LAW 503 International and Transnational Criminal Law and

LAW 503 International and Transnational Criminal Law and Procedure Assist. Prof. R. Murat ÖNOK 25. 10. 2013 - I

Contents 1. Semi-international or Internationalized or Hybrid criminal courts 1. 1 Introduction 1. 2 Special Court for Sierra Leone 1. 3 Extraordinary Chambers of Cambodia 1. 4 Special Tribunal for Lebanon 2. Peace/Truth/Reconciliation Commissions 2. 1 Their Purpose 2. 2 Historical Development 2. 3 Their Functions 2. 4 Advantages compared to prosecution 2. 5 Drawbacks 3. Prosecution of International Crimes by National Courts 3. 1 Assigned Reading 3. 2 Universal Jurisdiction 3. 3 Practice Concerning UJ 3. 4 Problems Concernign UJ 3. 5 Universal Jurisdiction in Turkey

1. SEMI-INTERNATIONAL OR INTERNATIONALIZED OR “HYBRID” CRIMINAL COURTS • Assigned reading: - Ambos at 40 -53 (to be placed on KUAIS) - Textbook at 265 -7. • Further elective reading for Turkish students: - Tezcan/Erdem/Önok, pp. 431 -40.

1. 1 Introduction • The Nuremberg and Tokyo Tribunals, as well as the ICTY, ICTR, and ICC were all truly int’l. courts. A current tendency in ICL is to establish mixed/hybrid or semi-international (internationalized) tribunals. Examples are in Sierra Leone, Cambodia, East Timor, Kosovo and Lebanon. • The reason for resorting to this method is the fact that national criminal justice systems may be inadequate in trying crimes that should in reality be prosecuted at the national level. • The national judicial system might have collapsed, or it may be still efficient, but the ethnical/religious tension may be so high that the judiciary is also under its influence, and a fair trial is unlikely (think of Bosnia-Herzegovina after the Civil War). In such case, respect for fundamental rights such as the presumption of innocence becomes difficult to achieve. • Another problem may be the fact that national courts may sentence to the death penalty, in which case custodial states that do not recognize the legitimacy of such penalty will not accept extradition. • In addition, sometimes crimes are connected with various states, so the prosecutor would have to conduct investigations in other territories, and would have to rely on an efficient int’l. cooperation.

• In such cases, it is not always feasible to establish a truly int’l. criminal tribunal because such process would require great financial burden whereas its capacity would be limited to a few cases. So, the creation of mixed courts with both national and int’l. elements is thought to be a better response. • However, there also some concerns raised by such institutions as regards: - the impartiality of national elements within these courts, - the capacity of int’l. judges and prosecutors to truly appreciate and understand the suffering in question, and - the will of the int’l. community to finance the process. • An additional problem is the risk of conflicting case-law that may be developed by so many tribunals empowered to exercise jurisdiction on similar subject-matters. • In their practice, one problem has been financing. The low budgets of these institutions led to difficulties in finding qualified personnel, which, in turn, led to some poor quality judgments.

• • • The courts we will now study are, in reality, national courts enhanced with int’l. features. However, the SCSL has stated various times in its’ case-law that it is a truly int’l. court. The SCSL was set up as a result of a special agreement between the UN and the gov’t. of Sierra Leone. The “special panels” in Kosovo and East Timor were established by the interim/provisional UN administrations acting in the zone. The “Extraordinary Chambers” in Cambodia were set up under national law, but include the participation of int’l. judges to be chosen from a list compiled by the UN SG. So, while the SCSL is a new institution created through the agreement between the UN and the local gov’t. , the Cambodian Chambers are preexisting organs embodied within the national system, however, an agreement between the UN and the local gov’t. provides for int’l. assistance in the prosecution of crimes within the jurisdiction of the Chambers. The Special Tribunal for Lebanon was established under UN SC Res. 1757 (2007), dated 30. 05. 2007, and was done pursuant to an agreement between Lebanon and the UN.

• The Lockerbie tribunal is a sui generis creature, it is a Scottish court, composed of Scottish judges, applying Scottish law, and acting based on the principle of territoriality. However, the Tribunal was set up in Holland, by virtue of an agreement between USA, UK and Libya, with the support of the UN. • The Iraqi High “Tribunal” (!) is a national organ enhanced with some int’l. elements. I will not teach it as I do not regard it as an independent and impartial judicial organ. • Finally, the war crimes panels in Bosnia and Serbia are also part of the national legal system and their functioning is governed by national law. However, int’l judges, prosecutors and defence counsels operate within the system.

