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End Impunity Through Universal Jurisdiction

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End Impunity Through Universal Jurisdiction NO SAFE HAVEN SERIES 6 SOLOMON ISLANDS END IMPUNITY THROUGH UNIVERSAL JURISDICTION Amnesty International is a global movement of 2.2 million people in more than 150 countries and territories who campaign to end grave abuses of human rights. Our vision is for every person to enjoy all the rights enshrined in the Universal Declaration of Human Rights and other international human rights standards. We are independent of any government, political ideology, economic interest or religion – funded mainly by our membership and public donations. Amnesty International Publications First published in 2009 by Amnesty International Publications International Secretariat Peter Benenson House 1 Easton Street London WC1X 0DW United Kingdom www.amnesty.org © Amnesty International Publications 2009 Index: ASA 43/002/2009 Original language: English Printed by Amnesty International, International Secretariat, United Kingdom All rights reserved. This publication is copyright, but may be reproduced by any method without fee for advocacy, campaigning and teaching purposes, but not for resale. The copyright holders request that all such use be registered with them for impact assessment purposes. For copying in any other circumstances, or for re-use in other publications, or for translation or adaptation, prior written permission must be obtained from the publishers, and a fee may be payable. Cover photo : High Court Building, Honiara, Solomon Islands. © Judith Waleanisia CONTENTS 1. INTRODUCTION .......................................................................................................7 2. THE LEGAL FRAMEWORK.........................................................................................9 2.1 Type of legal system.............................................................................................9 2.2 Status of international law ..................................................................................12 2.3 Court system .....................................................................................................13 2.4 Other aspects of the legal framework and national human rights institutions ............13 2.5 Role of victims and organizations acting in the public interest in criminal proceedings .............................................................................................................................17 2.6 Proposal for legal reform.....................................................................................19 3. EXTRATERRITORIAL CRIMINAL JURISDICTION OTHER THAN UNIVERSAL JURISDICTION...........................................................................................................21 3.1. Active personality jurisdiction ............................................................................23 3.2. Passive personality jurisdiction...........................................................................24 3.3. Protective jurisdiction .......................................................................................24 4. LEGISLATION PROVIDING FOR UNIVERSAL CRIMINAL JURISDICTION......................26 4.1. Ordinary crimes ................................................................................................26 4.2. Crimes under national law of international concern...............................................26 4.2.1 An Overview: Crimes under national law of international concern that are subject to universal jurisdiction in Solomon Islands.............................................................27 4.2.2. Specific crimes ..........................................................................................28 4.3. Crimes under international law...........................................................................38 4.3.1. War crimes ................................................................................................39 4.3.2. Crimes against humanity .............................................................................52 4.3.3. Genocide ...................................................................................................59 4.3.4. Torture...................................................................................................... 60 4.3.5. Extrajudicial executions.............................................................................. 61 4.3.6. Enforced disappearances ............................................................................ 62 4.3.7. Aggression ................................................................................................ 62 5. CIVIL JURISDICTION OVER TORTS.......................................................................... 63 5.1. Legislation providing for universal jurisdiction over torts in civil cases................... 65 5.2. Legislation providing for raising civil claims in criminal cases ............................... 65 5.3. Restrictions on civil claims procedures ............................................................... 68 6. OBSTACLES TO THE EXERCISE OF CRIMINAL OR CIVIL JURISDICTION .................... 69 6.1. Flawed or missing definitions of crimes under international law, principles of criminal responsibility or defences......................................................................................... 69 6.2. Presence requirements in order to open an investigation or request extradition ....... 91 6.3. Statutes of limitationS applicable to crimes under............................................... 92 international law ..................................................................................................... 92 6.4. Double criminality............................................................................................ 96 6.5. Immunities...................................................................................................... 96 6.6. Bars on retroactive application of international criminal law in national law or other temporal restrictions................................................................................................ 97 6.7. Ne bis in idem ................................................................................................. 98 6.8. Political control over decisions to investigate and prosecute.................................. 99 6.9. Restrictions on the rights of victims and their families ....................................... 100 6.10. Amnesties ................................................................................................... 100 7. EXTRADITION AND MUTUAL LEGAL ASSISTANCE ................................................. 102 7.1 Extradition...................................................................................................... 102 7.1.1. Inappropriate limits on Solomon Islands extradition requests........................ 106 7.1.1.1. Political control over Solomon Islands extradition requests .....................106 7.1.1.2. Presence and Solomon Islands Extradition Requests ..............................106 7.1.2. Inappropriate bars to granting extradition requests.......................................106 7.1.2.1. Political control over the granting of extradition requests ........................106 7.1.2.2. Nationality.........................................................................................107 7.1.2.3. Double criminality and territorial jurisdiction.........................................107 7.1.2.5. Military offence..................................................................................108 7.1.2.6. Ne bis in idem ...................................................................................108 7.1.2.7. Non-retroactivity ................................................................................108 7.1.2.8. Statutes of limitation..........................................................................109 7.1.2.9. Amnesties, pardons and similar measures of impunity............................109 7.1.3. Safeguards ..............................................................................................109 7.1.3.2. Torture and other cruel, inhuman or degrading treatment or punishment..109 7.1.3.3. Death penalty ....................................................................................109 7.1.3.4. Other human rights safeguards ............................................................109 7.1.3.5. Humanitarian concerns.......................................................................110 7.1.3.6. Speciality ..........................................................................................110 7.2. Mutual legal assistance ...................................................................................110 7.2.1 Unavailable or inadequate procedures .........................................................110 7.2.2 Inappropriate bars to mutual legal assistance ...............................................111 7.2.3. Safeguards ..............................................................................................111 8. SPECIAL IMMIGRATION, POLICE OR PROSECUTOR UNITS.....................................113 9. JURISPRUDENCE.................................................................................................114 BIBLIOGRAPHY........................................................................................................120 GENERAL SOURCES............................................................................................. 120 GOVERNMENT DOCUMENTS:................................................................................ 121
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