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From Pinochet to Rumsfeld: Universal Jurisdiction in Europe 1998-2008 Michigan Journal of International Law Volume 30 Issue 3 2009 From Pinochet to Rumsfeld: Universal Jurisdiction in Europe 1998-2008 Wolfgang Kaleck European Centre for Constitutional and Human Rights Follow this and additional works at: https://repository.law.umich.edu/mjil Part of the European Law Commons, International Law Commons, Jurisdiction Commons, and the Legal Remedies Commons Recommended Citation Wolfgang Kaleck, From Pinochet to Rumsfeld: Universal Jurisdiction in Europe 1998-2008, 30 MICH. J. INT'L L. 927 (2009). Available at: https://repository.law.umich.edu/mjil/vol30/iss3/12 This Symposium Article is brought to you for free and open access by the Michigan Journal of International Law at University of Michigan Law School Scholarship Repository. It has been accepted for inclusion in Michigan Journal of International Law by an authorized editor of University of Michigan Law School Scholarship Repository. For more information, please contact [email protected]. FROM PINOCHET TO RUMSFELD: UNIVERSAL JURISDICTION IN EUROPE 1998-2008 Wolfgang Kaleck* I. UNIVERSAL JURISDICTION IN EUROPEAN PRACTICE ................. 931 A . B elgium .............................................................................. 932 B . F rance ................................................................................936 C . Sw itzerland........................................................................ 939 D . United K ingdom................................................................. 940 E . The N etherlands................................................................. 942 F. Scandinavia....................................................................... 945 G . Germ any ............................................................................ 949 H . A ustria ............................................................................... 953 I. Sp a in .................................................................................. 9 54 J. Sum m ary ............................................................................ 958 II. PROBLEMS AND OBSTACLES ...................................................... 958 A. Lack of Appropriate International,European Union, and Domestic Legislation .................................................. 958 B. Presence Requirement and Principle of Complem entarity ........................................................... 959 C. PracticalProblems of Prosecuting InternationalCrim es .......................................................... 961 D. ProsecutorialDiscretion and Immunity ............................. 962 III. ALTERNATIVE AND COMPLEMENTARY MECHANISMS TO COMBAT IMPUNITY .............................................................. 964 A. Territorialand PersonalityJurisdiction: The Case of the CIA Rendition Flights in Europe ........ ;.................... 964 B. State Accountability: Applying Regional Mechanisms ...... 966 C. Alien Tort Claims Act (ATCA) and Other Cvil Rem edies .................................................................... 970 * Wolfgang Kaleck, criminal and human rights lawyer, is co-founder and General Secretary of the European Centre for Constitutional and Human Rights e.V. (ECCHR) in Ber- lin. See http://www.ecchr.eu. In 1998, shortly before the Pinochet arrest, the author participated in the foundation of and has worked since then as a lawyer and spokesman in the "Coalition Against Impunity," a network with the goal of suing former Argentinean military officers in German courts. Furthermore, he is the lawyer in several universal jurisdiction and "war on terror" related cases-including the German cases against the then-U.S. Defense Secretary Donald Rumsfeld, John Yoo and others for torture-in Germany, Austria, and France representing victims from, for example, Uzbekistan, China, Mexico and Chechnya. I would like to thank my research assistants, Cydney Peterson and Ruben Reike, and Florian Jessberger, Miriam Saage-Maass, Andreas Schiuller, Peter Weiss and the editors for their helpful comments. Further comments are welcome: [email protected] Michigan Journalof InternationalLaw [Vol. 30:927 V. ELEMENTS OF A TRANSNATIONAL, INTERDISCIPLINARY, AND STRATEGIC APPROACH TOWARD UNIVERSAL JU RISDICTIO N ............................................................................ 973 A. A First Step: Improving the Efficiency of the Institutions................................................................... 974 B. Victims'Participationin the Proceedings: A N ecessary Task ............................................................... 975 C. The Future: Strategic Litigation, Limitations, and Opportunities.............................................................. 