1. 2 Special Court for Sierra Leone • Establishment: The Sierra Leone President asked the UN SC to create an ad hoc tribunal. Res. 1315 (2000), dated 14. 08. 2000, requested the UN SG to enter into negotiations with Sierra Leone. An agreement, attaching the Statute of the Court, was concluded in that direction between the local gov’t. and the UN-SG (16. 01. 2002). • However, the court is not a UN organ. As stated in case-law, it is “a properly constituted international criminal tribunal”[1]. • Composition of the Court: There are 2 trial chambers and an appeals chamber. Both nationally and internationally appointed judges sit in the bench. • 2 of the 3 judges of the Trial Chamber, and 3 of the 5 judges of the Appeals Chamber are appointed by the UN-SG. However, the judge appointed by Sierra Leone can be a foreign national. • The prosecutor is appointed (after consultation with the Government of Sierra Leone) by the UN. However, a deputy prosecutor is appointed by the Government of Sierra Leone, in consultation with the Secretary-General of the United Nations. [1] Prosecutor v Taylor, SCSL Appeals Chamber, 31. 5. 2004.

• Subject matter jurisdiction: - Crimes against humanity (Art. 2), - Serious violations of Common Article 3 of the Geneva Conventions and of Additional Protocol II (Art. 3) (so, the Statute only provides jurisdiction over war crimes committed in non-international armed conflicts. However, the Court has determined that it may exercise jurisdiction over these crimes regardless of the nature of the conflict (Appeals Chamber’s decision of 25. 5. 2004 in Fofana). - Other serious violations of IHL which include (Art. 4): a. Intentionally directing attacks against the civilian population as such or against individual civilians not taking direct part in hostilities; b. Intentionally directing attacks against personnel, installations, material, units or vehicles involved in a humanitarian assistance or peacekeeping mission. . . ; c. Conscripting or enlisting children under the age of 15 years into armed forces or groups or using them to participate actively in hostilities; - Certain crimes under Sierra Leonean Law (Art. 5), including offences relating to the abuse of girls; and offences relating to the wanton destruction of property. • As can be seen, the SCSL does not try int’l. crimes only.

• Personal jurisdiction: The Special Court shall have no jurisdiction over any person who was under the age of 15 at the time of the alleged commission of the crime. • Territorial and temporal jurisdiction: To prosecute persons who bear the greatest responsibility for serious violations of int’l. humanitarian law and Sierra Leonean law committed in the territory of Sierra Leone since 30 November 1996. • The three cases heard in Freetown have been completed, including appeals. • In addition, the trial of former Liberian President Charles Taylor is the most notorious case. The judgment was delivered on 26 April 2012, and Taylor was convicted to fifty years of imprisonment. His trial took place at the courtroom of the Special Tribunal for Lebanon in The Hague. The Appeals Chamber, on 26 September 2013, upheld Charles Taylor's conviction and 50 -year sentence. On 15 October 2013 he was transferred to the UK to serve the remainder of his 50 -year sentence.

1. 3 Extraordinary Chambers of Cambodia • • • Establishment: Through an Agreement between the UN and Cambodia adopted by the UN General Assembly (UN GA Res. 57/228 B of 13. 5. 2003), ratified by the Cambodian National Assembly in October 2004. The agreement entered into force in 2005. Composition of the Court: The majority consists of local judges. Pre-Trial Chamber: 3 Cambodian + 2 int’l judges; Trial Chamber: 4 Cambodian + 3 int’l. judges; Supreme Court Chamber: 5 Cambodian + 4 int’l judges. However, “supermajority” is needed; thus, at least one int’l. judge has to cast an affirmative vote for a decision to be reached. Personal and temporal jurisdiction: bringing to trial senior leaders of Democratic Kampuchea and those who were most responsible for the crimes and serious violations of Cambodian penal law, international humanitarian law and custom, and international conventions recognized by Cambodia, that were committed during the period from 17 April 1975 to 6 January 1979 (corresponding, more or less, to the term of office as Prime Minister of “Pol Pot” (Saloth Sar being his real name), the leader of the infamous Khmer Rouge (the followers of the Communist Party of Kampuchea). Subject matter jurisdiction: a) the crime of genocide as defined in the 1948 Convention on the Prevention and Punishment of the Crime of Genocide, b) crimes against humanity as defined in the 1998 Rome Statute of the International Criminal Court, c) grave breaches of the 1949 Geneva Conventions, d) crimes of murder, torture and religious persecution under the 1956 Cambodian Penal Code.

1. 4 Special Tribunal for Lebanon • Establishment: Agreement between the United Nations and the Lebanese Republic on the establishment of a Special Tribunal for Lebanon, annexed to UN SC Res. 1757 (2007), dated 30. 5. 2007. Its seat is in The Hague. • Composition of the Court: Both national and int’l. judges, appointed by the UN-SG. (a) A single international judge shall serve as a Pre-Trial Judge; (b) Three judges shall serve in the Trial Chamber, of whom one shall be a Lebanese judge and two shall be international judges; (c) Five judges shall serve in the Appeals Chamber, of whom two shall be Lebanese judges and three shall be international judges.

