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Universal Jurisdiction:
Meeting the Challenge through NGO Cooperation
Report of a Conference Organized by the Lawyers Committee for Human Rights
With the assistance of the Human Rights Program
School for International and Public Affairs, Columbia University
Wednesday 3 April Friday 5 April 2002
New York City

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

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

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

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

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

Steven R. Shapiro
George A. Vradenburg III
Sigourney Weaver

National Council
Chair, Talbot D Alemberte

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

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

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

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

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

Executive Director, Michael Posner

Universal Jurisdiction: Meeting the Challenge through NGO Cooperation

Table of Contents
Part One: Introduction......................................................................................................... 1
Part Two: Summary of Issues ............................................................................................. 3
Part Three: Law Reform...................................................................................................... 5
A. ICC implementation and other opportunities .............................................................. 5
1. Overview ............................................................................................................. 5
2. Specific Approaches............................................................................................ 6
B. Universal jurisdiction filters ..................................................................................... 8
1. Presence requirement: ......................................................................................... 9
2. Political or other control.................................................................................... 11
3. Immunities......................................................................................................... 12
4. Hierarchy of jurisdiction ................................................................................... 14
C. Further hurdles to the successful adoption of universal jurisdiction ......................... 16
Part Four: Casework.......................................................................................................... 17
A. Standards and criteria in choosing cases ................................................................... 17
B. Specific obstacles to bringing cases and succeeding with cases ............................... 19
C. Corporations as defendants: northern big fish........................................................... 22
Part Five: Public education ............................................................................................... 25
A. Information clearinghouses & website development efforts..................................... 25
B. Mechanisms and focus areas for public education .................................................... 26
Part Six: Regional Group Discussions .............................................................................. 30
A. Africa Group: ............................................................................................................ 30
B. Asia Group:................................................................................................................ 31
C. Latin America Group:................................................................................................ 32
D. United States Group .................................................................................................. 36
Part Seven: ConclusionIntensifying and harmonizing future work .............................. 39
ANNEX A: REFERENCE MATERIAL ..................................................................................... 41
ANNEX B: LIST OF PARTICIPANTS ...................................................................................... 43
ANNEX C: ARGENTINE CASE LAW ..................................................................................... 50

Lawyers Committee for Human Rights

ii

Universal Jurisdiction: Meeting the Challenge through NGO Cooperation

Universal jurisdiction:
Meeting the Challenge through NGO Cooperation
Report of a Conference Organized by the Lawyers Committee for Human Rights1
With the assistance of the Human Rights Program
School for International and Public Affairs, Columbia University2

Part One: Introduction


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

This report was produced by Bruce Broomhall, Director, International Justice Program, at
BroomhallB@lchr.org or 1-917-44-8388; Carol Pollack, Fellow, International Justice Program, at
PollackC@lchr.org; and Lee Che Leong, Program Assistant, International Justice Program, at
LeongL@lchr.org. A number of participants also contributed comments.
2
Contact Peter Danchin, Human Rights Program, School of International and Public Affairs, Columbia
University, at pgd6@columbia.edu or 1-212-854-6224.
3
The Geneva meeting took place in May 1999 and was organized by the International Council on Human
Rights Policy; the London meeting was convened by Redress in September 1999; and FIDH (the
Fdration internationale des ligues des droits de lhomme) organized the Paris meeting in May 2000.

Lawyers Committee for Human Rights

Universal Jurisdiction: Meeting the Challenge through NGO Cooperation

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

See Secretary-General Addresses Preparatory Commission for International Criminal Court as it


Concludes Ninth Session, U.N. Press Release L/3003 (19 April 2002); Rome Statute of the International
Criminal Court to Come into Force; Treaty Event to be Held at UN Headquarters on 11 April, U.N. Press
Release L/T/4365/Rev.1 (1 April 2002).

Lawyers Committee for Human Rights

Universal Jurisdiction: Meeting the Challenge through NGO Cooperation

Part Two: Summary of Issues


A. Maximizing the legitimacy of universal jurisdiction
1. Increasing the capacity of courts in Africa, Asia and Latin America to try perpetrators
from these and other regions.
2. Increasing the incidence of northern courts trying northern perpetrators.
3. Developing links between northern actors and atrocities in Africa, Asia and Latin
America.
B. Increasing the capacity of NGOs in Africa, Asia and Latin America
1. Organizing training missions to educate and mobilize judges, academics, prosecutors
and NGOs.
2. Ensuring that effective training materials exist in all relevant languages.
3. Identifying increased resources for African, Asian and Latin American NGOs.
C. Continuing to promote legislative reform
1. Supporting the drafting of implementing legislation for the Rome Statute of the
International Criminal Court.
2. Promoting the adoption of universal jurisdiction legislation, keeping in mind concerns
regarding such filters as presence requirements, political or other forms of control,
immunities and hierarchies of jurisdictions.
D. Developing resources for universal jurisdiction litigation
1. Building the capacity of African, Asian and Latin American actors to bring universal
jurisdiction cases.
2. Developing transnational networks of lawyers with wide areas of specialization. For
example, with respect to actions against corporations and efforts to seize assets of
perpetrators, forming alliances with lawyers in environmental and corporate law,
where significant expertise in trans-boundary action exists (e.g. in creditors remedies
law).
3. Developing financial resources for the cases and for education and capacity building
work.
E. Developing a universal jurisdiction global network and regional networks
1. Compiling data on universal jurisdiction laws, cases, news and advocacy and making
this information available both physically and electronically. With regard to website
publications, keeping in mind the issues of defamation and access to information
laws. Identifying translation and interpretation resources that can be incorporated into
website and training materials.
2. Building and improving civil society capacity to track defendants.
3. Taking stock of available jurisdiction, rules of procedure, etc. Where there are
universal jurisdiction laws, civil society should share strategies regarding how to
bring them to life.
4. Maintaining multiple copies of evidence stored in different locations.
5. Working to ensure security of investigators, victims and witnesses.

Lawyers Committee for Human Rights

Universal Jurisdiction: Meeting the Challenge through NGO Cooperation

F. Areas for future focus


1. Civil remedies.
2. Suits against corporations and their assets.
3. Protection, storage and handling of evidence.
4. Protection of witnesses
5. Funding cases, and the fair distribution of funding.
6. Data compilation and legal issues related to information access and storage,
especially in Europe.
7. Concerted creative thinking regarding barriers to universal jurisdiction prosecutions.
8. Areas of overlap between international criminal justice and counter-terrorism
measures, and how to turn counter-terrorism initiatives to our advantage (for
example, as credit card companies track potential terrorists, so might they track
international criminals).

Lawyers Committee for Human Rights

Universal Jurisdiction: Meeting the Challenge through NGO Cooperation

Part Three: Law Reform


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

Lawyers Committee for Human Rights

Universal Jurisdiction: Meeting the Challenge through NGO Cooperation

(Belgium, Canada, New Zealand) or proposing (Argentina, Germany, South Africa)


universal jurisdiction over Rome Statute crimes. It is hoped and expected that a
number of other governments from an array of regions and legal systems will follow
suit. It was understood at the conference that such a result depended in significant
part on the intensification and effective coordination of NGO efforts to this end.
Participants also sounded a cautionary note regarding the possibility of countries
ratifying the ICC with the intention of using the Court as a means to resist or reduce
the exercise of universal jurisdiction. For example, it was noted that there is currently
a Belgian proposition to restrict use of universal jurisdiction, and perhaps to restrict
the competence of Belgian courts essentially to cases that cannot be heard by the ICC
the reverse of complementarity.5 Overall, participants agreed that, in addition to
creating strategies for the promotion of universal jurisdiction, it is also necessary to
be prepared to challenge any tendency on the part of governments to use the ICC as
an excuse to forego domestic legislation on universal jurisdiction.
2. Specific Approaches
Participants outlined existing approaches and suggested new ones for ensuring that
NGOs take maximum advantage of the opportunities presented by Rome Statute
implementation around the world.
a. Education and capacity building. Many governments, including their
prosecutors and investigating judges, as well as NGOs in Africa, Central and
Eastern Europe, Latin America and Asia are relatively unfamiliar with the
International Criminal Court and the subject of universal jurisdiction. NGO
collaboration in organizing education missions have improved understanding of
the concepts and helped to mobilize local NGOs on both issues. Missions have
been led in recent months in countries throughout Asia, Africa, Latin America,
Central and Eastern Europe and the Former Soviet Union, organized in most cases
by the NGO Coalition for the ICC (CICC) and its Steering Committee members,6
working in collaboration with national and regional organizations. Education and
capacity building are necessary precursors to the adoption of ICC implementing
legislation and universal jurisdiction in countries where informed support for
international justice is not already well developed.
b. Building on existing universal jurisdiction laws. According to research
undertaken by Amnesty International, approximately 125 countries currently have
5

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

Lawyers Committee for Human Rights

Universal Jurisdiction: Meeting the Challenge through NGO Cooperation

laws that provide for universal jurisdiction to one extent or another.7 For example,
in Africa alone, universal jurisdiction covering certain conduct amounting to war
crimes exists in Algeria, Botswana, Burundi, Cameroon, Cote dIvoire, the
Democratic Republic of the Congo, Egypt, Ethiopia, Gambia, Ghana, Kenya,
Lesotho, Malawi, Mauritius, Nigeria, Seychelles, Sierra Leone Swaziland,
Tanzania, Uganda and Zimbabwe. Other African states are expected to provide
for universal jurisdiction in their legislation implementing the Rome Statute,
including Angola, Senegal and South Africa. In promoting the adoption of
universal jurisdiction for international crimes, existing laws can serve as
important and practical examples of what such legislation signifies. Such
examples demonstrate to governments that universal jurisdiction is already part of
their legal traditions and can facilitate understanding of the concept.
c. Encouraging the establishment of inter-ministerial committees to examine
the issue of implementing legislation in specific countries. Such focal points
can be an important first step in concentrating expertise, disseminating
information and building momentum within a government, and have been
established in Argentina, Ghana, Senegal, South Africa, and a number of other
states in Latin America and Europe. Participants recognized, however, that more
is needed than simply the establishment of such processes; rather, ongoing input
and encouragement must be provided by civil society in order to ensure a steady
progress of work and a commitment to clear results within a defined schedule.
d. Mobilizing support for the criminalization of international crimes in
domestic law. Some states, including most recently France, have made progress
on legislating with respect to their obligation to cooperate with the ICC, but have
neglected the complementarity side, which would ensure that domestic
authorities are able to prosecute crimes within the full scope of ICC jurisdiction.
Ensuring a commitment to the domestic criminalization of Rome Statute crimes is
the first step in securing support for the provision of universal jurisdiction with
respect, in particular, to these crimes. The process for securing such a
commitment will vary from one state to another, but in general requires that
NGOs work together to identify the most effective ways to reach out to opinion
leaders in government, the parliament, the media and the wider public.
e. Support the drafting of implementing legislation. This is easiest either where
government drafters and NGOs work together (for example, in the context of an
experts workshop, such as that held in Dakar, Senegal, in October 2001) on
preparing legislative recommendations. Where governments work alone, NGOs
should encourage circulation of a consultation draft, such as that produced by
Australia, Switzerland, Argentina, the United Kingdom and others, in order to
give input to the drafters prior to the tabling of the bill before the respective
parliament. Where universal jurisdiction has not been included in draft legislation,
7

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

Lawyers Committee for Human Rights

Universal Jurisdiction: Meeting the Challenge through NGO Cooperation

NGOs can encourage its addition. For example, Argentinas first draft ICC
implementing legislation did not include universal jurisdiction, but this was
included in the final draft, after a joint statement by Amnesty International and
Human Rights Watch to the drafting committee. Where such consultation prior to
introduction of the bill is not possible, NGOs must either appear before
parliamentary committees, issue public recommendations, or recruit friendly
parliamentarians or other proxies to support their proposed changes.
B. Universal jurisdiction filters
The well known recent experience in Belgium has shown the enormous potential of
national processes to provide justice for victims of gross violations of human rights and
humanitarian law.8 The Belgian experience, however, has given rise to concerns both in
Belgium and in other countries about the resource and political implications arising from
the exercise of universal jurisdiction. The recent decision of the International Court of
Justice in the Congo v. Belgium case may restrict Belgiums future action against certain
foreign officials, and may be used as an excuse by other states to refrain from following
Belgiums lead in making universal jurisdiction an effective reality.9
Participants agreed that NGOs must turn their minds to the issues and concerns raised by
the experiences of Belgium and of other states, and by universal jurisdiction legislation
more generally, in order to maximize momentum towards the effective national
implementation of universal jurisdiction, and to minimize any chilling effect that may
have been caused by reactions to such experiences.10
The following were identified as key factors to be considered in the formulation of any
principled but politically sustainable universal jurisdiction package.11

Investigations, prosecutions or agreements to extradite based on universal jurisdiction have also occurred
in a number of other countries since the Second World War, including Australia, Austria, Canada,
Denmark, France, Germany, Mexico, Paraguay, Senegal, Switzerland, the United Kingdom and the United
States.
9
This reaction has already occurred in Belgium itself through the 16 April 2002 decision in the Yerodia
case, which found that the Belgian universal jurisdiction law applies only when the accused is found in
Belgium. Decision in the Yerodia Case, supra n.5. If this decision is affirmed on appeal, it will affect
ongoing universal jurisdiction cases in Belgium, such as the Sabra-Shatila case against Ariel Sharon, and an
amendment currently under discussion at the Ministry of Justice that aims to limit the scope of Belgian
universal jurisdiction legislation: ibid. See also SABRA-SHATILA, MAJOR PROPOSITION OF LAW TO AMEND
THE GENOCIDE ACT IS MISLEADING AND A FIRST CLASS FUNERAL FOR THE SHARON CASE (visited 3/28/02)
<http://www.sabra-shatila.be/juridich/pressrelesase011123.htm>.
10
A major concern in responses to the Belgian experience has been the absence of a presence requirement
for proceeding with cases under Belgian law; however, setbacks unrelated to the Belgian experience or to
any presence requirement issue have arisen in universal jurisdiction cases in other countries, including
Argentina, Mexico, Spain and the United Kingdom.
11
This section is derived from a brief discussion paper presented to the meeting by LCHR, as well as from
responses the discussions of the meeting itself.

