Aug. 1995, Ugeskrift for Retsvaesen, 1995, p. 838, reported in Yearbook of International Humanitarian Law, 1998, p. 431 and in R. Maison, Les premiers cas dapplication des dispositions pénales des Conventions de Genève: commentaire des affaires danoise et française, EJIL 1995, p. 260.|
|11||Cour de Cassation (Fr.), 26 Mar. 1996, Bull. Crim., 1996, pp. 379-382.|
|12||Bundesgerichtshof 30 Apr. 1999, 3 StR 215/98, NStZ 1999, p. 396. See also the critical note (Anmerkung) by Ambos, ibid., pp. 405-406, who doesnt share the view of the judges that a legitimizing link is required to allow Germany to exercise its jurisdiction over crimes perpetrated outside its territory by foreigners against foreigners, even if these amount to serious crimes under international law (in casu genocide). In a recent judgment concerning the application of the Geneva Conventions, the Court, however, decided that such a link was not required, since German jurisdiction was grounded on a binding norm of international law instituting a duty to prosecute, so there could hardly be a violation of the principle of non-intervention (Bundesgerichtshof, 21 Feb. 2001, 3 StR 372/00, retrievable on http://www.hrr-strafrecht.de.|
|13||See, for example, the prosecutions instituted in Spain on the basis of Art. 23.4 of the Ley Orgánica del Poder Judicial (Law 6/1985 of 1 July 1985 on the Judicial Power) against Senator Pinochet and other South-American suspects whose extradition was requested. In New Zealand, proceedings may be brought for international core crimes regardless of whether or not the person accused was in New Zealand at the time a decision was made to charge the person with an offence (Sec. 8, (1) (c) (iii) of the International Crimes and International Criminal Court Act 2000).|
|14||The German Government very recently reached agreement on a text for an International Crimes Code (Völkerstrafgesetzbuch) (see Bundesministerium der Justiz, Mitteilung für die Presse 02/02, Berlin, 16 Jan. 2002). The new Code would allow German law enforcement agencies to prosecute cases without any link to Germany and without the presence of the offender on the national territory. However, if there is no link to Germany, the law enforcement agencies have discretion to defer prosecution in such a case when an International Court or the Courts of a State basing its jurisdiction on territoriality or personality were in fact prosecuting the suspect (see: Bundesministerium der Justiz, Entwurf eines Gesetzes zur Einführung des Völkerstrafgesetzbuches, pp. 19 and 89, to be consulted on the Internet: http://www.bmj.bund.de/images/11222.pdf.|
|15||See: www.rechtspraak.nl. The Court of Appeal of Amsterdam had, in its judgment of 20 Nov. 2000, decided, inter alia, that Mr. Bouterse could be prosecuted in absentia on charges of torture (facts committed in Suriname in 1982). This decision was reversed by the Dutch Supreme Court on 18 Sep. 2001, inter alia on the point of the exercise of universal jurisdiction in absentia. The submissions of the Dutch Advocate General are attached to the judgment of the Supreme Court, loc. cit., paras. 113-137 and especially para. 138.|