• • • Personal and temporal jurisdiction: The Special Tribunal shall have jurisdiction over persons responsible for the attack of 14 February 2005 resulting in the death of former Lebanese Prime Minister Rafiq Hariri and in the death or injury of other persons. If the Tribunal finds that other attacks that occurred in Lebanon between 1 October 2004 and 12 December 2005, or any later date decided by the Parties and with the consent of the Security Council, are connected in accordance with the principles of criminal justice and are of a nature and gravity similar to the attack of 14 February 2005, it shall also have jurisdiction over persons responsible for such attacks. Subject matter jurisdiction: (a) The provisions of the Lebanese Criminal Code relating to the prosecution and punishment of acts of terrorism, crimes and offences against life and personal integrity, illicit associations and failure to report crimes and offences, ; and (b) Articles 6 and 7 of the Lebanese law of 11 January 1958 on “Increasing the penalties for sedition, civil war and interfaith struggle”. So, only crimes under national law are punishable. This is unique amongst ‘hybrid’ tribunals. Its most important contribution to ICL is that it elaborated a definition of terrorism, which it argues to be reflective of custom.

2. PEACE/TRUTH/ RECONCILIATION COMMISSIONS

2. 1 Their Purpose • When a newly established democracy has to confront its past (‘geçmişiyle yüzleşmek’), there are, usually, four available options: - Amnesty or forgetfulness (e. g. , Spain after the Franco regime, Japan after WWII); - Lustration (purging of public servants who are thought to be responsible for int’l. crimes, eg. , former East Germany, Czech Republic); - Criminal trials; - Truth commissions. • The so-called ‘peace’, ‘truth’, or ‘reconciliation’ commissions are organs usually established when the suppressive regimes committing widespread human rights violations which amount to international crimes collapse or lose power. • They might be useful when resorting to criminal prosecutions may constitute a risk from the viewpoint of national peace. In addition, the very long, complicated, and ambiguous judicial process may therefore be eschewed.

• Indeed, the initial aim of the democratic governments replacing the regimes committing grave violations is to provide national peace without neglecting what happened in the past. • During this phase, a very important way of eliminating the dangers of the judicial process is to stipulate relevant rules to determine what happened, before granting amnesty. This factfinding mission is important because amnesties might lead to forgetfulness or denial in the future. • This is why the idea of establishing mechanisms that determine the material facts and the responsibility of the parties without undertaking any judicial role is a popular option. • In particular, the opponents of a permanent international judicial organ have suggested the establishment of such commissions as an alternative to prosecution. It is claimed that such a mechanism suggests a middle course between war crimes tribunals and forgetting about all the injustice.

2. 2 Historical Development • • The first such organ established in the 20 th Century was the international commission entrusted to investigate the acts allegedly committed against the prisoners of war and civilians during the Balkan Wars in 1912 -1913. In 1919, at the end of the First World War, a commission was established in order to investigate crimes allegedly perpetrated by the Ally States during the war. We had studied this. Two separate commissions were established after the Second World War as well; one in order to investigate the war crimes allegedly perpetrated by Germany, and the other to investigate those crimes allegedly committed by Japan. In 1978, States which ratified the Additional Protocol I to the 1949 Geneva Conventions established a commission with the duty of investigating grave violations articulated in these conventions. In 1990, there was a boost in the establishment of international commissions, and Truth Commissions were established through the UN initiative in El Salvador, Guatemala, Somali, Former Yugoslavia and Rwanda. Besides, national commissions were established in various states which were going through a democratization period, such as Argentina, Bolivia, Chad, Chili, South Africa, Germany, Haiti, Honduras, Philippines, Sierra Leone, Uganda. Recently, the main opposition party in Turkey (CHP) proposed the establishment of a truth commission to investigate past abuses in the southeastern part of Turkey.

2. 3 Their Functions • • There is no single approach with regard to the functions of these commissions. In some cases, these organs aim to restore justice rather than provide for retribution, therefore they have a function of complementing the judicial process (eg. , South Africa). In Sierre Leone, for example, the Truth and Reconciliation Commission and the SCSL operated concurrently. In other cases, they are the sole method of determining the responsibility deriving from the alleged crimes (eg. , El Salvador). They are set up as an alternative to prosecutions, especially where it would be very difficult, if not impossible, to prove the crimes committed because of their secret nature. Nonetheless, these institutions generally perform the following functions: 1) Collecting evidence with regard to the violations; 2) Investigating the general social, economic and political reasons leading to the perpetration of the violations; 3) Preparing a report directed to the public, which comprises the detailed account of the findings and some relevant recommendations. For example, the Guatemalan commission had the authority to make recommendations for reform. The scope of the report will depend on the mandate of the commission. In certain cases, the commissions are only allowed to deal with certain and limited aspects of past violations (eg. , the South African report could only deal with political violence).