Lawyers Committee for Human Rights

Universal Jurisdiction: Meeting the Challenge through NGO Cooperation

1. Presence requirement:
The law of different states varies on the question of whether the physical presence of
an accused in the territory of a state is a precondition to the exercise of universal
jurisdiction. New Zealand, for example, has no presence requirement, and Germany is
prepared to follow suit.12 Belgian universal jurisdiction legislation does not currently
require the presence of the accused in order to initiate proceedings and adjudicate his
or her rights. However, the 16 April 2002 decision in the Yerodia case, which found
that universal jurisdiction applies only when the accused is found in Belgium, may
result in the legislative imposition of a presence requirement.13 The legislation of
Canada and the draft legislation of South Africa make universal jurisdiction
conditional on the presence of the accused within their territory, although experts
have disagreed regarding whether or not these states legislation allows for the
opening of investigations in anticipation of later presence.14
International law does not require states to ensure that the accused is present in order
to initiate universal jurisdiction proceedings. As Judges Higgins, Kooijmans and
Buergenthal stated in their joint separate opinion in the ICJs Democratic Republic of
Congo v. Belgium case, [i]f the underlying purpose of designating certain acts as
international crimes is to authorize a wide jurisdiction to be asserted over persons
committing them, there is no rule of international lawwhich makes illegal cooperative overt acts designed to secure their presence within a State wishing to
exercise jurisdiction.15 NGOs generally support the right of the accused to be
present at trial and seldom promote trials in absentia. However, the due process right
to be present during trial is distinct from the law defining the legitimate exercise of
jurisdiction, which does not require presence when proceedings first commence.
The presence of the accused before trial is not required by international law. Indeed,
the Geneva Conventions of 1949 expressly permit states to request the extradition of
12

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

Lawyers Committee for Human Rights

Universal Jurisdiction: Meeting the Challenge through NGO Cooperation

suspects outside the country. Nevertheless, states are drawn to a strict presence
requirement because it serves as a filter that prevents their jurisdiction from becoming
a litigation magnet. However, because it is based on the location of the accused and
not on other circumstances of the case, a strict presence requirement is also a blunt
instrument, imposing an imperfect limit on the exercise of universal jurisdiction and
creating disadvantages by restricting the power to open an investigation to the point at
which it can be proven that a suspect is within the territory of the state exercising
universal jurisdiction. There will be cases in which a country will want to commence
proceedings and issue warrants and extradition requests prior to the presence of the
accused in its territory. For example, the country may be aware that the suspect is
likely to visit it on a short stay and will wish to be able to act before that person
leaves. Indeed, it may sometimes be the case that the international community will
favor extradition and trial in another country, as in the case of persons suspected of
grave breaches of the Geneva Conventions, which would be precluded by a strict
presence requirement.
In light of the above considerations, it is felt that presence can be a factor in deciding
whether to commence universal jurisdiction proceedings, but should not be
determinative. It should be seen as one of several factors, such as appropriateness of
the forum and the likelihood of obtaining presence through extradition.
It is possible that where presence is required under international law, broad
interpretations can be promoted to yield the needed result. For example, both the
South African ICC implementing legislation bill and the Canadian implementing
legislation permit the exercise of jurisdiction over individuals who allegedly
committed crimes outside the states respective territories, but who are later present in
their territories. Interpretations of such laws could be promoted in order that they be
read to allow the opening of investigations in anticipation of later presence, e.g.
through extradition. With respect to the Canadian legislation, this reading has been
supported by some domestic voices.16 However, several of the government officials
connected with the drafting of the Canadian provision have claimed that there would
be no jurisdiction to open an investigation if a suspect was not present in Canada.17
Also, it may be that the burden of proving that the accused is present in the territory
can be shifted in some circumstances from the victims (or parties civiles).18
Ultimately, NGOs will have to work to ensure that judicial authorities accept
favorable interpretations (notably through submission of amicus curiae briefs).

16

AMNESTY INTERNATIONAL, supra note 7, at CHAPTER 4, PART A. 40-44.


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

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Universal Jurisdiction: Meeting the Challenge through NGO Cooperation

2. Political or other control


Legislation in common-law jurisdictions such as Canada, South Africa and the United
Kingdom requires the consent of the Attorney General, a government minister as well
as a law officer, to commence proceedings with respect to Rome Statute crimes
(including under universal jurisdiction).19 This contrasts with the situation in Belgium
where the decision to proceed is initially in the hands of investigating magistrates
(juges dinstruction) alone. An intermediary stance is taken by New Zealand, which
requires Attorney General consent, but which allows the investigation and detention
of individuals charged with the crimes set out in the Rome Statute prior to its
receipt.20
An Attorney General consent requirement would undoubtedly provide a degree of
comfort to national authorities considering the inclusion of universal jurisdiction in
their national law. Indeed, one proposed amendment to Belgiums law suggests an
analogous requirement.21 Attorney General consent typically gives rise, however, to
serious problems.
In particular, Attorney General discretion often includes facts of national interest,
which are not necessarily consistent with the interests of justice. In certain states,
such as the United Kingdom and Canada, the situation is made less accessible to
potential plaintiffs by the fact that the discretion of the Attorney General is not
subject to explicit criteria or judicial review. The dual position of the Attorney
General as a government minister and a law officer gives rise to a potential conflict of
interest, particularly in politically sensitive cases, and creates the appearance of a lack
of impartiality and independence.
From an NGO perspective, the discretion whether to proceed is probably better
placed in the hands of independent legal officials. Amnesty International insists that
that there be no political interference in decisions to investigate or prosecute.
Amnesty goes on to state that decisions to start or stop an investigation or
prosecution of grave crimes under international law should be made only by the
prosecutor, subject to appropriate judicial scrutiny which does not impair the
prosecutors independence, based solely on legal considerations, without any outside
interference.22 Where states insist upon Attorney General discretion, such discretion
19

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

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should at least be made subject to explicit criteria and judicial review, and should
follow the approach taken by New Zealand, in which investigations can be initiated
prior to Attorney General consent.
Moreover, civil law based systems will not support political controls of the same sort
as are tolerated in common law jurisdictions, as these would be seen as interfering
with the separation of powers between the executive and the judiciary (the Attorney
General, who makes the decision in common law jurisdiction, being typically an
elected member of parliament as well as a member of the governing cabinet). This
strengthens the argument that any discretion that exists under national law be
exercised by judicial officials, and that such discretion be structured to take into
account only legitimate factors that are consistent with international law (including
the duty to extradite or prosecute under the Geneva Conventions, the Convention
Against Torture, etc.) and to be maximally transparent and subject to review.23
Whether exercised by judicial officials or the Attorney General, there may be a need
in some countries for NGOs to outline the workings of any such a discretion (that is,
what factors it is to consider and how it is to be reviewed), if governments are to
attain a sufficient comfort level to proceed with the implementation of universal
jurisdiction in a way that does not involve undue political controls. However, in many
civil law countries, where there is sufficient evidence to prosecute a suspect, the
prosecutor has no discretion to refuse to prosecute, as such a refusal would lead to
impunity for criminals.
3. Immunities
Since the Nuremberg Charter in 1945, it has been well accepted that immunities for
high officials are not applicable with respect to international tribunals. This has been
illustrated by the Milosevic case before the ICTY; it was also upheld by the Pinochet
case.24
continue prosecutions should be free from political, social, religious, racial, cultural, sexual or any other
kind of discrimination and should be guided by international obligations of the state to bring, and to help
bring, perpetrators of serious violations of human rights and international humanitarian law to justice, the
interests of the international community as a whole and the interests of the victims of the alleged crimes:
ibid., Principle 7.
23
Under a draft German law, it is the State Prosecutor who will consider whether or not to defer to
prosecutions before an international court or by a state on whose territory the offence was committed,
whose national is suspected of its commission or whose national was harmed by the offense. The State
Prosecutor will also have discretion over whether to bring proceedings against individuals that allegedly
committed crimes outside of Germany or on foreign ships or aircraft, and who are unlikely to be found
within Germany territory. Germany, Draft of an Act to Introduce the Code of Crimes against International
Criminal Law (CCAICL Introductory Act) Article 3(5), (28 December 2001). However, the State
Prosecutor does not have such discretion to refuse to prosecute in cases not based on universal jurisdiction.
24
As stated, for example, by Lord Slynn of Hadley, [t]here isno doubt that States have been moving
towards the recognition of some crimes as those which should not be covered by claims of State or Head of
State or other official or diplomatic immunity when charges are brought before international tribunals.
Regina v. Bartle and the Commissioner of Police for the Metropolis and others Ex Parte Pinochet (on
appeal from a Divisional Court of the Queen's Bench Division, 25 Nov. 1998). Lord Lloyd of Berwick also
stated that international tribunals provide the answer to those who say, with reason, that there must be a
means of bringing such men as Senator Pinochet to justice. There is. He may be tried.before the

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Article 27 of the Rome Statute and relevant constitutional amendments (Colombia,


France, Portugal) or national implementing legislation, (Canada, New Zealand and
the UK) will allow countries to surrender their own heads of state and other officials
to the ICC in response to requests for cooperation, reinforcing the Milosevic
precedent. However, NGOs will have to seek to ensure that ICC jurisprudence
recognizes no immunities when States Parties are asked to surrender the officials of
other States Parties to the Court.
The direction in which international law develops with respect to immunities of nonState Parties sought by the ICC, or with respect to immunities before national courts
exercising universal or other forms of jurisdiction, will depend on a number of factors
and is very much under development at present.
Not least among these is the reception of the recent judgment of the ICJ in the
Democratic Republic of the Congo v. Belgium case. According to this judgment, an
incumbent foreign minister enjoys absolute immunity under customary international
law, as well as inviolability protecting him or her from any act of authority by
another State that would hinder him or her in the performance of duties during the
duration of office, although no state practice or opinio juris was cited as evidence of
such a rule. The same reasoning cited by the ICJ in support of such a rule is likely to
apply to heads of state and heads of government who, like foreign ministers,
represent the State in international affairs and must travel to carry out their duties.25
Other aspects of the Democratic Republic of the Congo v. Belgium decision are
equally problematic, particularly with respect to whether former officials enjoy
immunities for crimes committed while in office, and whether crimes under
international acts are considered official or private acts. While these are partially
matters of judicial interpretation, the law reform opportunity presented by the process
of ICC implementation will provide many opportunities to educate parliamentarians
and others about rationale for the progressive recognition at international law of an
exception to immunities with respect to former officials accused of international
crimes. In addition, NGOs can hope to see further progress in the adoption of
constitutional amendments and laws that facilitate the surrender, in spite of
immunities, of a States own officials to the ICC, although law reform efforts aimed
at narrowing the immunity of officials from other states is likely to meet stiff
resistance in some places. Participants were in agreement on the need to seize upon
both the law reform and the educational potential of the ICC implementation
opportunity with respect to the laws of immunity.

International Criminal Court when it is established, orbefore a specially constituted international


court: ibid.
25
Pieter H.F. Bekker, World Court Orders Belgium to Cancel an Arrest Warrant Issued Against the
Congolese Foreign Minister, ASIL INSIGHTS, February 2002 <http://www.asil.org/insights/insigh82.htm>;
see also Katie Nguyen, Belgian Court sets May 15 for Sharon Hearing, Reuters, March 6, 2002.

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4. Hierarchy of jurisdiction
In circumstances where more than one state is prepared to initiate proceedings, when
should one state defer to the jurisdiction of another?
It is generally considered that justice is best served when genuine and fair trials occur
in a jurisdiction that is the territorial state of the crime, or the national state of the
accused or of the victims. A report by the International Council on Human Rights
Policy stated, [n]ational prosecutions are clearly better able to deter ongoing abuses
and combat impunity within the country where abuses are occurring. They have a
much more direct ability to support the rule of law and restore faith in the legal
system. Finally, national prosecutions will likely be most effective in eliciting a real
dialogue concerning past crimes, and in facilitating social healing and reconciliation.
From a practical standpoint, prosecution of crimes where they occurred is preferable
for a number of reasons, including the availability of evidence and witnesses.26
Unfortunately, the judicial systems of states in which egregious international crimes
are being committed are often in no position to perform legitimate investigations and
prosecutions of perpetrators who are often officials of their own military, police, and
government.
One approach to the issue of hierarchy is to allow states with direct connections to the
crimes in question to have primary jurisdiction over a case, but to proceed with trials
in other jurisdictions where a state is incapable of conducting a trial, or is unable or
unwilling to proceed genuinely. A step towards this approach is taken by Germany in
its International Criminal Code, which adds to its Code of Criminal Procedure to
allow public prosecutors to dispense with proceedings in instances where the offence
is being prosecuted before an international court or by a state on whose territory the
offence was committed, whose national is suspected of its commission or whose
national was harmed by the offence.27 Regrettably, the German draft legislation does
not require that the proceedings in the other state be fair and genuine. Indeed, it does
not make clear the criteria to be considered by the prosecutor in exercising his or her
discretion. Where states wish to include provisions allowing for deference to other
jurisdictions, NGOs should encourage states to make explicit the criteria, such as that
the state in question prosecute in a timely manner and that a fair trial be granted, to be
used in making determinations. A related, but more controversial, question is whether
national discretion should take into account the potential impact of the case where the
country in question is in the process of transitioning to democracy, or the existence of
truth commission and other transitional justice mechanisms.

26

PEGGY HICKS, INTERNATIONAL COUNCIL ON HUMAN RIGHTS POLICY, THINKING AHEAD ON UNIVERSAL
JURISDICTION: REPORT OF A MEETING HOSTED BY THE INTERNATIONAL COUNCIL ON HUMAN RIGHTS
POLICY 6-8 1999 24 (1999) <http://www.ichrp.org/201/1999-Meeting-Report.pdf>.
27
Germany, Draft of an Act to Introduce the Code of Crimes against International Criminal Law
(CCAICL-Introductory Act), 28 December 2001, Article 3(5)(4).

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Another approach would be to consider the first state to open a criminal investigation
of a given suspect as having priority over other national jurisdictions, and as retaining
that priority provided it acts promptly and genuinely. The basis of this approach,
favored by Amnesty International, is the assumption that, if other states have not
promptly opened a criminal investigation, then they can be presumed to have no
serious intention of doing so, and should defer to the forum state.
NGOs will need to give serious consideration to the question of hierarchy of
jurisdictions, both with respect to the desirability and contents of any international
legal rule of subsidiarity (such as that hinted at by Judges Higgins, Buergenthal and
Kooijmans in their joint separate opinion in the Democratic Republic of Congo v.
Belgium case),28 and with respect to the terms on which the courts of one state could
legitimately defer jurisdiction to another.29
The problems of establishing overly-rigid criteria for priority are illustrated by the
decision of the Spanish Audiencia Nacional regarding Guatemala, in which the court
found that the absence of a formal amnesty for genocide and torture, as well as the
limited amount of time that had passed since peace accords had been signed, meant
that the Guatemalan courts were not presumed to be unable or unwilling to hear the
cases at home. It was unclear what further evidence or how much passage of time the
court would have required to go forward. The simplest solution to these problems
would be to proceed unless a prosecution was actually being diligently prosecuted (in
accordance with international standards of fair trial) for the same crimes in the
territorial or another jurisdiction.

28

Case Concerning the Arrest Warrant of 11 April 2000 (Congo v. Belg.), 2002 I.C.J. (Joint Separate
Opinion of Judges Higgens, Kooijmans and Buergenthal) at para. 59 <http://www.icjcij.org/icjwww/idocket/iCOBE/iCOBEframe.htm>. The decision stated that [a] State contemplating
bringing criminal charges based on universal jurisdiction must first offer to the national State of the
prospective accused person the opportunity itself to act upon the charges concerned.
29
The Princeton Principles on Universal Jurisdiction, for example set out the following criteria for
consideration where there exist competing jurisdictions for a case:
1. multilateral or bilateral treaty obligations;
2. the place of the commission of the crime;
3. the nationality connection of the alleged perpetrator to the requesting state;
4. the nationality connection of the victim to the requesting state;
5. any other connection between the requesting state and the alleged perpetrator, the crime, or the
victim;
6. the likelihood, good faith, and effectiveness of the prosecution in the requesting state;
7. the fairness and impartiality of the proceedings in the requesting state;
8. the fairness and impartiality of the proceedings in the requesting state;
9. convenience of the parties and witnesses, as well as the availability of evidence in the requesting
state; and
10. the interests of justice.
THE PRINCETON PRINCIPLES ON UNIVERSAL JURISDICTION, supra, n.15, at 32, Principle 8.

