The well-established universal jurisdiction principle (UJ) holds that certain crimes are too grave to ignore, including genocide, crimes of war and against humanity.
Thus, under UJ, nations may investigate and prosecute foreign nationals when their country of residence or origin won't, can't, or hasn't for any reason. Israel used it to convict and execute Adolph Eichmann. A US court sentenced Chuckie Taylor, son of the former Liberian president, to 97 years in prison for torture.
In March 2003, the Special Court for Sierre Leone (SCSL) indicted his father, Charles Taylor, for crimes of war and against humanity. His trial at The Hague's International Court of Justice (ICC) remains ongoing.
Though never held accountable for murdering Chileans and committing other human rights abuses, Britain used a Spanish court provisional warrant to apprehend Augusto Pinochet, hold him under house arrest for 18 months, and set a precedent, making other heads of state and top officials vulnerable. Pinochet's bogus ill health claim sent him home, irreparably damaged and disgraced.
Under Article 7 of the Charter of the International Military Tribunal at Nuremberg:
"The official position of defendants, whether as Head of State or responsible officials in Government departments, shall not be considered as freeing them from responsibility or mitigating punishment."
No one deserves immunity for high crimes demanding accountability. It's time that applied to America and Israel, the two worst offenders.
In June 2009 at a Madrid, Spain conference, Raji Sourani, Palestinian Centre for Human Rights (PCHR) Director made the case, saying:
"Today, the Gaza Strip lies in ruins" months after Israel's offensive, killing about 1,500, injuring over 5,000, and causing vast destruction - "an illegal form of collective punishment" ongoing for over three years under siege. "For too long now, Israel has been allowed to violate international law with impunity....This situation cannot be allowed to prevail....It is for this very reason that universal jurisdiction is so important....(It) offers hope to victims throughout the entire world, in many cases, it is their only hope." It's long past time to hold Israel accountable.
The Compelling Case for UC
A recent PCHR publication is titled, "The Principle and Practice of Universal Jurisdiction," explaining it in detail with examples, its highlights discussed below.
Though horrific, Cast Lead was just the latest example of decades of Israeli lawlessness - little discussed, unaddressed and unresolved. "Regrettably, this lack of accountability, and the resultant climate of impunity, has been a longstanding feature of Israel's" illegal occupation. "Israel has been allowed to act as a State above the law."
Yet it exists to be enforced. Otherwise, it's irrelevant. However, Palestinians have "limited judicial mechanisms available." According to the 1995 Israel-Palestine Interim Agreement on the West Bank and Gaza Strip, the Palestinian Authority (PA) has no jurisdiction over Israel, including its officials, armed forces members, or other citizens.
Nonetheless, Israel is required to investigate and prosecute its citizens accused of international crimes, a responsibility it's ducked with impunity, a glaring deficiency in its judicial system, exempting war criminals from accountability, in violation of inviolable international standards and principles.
"Justice for Palestinians is not attainable within this system." UJ is the remedy, a "stepping stone (to) universal justice," to protect everyone without discrimination, to address crimes too grave to ignore, to set a precedent for future prosecutions, and warn offenders they're vulnerable.
No accountability encourages criminality, offenders knowing they're safe and can act lawlessly with impunity, especially Israel, shielded by America, the West, and regional indifference or complicity. As a result, Palestinians have suffered grievously for decades, world leaders not giving a damn about their rights or the rule of law, breaking it themselves for not caring.
It's high time UJ principles enforce accountability, using Israel as a test case, including its top government and military officials, guilty of high crimes too grave to be ignored, raising hope for all victims of injustice globally.
Above all, "The pursuit of universal jurisdiction is (the) pursuit of justice. It seeks to ensure an effective remedy for victims - combined with the goal of deterrence - and accountability for those responsible for crimes which 'shock the conscience of humanity.' "
The Applicable Legal Framework
Palestine is belligerently occupied. As a result, international law applies, including the four Geneva Conventions, Hague Regulations, other international humanitarian law (IHL), and Additional Protocols to the Geneva Conventions. As a signatory, Israel is legally bound, including under International Covenant on Economic, Social and Cultural Rights (ICEPR) provisions such as:
- Article 2, concerning the right to an effective remedy;
- Article 14, regarding the right to a fair trial; and
- Article 26, affirming the right of everyone to protection under the law.