• Generally, it can be asserted that such functions serve four different purposes: 1) Determining and placing on record historical facts: the initial aim is to prevent that history becomes forgotten and to ensure that lessons are derived from the mistakes done in the past. Indeed, the first purpose of these commissions is not necessarily to determine the perpetrators, but to document the suppressions and crimes. This is important to prevent future denials. That is why some commissions (eg. , Argentina) did not have the authority to name the offenders. 2) Providing justice for the victims: the second purpose is to make sure that the victims have at least some moral redress, a sense of closure by the determination of the perpetrators and their responsibilities. It is important to officially acknowledge that harm was done to victims. 3) Providing national reconciliation: the third purpose is to listen to the complaints of the victims, providing them with solutions, making them feel that they are cared for and that the state is supporting them. 4) Preventing future violations: the fourth purpose is to make plans to obtain future stability via information provided by the past mistakes.

2. 4 Advantages compared to criminal prosecution 1) As regards states that have just got rid of suppressive regimes or which have just cast aside war or internal turmoil and are striving to build up a new future in particular, trying to prosecute the perpetrators of crimes may create negative effects in terms of providing societal peace. This is because, in case of public criminal trials, past events will come up once again, past strives will exacerbate and new disputes will arise and persist. Consequently, the atmosphere of serenity required to have a new beginning will not be obtained. • In such cases, rather than to prosecute the perpetrators, what needs to be done with regard to the states trying to make a transition from a regime in which human rights are gravely and frequently violated to a one which relies on human rights, is to bring all the segments of the society, including the perpetrators and the victims, together and reconcile them. 2) States which regard the intervention of international judicial organs in cases of acts perpetrated in their own territories as deprivation of sovereignty will not have such a fear if commissions step in instead.

3) States which are not willing to surrender their citizens to an international court will most probably have a much more positive view about the functioning of the commissions. 4) Establishing an international criminal court will require substantial expenditures. However, resources may be allocated in other ways, namely to fight criminality. Many believe that it would be a better investment to use the money spent for international courts to restructure national judiciaries. Of course, whether states financing int’l. courts would accept to give, instead, this money for that purpose is very doubtful! 5) Establishing a criminal court will get in the way of int’l. conventions concerning judicial cooperation (extradition in particular), transfer of proceedings (yargılamaların nakli), reciprocal recognition and enforcement of convictions, and execution of foreign sentences. 6) The fear that an international criminal judiciary will be politicized and will serve political purposes in time can not be valid as regards these commissions. (RMÖ: I don’t see why this cannot also be the case with truth commissions).

7) An important reason that makes avoiding prosecution a feasible option is that certain facilities enabling the realization of an effective and just prosecution are not available in the newly established democracies and/or states which have just gone through a period of struggle. Factors such as the weakness of the new government, technical or economic difficulties, public opposition or the opposition of the military institutions that are strong enough to endanger the new regime may preclude a potential prosecution. 8) Such commissions are more convenient to designate the environment where a certain struggle takes place and the historical context leading to such a struggle. This is a mission that prosecutions can not fulfil, as criminal trials do not aim at establishing the political, social, economical and other reasons behind the crimes. 9) Offenders will be more likely to tell the whole truth if they are not to be prosecuted. this can be particularly important when people have disappeared and their relatives want to know the fate of their family members.

2. 5 Drawbacks 1) The most important drawback is that these commissions are generally not entitled to punish the perpetrators. This deficiency brings with it all the problems associated in the past with the lack of a permanent international criminal court (in particular, lack of accountability). For this reason, it is asserted that such commissions should not be deemed as a substitute for judicial organs with regard to international crimes. 2) Eliminating the victimization caused by the crimes is possible only by resorting to prosecution. Indeed, this is the only way to fully identify the victims and the nature of their victimization, as well as the perpetrators and the scope of their responsibility. Consequently, decisions providing redress (compensation) may be rendered by courts. 3) The establishment of such organs might be a political manoeuvre to exhaust public interest in greater measures of political and legal accountability. 4) In case of trials abroad, states hesitating to extradite criminals to another state will feel safer if these persons are to be surrendered to a criminal court that is deemed objective and trustworthy because of its international character. This enables international judicial organs to be regarded as an alternative to the national judiciary.

5) The fact that criminal prosecutions are open to the public will enable that lessons are derived from the past by making the world community conceive both the quantitative and qualitative aspects of the perpetrated crimes. However, this function is quite restricted in terms of (some of ) the commissions. 6) The commissions established in the past have caused problems since they were ad hoc and not permanent. The inadequacy of monetary resources, the skepticism as regards the impartiality of these commissions, the fact that they get affected by the internal circumstances and the delay of investigations may be enumerated among those problems. 7) A criticims directed at these organs is their orientation towards victims, which may damage the establishment of the ‘objective truth’ (Cryer et al at 573). 8) Looking at past practice, few of the commissions were able to designate the perpetrators of the past violations. Mostly, they could not succeed in originating national peace and paved the way to the granting of sweeping amnesties. It is arguable, in general, whether truth-telling can, in fact, lead to reconciliation or to move beyond the past. Probably, it can have a role, but not be decisive. On the contrary, the South African commission was, in general, successful.

3. Prosecution of International Crimes by National Courts

3. 1 Assigned Reading • Assigned reading: - The Repression of International Crimes in Domestic Jurisdictions (textbook at 27190).

