Informe presentado en el Institut de Droit International por el Relator, profesor Christian Tomuschat (octubre de 2002).
At its Berlin session in 1999, the Institute established a new Commission (17th Commission) for the study of the topic:
Universal Criminal Jurisdiction With Respect to the Crime of Genocide, Crimes Against Humanity and War Crimes.
Originally, it was decided that our confrère Theodor Meron should assume the rapporteurship of this Commission. However, after his election as a judge of the International Criminal Tribunal for the Former Yugoslavia, for obvious reasons of incompatibility he had to renounce his function as Rapporteur. To replace him, the present Rapporteur was appointed.
The Institute has not yet dealt with universal jurisdiction in criminal matters to the wide extent as now suggested by the mandate imparted to the 17th Commission. In the Manuel des lois de la guerre sur terre, adopted at its Oxford session in 1880, it included a special pan --of a very summary nature-- on > (Pan Three, Articles 84-86). However, only the first one of these articles lays down provisions on punishment concerning individuals, whereas the remaining two articles have as their object reprisals, in modern terminology countermeasures. In the introductory chapeau of this Part of the Manuel, it is stated:
Si des infractions aux règles qui précèdent ont été commises, les coupables doivent être punis, après jugement contradictoire, par celui des belligérants au pouvoir duquel ils se trouvent.
In other words, the Institute did not take into account the eventuality of criminal prosecution by third States. It regarded the punishment of perpetrators of war crimes exclusively as a matter concerning the belligerent States involved. It appears also from the Resolution adopted in Munich in 1883 on > that before the First World War the notion of universal jurisdiction had not yet gained firm ground in lawyers' minds. In Article 10 of that Resolution, provision is made for instances where otherwise, particularly because the place of the commission of the crime cannot be identified, no prosecution could take place. A different philosophy underlies the Resolution adopted at the Cambridge session in 1931 on >. This Resolution provides in Article 5:
Tout Etat a le droit de punir des actes commis à I'étranger par un étranger découvert sur son territoire lorsque ces actes constituent une infraction contre des intérêts généraux protégés par le droit international (tels que la piraterie, la traite des noirs, la traite des blanches, la propagation de maladies contagieuses, I'atteinte a des moyens de communication internationaux, canaux, câbles sousmarins, la falsification des monnaies, instruments de crédit, etc.), a condition que l'extradition de I'inculpé ne soit pas demandée ou que l'offre en soit refusée par l', Etat sur le territoire duquel le délit a été commis ou dont I'inculpé est ressortissant.
This Resolution already reflects some of the concerns of the present-day world. No observer will fail to note, however, that war crimes are not mentioned there. As for crimes against humanity and the crime of genocide, it seems that the world had to go through the abhorrent experiences of the Second World War in order to realize that the international community should establish some protective mechanisms against these types of offences.
At its Milan Session 1993, the 19th Commission presented a draft Resolution on > (Rapporteur: Maarten Bos) (1). This draft contained one provision on the principle of universality. It was worded as follows:
Under the principle of universality, jurisdiction may be exercised in order to protect certain interests of the international community as a whole.
Jurisdiction under the principle of universality extends to persons regardless of their nationality and the place where they committed their acts.
The principle of universality shall apply to offences as defined under conventional and customary international law, such as piracy, the hijacking of aircraft, terrorism and the trade of narcotics.
Jurisdiction under the previous paragraph may be exercised irrespective of signature or ratification of any international convention by the State of the nationality of the accused.
As can be seen from this text, the three classes of crimes which the 17th Commission is mandated to study were not taken into account by the 19th Commission.
Among the major initiatives designed to clarify the meaning and scope of universal jurisdiction, one should mention in particular three undertakings. First, Amnesty International has established a comprehensive documentation designed to prove that universal jurisdiction is a principle already widely recognized under international instruments and in the domestic practice of States. (2) Second, the Committee on International Human Rights Law and Practice of the International Law Association produced for its London session in 2000 a comprehensive report (written by Professor Menno T. Kamminga) (3), which ends with a set of conclusions and recommendations. One of these propositions (2.) states that with regard to genocide, crimes against humanity and war crimes States are entitled, under customary international law, to exercise universal jurisdiction (4).