Traditional v. Universal Jurisdiction
Legally, jurisdiction is "the authority of states to prescribe their law, to subject persons and things to adjudication in their courts and other tribunals, and to enforce their law, both judicially and non-judicially," by civil or criminal means.
Five "prescriptive jurisdiction" bases include nationality, territoriality, the protective principle, the passive personality principle, and universal jurisdiction, this discussion focusing on UJ.
It requires "no link of territoriality or nationality between the State and conduct of the offender, nor is the State seeking to protect its security or credit." Only the crime matters, UJ reserved for the worst, ones too serious to go unpunished, their gravity justifying UJ's existence.
Initially for piracy, they were considered outlaws, operating extraterritorially in international waters. Today, international crimes are considered so "threatening to the international community or so heinous in scope and degree that they offend the interest of humanity," all states needing to address them.
However, until post-WW II, UJ applied only to piracy and slave trading, thereafter to genocide, crimes of war and against humanity, as established by the Nuremberg Charter and Judgment, now defined by the ICC to include systematic attacks against civilians, including murder, enslavement, deportation or forcible transfer, false imprisonment, torture, rape, sexual slavery, collective punishment, enforced disappearance, and apartheid.
Guilty parties are considered hostis humani generis - enemies of mankind. War crimes are against the jus gentium - the law of nations, international law established to address them.
The International Law Commission's (ILC) principle VI of the Principles of International Law Recognized in the Charter of the Nuremberg Tribunal and in the Judgment of the Tribunal, determined that crimes of war and against humanity "rise to the level of international crime," now recognized under customary international law.
A national court exercising UJ acts not in its name, but for the international community - only when responsible countries won't, can't or haven't. In other words, as a last resort.
In addition, various post-WW II Conventions, including the four Geneva ones and their Common Article 1 obligates all High Contracting Parties to "respect and ensure respect for the present Convention in all circumstances;" namely, to apply its principles universally, requiring High Contracting Parties "search for persons alleged to have committed, or to have ordered to be committed, such grave breaches, and shall bring such persons, regardless of their nationality, before its own courts."
At Nuremberg, the concepts of individual and command criminal responsibility were addressed, the Tribunal Principles holding that "(a)ny person who commits an act which constitutes a crime under international law is responsible therefor and liable to punishment....(c)rimes against international law are committed by men, not by abstract entities, and only by punishing individuals who commit (them) can the provisions of international law be enforced."
The Rome Statute's Article 25 of the ICC codified this principle, affirming the culpability of persons committing crimes of war and against humanity. In addition, commanders and their superiors are specifically culpable if they "either knew or, owing to the circumstances at the time, should have known that the forces were committing or about to commit such crimes, (and) failed to take all necessary and reasonable measures within his or her power to prevent or repress their commission or to submit the matter to the competent authorities for investigation and prosecutions."
Nuremberg established that immunity is null and void, including for heads of state, other top officials, and top commanders. In addition, genocide, crimes of war and against humanity are so grave that statute of limitation provisions don't apply.
UJ is to ensure that individuals committing high crimes are held accountable, essential under the rule of law. Otherwise, it's meaningless. All too often, however, populations, like the Palestinians, are abused for many decades, Israel getting away with mass murder and other grave breaches of law.
As a result, UJ is the only alternative, national courts willing to use it an essential judicial remedy. It's high time they take the first step to universal justice, sending a powerful message that crimes this egregious won't stand, no matter who commits them or shares responsibility.
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Other articles in Analysis
Law, War and Human Rights 23 July 2014
Massacre in Gaza 22 July 2014
Palestinian Recourse to ICC: The Time has Come 21 July 2014
MH17 atrocity & Israeli Gaza Massacre 19 July 2014
Gaza Facts: Israel Is Wrong, Period 19 July 2014
Who is Winning? 18 July 2014
No Exit from Gaza: A New War Crime? 17 July 2014
|Timothy V. Gatto|
|William A. Cook|