3. 2 Universal Jurisdiction • Universal jurisdiction refers to jurisdiction established over a crime irrespective of the place of perpetration, the nationality of the suspect or the victim or any other recognized connection between the crime and the prosecuting state. • The idea behind this type of jurisdiction is that int’l. crimes affect the int’l. legal order as a whole, therefore, since such crimes affect all states and peoples, every state has the right to prosecute int’l. crimes, regardless of who committed them or against whom they were committed. • In addition, UJ makes sure that perpetrators do not go unpunished. In fact, a purpose of the principle of universal jurisdiction, also known as the principle of justice, is to come into play as a last resort when all other jurisdictions connected with the crime have failed to take proceedings against the perpetrator. This way, the offender has to face prosecution and justice is done. However, this does not mean that UJ may only be exercised as an ultima ratio (for a contrary view see Werle mn. 191 at 68: ‘only if a jurisdiction that is “closer” to the crime is in fact unwilling or unable to prosecute may third states initiate prosecution on the basis of’ UJ).

• Amongst all principles of jurisdiction (territoriality, active/passive personality/ protective principle) this is the most controversial and MOST debated one. In particular, the precise conditions under which UJ can be exercised are controversial. • The list of crimes to which UJ applies does not correspond exactly with the list of (core) int’l crimes. Although there are diverging views, it can be argued that under ICL universal jurisdiction can be exercised over piracy, genocide, crimes against humanity, war crimes and torture (Cryer et al. at 51). In fact, a recent survey of the practice of EU members shows that there are more states recognizing the exercise of UJ with regard torture than for crimes against humanity. • With regard to aggression, there is no example of such practice, so, no UJ exists. (Werle at 67: ‘some doubt exists’, so he seems inclined to accept the existence of UJ over aggression) • Compare Werle at 67 (according to the author, UJ under customary int’l. law is recognized for genocide, crimes against humanity, war crimes in int’l. armed conflicts, crimes in civil wars. The author also mentions (in fn. 374 (at 66)) piracy, but he excludes torture and terrorism.

• Universal jurisdiction is often divided into two categories: a) absolute or pure UJ, and b) conditional universal jurisdiction. • Pure universal jurisdiction arises when a state seeks to assert jurisdiction over a crime even if the suspect is not present in its territory. Universal jurisdiction is ‘conditional’ when the suspect is already in the state asserting jurisdiction. However, it might be argued whether the distinction exists at a conceptual level (Cryer et al. at 52). Indeed, although many states have limited the exercise of UJ to cases where the suspect is present on their territory (eg. , Turkey), this might well be because of international courtesy (not interfering with the jurisdiction of other states), practical prudence (otherwise people from all around the world could ask the judicial authorities of that state to investigate events happening anywhere in the world), or political pressure (as is the case with US pressure over Belgium). Werle also argues (at 64, fn. 371) that UJ does not require that the perpetrator be present in the state exercising jurisdiction. However, many authors would seek the presence of the accused for the right to assert UJ. Finally, third states may assert UJ but they are not obliged to do so (no ‘mandatory UJ’). Apart for war crimes in int’l. armed conflicts (where the state has to try the war criminal or hand him over to a state that is willing to prosecute – so, even in this case, prosecution is not truly obligatory) , there is no duty to prosecute crimes under int’l. law committed outside a state’s own territory by foreign nationals (Bassiouni argues otherwise). • • •

3. 3 Practice Concerning UJ • A number of cases prosecuted by national courts after WWII could be justified or explained on the basis of UJ. The War Crimes Commission established by the Allied States took the view that ‘the right to punish war crimes. . . is possessed by any independent State whatsoever’. • The 1949 Geneva Conventions also provide for a rule akin universal jurisdiction with respect to grave breaches of the Convention (war crimes). See, for example, Art. 49 GC I. • The most famous exercise of UJ was the Israeli prosecution of Adolf Eichmann in 1960. • In 1985 Israel requested the extradition of John Demjanjuk who was suspected of being ‘Ivan the Terrible’, a camp guard at Treblinka. The US agreed to extradite him but Demjanjuk was tried and acquitted in Israel as it turned out he could have not been ‘Ivan the Terrible’. He was recently tried in Germany, but although found guilty by the local first instance court (on 12 May 2011), he died (on 17 March 2012) before appeal proceedings could be finalized.

• Alleged perpetrators of crimes in the Yugoslavian and Rwandan conflict were prosecuted in countries such as Germany and Switzerland. • Belgium undertook a number of prosecutions based on a national law which granted UJ over grave breaches of the Geneva Conventions and its Additional Protocols. Later, genocide and crimes against humanity were also added to the scope of this law. • The Pinochet affair (Spain, UK) represented the peak for universal jurisdiction (see next slide). • However, the Belgium law proved to be a cause for major problems. As it stood, the law did not require the presence of the accused in Belgium, and declared all immunities (including personal immunities) inapplicable in proceedings related to the law in question. The result was that proceedings were brought against a variety of leaders, leaving Belgium in a politically complicated position (see slide 33).

