Human rights community has celebrated the fact that many states all over the world have adopted the universal jurisdiction to prosecute the suspected perpetrators of heinous crimes such as genocide, crimes against humanity, war crimes, and torture. It has been argued that the application of universal jurisdiction is a step to combat impunity and deter perpetrators. It also complements the shortcomings of international criminal tribunals, such as the International Criminal Court (ICC) which have not been able to investigate and prosecute crimes consistently due to the limitations of their mandates and the complications of international politics. However, the application of universal jurisdiction usually gives rise to the issue of diplomatic immunities since many of the cases that have been brought before national courts are instituted before senior political or military leaders who are in power and enjoy certain level of diplomatic immunity which varies from state to another.
In this short paper, I argue that in the absence of a global consensus on the legal limits of universal jurisdiction in respect to international law on diplomatic immunity, States are not likely to apply a broad mandate of the universal jurisdiction in the overseen future to avoid the potential political consequences of this application. Nevertheless, some jurists and academics have advocated the broad application of the universal jurisdiction, but their arguments have not been supported yet by the case law or state practices in criminal justice. The international case law is very rigid in providing incumbent head of states and ministers of foreign affairs with immunity from domestic judicial criminal proceedings under all circumstances unless the states voluntary waive this immunity. The first international case on the relationship between universal jurisdiction and diplomatic immunity was the famous Arrest Warrant Case in which the International Court of Justice (ICJ) held that ministers of foreign affairs are immune from criminal proceedings exactly like head of states. Consequently, the Court considered that the arrest warrant released by Belgium against the Congolese minister of foreign affairs, on the ground of his involvement in the commission of crime against humanity, was void and illegal. The Court argued that providing the diplomatic immunity for ministers of foreign affairs is a matter of customary international law and it considered this rule is inviolable and accordingly the Court refused any exception for this rule even if there is certain belief that the person who is in this senior position committed grave human rights crimes. However, the Court emphasized that the jurisdiction of certain international tribunals can prosecute senior state officials regardless of their diplomatic immunity whether these tribunals were established by the Security Council under Chapter VII of the UN Charter, such as the ICTY and ICTR or established by multilateral treaties, such as the ICC.
However, some scholars and jurists advocated the broad practice of universal jurisdiction regardless of the diplomatic immunities. There are those who argue that diplomatic immunity which is granted by states to ministers of foreign affairs is a matter of courtesy or comity, but it is not a rule of customary international law. This view was claimed by Judge Van Den Wyngaert who argued that the ICJ in the Arrest Warrant Case failed to come up with a strong legal formulation supported by state practices and opinion juris to establish a customary international law that ministers of foreign affairs enjoy diplomatic immunity similar to the head of states. Another radical view argues that some international crimes amount to the status of jus cogens norms so states ability to punish the perpetrators of these crimes should not be constrained by international law on diplomatic immunities which doesn’t take the status of jus cogens norms. This theory has been known in the academic literature as the normative hierarchy theory, and it is traced to a group of American scholars who argued in 1989 that states implicitly waive their immunities when they violate a peremptory norm of international law. Finally, the theory of collective state benefits is another view which is very relevant to this debate on diplomatic immunities. This theory has been presented by Lee Caplan who argued that “state conduct that fails to enhance interstate relations, particularly between the forum state and the foreign state, does not warrant immunity protection.”
Ideally, the previous views are very progressive and certainly biased for the rights of individuals in international relations versus the iron wall of states sovereignty. However, these views have not been supported so far either by the international and domestic case law or state practices. Different experiences of universal jurisdiction have demonstrated that States usually limit the application of universal jurisdiction on the basis of diplomatic privileges in a way that even in many cases exceeds what is already required by international law on diplomatic immunities. States actually are aware of the immense political consequences that are likely to arise if universal jurisdiction is applied broadly. This is what pushed a country like Belgium to modify its universal jurisdiction legislation. There is also an intense debate occurs now in Spain and Britain concerning the limitations of universal jurisdiction.
In conclusion, universal jurisdiction is surrounded by many legal and political challenges. This short paper focused on the question of diplomatic immunity. It is obvious that in the absence of international consensus on the legal limits of universal jurisdiction in respect to international law on diplomatic immunities, States are not likely to apply a broad mandate of the universal jurisdiction in the overseen future to avoid the political consequences of this application. The progressive theories which advocated the broad application of the universal jurisdiction have excellently responded to the human aspirations to end impunity. However, they have not been supported yet by the case law or state practices in criminal justice. Consequently, international tribunals are the only feasible solution to prosecute incumbent head of states or the senior officials given the fact of the international support that can be enjoyed by these tribunals. However, domestic courts with universal jurisdiction will continue as a potential tool to accuse and prosecute former senior head of states or ministries and low level officials who are allegedly involved in grave international human rights crimes.
No comments:
Post a Comment