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C. Further hurdles to the successful adoption of universal jurisdiction


In lobbying and advocating universal jurisdiction to governments, NGOs must be
prepared to encounter and address obstacles to the successful implementation of universal
jurisdiction.30 In addition to the factors considered in section B above, obstacles are
presented where:
1. Legislation provides universal jurisdiction for ordinary domestic crimes, but
not for crimes under international law, or legislation includes some, but not all,
international crimes.
2. Definitions of international crimes in existing legislation are not consistent with
international law.
3. Legislation allows for inappropriate defenses, such as superior orders.
4. Countries recognize amnesties and similar measures of impunity granted by
other states to perpetrators of international crimes, or have statutes of limitation
that preclude prosecution.
5. National law provides inadequate procedures to secure justice and insufficient
fairness protections. For example, if legislation mandates that relevant cases be
considered by military courts or if criminal procedure codes provide inadequate
arrest procedures.

30

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

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Part Four: Casework


A. Standards and criteria in choosing cases31
Conference participants discussed the following factors as key ones in determining
whether or not to pursue a case:
1. Likelihood of a successful outcome: Given the controversial nature of universal
jurisdiction cases, it is important to consider (1) whether a case can be won (that is,
the likelihood of conviction or award of a judgment in favor of the plaintiffs), and (2)
whether the case has the potential to result in the development of harmful
jurisprudence. Participants agreed that there are sometimes good reasons to pursue
cases even where victory is uncertain or even unlikely (see below), but also
recognized that building a base of positive precedents could be invaluable in
promoting universal jurisdiction.
It was also noted that success should not be judged solely on the basis of the outcome
of a case. For example, some participants considered that universal jurisdiction has
succeeded insofar as universal jurisdiction cases have imprisoned alleged
perpetrators in their own countries, for fear of arrest abroad, and have provided
victims with a sense of public vindication by providing a forum for public testimony
and by marginalizing their tormentors.
2. Availability of evidence: Cases are most likely to succeed where they are well
documented and where prosecutors are able to access evidence. Universal jurisdiction
cases present unique challenges to the gathering of evidence because prosecutors are
often far removed from the place of the crime and have limited access to witnesses.
Therefore, the ability to obtain adequate evidence will depend largely on the
cooperation of local authorities, which often may not be forthcoming, or on the ability
of the prosecutor to investigate the crime him or herself. The success of a number of
cases in European courts through the 1990s depended on the presence in the forum
state of eye-witnesses willing to testify, although more recent experience involves
creative forms of cooperation including jury visits to examine massacre sites, visits
by investigating magistrates to take testimony from victims, and other evidencegathering visits.32
31

For a list of criteria compiled during other conferences and by other NGOs, see Hicks, supra n.26 at 2236; Bruce Broomhall, Towards the Development of an Effective System of Universal Jurisdiction for
Crimes under International Law35 New Eng. L. Rev. 399, 416-418; THE PRINCETON PRINCIPLES ON
UNIVERSAL JURISDICTION, supra n.15 at 42-54; AMNESTY INTERNATIONAL, supra n.7 at 1631.
32
For example, as indicated by Menno Kamminga in the International Law Association report on universal
jurisdiction, in order to reduce reliance on oral testimony at trial, a Belgian investigating magistrate has
conducted extensive rogatory missions to Rwanda, Togo and Ghana when investigating crimes comitted in
Rwanda. A Swiss court has visited Rwanda to visit the site of the crimes and to collect statements from
witnesses unwilling or unable to come to Switzerland. MENNO T. KAMMINGA, INTERNATIONAL LAW
ASSOCIATION, LONDON CONFERENCE (2000), FINAL REPORT ON THE EXERCISE OF UNIVERSAL
JURISDICTION IN RESPECT OF GROSS HUMAN RIGHTS VIOLATIONS 17 (2000) (available at: "http://www.ilahq.org/pdf/Human%20Rights%20Law/HumanRig.pdf") (citing Damien Vandermeersch, La rpression en
droit belge des crimes de droit international, 68 International Review of Penal Law 1093, 1121-1122

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3. Identification of a likely forum state: Participants agreed that efforts would be


well spent identifying fora that have universal jurisdiction over particular crimes and
that are likely to accept a case, and then to build the case with a view to the legal
requirements of that jurisdiction. This raises issues of the need to raise awareness of
universal jurisdiction and related issues of international law among the public in
general, and among judicial and prosecutorial authorities in particular and to identify
local experts and partners, especially in such potential forum states.
4. Educational value of the case: Even where a case is unlikely to result in
conviction or a favorable judgment, it may merit prosecution if it has educational
value (and will not create bad law). For example, while plaintiffs have yet to win a
civil lawsuit against multinational corporations in United States courts, past cases
have established that foreign nationals can use U.S. legislation to prosecute
corporations for human rights violations. Similarly, while the House of Lords
decision in the Pinochet case did not ultimately result in his extradition to Spain, the
decision provided support for the argument that former heads of state do not enjoy
immunity for torture and, by extension, certain other egregious crimes. These cases
have clarified important questions of law. Even where cases do not affect the law,
they may have value in educating the public on the crime at issue, drawing sympathy
to the victims and opprobrium to the alleged perpetrator.
5. Deterring ongoing violence and sending a message: Even where cases may not
be won, they may, through the attention they generate, focus the international
spotlight on an ongoing situation and perhaps spur international action in response.
Given that deterrence is one of the major goals of criminal prosecution generally, and
universal jurisdiction specifically, the possibility of increasing political pressure and
even of stopping ongoing crimes weighs very much in favor of pursuing litigation. At
the same time, the unclear prospects of universal jurisdiction at present make this
effect more than a little uncertain (witness the ongoing violence in Israel and the
Occupied Territories, notwithstanding investigations of both Prime Minister Sharon
and Palestinian Authority leader Yassar Arafat by Belgian magistrates).
Those participants that engage in litigation against multinational corporations
indicated that their decisions to take on certain cases often involved considerations of
whether litigation could actually stop corporations from condoning, tolerating, or
participating in local terrorism and torture.
6. Support of victims: Participants agreed that a prerequisite for cases should be that
local civil society, victims, and refugee communities are involved and supportive.
Some participants stressed that the wishes of the victims should be the most important
of all considerations and that, even where cases are unlikely to be won, or where
(1997); Jugement en la cause Fulgence Niyonteze, Tribunal militaire de division 2, Lausanne, Apr. 30.
1999). Similarly, in the Habr case, currently pending in Belgium, a Belgian investigating magistrate
visited Chad in order to gather evidence: see Pierre Hazan, Enqute belge sur les crimes d'Hissne Habr:
Le juge Fransen a entendu au Tchad des victimes de l'ex-tyran Libration, 8 Mars 2002.

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political considerations do not favor prosecution, a case should be pursued if


litigation is desired by the victims. Other participants, however, expressed serious
reservations about this suggestion.
7. Ability to protect victims and witnesses: Given the instability of countries in
which egregious crimes are frequently committed, victims, witnesses and NGOs that
promote universal jurisdiction cases may find themselves at risk. Any attempts to
bring universal jurisdiction cases must take into consideration at every stage the
security of the individuals involved.
8. Maintaining a balance: Throughout the conference, participants emphasized that,
to increase support for universal jurisdiction, cases must be brought in a fair and
balanced way against perpetrators from both north and south,33 and against
perpetrators who committed their crimes in the name of both left- and right-wing
causes.
It was argued that, for universal jurisdiction to be seen as legitimate, jurisdictions in
the north would need to prosecute their own (i.e. northern actors), as well as
southern ones. Some participants felt it preferable to have universal jurisdiction cases
in countries that are not politically connected to the crime in question, and argued that
universal jurisdiction appears (neo-)colonialist when northern countries contribute to
atrocities in the south (through e.g. Cold War support for southern dictatorships) and
then prosecute southern, but not northern, perpetrators for related crimes in the same
countries. It was also considered necessary that the north recognize its historical links
with the atrocities committed in the south.
The need was also widely recognized to promote the adjudication of universal
jurisdiction cases in southern courts. While disappointed that the case was not
ultimately adjudicated in Senegal, participants expressed approval regarding the filing
of the complaint against Habr in Senegal, and stressed that work should be
undertaken to ensure that other southern jurisdictions are able and willing to
undertake such cases. This need to develop potential southern jurisdictions for action
was felt by many to be one of the major needs of work in this area in the immediate
future.
B. Specific obstacles to bringing cases and succeeding with cases
1. Lack of political motivation: While specific legal obstacles to the successful
prosecution of crimes under international law, such as amnesty laws, must be
addressed in certain jurisdictions (notably in Latin America), the use of universal
jurisdiction legislation is more widely hindered by inaction and lack of political will.
The problem of impunity typically exists not because individuals have been pardoned,
33

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

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but rather because of a simple inability or lack of political will to try them. It was
noted that, even where there are no political constraints to the exercise of universal
jurisdiction, there are often financial constraints. In order to facilitate the bringing of
universal jurisdiction cases, as well as getting countries to expend the financial
resources required by such cases, a starting basic point for civil society is to inspire
the necessary political will to enact effective legislation, where it does not exist, and
then to put it into practice.
2. Lack of understanding regarding universal jurisdiction/need for capacity
building: Many NGOs around the world are not acquainted with the concepts of the
ICC and universal jurisdiction. In order to succeed with universal jurisdiction cases,
organizations must have a better understanding both of the significance of such cases
and the practical aspects of pursuing them. NGOs must work together to ensure that
national organizations are equipped to prosecute visiting suspects and must know
what jurisdictions are potentially available for a given crime.
To address this, civil society must educate itself about the universal jurisdiction that
exists throughout the different regions and build a network that can help to bring such
legislation to the notice of judiciaries and civil society, particularly in southern
regions.
3. Lack of financing: Universal jurisdiction cases can be very expensive, as, for
example, were the Pinochet extradition hearings in the United Kingdom (although the
costs of lawyers in the U.K are much higher than in many other states). Fear that
expenses will be similarly high will deter many countries from initiating universal
jurisdiction cases even when the cost of litigation in their own countries is likely to be
much less than in the United Kingdom. In addition to the expenses upon
governments, victims and their organizations can face insurmountable obstacles
through the costs of legal representation, travel, and other matters. To address the
latter in particular, some participants raised the possibility of NGOs setting up some
form of joint financing or a standing trust fund to support casework.
4. Collection and preservation of evidence: Absence of evidence or access to
evidence in a country that wishes to exert universal jurisdiction can impede successful
litigation. In part because of lack of cooperation from the countries where the crime
took place, many universal jurisdiction cases have been based on the availability of
witness testimony in the forum jurisdiction. NGOs have to weigh carefully the
adequacy of such evidence, and the likelihood of obtaining corroborating evidence,
before proceedings are launched.34 In addition, one participant raised the possibility
of recruiting volunteer legal services to identify and gather testimony from, for
example, immigrant and refugee communities in potential forum jurisdictions.
Attention then needs to be given to the proper recording, preservation and storage of
evidence in a manner appropriate for use in criminal proceedings.

34

Supra, n.32.

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5. Problems with existing legislation: See discussion of legislative barriers in Part


III. In instances where legislation provides universal jurisdiction for ordinary
domestic crimes, but not for crimes under international law, NGOs and victims will
have to take creative approaches to litigation, for example, where states maintain
unfavorable statutes of limitations or fail to adopt adequately defined doctrines of
command responsibility.
6. Immunities: In many instances it will be difficult to prosecute officials due to the
immunities accorded to them by domestic or international law. For example, both
domestic35 and international courts36 have recognized the immunity of incumbent
heads of state or foreign ministers. This raises the questions of whether it is advisable
(for the reasons listed above) to proceed with a cases against sitting leaders and
officials regardless of the likelihood of failure, or whether it is better to focus on
small fish, with the aim of building up jurisprudence over time.
It is worth noting that, even where immunities are recognized, there may be
opportunities to erode the protection they afford. For example, in the recent Mugabe
case, brought in a United States District Court, petitioners were not able to proceed
with their claim against Zimbabwean President Mugabe due to his immunity as head
of state. They were, however, able to proceed with their claim against the ZANU-PF
political party. The U.S. court gained jurisdiction over this party after petitioners
served process on President Mugabe, in his personal capacity as head of the party.
In light of recent international and national law on the issue, proponents of universal
jurisdiction cases against incumbent officials must work together to develop strategies
on how best to press for relatively progressive judicial interpretations of the
international law of immunities.

35

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

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C. Corporations as defendants: northern big fish


There was widespread agreement among participants regarding the need to pursue
accountability of northern corporations and the officials that encouraged their activities,
as these corporations were identified as major sources of support for ongoing oppression
by governments in Africa, Asia and Latin America. Southern governments are frequently
unwilling to impose or effectively enforce conditions on foreign corporations.
Consequently, action by authorities and courts in the jurisdiction of origin was seen as
highly useful by conference participants.
1. United States cases
U.S. courts seem to have accepted that corporations can be sued in U.S. courts for human
rights violations committed abroad. Some participants characterized such civil
jurisdiction as universal jurisdiction; others preferred to reserve that term to describe
criminal jurisdiction. Current U.S. cases include:
a. Jota, et al. v. Texaco: A civil action suit brought under the Alien Tort Claims
Act against Texaco for its pollution of the Ecuadorian Amazon and the effects of
this pollution on Ecuadorian and Peruvian indigenous and campesino populations.
b. Doe v. Unocal: This case charges UNOCAL with corporate complicity in the
use of slave labor, murder, rape and forced relocation of villagers by the Burmese
Military.37
c. Wiwa v. Royal Dutch Petroleum: This case charges Royal Dutch Petroleum
Company and Shell Transport and Trading Company with complicity in human
rights abuses in Nigeria.38
d. Bowoto v. Chevron: This case charges Chevron with corporate complicity in a
series of three machine gun attacks upon unarmed environmental protesters and
people in their homes in Nigeria.39
e. Gurab v. Federal Laboratories: A suit filed against the manufacturers of CS
gas, a "riot control" weapon used by Israeli troops, by the families of two
Palestinians killed by the gas.40
f. Manzanarez v. Chentex: A suit against a Nicaraguan garment factory, its
Taiwanese parent, and their American subsidiary, for allegations of violence,
arrest, and other union busting tactics.41

37

Center for Constitutional Rights: <http://www.ccr-ny.org/programs/intnlhumanrights.asp>.


See id.
39
See id.
40
See id.
41
See id.
38

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2. French cases:
Sherpa Project. The purposes of this project are to organize new types of procedures
to bring corporations to justice for a range of abuses, including human rights
violations; to determine how to freeze money stolen by heads of state and government
officials, and to better use legislation on money laundering for human rights
purposes; and to try to invent new types of proceedings against international
institutions. The Project is attempting to arrange a network of lawyers with various
specializations (for example, corporate law, international law, tax law) to help with
desired new types of proceedings. It is also addressing the issue of security for
victims and witnesses.
On March 22nd, 2002, the Sherpa Project initiated civil proceedings against the
French Rougier Group, a corporation exploiting resources in Cameroon, and its
Cameroonian affiliate. The charges against the company condemn it for the illicit
pillaging of forest resources to the detriment of Cameroonian populations.
3. Comparative approaches:
It was noted that, in the U.K., there have been civil claims, not filed as human rights
abuses, but as negligence claims. The corporate defendants have tried to dismiss
claims saying that they should be filed in the country where relevant subsidiaries are
located, while the petitioners have argued that the cases should be brought in the
U.K., to which profits were repatriated. A House of Lords decision held that the U.K.
is the proper jurisdiction to hear such civil claims. There has also been some work
exploring possibilities for similar work in the Netherlands.
4. Relationship of corporate cases to environmental law:
It was noted that corporate cases tend to be situated in a context in which there are
widespread abuses of economic, social and cultural rights. These cases are frequently
based not on universal, but on nationality jurisdiction, owing to the presence of the
corporations headquarters or other business office in the jurisdiction in question.
Because many corporate cases implicate both human rights and environmental
concerns, coordination between groups and attorneys working on both issues may
provide fruitful experience and be informative as to new approaches to litigation and
advocacy. Participants noted that ELAW may provide a model worth looking at, and
may be an organization with which it is worth establishing coordination. ELAW is a
network of public interest attorneys, scientists and other environmental advocates
around the world that focus on domestic and cross-border environmental advocacy
and litigation, and which has experience in environmental litigation regarding
corporate accountability. For example, one relevant case, currently before Peruvian
courts, was brought against Bayer for the pesticide poisoning of children.
More information about the organization and environmental litigation involving
corporations is available at www.elaw.org.

