Session 6: Beyond the ICC 1 – Universal Jurisdiction
Universality, Subsidiarity, Complementarity: Seeking Order in the Prosecution of International Crime
Mark Chadwick, Nottingham Law School, Nottingham Trent University
Chair: Olympia Bekou, University of Nottingham
Panel Report by: Emily Sainsbury
Chadwick considered the factors which contribute to the use of Universal Jurisdiction (UJ) in the pursuit of justice for international crimes. He used the definition of UJ in the Princeton Principles (2001): criminal jurisdiction based solely on the nature of the crime, without regard to where the crime was committed, the nationality of the alleged or convicted perpetrator, the nationality of the victim, or any other connection to the state exercising such jurisdiction. Where State A is in a state of political unrest or war, State B exercising UJ may be best placed to ensure that crimes committed in State A are investigated and prosecuted, rather than going to the International Criminal Court (ICC). There has been a growth in cases employing UJ and the rules of subsidiarity have been consistently abided.
Chadwick made it clear that the exercise of UJ should only be used as a backstop, a default jurisdiction used to help bring justice home and build up a jurisdiction in State A again. Many African states have claimed they have been unfairly targeted by UJ and Chadwick considered factors which could help to prevent a bias towards prematurely assuming certain States do not have a secure enough jurisdiction to carry out their own trials. These factors are coined push and pull factors. Push factors being those pushing towards remaining within the State in which the crimes were committed.
There should be a presumption that the territorial state is more suitable particularly when we consider the importance of restorative justice, efficiency and what is most economic. This is countered with the pull factors which consider the realities and practicalities of justice being sought in the territorial state. It is also important to consider the access to justice for the diaspora and pressure from civil society for a trial to be carried out sooner rather than later. These opposing factors are considered against the backdrop of questions concerning how genuine and effective the investigation will be within the territorial state and how likely it is that the decision makers will be impartial towards the interest of the accused alongside the victims and their communities.
There is still a reluctance to readily turn to UJ but Chadwick made it clear that if the push/pull factors are appropriately considered and we see it as a backstop for when other factors and forms of justice fail, it should be further used and treated as an important tool within the larger tool kit used to seek justice.
Understanding the Mandate of Domestic Courts in Exercising Universal Jurisdiction: the Trial of Ousman Sonko as a Case Study
Carlotta Rossato, University of Padua
Rossato considered and assessed the practicalities of employing universal jurisdiction, the importance of providing appropriate resources and support for parties within the trial, and the fact that not enough has been done to take into account just how much support is required. The Ousman Sonko case spanned over four weeks with three of those weeks spent listening to witness testimony. There was translation of the trial from German to English, some Gambian journalists could attend the trial, and a woman was present during the sexual violence testimonies in order to attend to the cultural and gender sensitivities around female witnesses giving testimony about sexual violence. However, although English is the official language in The Gambia, there was very limited translation into Gambian languages, such as Mandinka, Pulaar and Wolof.
Translation into languages other than English was only ordered when the judge deemed it relevant to the plaintiffs or accused. Furthermore, it was not made clear to administrators and assisting organisations how long proceedings would take making it difficult for them to effectively facilitate and organisation transport and accommodation for victims and community members who wished to attend the trial.
Overall it appears that there was insufficient recognition of the importance of ensuring effective victim participation in trial proceedings. In future proceedings, more effort should be put into the facilitation of their participation. UJ has been criticized for diluting victims’ access to justice, with Gambian journalist Mariam Sankanu highlighting how the trial cannot possibly mean as much to the lawyers involved as it does to the victims. Although an unavoidable result of UJ, steps should at least be taken to ensure those, for whom the trial means the most, are able to attend, understand and take part in proceedings.
There have been some positive changes in recent years as seen in the case of Mustafa A, in The Hague District Court (Jan 2024) and the reform of the German Act on the Further Development of International Criminal Law. However, more must be done to ensure survivors and communities can witness justice being done and that the right to access to justice is upheld. This may not be in the form of an obligation or duty being placed upon states, as this could hinder states from choosing to carry out justice in the first place. However, there should at least be a standard of procedural norms which aim to place a greater degree of importance on providing an appropriate amount of resources and access to those who require and request it.