• • • Pinochet case (based on Kaczorowska at 370 -5): Augusto Pinochet was President of the military junta which overthrew the gov’t. of President Allende in Chile. From 1974 to 1990 Pinochet, although unelected, held office as the President of Chile. Throughout this period Chilean nationals and foreigners were arbitrarily imprisoned and tortured, and many people disappeared or were killed as part of a governmental plan to eliminate political opposition. In 1998 Pinochet travelled to the UK to receive medical treatment. During his stay in the UK, Spain (whose nationals had also been the victims of his crimes) requested his extradition. This request gave rise to a series of proceedings before UK courts. The decisive judgment came in the third of these cases ‘Pinochet No. 3’ (1999). It was accepted that the alleged acts of torture were committed by Pinochet in his official capacity, therefore, immunity ratione materiae could be applied in principle. Even so, based on the 1984 UN Convention concerning torture, to which both Chile and the UK were a party, it was decided that extradition proceedings on the charges of torture and conspiracy to torture could proceed, and that state immunity was not a bar (there was, therefore, an exception to state immunity). Eventually, Pinochet was not extradited to Spain on medical grounds, and he returned to Chile. In 2000, the Chilean Supreme Court removed his immunity from prosecution under national law. After debates concerning whether he was mentally fit, it was decided in 2004 that he could stand trial. He died of a heart attack on 10 December 2006 whilst under house arrest, and under trial.

• The case against Abdulaye Yerodia Ndombasi, the (then) serving (incumbent) minister foreign affairs of the Democratic Republic of Congo, led to a challenge of Belgian law in the Int’l. Court of Justice. The case originated from an int’l. arrest warrant issued in absentia by a Belgian judge against Ndombasi on 11 April 2000 (ICJ’s “Arrest Warrant Case”). • The DRC took the case before the ICJ arguing that Belgium had failed to recognize the immunity of a serving foreign minister. In addition, the DRC argued that Belgium had acted unlawfully by asserting UJ over Yerodia. • Unsurprisingly (for the reasons explained in int’l. law classes), the ICJ decided by 13 to 2 that personal immunities enjoyed by a foreign minister could not be set aside by a national court, even in case of alleged commission of int’l. crimes. • As a result, Belgium had to amend its law in 2003 by reintroducing immunities.

• • • Eventually, no judgment was reached on the issue of UJ as the DRC later dropped the claim relating to UJ (they concentrated on the issue of immunity, which was less controversial). Due to this strategy, the majority of the Court decided that there was no need to determine the lawfulness of Belgium’s assertion of UJ. However, this approach by the Court was criticized by many of the judges as they thought that the question of jurisdiction had to be handled first in order to come to a decision concerning immunity. Many of the separate and dissenting opinions include lengthy discussion about UJ, and an analysis of these opinions shows that four judges were opposed to the assertion of UJ by Belgium. This situation has led many commentators to argue that the judgment was a blow to UJ. Even so, it is argued (Cryer et al. at 56) that this does not seem to be the case as the majority supported UJ, and of the four judges criticizing UJ, three appear only to be referring to UJ being asserted in absentia. Today, the Belgian law is now more restricted as regards UJ but it still allows for the exercise of it, and, it seems, it still allows the exercise of ‘absolute/pure’ UJ.

• • Another state that relied widely on UJ was Spain. A number of ex-members of military juntas from Latin America were indicted. Spain was also the first state to ask for the extradition of Pinochet (which was later rejected by the UK Home Secretary due to the defendant’s ill-health). Ricardo Cavallo and Adolfo Scilingo were convicted for their roles in crimes committed in Argentina. After 2000, Spanish courts have placed through their case-law an important restriction on the exercise of UJ: Spanish UJ should be subsidiary to the jurisdiction of the territorial state, Spain should only have jurisdiction if there is no effort to prosecute by that State. Although this might be a sensible choice, Cryer et al. (at 58) argue that under IL such limitation is not required. The Spanish Constitional Court later adopted a wider understanding of UJ (without the limitations suggested in previous case-law) in the Guatemala Genocide case. However, again upon political pressure, the Parliament took steps to limit UJ, and a link between the offence and Spain is now required. Even so, a considerable number of cases are currently being investigated or prosecuted under UJ in Spain.

• • In 2005, the prosecution in UK of Afghan warlord Faryadi Zardad was the first domestic prosecution of a foreign national for acts of torture committed outside the UK. Zardad was convicted of acts of torture and hostage taking committed in Afghanistan in the 1990 s. He was sentenced to twenty years of imprisonment. On 13 October 2010 Sweden’s first war crimes trial was opened in Stockholm District Court. Ahmet Makitan, a naturalised Swedish citizen originally from the FY is accused of torturing Serb inmates while working as a guard at a Bosnian prison in 1992, as well as of participation in genocide. In Norway, there are ongoing investigations into crimes under international law committed in Rwanda, Sri Lanka, the Balkans and Afghanistan. In all cases, the suspects are residing or domiciled in Norway. The Netherlands: In 2004, Sebasten Nzapali, a former army officer from Zaire was convicted of torture committed in 1990 and 1995 in the DRC. One year later, two Afghan nationals were convicted for war crimes and torture in Kabul between 1979 and 1989 to nine and twelve years in prison. On 23 March 2009, the Rwandan national Joseph Mpambara was found guilty of torture, committed in 1994, and sentenced to 20 years' imprisonment by the Hague District Court in first instance.