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5. Complications in bringing corporate cases


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

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Part Five: Public education


A. Information clearinghouses & website development efforts
1. Redress and the Center for Justice and Accountability: Redress and the Center
for Justice and Accountability (CJA) are in process of developing a Universal
Jurisdiction Information Network (UJ Info). The idea for this project was developed
in part through input received at past universal jurisdiction conferences. The website
is intended to be a resource for universal jurisdiction advocates around the world. It
will not put forward the position of any particular organization, but rather will simply
present and provide links to available universal jurisdiction information. Discussions
have already taken place with the other projects described below concerning
coordination of their work.
The project currently has two components. The first of these is a listserve, already in
operation, which sends news of universal jurisdiction developments worldwide to
those registered, and allows civil society to exchange information, documents, and
strategies. The second component is the website itself, which will provide users with
centralized information on universal jurisdiction, including legislation, cases,
advocacy and educational materials, and current and upcoming events on universal
jurisdiction. The site will also allow users to identify contacts for specific types of
cases or, for example, to identify lawyers that have worked on universal jurisdiction
cases in particular jurisdictions. The target audience for the web site is broad, and
includes civil society, academics, prosecutors, investigators, judges, domestic police,
Interpol, torture treatment centers, government legal staff and others seeking to
educate themselves or perform research on universal jurisdiction.
Participants discussed the need to develop regional and national networks or focal
points to coordinate and monitor universal jurisdiction development and progress, and
to contribute to UJ Info itself. UJ Info explained that interested parties could
contribute by sharing information that they have on latest developments on the
listerve, providing legislation, case documents and their own writings on universal
jurisdiction to the website and/or translating needed materials.
Many participants heavily emphasized the need for high quality translation. The
project is primarily in English at this time, but CJA and Redress are working on
setting up materials in other languages, although this process may be slow given
budgetary constraints and the high costs of translation.42
2. World Organization against Torture: The World Organization against Torture,
with the help of Yale Universitys Human Rights Center and several Washington, DC
law firms, is developing a universal jurisdiction website that focuses on legal issues
raised by various types of universal jurisdiction legislation and cases. The site reflects
work that the World Organization against Torture is doing on universal jurisdiction
42

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

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and criminal accountability, and contains a compilation of the most important legal
issues presented by relevant cases. In particular, the site contains extensive
information regarding the issue of immunities in the Sharon case. It is anticipated that
the site will also soon contain a database on United States universal jurisdiction
cases.43
3. Asser Institute: The Asser Institute, an academic institution based in The Hague,
is developing a website that will consist of 2 databases: one on universal jurisdiction
and one on international humanitarian law. Both databases will focus on primary
materials, such as legislation and cases. The Institute also intends to publish materials
that will consist of primary resources as well as analytical pieces.44
4. Amnesty International: At the time of the Pinochet litigation, Amnesty began to
compile information on universal jurisdiction for torture and other grave international
crimes. The project grew and currently contains several thousand pages of legislation,
cases, press reports and articles. It was decided to set up a database for it, and the
information was given to the Asser Institute for this purpose.
5. Notre Dame University: The Center for Civil and Human Rights at the University
of Notre Dame intends to create a physical, rather than virtual, accountability
resource center comprised of, for example, truth commission reports. It will also
contribute to an online database.45
B. Mechanisms and focus areas for public education
Participants outlined goals and strategies regarding how to best educate the public about
universal jurisdiction.
1. Developing a network, making use of what already exists
a. The Coalition for an International Criminal Court and its networks of
NGOs. Participants felt that the CICCs current networks could serve as
important resources for communication, for the establishment of new projects,
and for identifying new participants from every region. At the same time, CICC
member organizations may not have sufficient resources to bring cases on top of
work that they are already doing to promote the ICC. Capacity building for
universal jurisdiction will be different than it has been for the ICC, where the
main strategy has been awareness raising and lobbying. In the case of universal
jurisdiction, the issue is not just to lobby but also to respond to cases and to act in
court.

43

This site is available at: www.criminalaccountability.org


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

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b. The International Bar Association. Given the IBAs wide membership,


participants considered that it could perhaps help with universal jurisdiction
education and training.
c. Southern hubs or southern coordination mechanisms for communications
in particular regions. Regional, sub-regional and national coordinating points
may be best able to distribute information and resources on universal jurisdiction,
as well as to assist with local education efforts and project coordination. Such
hubs should then be integrated into international networks (the CICC, UJ-info,
etc.) in order to disseminate their experience more broadly and to seek support
when needed.
d. University resources. Universities with specialties in international human
rights and humanitarian law can provide excellent resources and training and can
assist in project coordination for universal jurisdiction proponents at various
stages of their careers. For example, a participant from the University of Notre
Dame noted that the universitys Center for Civil and Human Rights has a
specific accountability project (not limited to transitional justice) which consists
of teaching, research and fellowships at Notre Dame for individuals interested in
international accountability, and internship funding for individuals that wish to
work for NGOs on accountability issues or for the ICTY or ICTR.
Notre Dame also offers an LLM program and a doctoral program on international
human rights law. The university matches its LLM students with accountability
projects, and participants were encouraged to discuss their research needs with the
Notre Dames human rights center.
e. Smaller regional and inter-regional collaborations on specific cases. For
example, Japanese and Peruvian NGOs can coordinate and inform each other on
the issue of Fujimori.
2. Creating databases and making them widely available.
a. Electronic databases: Participants agreed that the web-based databases
mentioned in the preceding section would contribute substantially to capacity
building and education efforts. The need for dissemination of basic information,
of strategies, of legislation, cases, and events was stressed, as was the need to
have such resources well translated into as many languages as possible.
Europe-based participants sounded a note of caution regarding the publication of
information about individuals on Internet sites. Under European Union law, the
basis of the information may need to be disclosed to its subject, and the potential
for defamation suits must be considered. In general, Internet and defamation law
must be considered with respect to distributing information over the Internet.

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b. Physical databases: Participants noted that universal jurisdiction hubs, which


should be created in each region, could serve to preserve copies of files and
dossiers, which should be kept in multiple countries.
3. Increasing the capacity of southern actors
a. Information sharing & training missions. Participants emphasized the need
for the education and mobilization of judges, academics, prosecutors and NGOs,
particularly in the south, and for such efforts to be southern-led. Universal
jurisdiction education should include methods of law reform and how to make use
of existing universal jurisdiction provisions in domestic law. Participants should
understand how to prepare and file a case and how to access resources such as
additional information or support from groups in other regions or sub-regions.
b. Increasing southern academic and media attention to universal
jurisdiction. In order to increase southern awareness of the universal jurisdiction
issues, universal jurisdiction proponents should identify key southern NGOs,
academics and journalists, and encourage them to teach and write about the
subject.
4. Supporting cases around the world.
Participants identified the following as necessary steps towards the building of an
international consultative network.
a. Educating lawyers and judges: Participants suggested the following methods
for educating lawyers and judges:
1. Involve academics and encourage them to develop regular universal
jurisdiction training courses for judges, lawyers, and police.
2. Create a universal jurisdiction bench capacity and local bar chapter. Involving
local jurists will aid southern states in creating a stake for local actors and
ownership, and will increase the likelihood of cases being brought in the south.
3. Experiment with the approach taken by the Lawyers Committee for Human
Rights with regard to asylum cases, namely, screening cases and encouraging
law firms to take cases pro bono. This serves the dual purpose of getting the job
done and educating law firms about universal jurisdiction issues.
4. Encourage lawyers to examine existing legislation and analyzing what needs
to be changed in order for it to be in accordance with universal jurisdiction
principles. This can be done in the context of implementing the Rome Statute in
States Parties or in states likely to become States Parties.
5. Encourage lawyers and academics to publish in journals in order to spread
news and information.
b. Financing mechanisms: Participants noted that rule of law funding streams
exist in a number of agencies (the Canadian, Swedish, British and other

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international development agencies, the European Commission, USAID), but that


these have not typically made the connection between national rule-of-law
capacity building and issues of international justice, including universal
jurisdiction. As such, a donor education initiative might be worthwhile, bearing
in mind the need to take into account the perspectives on individual governments
(e.g. the US might be willing to fund rule of law and legal education conferences,
but is likely to avoid universal jurisdiction as such).

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Universal Jurisdiction: Meeting the Challenge through NGO Cooperation

Part Six: Regional Group Discussions


A. Africa Group:
1. Casework:
Participants agreed that northern NGOs should place more emphasis on prosecuting
individuals (notably from the north) that have committed abuses in Africa, while
southern NGOs should work to identify such people and to educate northern groups
about southern needs. One participant emphasized that southern NGOs should not
fear shaming their northern counterparts, the same way that that NGOs shame their
own and other governments.
Participants noted the need to keep working on economic, social and cultural rights
and corruption cases. It was considered that northern cases could contribute to
improvements in the south. For example, cases against multinational corporations in
the north contribute to the fight against corruption because of collusion between
corporations and African leaders.
2. North-South dialogue:
Participants made note of the need for more dialogue and complementarily between
northern and southern groups, and stressed that the south needs to play a greater role
in setting the agenda. A note of caution was raised regarding power dynamics
between northern and southern NGOs, and a lack of southern confidence in northern
NGO commitment to the south. One participant from the south noted, however, that
there had been excellent cooperation on an equal basis between southern NGOs from
Chad and Senegal and international NGOs in the Habr case.
3. Law reform:
Some participants felt that a major barrier to law reform in Africa was the
governments fear that the adoption of universal jurisdiction legislation would result
in a large volume of universal jurisdiction cases. For this reason, some participants
were concerned that African governments would oppose relevant law reform.
However, it was also noted that sentiments about this may begin to erode as universal
jurisdiction legislation for crimes under international law becomes more common in
other countries and regions.
4. Capacity building:
Some participants suggested that the main issue for African NGOs is the lack of
technical skills and the need for practical approaches to universal jurisdiction cases. If
universal jurisdiction is to advance in many African countries, issues of asylum and
victim protection will have to be addressed. One participant suggested that the main

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problem in Africa was the limited number of countries with universal jurisdiction
legislation or with inadequate legislation.
5. Information sharing:
The need to keep information and evidence safe was highlighted. It will also be
necessary for African NGOs to be able to better track African leaders traveling within
the region, and to know what tools are available in African countries to catch
perpetrators when they get there.
6. Two concrete agreements were formed:
a. The African NGOs that were present pledged to work together to reform laws to
include universal jurisdiction.
b. All of the groups represented will stay in touch and endeavor to work more closely
with one another, sharing information about their future universal jurisdiction work
with each other.
B. Asia Group:
The Asia group discussed the standing of universal jurisdiction in Cambodia, Thailand
and Indonesia.
1. Cambodia
With regard to Cambodia, it was considered that the need for increased education and
resources was similar to that of African regions. In particular, it was felt that NGOs
need to build relationships with other domestic and international NGOs. There is also
the need for civil society to reach a consensus on how to approach the issue of
impunity. At present, there is no general understanding of how to do this. There are
few existing victims groups in Cambodia, and more may need to be organized.
Cambodian NGOs are working with FIDH to organize a conference on universal
jurisdiction to take place in their country, as well as an FIDH mission prior to the
conference. Cambodia has just ratified the Rome Statute, so there may be
opportunities to include universal jurisdiction in its implementing legislation.
2. Thailand
Thailand currently has limited universal jurisdiction capabilities. Participants
estimated that it would take about two years to bring about ratification of the Rome
Statute and suggested that Thailand would be most likely to adopt universal
jurisdiction if it were more widely introduced across South East Asia.
3. Indonesia

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Indonesia has recently developed its human rights law and courts; the government
would like to wait, giving these laws and institutions a chance to work before
expanding into other areas such as universal jurisdiction. However, some are
skeptical about the potential success of tribunal dealing with abuses in occupied East
Timor and believe that the Indonesian military is fundamentally opposed to the
process.
C. Latin America Group:
1. Casework in Argentina, Mexico, Uruguay and Peru
a. Argentina:
1. Domestic laws and litigation
Argentina is a State Party to a number of international human rights treaties, and
many of these have been incorporated into its national constitution. However, the
Argentine penal code does not include crimes established by international treaties.
This situation does not impede Argentine judges from applying the relevant
treaties nor from prosecuting those responsible for relevant crimes, although
human rights proponents have found it challenging to persuade the government
and courts that international law principles are applicable at the national level
even though not incorporated.
In accordance with the Argentine National Constitution, it would be possible to
develop a case on the basis of universal jurisdiction, although this has not yet
occurred. According to participants, the development of such a case is seen to
depend more on political than judicial factors.
Argentine jurisprudence has begun to address the issue of the non-application of
statutes of limitations and amnesties in instances of crimes against humanity.
There are also a number of pending cases against the Argentine military, as well
as against the Chilean military for crimes committed in Argentine territory against
a Chilean. A case based on Operation Condor resulted in indictments against exParaguayan dictator Stroessner and Uruguayan military officers as well as Chilean
and Argentine military. These warrants do not apply principles of universal
jurisdiction. Rather, the warrants are extensions of the principle of territorial
jurisdiction since part of the crimes (in the context of Operation Condor) were
carried out on Argentine soil.46
46

Argentina also issued a warrant against the late General Banzer of Bolivia. The Operation Condor case
was filed on November 13, 1999, and the warrants were issued by Judge Canicoba in April 2001. The case
against Pinochet and other Chilean military officers for the murder of General Prats led to a request for an
arrest pending extradition in October 2000, which is still pending in the Chilean courts. See, e.g., HUMAN
RIGHTS WATCH, ARGENTINA: RELUCTANT PARTNER (2001).

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One obstacle for these cases has been the fact that Argentina recognizes statutes
of limitation for all crimes. However, prosecutors have been able to argue that
they do not apply to crimes against humanity, and judges have begun to take into
account more than just the written law.
Even where prior court decisions have found that amnesty laws preclude
prosecutions, courts have gone forward with truth trials. Such trials are the
result of the petitioning of judicial officials by victims, who wanted their cases to
be investigated in spite of the fact that perpetrators would not be criminally
charged. Truth trials are procedurally similar to criminal trials, but result in only
in recognition of acts committed, and serve to uphold the right to truth. However,
a few trials have also led to indictments. In instances where truth trials indicate
forced disappearance or arbitrary detention, Argentina has developed a fluid
process for payment of state reparations. To the extent that Argentina has an
established system of truth trials, it may serve as a useful example for other states.
Argentina also has a number of good cases on impunity and these and other cases
ought to be made available to the universal jurisdiction community.47
There are cases against Argentines in Germany, France, Sweden, Italy and Spain.
With the exception of Spain (which is a universal jurisdiction case), each of these
is against the Argentine military on the basis of passive personality jurisdiction.
The cases have been brought by victims who are nationals of the forum state or
dual nationals (Argentines who also have German, French, Swedish or Italian
citizenship). In these cases there were requests for extradition, which were
consistently denied. However, even though extradition has never been granted,
the European cases and extradition requests have caused the cases to be carried
out the national level in Argentina.48
b. Mexico:
1. The Cavallo Case: On 25 August 2002, Miguel Angel Cavallo or Ricardo
Miguel Cavallo, a former Argentine military officer, was detained in Cancun,
Mexico. Cavallo was charged by Spanish judge, Baltasar Garzn, for having
committed crimes of genocide, torture and terrorism in the Navy Mechanics
School (Escuela de la Mecnica de la Armada (ESMA)) during the Argentine
military dictatorship of 1976 to 1983.
After his arrest, extradition proceedings were initiated based on the Spanish and
Mexican Treaty of Extradition and Mutual Assistance49 and its 1996 Protocol.50
47

Annex C contains summaries of foreign cases against Argentines and Argentine domestic decisions
regarding acts that constitute international crimes, as well as the Argentine court decisions in the PobleteHlaczik case, in which Argentine amnesty laws were found to be invalid. These cases may be serve as
useful examples for other states. This information was provided by Maria Jose Guembe, Program Director
of Memory and Accountability at the Centro de Estudios Legales y Sociales.
48
More information regarding these cases is presented in annex C to this report.
49
Tratado de Extradicin y Asistencia Mutua en Materia Penal, 21 de noviembre de 1978, Mxico-Espaa.

