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The Enforcement of Universal Jurisdiction: Assessing Gaps in State, Regional and International Practice

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The Enforcement of Universal Jurisdiction: Assessing Gaps in State, Regional and International Practice The Enforcement of Universal Jurisdiction: Assessing Gaps in State, Regional and International Practice. Lauren Olivia Sanders, u4373700. Submitted for examination December 2017, updated March 2021. A thesis submitted for the degree of Doctor of Philosophy of the Australian National University. Words: 82396 (less Annexes and footnotes) © Copyright by Lauren Sanders, 2021 All Rights Reserved Statement of original work This work is the result of original research carried out by the author, except where otherwise stated in the text. Mount TaMborine, March 2021 ii Acknowledgements This research is supported by an Australian Government Research Training PrograM (RTP) Scholarship. I would like to acknowledge and express My sincere thanks to My priMary supervisor, Professor Hitoshi Nasu, for his patient, considered and constructive guidance throughout My doctoral studies. His encouraging attitude and steady direction assisted Me iMMeasurably. I would also like to thank My secondary thesis supervisor, Professor Rob McLaughlin, for his tiMe and insightful comMents on My thesis draft, which helped Me develop My ideas More coherently. Thank you to those in the wider acadeMic comMunity at the Australian National University and My work colleagues who have also provided inspiration and encourageMent over the extended period it has taken Me to complete this thesis. My numerous work supervisors have been extreMely flexible in gracing Me the tiMe to complete this thesis, for which I am incredibly grateful. Thank you to the professional and prompt editing service provided by Dr Lines at Capstone Editing, who provided Standard D and E editing on this paper, and without whose assistance I would not have such a polished product. Despite the anguish I have inflicted upon My friends throughout this process, their patience with My never-ending updates and interest in My progress, knowing the answer would inevitably be, ‘I’m not quite finished’, has been greatly appreciated. SiMone, Jess and Neanne in particular provided the personal encourageMent I needed to keep writing. The iMpact of the support provided by a partner throughout the writing process will unavoidably be underestiMated. Writing a doctoral thesis, particularly when working full tiMe throughout, takes you away from normal life. Without the support provided in innumerable guises by My long-suffering husband (his description, but one I now ascribe to hiM), I would siMply not have completed this document. Thank you. Finally, I would like to thank My parents for their endless belief in My ability, their belief in the value of education and the opportunities they created for Me, which enabled Me to undertake studies of this kind. iii No man is an island, entire of itself; every man is a piece of the continent, a part of the main … Any man’s death diminishes me because I am involved in mankind, and therefore never send to know for whom the bell tolls; it tolls for thee … John Donne, Devotions Upon Emergent Occasions XVII (1624). iv Abstract Universal jurisdiction is inconsistently understood and relied upon in conteMporary international legal practice. The enforceMent of universal jurisdiction in its ‘pure’ form (ie, without reliance upon any traditional jurisdictional nexus to the offender or criMe), has been exceedingly rare. Its successful enforceMent is further obstructed by the influence of political actors because reliance upon universal jurisdiction is always tainted by the level of political risk associated with the prosecution of another nation’s citizen by a third-party state. Further, the absence of a clear understanding of the application of the jurisdiction and its scope results in widely differing use of the doctrine, particularly in regard to the application of fair trial rules, selection of the forum and harmonisation of domestic enforceMent with international legal norms. The difficulties and inconsistent application in the enforceMent of this doctrine prevents the development of appropriate MechanisMs to bring to justice to those guilty of the worst kinds of criMes who would otherwise live with iMpunity. This thesis exaMines how the doctrine of universal jurisdiction has been enforced. Case studies from domestic, regional and international levels are analysed to determine where the gaps in enforceMent of universal jurisdiction exist by reference to four overarching criteria: procedural and due process rights; forum selection; harmonisation within international law principles; and political risk. Notably, these case studies assess conteMporary exaMples of the enforceMent of universal jurisdiction, and trials addressing siMilar criMinal offences, to identify gaps in the application of universal jurisdiction to end iMpunity for international criMinal law offences. Following this analysis, Measures to address these gaps to promote international criMinal justice are suggested. The suggested solutions to these identified enforceMent probleMs are Mapped against existing international discourse on the scope and application of the jurisdiction— comparing the United Nations General AsseMbly Sixth ComMittee’s ongoing reports to existing successful application of the doctrine—to provide an effective fraMework for states to consider to end iMpunity for serious international criMes. This analysis and development of suggestions to harness this doctrine of international law seeks to establish the role universal jurisdiction can Meaningfully play in bringing an end to injustice for egregious criMinal conduct subject to universal jurisdiction. v Contents The Enforcement of Universal Jurisdiction: Assessing Gaps in State, Regional and International Practice. ....................................................................................... i Statement of original work ...................................................................................... ii Acknowledgements .................................................................................................. iii Abstract ..................................................................................................................... v Contents ................................................................................................................... vi List of Abbreviations .............................................................................................. ix Chapter 1: Introduction to Contemporary Universal Jurisdiction and its Enforcement Challenges .......................................................................................... 1 1.1 Introduction ...................................................................................................... 1 1.2 Thesis Question and Focus ............................................................................... 5 1.3 Scope and Structure .......................................................................................... 8 1.3.1 Scope ................................................................................................................. 9 1.3.2 Structure .......................................................................................................... 11 1.4 LiMitations ...................................................................................................... 16 Chapter 2: Defining and Limiting Universal Jurisdiction ................................. 19 2.1 Introduction .................................................................................................... 19 2.2 Jurisprudential Basis for Universal Jurisdiction and Its EnforceMent ........... 20 2.3 ‘Traditional’ CriMinal Law Jurisdictions ....................................................... 24 2.4 The Definition of Universal Jurisdiction in International Law ...................... 25 2.5 Prescription of Universal Jurisdiction in International Law .......................... 28 2.5.1 The concept of universal jurisdiction and ‘universality’ ................................ 29 2.5.2 The codification of universal jurisdiction ....................................................... 32 2.6 Scope: Offences Subject to Universal Jurisdiction ........................................ 37 2.6.1 The Sixth ComMittee of the UNGA and its iMpact on the scope of universal jurisdiction offences ......................................................................... 40 2.6.2 The Rome Statute and its iMpact on the scope of universal jurisdiction offences ............................................................................................................ 41 2.6.3 Other treaty law and its iMpact on the scope of universal jurisdiction offences ............................................................................................................ 45 2.6.4 General principles approach to determining criMes subject to universal jurisdiction ....................................................................................................... 46 2.7 Universal Jurisdiction Definition for the Purposes of This Thesis: Scope and Prescription ...................................................................................................... 48 Chapter 3: Historic State Practice in Prosecuting Universal Jurisdiction Offences ................................................................................................................... 51 3.1 Introduction .................................................................................................... 51 3.2 Universal Jurisdiction in Antiquity—pre-Westphalian Universal Jurisdiction .........................................................................................................................
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