• • The ICTY and ICTR have accepted that states may exercise universal jurisdiction. The European Court of Human Rights accepted (Jorgić v Germany, 12. 07. 2007), with regard to genocide, that IJ exists (the case itself was about genocide, that is why the decision is formulated in terms of genocide only). The Inter-American Commission on Human Rights asserted that UJ exists over ‘crimes against international law’ in general (Res. 1/03, 24. 10. 2003). Finally, a recent report prepared by REDRESS/FIDH and dated December 2010 (Extraterritorial Jurisdiction in the European Union, A Study of the Laws and Practice in the 27 Member States of the European Union) has determined that all 27 members recognize universal jurisdiction in their legislation and/or case-law (p. 22). This report also confirms that while presence of the accused is required by many states, it is not a pre-condition for the exercise of UJ under int’l. law (p. 23). Again, the report shows that prosecutorial authorities have discretion on grounds other than lack of evidence (in 21 states) in the exercise of UJ (they may decide not to proceed with investigations despite the existence of sufficient evidence). In 9 states, there is executive discretion (eg. , approval by the Attorney General in the UK). The report also indicates that all but one state recognize UJ with regard to (one or more) crimes identified in suppression conventions.

3. 4 Problems Concerning UJ 1) One major problem that undermines investigations/prosecutions based on UJ is that the fact that a state may exercise jurisdiction under UJ does not mean that the territorial or nationality state is under any obligation to assist that State. • To give an example, Turkey might launch an investigation concerning genocide allegedly committed by Utopians in Atlantis, however, Utopia (state of nationality of the perpetrators) or Atlantis (state on the territory of which the crime has been committed) are not obliged to assist in the investigation, unless there is multilateral or bilateral treaty obligation between them and Turkey. • That is why successful prosecutions on the basis of UJ usually occur with the support of the territorial state. • When cooperation is not provided, obtaining evidence becomes very difficult.

2) A second problem associated with UJ is the phenomenon of ‘forumshopping’, which refers to the fact that victims and NGOs may seek to initiate proceedings in various states, trying to maximize the possibility of a conviction (textbook at 280). • This might lead to a defendant facing multiple prosecutions in different states for the same act. This is a serious possibility since the principle of ne bis in idem does not operate, absent a treaty, between states. • In other words, the principle only prevents multiple prosecutions for the same act when done in one state. • Luckily, this problem does not seem to have materialized in practice. 3) Where trials are conducted in absentia, the fundamental rights of the defendant are jeopardized (textbook at 280).

4) A major criticism faced by UJ is on political grounds. a) The first political criticism is that the exercise of UJ might upset the balance struck between prosecution and amnesty in an emerging democracy, where amnesties have been used (Cryer et al. at 61). b) The second problem is that powerful states have the practical ability to assert UJ and to pressure other states into allowing the trial of their nationals. Therefore, the exercise of can be selective and based on the balance of political power. In this regard, it might be argued that so far there is no evidence that prosecutions based on UJ have been politically motivated (or, at least, the influence of politics in exercising UJ is no more than with the other types of jurisdiction) (Cryer et al. at 62). c) Thirdly, when national judges do not act cautiously (possibility of abuse) when issuing arrest warrants against foreign state officials, int’l. disputes may easily arise (textbook at 280).

3. 5 Universal Jurisdiction in Turkey • The Turkish Penal Code allows for prosecution in Turkey of crimes committed abroad by foreign nationals against other foreign nationals. • According to Art. 12/3, which represent ‘substitute jurisdiction based on representation’ (ikame/temsile dayalı yargı yetkisi), the offender will be tried under Turkish law if the following conditions are met: - The crime must have been committed abroad. - The perpetrator and the victim must not be Turkish nationals. - The perpetrator must be present in Turkish territory. - The act must not constitute one of the crimes enumerated under Art. 13 (concerning UJ), in which case that article will apply. - The act must require a minimum sentence of imprisonment of at least three years. - Prosecution depends upon the request of the Minister of Justice. - Extradition should not be legally or factually possible, and the perpetrator should not have been already tried abroad.