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The Mexican extradition process, in accordance with Mexican extradition law,


involves two stages. The first of these entails the issuance of a decision by the
judge in the district in which the accused individual is found. The second stage
requires the Secretary of Foreign Relations to determine, after taking into
consideration the opinion of the judge of the relevant district, whether or not the
extradition of the accused will occur.
The Sixth Judge of the District of Federal Criminal Trials in the Federal District,
Jess Guadalupe Luna, opened the proceedings in May of 2000 and issued his
opinion on 11 January 2000. In this opinion, Judge Luna recognized that the
extradition procedure is sui generis, given that it requires the extradition of a
person to a country in a case that does not satisfy the traditional criminal
jurisdiction requirements of territoriality, active or passive personality or the state
interests. Nonetheless, he recognized the legality of universal jurisdiction that is
reflected in article 23.4 of the Spanish Ley Orgnica de Poder Judicial, which
grants the Spanish national audience jurisdiction over the crimes of genocide,
terrorism and torture, even where these acts are committed extraterritorially.
Judge Luna approved the extradition of Cavallo to Spain for the crimes of
genocide and terrorism, however not for torture because of a statute of limitations
for this crime imposed by Mexican legislation.
After reviewing the legal analysis used by Judge Luna in the formulation of his
decision, the Secretary of Foreign Relations issued a Resolution51 on 2 February
2001, in which he granted the extradition of Cavallo to Spain in order that he be
tried for the crimes of genocide, torture and terrorism. Several days later, Cavallo
presented an amparo action before the Judicial Power of the Federation, in which
he argued that his right to due process had been violated because, inter alia, the
Executive and the Senate, in entering into the Treaty of Extradition, its Protocol
and the Convention against Genocide, had not respected the Constitution insofar
as the Executive had not personally signed the documents, and that they had been
ratified regardless of this omission. For this reason, Cavallo argued, the
application of the extradition treaty was not in compliance with the formal
requirements for the entering into treaties. Cavallo also alleged that the crimes
that he had committed were of a political character and that, for this reason, it was
not possible for Mexico, in accordance with its Constitution, to extradite him.
All allegations contained in Cavallos amparo action were denied, with the
exception of his allegation regarding the statute of limitations for the crime of
torture. Consequently, the relevant judge, Judge Juan Garca Orozco, requested
the Secretary of Foreign Relations to correct his resolution in order that it only
50

Protocolo por el que se Modifica el Tratado de Extradicin y Asistencia Mutua en Materia Penal entre los
Estados Unidos Mexicanos y el Reino de Espaa, 4 de abril 2001.
51
This Resolution granted the extradition of Ricardo Miguel Cavallo, also known as Miguel Angel Cavallo,
which had been requested by the Government of Spain through its Embassy in Mexico, in order that
Cavallo be prosecuted for the crimes of genocide, terrorism and torture. Expediente de la Direccin General
de Asuntos Jurdicos de la Secretara de Relaciones Exteriores Nmero VII/230/1324/2000 (Mimeo).

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grant extradition for the adjudication of the crimes of genocide and terrorism. 52
This decision was challenged before the Collegiate Tribunal by the Secretary of
Foreign Relations on 12 April 2002.53 The Mexican Supreme Court of Justice has
now begun to examine the matter and is familiarizing itself with the resources of
revision presented both by the Cavallo defense and the Secretary of Foreign
Relations.54
c. Uruguay:
There were no known cases involving universal jurisdiction in Uruguay.
Regarding Truth Commissions: after the Uruguayan dictatorship ended in 1985,
the Congress created a commission to address the issue of the disappeared, but the
report issued was not public and had no impact. In spite of granting a blanket
amnesty for all human rights violators, the Uruguayan amnesty law mandated that
the government must investigate the fate of the disappeared. Three successive
governments (lasting 15 years) ignored this mandate. Uruguays current president,
Jorge Batlle, created a Peace Commission to gather information regarding the
fate of the disappeared and to recover the bodies if possible. This Commission is
expected to issue a report during 2002.
d. Peru:
The Fujimori case: Peruvian NGOs would like for former President Fujimori to be
extradited from Japan. However, the government of Japan has recognized his
Japanese nationality and seems unlikely to extradite him.
Should Peru succeed in obtain Fujimoris extradition, prosecutors could charge
him with violations of the Torture Convention, as well as with possible claims
based on jus cogens as well, to compensate for the lack of codification of
international crimes in Peruvian domestic legislation (as it seems that Argentine
prosecutors have had some success with this). Amnesty International and Human
Rights Watch are helping local efforts and it is considered important to continue
to coordinate with these groups. There is concern that if Fujimori is tried before
Japanese courts, all hopes of his extradition to Peru will be lost.

52

With respect to the decisin of Judge Garca Orozco, the Secretary of Foreign Relations stated the
following: "La Cancillera se congratula por la decisin del Poder Judicial, pues pone de manifiesto la
lucha de Mxico en contra de la impunidad a nivel internacional en los distintos mbitos del Gobierno
Mexicano, y reafirma la voluntad y el compromiso de nuestro pas con el respeto irrestricto a los derechos
humanos." Comunicado de Prensa de la Secretara de Relaciones Exteriores 050/02 del 26 de marzo de
2002. Tomado de: <http://www.sre.gob.mx/>.
53
Comunicado de Prensa de la Secretara de Relaciones Exteriores 061/02 of 12 April 2002,
<http://www.sre.gob.mx>. See also, Impunga la SRE el amparo concedido a Ricardo Cavallo, La Jornada
Virtu@l,13 April 2002, <http://www.jornada.unam.mx>.
54
Victor Fuentes, Acepta SCJN revisar caso Cavallo, Peridico Reforma, 23 April 2002,
<http://www.reforma.com>.

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2. Law reform:
Participants agreed that it is important to take advantage of the momentum behind the
ICC in order to advocate for implementing legislation, which should incorporate ICC
crimes into domestic codes, introduce provisions on universal jurisdiction and ensure
that states can cooperate with the Court.
3. Cooperation:
Participants agreed that:
a. NGOs should come together over common objectives and/or cases. For
example, in the instance of the Cavallo case, Argentine and Mexican NGOs have
been cooperating. In terms of the Cavallo or Fujimori cases, special skills are
required and it is very helpful to have a number of different groups and
individuals thinking about strategies and procedure. It would also be useful to
improve communications between groups so that NGOs are aware of universal
jurisdiction developments within the region.
b. It also seems that establishing a regional network would facilitate the
advancement of universal jurisdiction in Latin America. In terms of capacity
building, it would be useful for NGOs of certain countries to share their
experiences with those of others on issues such as the relationship between truth
commissions and investigations in Argentina and Peru.
D. United States Group
1. Law reform: The United States group focused on law reform with regard to
Senator Leahys (D-VT) proposed Anti-Atrocity Alien Deportation Act, which
is currently pending before Congress. This bill is meant to prevent the issuance of
United States visas to torturers and other human rights violators. If passed, this
legislation will expand the grounds for exclusion and deportation for non-U.S.
citizens suspected of participating in torture and extra-judicial killing.
a. History of the Bill: The proposed legislation passed the U.S. Senate during the
autumn of 2000 with no debate. When the bill went to the House of
Representatives, it was directed to the House Sub-Committee on Immigration. It
was redrafted in the Sub-Committee and was referred to the full House Judiciary
Committee. NGOs did not support the referred bill, and lobbied Representative
Henry Hyde (R-IL), the Chair of the Judiciary Committee, and Representative
John Conyers (D-MI) the Ranking member of the Judiciary Committee,
encouraging him to block the legislation. This lobbying was successful and the
bill was not passed.

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In February and March of 2001, NGOs decided to write and introduce a draft bill,
which would be prosecution-oriented. The notion behind this project was to use
the bill as an incremental approach to getting certain crimes introduced into
United States law. NGOs developed good draft language that expanded
definitions of war crimes, genocide and crimes against humanity in an attempt to
put teeth on the bill and to move funding.
Senator Leahy reintroduced his bill in May, 2001, which included some of the
changes suggested by NGOs; in particular, the bill mentioned that consideration
shall be given to the availability of prosecution and extradition in
determining the appropriate legal action to take against human rights abusers.
By mid-March, House and Senate sponsors had met and agreed on a consensus
text.
The Center for Justice & Accountability (CJA) and LCHR noted many problems
with the bill. In particular, it does not give adequate prominence to prosecution
and extradition as desirable options, and does not include any changes to the
criminal code, necessary in order to enable prosecution of human rights abuses
other than torture committed after November 1994. CJA also pointed out the
following concerns:
by adding grounds for exclusion and removal, without any checks, those
provisions could be used arbitrarily or with discrimination;
the bill does not address command responsibility for abuses; and
the bill does not include adequate reporting requirements, necessary to
monitor whether (a) the bill is being using to discriminate against certain
national or ethnic groups, and (b) the Attorney General is pursuing
investigations of criminal offenses.
Nonetheless, CJA suggested that the legislation is likely to be the best that can be
obtained this year. The proposed act could help prosecute abusers for perjury (by
requiring the addition of new questions to visa applications re participation in
torture and extrajudicial killing) and could help with the involuntary deportation
of perpetrators who are not subject to prosecution given the gap in U.S. criminal
law.
b. Update on post-conference developments
On April 18, the Senate Judiciary passed, without objection, an amendment to the
bill, co-sponsored by Senators Leahy, Hatch (the ranking Republican) and
Feingold (D-WI). Senator Feingold emphasized the importance of prosecution in
his Committee statement. The amendment made only technical changes not
relevant to the concerns expressed during the discussion summarized above.
However, CJA and LCHR did manage to get language included in the Senate

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Universal Jurisdiction: Meeting the Challenge through NGO Cooperation

Report on the bills legislative history that makes clear that persons with
command responsibility for abuses are covered by the act.55
The Lawyers Committee for Human Rights, CJA and Amnesty decided to support
the bill. They believe that the bill will have a difficult time passing the House, in
light of the intense focus on INS reorganization by the House Sub-Committee on
Immigration.
2. Casework: Participants briefly discussed the relative merits of bringing civil
lawsuits against perpetrators who have chosen to live in the U.S. versus cases against
visiting perpetrators (tag cases). Visiting perpetrators are often high-ranking and
there can be strong political reasons for bringing such cases, including to send a
message to the perpetrators and human rights groups in the countries concerned that
U.S. groups and courts are paying attention to the abuses committed in their
countries. Cases against resident perpetrators can be satisfying because such cases can
cause significant disruption to the defendants life even if the plaintiffs are unable to
collect any monetary damages.

55

The full Senate Report 144 may be found at http://thomas.loc.gov by entering S.864. The following
is the relevant passage:
The statutory language--`committed, ordered, incited, assisted, or otherwise participated in'--is intended to
reach the behavior of persons directly or personally associated with the covered acts, including those with
command responsibility. Command responsibility holds a commander responsible for unlawful acts when
(1) the forces who committed the abuses were subordinates of the commander (i.e., the forces were under
his control either as a matter of law or as a matter of fact); (2) the commander knew, or, in light of the
circumstances at the time, should have known, that subordinates had committed, were committing, or were
about to commit unlawful acts; and (3) the commander failed to prove that he had taken the necessary and
reasonable measures to (a) prevent or stop subordinates from committing such acts, or (b) investigate the
acts committed by subordinates in a genuine effort to punish the perpetrators.

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Universal Jurisdiction: Meeting the Challenge through NGO Cooperation

Part Seven: ConclusionIntensifying and harmonizing future work


The conference facilitated both broad discussion and practical and legal analysis of issues
raised by universal jurisdiction. Based on these discussions, participants detailed the
following points regarding priorities for the intensification and harmonization of future
work:
A. Going beyond NGOs: Participants emphasized the need to go supplement the process
of NGO meetings with the development of broader collaboration with government
officials, prosecutors, defense counsel and academics. It was suggested that the
possibility be explored of holding a meeting involving such a range of constituencies
from a number of regions. While such a meeting would ideally be held in the south, it
was noted that the Canadian government is working with Canadian civil society to hold
an international conference in Ottawa in June 2003. Participants indicated a desire to see
such collaborative fora developed, especially in southern countries.
B. Enhancing the role of the CICC: Given the CICCs broad network, visibility, and
secretariat capacity, it was considered that the CICC should provide a place for universal
jurisdiction proponents to meet regularly through the sessions of the ICC Preparatory
Commission and Assembly of States Parties, thus complementing the virtual meeting
place provide by the uj-info e-mail list. It was suggested that this would make it easier to
convene NGO meetings on universal jurisdiction and to do so more regularly (at least in
the near future, with the PrepCom meeting in July 2002 and the Assembly of States
Parties in September 2002 and January 2003). To that end, one participant undertook to
lead discussions on establishing a UJ Caucus within the CICC at the 9th session of the
PrepCom.56
One participant suggested that it is also time that support for universal jurisdiction be
adopted formally within the mandate of the CICC. The CICC indicated that it had, in the
past, been hesitant to take on universal jurisdiction because of potential interference with
the core activity of the Coalition in promoting the ICC. It has also been unclear as to how
the CICC should focus on universal jurisdiction, since not all universal jurisdiction work
pertains to the ICC. Nonetheless, the Coalition noted that support for universal
jurisdiction has become more widespread, as reflected by ICC implementing legislation
adopted or proposed by a number of governments, and noted also that an awareness has
crystallized among member organizations that universal jurisdiction will be needed to
supplement the necessarily limited ability of the ICC to end impunity. In light of this, it
was suggested that an effort be made to pursue the adoption of language affirming
universal jurisdiction as part of the struggle against impunity.57
56

This effort has since been successful, with the Coalition and its members agreeing that a first meeting of
the Universal Jurisdiction Caucus of the CICC would take place at the 10th and final, July 2002 session of
the ICC PrepCom. Bruce Broomhall has agreed to act as a focal point to coordinate an agenda and convene
the first meeting in July.
57
Draft language to this effect was adopted by the Coalition and its member organizations at the 9th, April
2002 session of the PrepCom, and will be circulated in the CICC Monitor before being revisited to address
any drafting or technical concerns at the 10th PrepCom session in July 2002.