The Guilt Gap: what the difference in acquittals between trials at the ICC and domestic courts’ use of universal jurisdiction can tell us about international criminal justice
Michelle Coleman, Swansea University School of Law
Depending on how you count the cases in the ICC, between 40% and 50% resulted in an acquittal. This can be compared against a total of 9 acquittals in UJ trials since 2014. Coleman acknowledged that a low guilty rate is not necessarily an issue, but observed that the extent of the discrepancy does raise questions as to why the results differ so significantly. She explained how acquittals can have far reaching impact, beyond the impact on the accused. This includes particular pain inflicted upon victims and affected communities by acquittals given the nature of the crimes, and the amount of time and resources spent on these cases by the various stakeholders in the proceedings. Why is it that the standard of proof is not being met at the trial level in ICC cases when UJ does not appear to face the same hurdles?
Coleman identified four possible reasons: charging options and policies, partial acquittals and investigation issues. Universal jurisdiction provides for more options of crimes to choose from meaning courts are better able to charge more accurately and with less constraints than the ICC. For example, in the context of crimes against humanity (CaH), the elements of the crime that the prosecutor will need to prove will depend upon which definition of CaH the domestic jurisdiction in which the prosecution is being pursued has incorporated within its legal system. If it is the customary international law definition, rather than the ICC definition, then the prosecutor only needs to prove that the acts were widespread or systematic, without having to prove the additional contextual element required by the ICC (namely, that the attacks was committed pursuant to an organizational plan or policy as seen in the Elements of Crimes provisions for Article 7 of the Rome Statute).
Charging policies are also a lot more multifaceted in UJ cases. There is no set policy so the prosecutor does not have to prioritise the prosecution of those ‘most responsible’, whereas at the ICC the prosecutor is under an obligation to prioritise cases against those most responsible. As is well known, establishing the individual criminal responsibility for those who were not the physical perpetrators of crimes is conceptually and evidentially challenging. By contrast, domestic legal systems are not limited by the same constraints and UJ cases can be pursued against lower-level perpetrators and the physical perpetrators. The individual criminal responsibility of defendants is usually a lot easier to prove. This also places an easier burden on witnesses to express what they experienced and have the charged be directly connected to the charges being discussed.
By contrast, in the context of ICC proceedings which are concerned with the ‘most responsible’, it can be difficult to rely on witness testimony to establish the defendant’s guilt, since witnesses will be describing crimes they experienced or witnessed at the hands of the physical perpetrator(s) with perhaps no awareness of the defendant or individual who may have orchestrated or led the regime responsible for the individual crimes.
The comparative strictness of the ICC’s approach to convictions continues with there being no option for partial convictions, something that is beginning to change. Thus, if an element of a crime does not meet the burden then the case is likely to be acquitted, despite the certainty of the defendant’s guilt within other elements of the crimes being discussed. Conversely, UJ opens the possibility of a variety of alternative charging and modes of liability as well as lesser included offences such as membership, depending upon which proceedings are pursued. Thus, domestic courts have a broader variety of options to consider before turning to complete acquittal as is the case within the ICC.
Despite the ICC’s apparent lack of flexibility it is also important to note that the lawyers and resources the ICC have access to are far more experienced and specialized in the areas of law they are prosecuting or defending. In UJ trials it is unlikely that the defence will even have access to a lawyer who has ever worked at an international level, consequently ICC cases will likely have a more robust defence and be better able to achieve an acquittal for their client/s.
What all of this means is that there needs to be further monitoring and research into the fairness of the results we are seeing in the ICC and UJ cases. We should not have a system in which people are getting different justice from different courts, this could lead to forum shopping in search of the ‘best’ result. It is not that there should be concern for the number of acquittals occurring but there should be more certainty as to the fairness of trials and investigations that are taking place at the international level, ensuring there is more consistency throughout the various courts.