976 C ONCLU SION .......................................................................................... 980 "But something very dramatic happened in that Belmarsh courthouse. Not something merely symbolic. For some people at least, the world had suddenly been turned upside down. For some people, life would never be the same.' -- Chilean writer Ariel Dorfman The arrest of former Chilean dictator Augusto Pinochet Ugarte on October 16, 1998 was undoubtedly a historic date in Chilean history. But it was not only for Chile that "the world had suddenly been turned up- side down."2 Pinochet's capture was the first arrest of a former head of State based on the principle of universal jurisdiction,' leaving a legacy of global dimension. In the early 1990s, criminal accountability for indi- viduals, including military and political leaders, was introduced in the statutes creating the International Criminal Tribunal for the former Yugo- slavia (ICTY)4 and the International Criminal Tribunal for Rwanda 1. ARIEL DORFMAN, EXORCISING TERROR: THE INCREDIBLE UNENDING TRIAL OF GENERAL AUGUSTO PINOCHET 81 (2002) (emphasis added). 2. Id. 3. See the recent discussion report of the Council Secretariat, The AU-EU Expert Re- port on the Principle of Universal Jurisdiction, 8-9, delivered to the Council of the European Union and the Delegations, U.N. Doc. 8672/1/09 (Apr. 16, 2009) [hereinafter AU-EU Expert Report] ("Universal criminal jurisdiction is the assertion by one State of its jurisdiction over crimes allegedly committed in the territory of another State by nationals of another State against nationals of another State where the crime alleged poses no direct threat to the vital interests of the State asserting jurisdiction. International law, both customary and conventional, regulates a State's assertion of universal criminal jurisdiction. States by and large accept that customary international law permits the exercise of universal jurisdiction over the international crimes of genocide, crimes against humanity, war crimes and torture, as well as over piracy."). The inclusion of piracy illustrates that the principle of universal juris- diction is not at all a new legal concept but has a long tradition as the principle aut dedere Rut iudicare. 4. S.C. Res. 827, T 2, U.N. Doc. S/RES/827 (May 25, 1993) (establishing an interna- tional tribunal for Yugoslavia); see also International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Terri- tory of the Former Yugoslavia Since 1991, Updated Statute of the International Criminal Spring 20091 From Pinochetto Rumsfeld (ICTR)5. Later, the work on the draft statutes for the creation of the In- ternational Criminal Court (ICC)-work that had started over four decades earlier-resulted in the conference in Rome in 1998, where a statute for the ICC was elaborated, adopted, and finally put into force in 2002.6 Thus the concept of prosecuting individuals for the core crimes described in the aforementioned statutes was already emerging when Pinochet was arrested. But the events of 1998 were not only a culmina- tion of this development-they also motivated and empowered human rights organizations, lawyers, prosecutors, and judges all over the world to prosecute human rights violations in domestic and international fora and to apply transnational strategies of using criminal law to bring doz- ens of war criminals and perpetrators of crimes against humanity to justice. However, the role of universal jurisdiction remains debated, such as in the debate in 2001 between Henry Kissinger, who defends the con- cept of Realpolitik, and Kenneth Roth, who advocates human rights protection.7 Others stress its utility for prosecuting gross human rights violations.8 Some consider its exercise as one tool among others in the transnational human rights movement.9 It is obvious that a coherent international criminal justice system is not yet in place. In November 1945, Robert Jackson, the chief prosecutor at the Nuremberg Tribunal, argued in his opening statement that, Tribunalfor the Former Yugoslavia (Sept. 2008), http://www.icty.org/x/file/Legal%20Library/ Statute/statute-sept08_en.pdf. 5. S.C. Res. 955, at 3-4, U.N. Doc. S/Res/955/Annex (Nov. 8, 1994) (describing how the jurisdiction of the ICTR extends over genocide, crimes against humanity, and violations of Common Article 3 of the Geneva Conventions and of Additional Protocol II). 6. Rome Statute of the International Criminal Court, at 3-10, U.N. Doc. A/CONE 183/9 (July 17, 1998) (providing for ICC jurisdiction over the crime of genocide, crimes against humanity, the crime of aggression, and war crimes (including grave breaches of the Geneva Conventions)). 7. See Henry Kissinger, The Pitfalls of Universal Jurisdiction: Risking Judicial Tyr- anny,
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