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Universal Jurisdiction: Meeting the Challenge through NGO Cooperation

C. Creation of regional and sub-regional hubs: There was a broad consensus among
participants on the need for universal jurisdiction coordinating points at the regional, subregional and national levels. Such hubs will be able to maintain and distribute
information and resources on universal jurisdiction, and will assist with education and
project coordination. Such regional or sub-regional focal points could conceivably play a
leading role in developing capacity and momentum on universal jurisdiction or
international justice issues in their respective regions.
D. Need to demonstrate continuously the legitimacy of universal jurisdiction as it
goes forward: In order for universal jurisdiction to maintain its legitimacy, it needs to be
applied to actors from both the north and the south. To this end, northern NGOs need to
focus more on northern perpetrators. At the same time, southern jurisdictions and
organizations must build their capacity to take on these cases in southern jurisdictions.
Civil society should seek to take full advantage of existing universal jurisdiction
legislation. Regional groups should determine countries in which there exists a
combination of relatively strong universal jurisdiction legislation and progressive judges
that would adopt such cases. This would maximize the likelihood of developing a base of
strong precedent in the south.
E. Points for future discussion and development: Conference participants were eager
to build on the momentum of the conference discussions, and the following topics were
suggested for future discussions, and possibly for full conferences:
a.
b.
c.
d.
e.
f.

Civil remedies.
Suits against corporations and their assets.
Protection, storage and handling of evidence.
Protection of witnesses.
Funding cases, and the fair distribution of funding.
Data compilation and legal issues relation to information access and storage,
especially in Europe.
g. Concerted creative thinking regarding barriers to universal jurisdiction
prosecutions.
h. Areas of overlap between international criminal justice and counter-terrorism
measures, and how to turn counter-terrorism initiatives to our advantage (for
example, as credit card companies track potential terrorists, so might they
track international criminals).

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Universal Jurisdiction: Meeting the Challenge through NGO Cooperation

ANNEX A: REFERENCE MATERIAL


AMERICAN SOCIETY OF INTERNATIONAL LAW: http://www.asil.org. Contains a
number of articles relating to developments in the area of universal jurisdiction.
AMNESTY INTERNATIONAL , UNIVERSAL JURISDICTION: THE DUTY OF STATES TO
ENACT AND IMPLEMENT LEGISLATION, AI INDEX: IOR 53/002-018/2001, CHAPTER
4, PARTS A AND B. (2001). This report is obtainable either from:
http:/www.amnesty.org or from ijp@amnesty.org, as a CD ROM. (Contains an
overview of the universal jurisdiction laws of approximately 125 countries as well as
an extensive bibliography on the subject.)
AMNESTY INTERNATIONAL, UNIVERSAL JURISDICTION: 14 PRINCIPLES ON THE
EFFECTIVE EXERCISE OF UNIVERSAL JURISDICTION, AI INDEX: IOR 53/01/1999,
MAY 1999.
THE CENTER FOR CONSTITUTIONAL RIGHTS: http://www.ccr-ny.org/. Contains
materials relevant to the exercise of universal jurisdiction in the United States.
THE CENTER FOR JUSTICE AND ACCOUNTABILITY: http://www.cja.org. Contains
materials relevant to the exercise of universal jurisdiction in the United States.
THE CRIMES OF WAR PROJECT: http://www.crimesofwar.org. Contains a number
of articles and discussions on topics related to universal jurisdiction.
HUMAN RIGHTS WATCH, THE PINOCHET PRECEDENT: HOW VICTIMS CAN PURSUE
HUMAN RIGHTS CRIMINALS ABROAD (updated, Dec. 2001), available at
http://www.hrw.org/campaigns/chile98/precedent.htm.
INTERNATIONAL COUNCIL ON HUMAN RIGHTS POLICY, HARD CASES: BRINGING
HUMAN RIGHTS VIOLATORS TO JUSTICE ABROAD: A GUIDE TO UNIVERSAL
JURISDICTION (1999). (Available at: "http://www.ichrp.org/excerpts/10.pdf".)
This is the 'simplified' summary of:
INTERNATIONAL COUNCIL ON HUMAN RIGHTS POLICY, THINKING AHEAD ON
UNIVERSAL JURISDICTION: REPORT OF A MEETING HOSTED BY THE
INTERNATIONAL COUNCIL ON HUMAN RIGHTS POLICY, 6-8 MAY 1999. (1999)
(Available at "http://www.ichrp.org/201/1999-Meeting-Report.pdf".)
INTERNATIONAL LAW ASSOCIATION, LONDON CONFERENCE (2000), FINAL REPORT
ON THE EXERCISE OF UNIVERSAL JURISDICTION IN RESPECT OF GROSS HUMAN
RIGHTS VIOLATIONS" (2000). (Available at: "http://www.ilahq.org/pdf/Human%20Rights%20Law/HumanRig.pdf") (Annex contains
information on cases in various countries)

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Universal Jurisdiction: Meeting the Challenge through NGO Cooperation

Henry A. Kissinger, The Pitfalls of Universal Jurisdiction, FOREIGN AFFAIRS,


July/August 2001 (Available at:
http://www.foreignaffairs.org/20010701faessay4996/henry-a-kissinger/thepitfalls-of-universal-jurisdiction.html).
PROGRAM IN LAW AND PUBLIC AFFAIRS, PRINCETON UNIVERSITY, THE
PRINCETON PRINCIPLES ON UNIVERSAL JURISDICTION (2001). (Available at
"http://www.princeton.edu/~lapa/unive_jur.pdf").
Ken Roth, The Case for Universal Jurisdiction, FOREIGN AFFAIRS, Sept/Oct 2001.
(Available at
http://www.foreignaffairs.org/Search/printable.asp?i=20010901faresponse5577.
XML&return=).
Symposium: Universal Jurisdiction: Myths, Realities, and Prospects. New England
Law Review, 35 New Eng. L. Rev. 333 (2001). (Available at:
http://www.nesl.edu/lawrev/Vol35/35-2).
UNIVERSAL JURISDICTION INFORMATION NETWORK: www.u-j.info. The
Universal Jurisdiction Information Project, managed by Redress and the Center for
Justice and Accountability, manages the UJ-Info email list, which facilitates
discussion and exchange of information among NGOs working on this subject. To
join the Universal Jurisdiction Listserve, send an email to uj-infosubscribe@yahoogroups.com.

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Universal Jurisdiction: Meeting the Challenge through NGO Cooperation

ANNEX B: LIST OF PARTICIPANTS

Universal Jurisdiction: Meeting the Challenge through NGO Cooperation


NGO Meeting on Universal Jurisdiction
Wednesday 3 April Friday 5 April 20
Mike Posner
Executive Director
Lawyers Committee for Human Rights
333 Seventh Avenue, 13th Floor
New York, New York 10001
1-212-845-5200

Rapporteur
Carol Pollack
Fellow
Lawyers Committee for Human Rights
333 Seventh Avenue, 13th Floor
New York, New York 10001
1-212-845-5247
pollackc@lchr.org
Lee Che Leong
International Justice Program Assistant
Lawyers Committee for Human Rights
333 Seventh Avenue, 13th Floor
New York, New York 10001
1-212-845-5237
leongl@lchr.org
Gaelle Laroque
International Justice Program Senior Associate
Lawyers Committee for Human Rights
333 Seventh Avenue, 13th Floor
New York, New York 10001
1-212-845-5238
laroqueg@lchr.org

Convenor
Bruce Broomhall, PhD
International Justice Program Director
Lawyers Committee for Human Rights
333 Seventh Avenue, 13th Floor
New York, New York 10001
1-917-443-8388
broomhallb@lchr.org
Raj Purohit
Legislative Counsel
Lawyers Committee for Human Rights
100 Maryland Ave. N.E., Suite 500
Washington, D.C. 20002-5625
1-202-547-5692
purohitr@lchr.org
Ken Hurwitz
International Justice Program Consultant
Lawyers Committee for Human Rights
333 Seventh Avenue, 13th Floor
New York, New York 10001
1-212-845-5243
hurwitzk@lchr.org
Rob Varenik
Consultant
Lawyers Committee for Human Rights
333 Seventh Avenue, 13th Floor
New York, New York 10001
1-212-845-5200

********************

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Universal Jurisdiction: Meeting the Challenge through NGO Cooperation

Evelyn Ankumah
Executive Director
Africa Legal Aid
Minderbroedersberg 6A
P.O. Box 616, 6200 MD
Maastricht, Netherlands
31(0)43 3882523
EA.Ankumah@AFLA.UNIMAAS.NL
Saifuddin Bantasyam
Executive Director
Care Human Rights Foundation
(Indonesia)
Jl. T. Hasan Dek No. 106
Beurawe, Banda Aceh
(62-651) 24726
Saifuddin_Bantasyam @yahoo.com
Georges-Henri Beauthier
rue Berckmans, 89
1060 Bruxelles
322- 538 90 10
gbeauthier@arcadis.be

Patty Blum
Board Member, Center for Justice &
Accountability
Professor & Director
International Human Rights Law Clinic
Boalt Hall School of Law
685 Simon Hall
Berkeley, CA 94720-7200
1-510-642-5980
cpblum@mail.law.berkeley.edu
William Bourdon
Sherpa Project
Paris, France
bourdonvoituriez@wanadoo.fr

Barbara Bedont
International Human Rights Consultant
Representative, Women's Caucus for
Gender Justice
33-53 Vernon Blvd, Suite 1
Long Island City, NY 11106
barbaracbedont@yahoo.com
Olivier Bercault
Counsel
Human Rights Watch
350 5th Ave, 34th Fl.
New York, NY 10118-3299
Tel: 1-212-216-1275
Fax: 1-212-736-1300
bercauo@hrw.org

Antoine Bernard
Executive Director
La Federacin Internacional de Derechos
Humanos
17 Passage de la Main D'or.
75011 Paris, France
abernard@fidh.org

Abu Brima
National Coordinator
Network Movement for Justice &
Development
P.M.B. 798
8, King Harman Road
Freetown, Sierra Leone
232-22-229937
nmjd@sierratel.sl
Reed Brody
Special Counsel for Prosecutions
Human Rights Watch
350 5th Avenue, 34th Floor
New York, NY 10118-3299
brodyr@hrw.org
Judith Chomsky
Center for Constitutional Rights
666 Broadway
New York, New York 10012
jchomsky@igc.org

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Universal Jurisdiction: Meeting the Challenge through NGO Cooperation

Sandra Coliver
Executive Director
Center for Justice & Accountability
870 Market St., Suite 684
San Francisco, CA 94102
1-(415) 544-0444
scoliver@cja.org

Richard Dicker
International Justice Director
Human Rights Watch
350 5th Avenue, 34th Floor
New York, NY 10118-3299
dickerr@hrw.org
Helen Duffy
Legal Director
Interights
Lancaster House
33 Islington High Street
London N1 9LH
(44) (0)20 7278 3230
hduffy@interights.org

Vienna Colucci
Amnesty International USA
53 W. Jackson, Suite 731
Chicago, IL 60604
1-312-435-6388
vcolucci@aiusa.org
Rhonda Copelon
City University of New York
Women's Human Rights Law Clinic
65-21 Main Street
Flushing, NY 11367
1-(718) 340-4329
copelon@mail.law.cuny.edu
Larry Cox
International Affairs Senior Program
Officer
Ford Foundation
320 East 43rd Street
New York, NY 10017
l.cox@fordfound.org
Peter Danchin
SIPA Human Rights Program Director
Columbia University
1130 International Affairs Building
420 West 118th Street, MC 3323
New York, NY 10027
1-(212) 854-6224
pgd6@columbia.edu

Carla Ferstman
Legal Director
REDRESS 1st Floor
4 Deans Court, St Paul's Churchyard
London EC4V 5AA
44 (0)20 7329 7322
carla@redress.org
Dr. Juan Garces
Garcs y Prada, Abogados
Alfonso XII num. 18
28014 Madrid. Spain
34-91-5311989
100407.1303@compuserve.com
Mbuthi Gathenji
Lawyer
Nairobi, Kenya
In association with:
Kenya Human Right Commission
gathenjisr@yahoo.com
Jenny Green
Center for Constitutional Rights
666 Broadway
New York, New York 10012
jmegreen@hotmail.com

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Universal Jurisdiction: Meeting the Challenge through NGO Cooperation

Maria Jose Guembe


Program Director of Memory and
Accountability
Centro de Estudios Legales y Sociales
Rodriguez Pea 286, piso 1
C1020ADF Buenos Aires - Argentina
memoria@cels.org.ar
Jose Guevara
Programa DDHH
Prolongacion Paseo De La Reforma
Col. Lomas De Santa Fe
No. 880
Mexico DF 01210
(52-55)5267-4272
ja_guevara@hotmail.com
Christopher Keith Hall
Legal Advisor
Amnesty International
One Easton Street
London, WC1X 8DJ
chall@amnesty.org

Maina Kiai
International Human Rights Law Group
1200 18th Street, NW, Suite 602,
Washington, D.C. 20036
1-202 822 4600
MainaK@HRLawgroup.org
Juan Kim
Parliamentarians for Global Action
211 East 43rd Street, Suite 1604
New York, NY 10017
1-212-687-7755 x103
Juan.kim@pgaction.org
Marie-Claire Leman
Parliamentarians for Global Action
211 East 43rd Street, Suite 1604
New York, NY 10017
1-212-687-7755
marie.leman@pgaction.org
Revai M. Makanje
Programme Officer
Zimbabwe Women Lawyers Association
Office 500, 5th Floor Bambanani Centre
9th Avenue/ J Moyo Street,
Bulawayo
263-09-888001
rmakanje@yahoo.co.uk

Francois Harajwe
Ligue ITEKA
Bujumbura Burundi
257-24-36-27
nikoyagize@yahoo.fr
Priscilla Hayner
Research and Technical Assistance
Director
International Center for Transitional
Justice
20 Exchange Place, 11th Floor
New York, NY 10005
phayner@ictj.org

Javier Mariezcurrena
Transitional Justice Project Program
Manager
Center for Civil and Human Rights
Notre Dame Law School
135 Law School
Notre Dame, IN 46556
1-(219) 631-8555
Mariezcurrena.1@nd.edu

Mouhamed Kebe
Organisation Nationale des Droits de
I'Homme (ONDH )
33, rue Berenger-Feraud
BP 325 - Dakar, Senegal
221-644-1601
mhkebe@sentoo.sn
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Universal Jurisdiction: Meeting the Challenge through NGO Cooperation

Garth Meintjes
Associate Director
Center for Civil and Human Rights
Notre Dame Law School
135 Law School
Notre Dame, IN 46556
1-(219) 631-8555
Meintjes.1@nd.edu
Milimo Moyo
Afronet, Inter-African Network for
Human Rights and Development
PO Box 31145 Rhodes Park
Lusaka, Zambia
260-978-415-73
milimo_m@hotmail.com
Maria Muoz
APRODEH Asociacion Pro Derechos
Humanos
Calle Pachacutec No. 980
Jesus Maria, LIMA
51-1-4247057; 3325995
openchannel2001pe@yahoo.com

Bill Pace
Convenor
NGO Coalition for an International
Criminal Court (CICC) c/o WFM/IGP
777 UN Plaza
New York, New York 10017
cdil@igc.org
Ariana Pearlroth
Project Director
Universal Jurisdiction Information
Network
c/o REDRESS 1st Floor
4 Deans Court, St Paul's Churchyard
London EC4V 5AA
44 (0)20 7329 7322
www.u-j.info
apearlroth@u-j.info
Dinah PoKempner
General Counsel
Human Rights Watch
350 5th Avenue, 34th Floor
New York, NY 10118-3299
pokempd@hrw.org

Alex Neve
Secretary-General
Amnesty International Canada
214 Montreal Road, 4th Floor
Vanier, Ontario
Canada K1L 1A4
1-(613)-744-7667
aneve@amnesty.ca