The third remarkable achievement is the drawing up of the > (5). This set of principles owes its coming into being to an initiative of the American Association for the International Commission of Jurists. Members of this Association succeeded in eliciting interest on the part of a number of leading U.S. human rights lawyers, among them Mr Cherif Bassiouni, who produced a first draft. Most reasonably, in the brochure reflecting the Principles it is openly acknowledged that some of the Principles must be located halfway between lex lata and lex ferenda (6). In any event, as another collective undertaking the Principles convey the ideas of an active group of the interested scholarly community.
B. BASIC CONCEPTS
Concerning the concept of jurisdiction, there is no need to break new ground. A number of authoritative definitions exist which need neither correction nor improvement. Thus, the Restatement of the Law Third (The Foreign Relations Law of the United States) of the American Law Institute refers to jurisdiction as > (7). Our late confrère F.A. Mann, in his Hague lectures, characterized jurisdiction as > (8). In his draft Resolution submitted to the Institute at its Milan session 1993, our confrere Maarten Bos suggested the following definition : > (Article 1) (9). Many other formulae could be referred to. But they would not add anything of essential importance. It is the sovereignty of the State which finds its reflection in the doctrine of jurisdiction. According to the Charter of the United Nations (Article 2 (1)) and to a time-honoured rule of customary international law, sovereignty has certain limits. In the UN Charter, it appears as >. This two-tier definition makes abundantly clear that the sovereignty of one State is confined by the sovereignty of all other States. Indeed, it is trivial to note that absolute sovereignty without any legal restrictions would lead into chaos and anarchy. International law has as one of its primary functions to delimit the areas of competence (or jurisdiction) of all the States in order to ensure peaceful coexistence side by side under the rule of law, guaranteeing the sovereignty not only of the big and powerful, but also of the small States that lack any military might (10). In this perspective, the rules on attribution of jurisdiction to every State have an important role to play.
What is in issue here is jurisdiction to prescribe, i.e. the authority to enact legal roles making certain conduct a punishable offence under domestic law (11), and jurisdiction to adjudicate, i.e. the authority to implement the applicable law in a given case. To the extent that jurisdiction to prescribe exists for offences classified as crimes against humanity, jurisdiction to adjudicate must also be deemed to exist (12). Otherwise, jurisdiction to prescribe would make no sense. On the other hand, however, it is clear that measures of physical enforcement can be taken only by the territorially competent State or by an international organization empowered to exercise executive police powers in the territory concerned.
The starting point of this reflection on jurisdiction of States in criminal matters must therefore be a rejection of the Lotus doctrine of the Permanent Court of International Justice (PCIJ). In this well-known judgment of 7 September 1927 (13), the crucial issue was the right of Turkey to try a French officer, whose ship, the Lotus, had collided with a Turkish ship, thereby causing the death of eight Turkish seamen. France contended that as the flag State of the ship on which the responsible officer had performed his service, it enjoyed exclusive jurisdiction. The PCIJ rejected this argument, holding that:
Far from laying down a general prohibition to the effect that States may not extend the application of their laws and the jurisdiction of their courts to persons, property and acts outside their territory it [international law] leaves them in this respect a wide measure of discretion which is only limited in certain cases by prohibitive roles; as regards other cases, every State remains free to adopt the principles which it regards as best and most suitable (14).
According to this pronouncement, States would be free to adopt extraterritorial legislation and take measures with extraterritorial effect as they see fit, unless a specific prohibitive rule prevents them from acting as planned. Clearly, this proposition has been overruled during the last decades. There is broad agreement in the practice of States as well as in the legal literature that States need specific justification if they seek to extend the legal...