• In case of applying the ‘substitute jurisdiction’, prosecution is conducted on behalf of another state that has de jurisdiction, but that can not de facto exercise it. • This is a subsidiary head of jurisdiction that will only come into play if the territorial state, that has primary jurisdiction, can not exercise it for factuar or legal reasons, eg. , there is no extradition agreement between Turkey and the territorial state, and the territorial and nationality state do not accept the extradition of the suspect. • In such case, the custodial state (Turkey) should try the person in question, otherwise there is the risk that it may become a ‘safe heaven’ for criminals. • The ‘substitute jurisdiction’ differs from UJ in that it has a subsidiary nature, and may only be exercised, in contrast to UJ, when the state having primary jurisdiction can not or does not exercise it (Tezcan/ Erdem/ Önok at 157).

• TPC Art. 13 also provides for (conditional) universal jurisdiction in case of certain crimes (see next slide) committed abroad by a foreigner against another foreigner. The following conditions must be met: - The crime must have been committed abroad. - The perpetrator and the victim must not be Turkish nationals. - The perpetrator must be present in Turkish territory. - Prosecution depends upon the request of the Minister of Justice (except for crimes laid down in Arts. 299 -339). - The perpetrator should not have been already tried abroad, because in that case there would be no need to resort to universality. • The problem with Art. 13 is that it comprises crimes committed abroad by both Turkish nationals, and foreign nationals. Probably because of that, the list of crimes falling under Art. 13 is very large.

• The following crimes, when committed abroad by a foreign national may be tried in Turkey, and in accordance with Turkish law: - Art. 13 (1) (a): International crimes (genocide, crimes against humanity, migrant smuggling, human trafficking); - Art. 13 (1) (c): Torture (Arts. 94 -5); - Art. 13 (1) (d): Intentional Pollution of the Environment (Art. 181); - Art. 13 (1) (e): Production and Trade of Narcotics and Psychotropic Substances (Art. 188); Facilitating the Use of Narcotics and Psychotropic Substances (Art. 190); - Art. 13 (1) (f): Money Counterfeiting (Art. 197); Producing and Trading of Instruments Used for the Production of Money and Valuable Stamps (Art. 200); Counterfeiting a Seal (Art. 202); - Art. 13 (1) (i): Hijacking or Seizure of Transport Vehicles (Art. 223 (2)(3) and damaging such property (Art. 152); - Art. 13 (1) (g): Prostitution (Art. 227).

• In addition, Art. 13 (1) (b) lists the offences between Arts. 299 -342 (1). It might be said that the crimes listed in Arts. 299 -342 concern the exercise of jurisdiction under the protective principle. Therefore, it is hard to understand why they have been listed under Art. 13. • As for the other crimes, the provision of Art. 13, apart for Art. 13 (1) (a), (c) is hardly, in reality, an example of UJ. In my opinion, the exercise of jurisdiction over the other crimes is a result of obligations arising from international treaties (“suppression conventions”) entered into by Turkey, and not based on UJ. (1) Offences against the symbols of State sovereignty and the reputation of its organs, offences against state security, offences against the constitutional order and its functioning, offences against national defence, offences against state secrets and espionage, offences against relations with foreign states.

• - - As for Turkish academic writings, it is obvious that minds are rather confused (!): Centel/Zafer/Çakmut categorize 12 (3) under ‘substitute jurisdiction’, 13 (1) (b) under the protective principle, and all other crimes listed in Art. 13 under UJ; Demirbaş and Özbek et al. categorize Art. 12 (3) under UJ, and the whole of Art. 13 under the protective principle; Özgenç categorizes Art. 12 (3) under passive personality and Art. 13 under ‘UJ and the protective principle’; Koca/Üzülmez categorize Art. 13 under ‘UJ and the protective principle’ and Art. 12 (3) under substitute jurisdictipn as ‘a special form of UJ’, Hakeri categorizes Arts. 13 (1) (a) and (b) under the protective principle, Art. 12 (3) under UJ and, at the same time, the whole of Art. 13 (including commas (a) and (b)) under UJ; Öztürk/Erdem categorize Arts. 13 (1) (a) and (b) under the protective principle, the rest of Art. 13 under UJ, and 12 (3) under the ‘substitute principle’. Artuk/Gökcen/Yenidünya categorize Art. 13 (1) (b) under the protectice principle, Art. 12 (3) under substitute jurisdiction as a sub-category of UJ, and the whole of Art. 13 (1) (apart for comma (b)), under UJ as ‘crimes that concern the whole mankind’.

• Finally, in the application of TPC Articles 12 (3) and 13, contrarily to the previous penal code, the new TPC does not ask the Turkish judge to compare the law of the foreign country where the crime was committed and Turkish law, and apply the favourable one (this was a problematic rule since it implied that the national judge had knowledge of foreign language and of the foreign penal code to be compared). • TPC Art. 19 only determines that the punishment given under Turkish law to a person who has committed the crime abroad may not be more than the maximum punishment stipulated in the laws of the country where the offence was committed. • Therefore, the punishment will be determined according to Turkish law, but the foreign law may limit the maximum sentence. Furthermore, there is no such limitation if the offence is committed against the security of, or to the prejudice of Turkey, or against a Turkish citizen, or to the prejudice of a private legal entity established under Turkish law (Art. 19 (2)).