Renzo Pomi
Representative at the United Nations
Amnesty International
777 UN Plaza, 6th Floor
New York, New York 10017
212-867-8878
rpomi@amnesty.org

Johnathan ODonohue
Amnesty International
One Easton Street
London, WC1X 8DJ
jodonohu@amnesty.org

Jennifer Rasmussen
International Human Rights Law Group
1200 18th Street, NW, Suite 602,
Washington, D.C. 20036
1-202 822 4600

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Universal Jurisdiction: Meeting the Challenge through NGO Cooperation

Hugo Relva
AI Argentina/CICC
Calle 48 N535
Piso 4, Of.20
B 1900 AMU La Plata, Argentina
Hrelva@way.com.ar
Naomi Roht-Arriaza
Professor of Law
Hastings College of Law
200 McAllister St.
San Francisco, CA 94102
1-415-565-4629
rohtarri@uchastings.edu

Jessica Schultz
Human Rights Unit
Ford Foundation
320 East 43rd Street
New York, NY 10017
J.schultz@fordfound.org
jessicaschultz@onebox.com
Paul Seils
International Center for Transitional
Justice
20 Exchange Place, 11th Floor
New York, NY 10005
1-917-438-9300
pseils@ictj.org

Indira Rosenthal
Counsel
International Justice Program
Human Rights Watch
350 Fifth Ave, 34th Floor
New York, NY 10118-3299 USA
1-212-216 1283 (direct)
rosenti@hrw.org
Thun Saray
President
ADHOC (Cambodian Human Rights
Development Association)
No. 1 St No. 158
Troeung Kang
Daun Penh
Cambodia
855 23 218653, 98240
adhoc@forum.org.kh
Jennifer Schense
Legal Advisor
CICC c/o WFM/IGP
777 UN Plaza
New York, New York 10017
Cicclegal@iccnow.org

Toms Simo da Silva


Human Rights Commission of Angola
Bar Association
Angolan Coalition for ICC
322-777/326-330
tomassilva@netangola.com
Morton Sklar
Executive Director
World Organization Against Torture
USA
1725 K St NW, Suite 610
Washington, D.C. 20006
202-296-5702
msklar@igc.org
Wichai Srirat
Asian Forum for Human Rights and
Development
109 Suthisarnwinichai Road
Samsennok, Huaykwang
Bangkok 10320, Thailand
662-276-9846-7
victor2665@hotmail.com

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Universal Jurisdiction: Meeting the Challenge through NGO Cooperation

Beth Stephens
Professor of Law
Rutgers School of Law Camden
217 North Fifth Street
Camden NJ, 08102
(856) 225-6384
bstephen@camden.rutgers.edu

Jeanne Sulzer
International Justice Program
La Federacin Internacional de Derechos
Humanos
17 Passage de la Main D'or.
75011 Paris, France
jSulzer@fidh.org

Jayne Stoyles
Program Director
CICC c/o WFM/IGP
777 UN Plaza
New York, New York 10017
Cicc1@iccnow.org

Paul van Zyl


International Center for Transitional
Justice
20 Exchange Place, 11th Floor
New York, NY 10005
1-917 438-9300

Brigitte Suhr
Counsel
International Justice Program
Human Rights Watch
350 Fifth Avenue, 34th Floor
New York, New York 10118
1-212-216-1249
suhrb@hrw.org

Ahmed Ziauddin
Member, Faculty of Law
Catholic University Brussels
Maistraat, 60
9000 Gent Belgium
32 9 237 0567
ahmed.zia@pandora.be

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Universal Jurisdiction: Meeting the Challenge through NGO Cooperation

ANNEX C: ARGENTINE CASE LAW58


1. Relevant cases before Argentine courts
In 1986 and 1987, respectively, the Argentina National Legislative Power passed laws
23,492 (Ley de Punto Final) and 23,521 (Ley de Obediencia Debida). These prevented
prosecution of most crimes, including crimes against humanity, committed by the armed
forces and security services during the Argentine dictatorship of 1976 to 1983.
Although these laws did not grant impunity for all crimes (robbery of goods, stealing or
appropriation of children and crimes committed by individuals who were not members of
the armed forces, for example, were excluded), they did pardon individuals who had
participated in the forced disappearance of people, torture, murder, extra-judicial
executions, etc.
In the first years of democracy following the dictatorship, the only sentences issued by
Argentine courts were against the military juntas. However, those found guilty and
punished as a result of these sentences were later pardoned by presidential decrees issued
by former President Carlos Sal Menem in 1989 and 1990. This resulted in a situation of
impunity, which has been challenged by a variety of political and judicial strategies.
The present situation before Argentine courts is as follows:
There currently exist in Argentina different types of cases that seek the criminal
punishment of individuals responsible for state terrorism. In some cases, crimes not
protected by the punto final and obediencia debida laws are being investigated. In
others, attempts are being made to punish individuals for the commission of crimes by
declaring relevant impunity laws to be unconstitutional. The validity of former President
Menems decrees that pardoned individuals who had been subject to criminal prosecution
is also being challenged.
Cases are being developed regarding particular instances in which crimes were
committed against children. There also exists a case in which the systematic plan for the
stealing or appropriation of children is being investigated, and which has resulted in the
investigation and preventive detention of more than a dozen members of the military.59
With regard to crimes, including crimes against humanity, committed during the period
immediately before the military coup d'tat, an investigation that seeks to condemn the
perpetrators of forced disappearances was initiated in 2000. This case seeks to advance
the investigation of State terrorism before the coup and has thus far yielded very positive
results.60
There have also been accusations against civilians who participated in state terrorism, and
who are now charged with having committed crimes of torture and unlawful deprivation
of liberty. Such cases can go forward because civilians are not shielded from prosecution
by the punto final and obediencia debida laws.
58

The Lawyers Committee thanks Maria Jose Guembe of Centro de Estudios Legales y Sociales
(Argentina) for contributing this Annex.
59
Juzgado federal No. 10, Fiscala federal No 1, Capital Federal.
60
Juzgado federal de Mar de Plata, Pcia. De Buenos Aires. Juicio iniciado en el mes de julio de 2001.
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There is a case in progress against individuals responsible for the dictatorships of South
Americas southern cone countries, for the crime of unlawful collaboration to implement
a plan of repressive coordination. This case also seeks prosecution of individuals who
held inferior rank, but who have also been implicated in the commission of the above
crime. This case stems from a criminal complaint filed in 1999 regarding the crime of
unlawful deprivation of liberty committed in the planning and execution of Operation
Condor.61 In this case different measures have been adopted to obtain the extradition of
individuals responsible for the involvement of other southern cone states; among these
are Augusto Pinochet and Alfredo Stroessner. Former Argentine President, Jorge R.
Videla is also charged. In pursuing this case, an Argentine Judge has issued detention and
extradition orders for the charged individuals, but Uruguay, Chile and Paraguay have
each refused to grant them.
The most significant case pertaining to appropriation of property, a crime not protected
by impunity laws, is that brought by Federico Gmez for the forced disappearance of his
father and the dispossession of his fortune.62 In this case, the petitioner requested a
declaration of invalidity of the impunity laws in order that the crime of forced
disappearance could be adjudicated. In October of 2001 the presiding judge declared the
invalidity of the impunity laws. This was the second such declaration since the laws were
adopted. At the time of this writing, the decision has been appealed and the case is before
the Federal Supreme Court.
There have also been a variety of cases brought for crimes that are protected by the
impunity laws. In these cases, petitioners request that courts declare the impunity laws to
be invalid. The most significant case is that pertaining to the disappearance of the
Poblete-Hlaczik family, in which judge Gabriel Cavallo held the impunity laws to be
invalid and null. 63 This decision was upheld by the Federal Court of Appeal in November
2001, and at the time of this writing, resolution of the case by the Argentine Supreme
Court of Justice is pending (see section 3 below for a full discussion).
Similar cases are in being processed in Federal Courts in Chaco, Cordova and the Federal
Court of Appeals of Baha Blanca.
Finally, there are cases in which the constitutionality of the former president Menems
pardons is challenged and in which punishment is sought for criminal conduct committed
after the date of the pardon.
All of the above cases involve Argentine judges, who are investigating cases committed
in Argentina against Argentine or foreign nationals. They involve the application of the
principle of territoriality. The applicable law is the Argentine Constitution and Penal
Code, the human rights treaties to which Argentine is a State Party (which have been
incorporated into the constitution by virtue of art. 75, paragraph 22) and jus cogens
(which is recognized in Article 118 of the Constitution).

61

Juzgado Federal No.7, Capital Federal.


Juzgado Federal No. 12, Capital Federal.
63
Juzgado Federal No. 4, Capital Federal.
62

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2. Foreign cases against Argentine nationals and Argentinas approach to


extradition requests
In recent years, political or judicial authorities of third states have requested the
extradition of Argentine military personnel or civilians based on their commission of
crimes against humanity during the military dictatorship.
For crimes that constitute crimes against humanity, Argentina is obligated to adjudicate
the case or extradite, even where it does not maintain an extradition treaty with the
requesting State, in keeping with the principle of aut dedere aut judicare.
The treatment of extradition requests is governed by domestic and international law. In
Argentina, the rejection of or compliance with an extradition order is governed by law
No. 24,767 on international cooperation on criminal matters, by the principles of
international law, and since the end of 2001, by decree No. 1581/01.
On 5 December 2001, the National Executive Authority authorized decree No.
1581/2001,64 through which the Ministry of Foreign Relations is to reject requests for
extradition pertaining to facts that occurred within Argentine territory or areas within
national jurisdiction. This decree had been in force for several days when the State
rejected Germanys request for the extradition of Carlos Guillermo Suarez Mason for the
forced disappearances of German nationals committed during the military dictatorship.
Decree 1581/01 establishes that all extradition orders pertaining to crimes of state
terrorism committed during the military dictatorship must be rejected.
This decree, approved by former President Fernando de la Ra, reiterated the position
adopted by former President Carlos Menem during his administration, in which he
rejected by decree any requests for judicial cooperation by foreign states on the grounds
that compliance would violate the sovereignty of the Republic of Argentina.65 The same
decree establishes that extradition orders issued by foreign courts will be rejected,
without regard to the particular characteristics of each request, by the Ministry of Foreign
Relations on the basis of the principle of territoriality, if the facts occurred in Argentine
national territory or in areas within national jurisdiction.
Specific cases include the following:
A. Judicial investigation on behalf of German victims: In 1998 a judicial investigation
was undertaken before the public prosecutor of Nuremberg-Frth, Germany regarding the
fate of German nationals, who had been disappeared in Argentina during the military
dictatorship. In 2001, the German office of the public prosecutor advanced the
investigation by arranging for witnesses to offer their testimony in Buenos Aires through
Germanys embassy in Argentina.

64

Published in the Official Bulletin of 17 December 2001. Signed by President Fernando De La Ra, the
Chief of the Cabinet of Ministries, Chrystian G. Colombo, the Minister of Justice, Jorge E. De La Ra and
the Minister of Foreign Relations, Adalberto Rodrriguez Giavarini.
65
Decreto No 111 of 26 January 1998, published in the Oficial Bulletin of 9 February 1998, signed by the
Minister of Foreign Relations, Guido Di Tella and the Minister of Justice, Ral Granillo Ocampo.

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On 14 August 2001, the office of the public prosecutor of Nuremberg- Frth issued an
order to detain Guillermo Surez Mason, ex-commander of the 1st Army Corps, for his
participation in the murder of Elisabeth Ksseman, a German citizen who was stopped
illegally and assassinated in Argentina on 24 of May of 1977.
The extradition of Guillermo Surez Mason had been previously requested by the
Republic of Italy, but this request was rejected by the Argentine Government, which
alleged procedural violations. On 6 December 2000, the criminal court of Rome tried the
defendant in absentia and sentenced him to life imprisonment with three years of
isolation for crimes committed against Italian citizens.
On 26 November, Horacio Jaunarena, the Ministry of Foreign Relations who was
temporarily in charge of the Ministry of Defense, issued a resolution rejecting the
German extradition request. The Minister argued that the facts for which the former
commander was being investigated had already been investigated by Argentine tribunals,
and that as a result of Argentine investigations, the former commander had received a
presidential pardon.
This decision was appealed by the German Government before the Cmara Nacional de
Casacin Penal. The resolution of this appeal is pending.
B. Judicial investigation on behalf of Italian citizens: In June of 2001 the Rome Court of
Preliminary Investigations issued a detention order with the purpose of obtaining the
extradition of Alfredo Astiz and Jorge Raul Vildoza in order that they be tried for the
crime of aggravated homicide of Italian citizens Angela Maria Aietta de Gullo, Susanna
Beatriz Pegoraro and Giovanni Pegoraro. The order was delivered through Interpol and
resulted in the detention of Alfredo Astiz in July 2001.66 Astiz was subsequently
delivered to Interpol, and remained in detention with the Central Department of Police.
The extradition order was, however, rejected.
The Main Directorate of Legal Matters issued a decision stating that the crimes set out in
the extradition order had occurred in Argentine territory and consequently, according to
the principle of territoriality established in the Argentine Penal Code, the jurisdiction to
investigate and judge them belonged to Argentine courts.
The decision also indicated that, in conformity with article 7(a) of the treaty of
extradition, extradition will not be granted if the relevant crime was committed in
territory of the requested State. The Ministry of Foreign Relations rejected the extradition
request on the basis of the principle of the territoriality and the existence of special
reasons of Argentine sovereignty. (Established in article 10 of the Law N24.767)
In rejecting the extradition request, the fact that the disappearances of Giovanni Pegoraro,
Susana Beatriz Pegoraro and of Angela Maria Aietta had not been investigated before the
Argentine courts was taken into consideration. For this reason it was decided to that the
complaint would be submitted to the competent court in order that it proceed as a
criminal complaint.

66

Resolution No. 254., Signed by Horacio Jaunarena.

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C. Judicial investigation on behalf of French citizens: On 13 August 2001, the same day
on which the Italian order was rejected, the Republic of Argentina also rejected the
extradition request for Astiz that had been presented by the government of France.
However, the bases and consequences of the denials were different in the two instances.
In the case of France, Astizs extradition had been requested by the office of the public
prosecutor of the Paris Court of Appeals for the fulfillment of a sentence that a French
court had issued in 1990 based on the forced disappearance and the torture of two nuns,
Alice Domon and Leonie Duquet, who were French citizens. However, Minister
Jaunarena, who signed the resolutions pertaining to both the French and the Italian
orders, maintained the Astiz had already been investigated in Argentina for the same facts
that gave rise to the French allegations.67
D. Judicial investigation on behalf of Swedish citizens: In November 2001, Swiss Judge
Claes Djurberg requested the arrest of Alfredo Astiz for the crime of homicide committed
against Dagmar Hagelin, a Swedish citizen who in 1977, at the age of 17, was kidnapped
and assassinated in Argentina. On 18 January 2002, Sweden presented the extradition
order to the Argentine Chancellery. Although the order was received by a new
government, it was rejected on 28 of January on the grounds that the facts in question had
already been investigated by the Argentine courts.
E. Judicial investigation on behalf of Spanish citizens: On 6 September 2001, Judge
Balthasar Garzn issued 18 new orders of detention against military and Argentine
civilians accused of human rights violations. The order was delivered by Interpol and
arrived at Buenos Aires on 22 August 2001. The order was received by Judge Gabriel
Cavallo, who honored the order and detained individuals in question. During November
2001, Spain sent a formal order of extradition to Argentina, in order that the individuals
be tried in Spain based on the principle of universal jurisdiction, for their participation in
the crimes of genocide and terrorism, committed during the years of the Argentine
dictatorship.
On 16 November 2001, Minister of Defense, Horacio Juanarena, who was temporarily in
charge of the Ministry of Foreign Relations, rejected the extradition order. However, on
this occasion, he ordered the cases to be investigated in Argentina. At the time of this
writing, the relevant cases are under investigation by a federal public prosecutor.
3. Argentine case nullifying Argentine amnesty laws: The Poblete-Hlaczik Case68
A. Decision of Judge Gabriel Cavallo:
On March 6, 2001, in case number 8686/00 (entitled Simn Julio and others, for the
abduction of a minor) Judge Gabriel Cavallo invalidated the Punto Final and
Obediencia Debida laws.
The case in question concerned the disappearances of Jos Liborio Poblete Roa and
67
68

Action No. 761: Hechos ocurridos en el mbito de la Escuela de Mecnica de la Armada, cases 48 & 49.
Judgment adopted pursuant to a petition by the Center for Legal and Social Studies (CELS).

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Gertrudis Marta Hlaczik de Poblete, who were kidnapped November 28, 1978, together
with their eight-month-old daughter Claudia Victoria Poblete, by a group claiming to
belong to the Fuerzas Conjuntas (Joint Forces). Claudia Victoria Poblete has been
found, but her parents continue to be disappeared.
Evidence collected during the investigation of the kidnapping of the daughter revealed
that the three victims were held at El Olimpo, a clandestine center which operated
between August 1978 and February 1979.
Juan Antonio Del Cerro (nicknamed Colores) and Julio Hctor Simn (nicknamed
Turco Julin) were prosecuted and detained in prison for the abduction of the child. As
a result of the expansion of a summons issued in July 2000, Antonio Del Cerro, Alberto
Roln and Julio Simn were identified as the perpetrators of the kidnapping of the
Poblete couple.
In October 2000, CELS brought suit as a plaintiff for the kidnapping and disappearance
of the couple, seeking the nullification of the Punto Final and Obediencia Debida laws.
SUMMARY OF JUDGE GABRIEL CAVALLO'S JUDGMENT DECLARING THE NULLIFICATION
OF THE PUNTO FINAL AND OBEDIENCIA DEBIDA LAWS
1. The activities under investigation are crimes against jus gentium.
The crimes committed against Gertrudis Hlaczik and Jos Poblete were committed within
the context of a systematic plan of repression carried out by the de facto government in
Argentina. The actions adjudicated in this case constitute crimes against humanity.
Therefore they must be judged by taking into account the rules of jus gentium which are
in force in our country and which make up part of Argentine domestic law.
The National Constitution allows for the adjudication of crimes against jus gentium in the
national courts (article 118). Even at the time these offenses were committed, they were
considered crimes against jus gentium or international law. Therefore certain principles
and rules created under international criminal law are fully applicable in the federal
courts of our country.
a. Mankind has affirmed the criminal nature of these acts; that is, their criminality
does not turn on the individual decision of any State.
b. The responsibility to prosecute these crimes and sanction those responsible does
not fall solely on the State where the offenses were committed (universal
jurisdiction).
c. By prosecuting and punishing those responsible, the State acts in the collective
interest of the international community, an interest which is superior to the
individual interest of that State. Certain customary norms make up a body of
statutory law containing crimes against jus gentium which set forth standards such
as the unpardonable nature of these crimes, the obligation to extradite or
prosecute, the rejection of impunity, and the inapplicability of the immunity law

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as a means to exempt certain people from criminal liability.


For these reasons, article 118 of the Constitution provides for the prosecution of crimes
against the jus gentium (including crimes against humanity) and recognizes the modern
principles of jus gentium, such as the unpardonable nature of these crimes and the
rejection of impunity for such offenses.
2. Laws 23.492 and 23.521 forbid criminal punishment of actions committed within
the context of the clandestine system of repression (1976-1983).
These laws establish impunity (through the termination of all lawsuits and invalidation of
punishments) for crimes committed within the clandestine system of repression. These
rules contravene legal principles which have been universally recognized for centuries
and they seriously undermine the values upon which our legal system is built. The
incompatibility of the laws with this normative foundation requires that they be declared
invalid.
The Punto Final law (enacted on December 23, 1986) was specifically aimed at
terminating investigations and granting impunity to those who were not prosecuted
within the required time period.
The Obediencia Debida law (enacted on June 4, 1987) confronted judges investigating
crimes committed under the system of illegal repression with a situation in which
defendants were coerced as a result of the orders of superiors, none of which could be
examined for their legitimacy, nor could they be opposed or resisted. This situation
occurred without regard to the evidence then existing or any evidence that might surface
in the future.
This case is paradigmatic because the disappearance of Claudia Victoria is inseparable
from the facts of her mothers kidnapping. Yet the Obediencia Debida law creates a
presumption in the former case which does not permit the admission of evidence
regarding the parents disappearance, and only allows criminal investigation and
punishment of those responsible for the abduction of the child.
3. "punto final" and "obediencia debida" laws impede criminal prosecutions
Because of these laws of impunity Argentina failed to comply with its commitment to
investigate and punish human rights violations and crimes against humanity.
The nullification of these laws arises from their violation of the norms prescribed in
international treaties which Argentina has signed.
a) International Treaties prevail over National Laws.
The Constitution of Argentina incorporated numerous human rights treaties into the
constitutional hierarchy during the 1994 reforms. The National Supreme Court had

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already sustained, even before the 1994 reforms, the predominance of treaties over
domestic laws. The Court has taken into account both the distribution of authority in
ratifying treaties as found in the text of the pre-reform Constitution and the
applicability of the Vienna Convention on the Law of Treaties, which entered into
force on January 27, 1980.
Therefore, while it was already possible to invalidate a law for its incompatibility
with a ratified treaty under the original Constitution, there is absolutely no doubt now
that the Vienna Convention is in force This means that, at the moment when the
impunity acts were passed, Argentine law granted primacy to treaties to preempt
congressional acts.
Thus, at the time the Punto Final and "Obediencia Debida laws were passed,
many international instruments were already in force in our country, including the
American Declaration of the Rights and Duties of Man, the International Covenant on
Civil and Political Rights, and the American Convention on Human Rights.
b) Impunity laws under the American Convention on Human Rights (ACHR).
In accordance with article 1 of the Convention, member states are obligated to
guarantee the free and full exercise of human rights to citizens within their
jurisdiction. From this commitment flows the duty to prevent, investigate and punish
all violations of the rights included in the ACHR.
Beyond this duty (to prevent, investigate and punish all violations of the rights
included in the ACHR) the American Convention imposes on member states the
obligation to adopt necessary measures to ensure the recognized rights. This implies
an obligation for the State to revise existing legislation to accommodate the
commitments it has assumed. The State cannot later pass laws contrary to the
obligations assumed under the Convention, as doing so would violate its international
responsibilities.
In this way, the commitment to respect and guarantee the rights protected by the
Convention and the duty of each State to adopt domestic measures to give effect to
the provisions of the treaty imply, in the case of Argentina, a mandate directed at all
the branches of the National Government: the Executive, the Legislative, the
Judiciary and the Public Ministry.
Thus, there is a legal conflict between Laws 23.492 and 23.521 and the American
Convention on Human Rights.
The passage and enforcement of these laws, insofar as they impede investigations
necessary to identify the perpetrators of human rights violations committed during the
de facto government (1976-1983) and application of the corresponding criminal
sanctions, violate the American Convention on Human Rights and the American
Declaration of the Rights and Duties of Man. Such violations require the invalidation

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of the 'Punto Final' and 'Obediencia Debida' laws.


c) Punto Final and Obediencia Debida laws are contrary to the
International Covenant on Civil and Political Rights.
The content of the obligations imposed by this agreement are practically identical to
those imposed by the American Convention on Human Rights. This treaty similarly
establishes the double obligation for the State to respect and guarantee the rights
recognized in the text. States Parties are obliged to take the necessary legislative,
administrative or legal measures to ensure the recognized rights, and incur the duty
not to take measures that might frustrate or limit those rights.
Consequently, the above interpretation of the ACHR can also be applied to article 2
of the International Covenant on Civil and Political Rights.
With reference to the Human Rights Committees 1995 Comment regarding
Argentina, it is possible to conclude that the 'Punto Final' and 'Obediencia Debida'
laws are contrary to the International Covenant on Civil and Political Rights, given
that they present an obstacle to carrying out the commitment to guarantee the free and
full exercise of the rights recognized by the treaty in articles 2(2), 2(3) and 9(5).
Given this conflict, these laws must be declared unconstitutional in light of the
provisions of this international treaty.
d) Law 23.492 and Law 23.521 under the Convention against Torture.
The National Congress, through Law 23.338 (July 30, 1986), ratified the Convention
against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment,
which was approved by the United Nations General Assembly on December 10,
1984, and entered into force on June 26, 1987.
It is important to mention that this Convention did not aim to codify a new crime. The
Convention rests on the basis that torture was already a crime widely recognized by
jus gentium. This instrument reinforced the prohibition against torture and insisted
that those responsible for the offense not remain free from punishment.
Through this Treaty, the Argentine Government committed itself to taking legislative,
administrative, legal or other measures to prevent torture within its territory (Article
2). Continuing with the tradition started several decades before, the Convention
prohibits the invocation of exceptional circumstances as justification for torture, and
it does not allow compliance with superior orders as a defense to the crime.
The Convention was signed in 1984. On July 30, 1986, the National Congress
approved the treaty and on September 24, 1986, the Argentine government deposited
the instrument of ratification. Both the 'Punto Final' and the 'Obediencia Debida'
laws were passed after those dates.

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Although Argentina did not violate the treaty, as it had not yet entered into force, it
did violate the principles of the agreement. Simply by having been signed and
ratified, the treaty already had an effect as an international law norm.
In this sense, laws 23.492 and 23.521 frustrate the purpose of the treaty every time
that they impede the investigation of facts and render immune those who are
responsible for torture.
The application of these laws of impunity by the courts violates the obligations
assumed by Argentina and thereby breaches its international responsibilities.
e) Conclusion about the invalidity of Law 23.492 and Law 23.521 under the
above mentioned international instruments.
Taking into account, on one hand, the doctrine espoused by the Supreme Court
regarding the primacy of treaties over domestic laws and, on the other hand, the clear
conflict existing between Laws 23.492 and 23.521 and the American Convention on
Human Rights, there is no doubt concerning the solution to the instant case: to declare
the invalidation of the Punto Final and Obediencia Debida laws.
5. The nullification of the impunity laws conforms with article 29 of the National
Constitution.
Article 29 of the Constitution renders absolutely invalid any acts that implicate the
exercise of extraordinary powers by any of the branches of the Government.
The military junta that took power on March 24, 1976 assumed all public powers and
implemented the exercise of extraordinary powers. By means of the Act of March 24,
1976, the newly-formed military junta declared obsolete the mandates of the Argentine
President, as well as those of the Governors and Vice Governors and federal comptrollers
in the provinces. It dissolved the National Congress, the Provincial Legislatures, the
House of Representatives of the city of Buenos Aires and the Municipal Councils and
similar bodies in the provinces. It removed the members of the National Supreme Court,
the Attorney General and the members of the Provincial Superior Courts. This act had the
effect of concentrating all public powers in the hands of the junta, given that all the
States powers without exception remained at the mercy of the military government.
In exercising their extraordinary powers, the military juntas took these actions by
subjugating all constitutional guarantees, in such a way that the lives, honor and fortune
of the Argentine citizens were subject to the will of an illegitimately formed government.
The facts investigated in this case must be viewed within this historical context and
against this general backdrop. The crimes committed against Jos Liborio Poblete Roa
and Gertrudis Marta Hlaczik provide facts that demonstrate the exclusive exercise of
public power that characterized the military dictatorship and they demonstrate (among
other things) the extraordinary powers exercised by the last de facto government.

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The Punto Final and Obediencia Debida laws are comparable to amnesties that
confer impunity for acts that, as in this case, constituted crimes committed through the
exclusive exercise of all public power.
However, in accordance with article 29 of the National Constitution, amnesty cannot be
given for an act that involves a grant or assumption of all public powers, nor, in the same
context, can amnesty be granted for the exercise of all public powers or extraordinary
powers. The Supreme Court has so affirmed on several occasions.
Consequently, the illicit actions carried out in the exercise of total power forbidden by
article 29 of the National Constitution are not subject to the benefits of an amnesty law
passed by the National Congress in the exercise of its ordinary legislative powers. For
these reasons, the nullification of law 23.492 and law 23.521 is declared in accordance
with the provisions of article 29 of the National Constitution.
6. Holding
In conclusion, magistrate Gabriel Cavallo:
I. DECLARED INVALID article 1 of Law 23.492 as inconsistent with the American
Convention on Human Rights (arts. 1, 2, 8 and 25), with the American Declaration of
Human Rights (art. XVIII), with the International Covenant on Civil and Political Rights
(arts. 2 and 9) and with the object and purpose of the Convention against Torture and
Other Cruel, Inhuman or Degrading Treatment or Punishment (art. 18 of the Vienna
Convention on the Law of Treaties).
II. DECLARED INVALID articles 1, 3 and 4 of Law 23.521 as inconsistent with the
American Convention on Human Rights (arts. 1, 2, 8 and 25), with the American
Declaration of Human Rights (art. XVIII), with the International Covenant on Civil and
Political Rights (arts. 2 and 9) and with the object and purpose of the Convention against
Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (art. 18 of the
Vienna Convention on the Law of Treaties).
III. DECLARED THE UNCONSTITUTIONALITY and the ABSOLUTE
NULLIFICATION of article 1 of Law 23.492 and of articles 1, 3 and 4 of Law 23.521
(Art. 29 of the National Constitution).
IV. Summoned Julio Hctor Simn and Juan Antonio del Cerro (art. 294 C.P.P.N.) to
appear for testimony on the 15th and 20th days of this month, respectively.
B. Decision of the Federal Court of Appeals
In the case regarding the disappearances of Mr. Jos Poblete and Ms. Gertrudis Hlaczik,
Room II of the Federal Court, on 9 November 2001, unanimously confirmed the

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judgment of Judge Gabriel Cavallo and upheld the unconstitutionality of the Final Point
and Due Obedience Laws.
The sentence pronounced by the Federal Court thus allows Argentina to take a step
forward in holding accountable those responsible for the crimes in question.
The judges of the Federal Court unanimously pronounced that the crimes committed by
defendants Juan Antonio del Cerro and Hctor Simn, constituted crimes against
humanity, and that, therefore, they cannot be granted an amnesty. The judges declared
that the case involved crimes against humanity, as defined under international law, and
that the preclusion of statutes of limitations and the terms of responsibility of the crime
are established by international law, independently from the criteria within the internal
laws of the states.
The Court found that the Republic of Argentina is compelled to judge and punish gross
violations of human rights both under article 118 of the Constitution and under those
international treaties incorporated into the national Constitution. The Court also
emphasized the significance of the Inter-American Court of Human Rights judgment
against the State of Peru in the Barrios Altos case.69 In this case, the Inter-American
Court declared that amnesty laws to be manifestly incompatible with the American
Convention on Human Rights, and thus to be considered invalid. By virtue of its
jurisdiction over the Republic of Argentina and its competence in the application and
interpretation of the American Convention, the Inter-American Courts decisions must be
contemplated by the Argentine courts.
In its resolutions the Court resolved, inter alia, to confirm that unconstitutionality of
Argentinas final point and due obedience laws.

69

Caso Barrios Altos, Sentencia del Fondo de 14 de Marzo de 2001, Corte I.D.H. (Ser. C) No. 75 (2001).

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