UNIVERSAL JURISDICTION A PRELIMINARY SURVEY OF LEGISLATION AROUND THE WORLD – 2012 UPDATE Amnesty International Publications First published in October 2012 by Amnesty International Publications International Secretariat Peter Benenson House 1 Easton Street London WC1X 0DW United Kingdom www.amnesty.org Copyright Amnesty International Publications 2012 Index: IOR 53/019/2012 Original Language: English Printed by Amnesty International, International Secretariat, United Kingdom All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted, in any form or by any means, electronic, mechanical, photocopying, recording or otherwise without the prior permission of the publishers. Amnesty International is a global movement of more than 3 million supporters, members and activists 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 instruments. We are independent of any government, political ideology, economic interest or religion and are funded mainly by our membership and public donations. CONTENTS I. INTRODUCTION ..................................................................................................................1 A. The two annexes...........................................................................................................6 B. Definitions...................................................................................................................7 C. Analytical principles used in the preliminary survey..........................................................8 D. Limited scope of this preliminary global survey..............................................................10 II. DEFINITIONS OF CRIMES IN NATIONAL LAW AND UNIVERSAL JURISDICTION ...................12 A. War crimes ................................................................................................................12 B. Crimes against humanity.............................................................................................13 C. Genocide ...................................................................................................................13 D. Torture......................................................................................................................13 E. Ordinary crimes..........................................................................................................13 ANNEX I: COUNTRY LEGISLATION PROFILE CHART...............................................................16 ANNEX II: BACKGROUND INFORMATION ON LEGISLATION IN EACH COUNTRY ......................22 ABBREVIATIONS...............................................................................................................22 COUNTRIES .....................................................................................................................23 UNIVERSAL JURISDICTION 1 A preliminary survey of legislation around the world – 2012 update I. INTRODUCTION Universal jurisdiction, an essential tool of international justice, is the ability of the court of any state to try persons for crimes committed outside its territory that are not linked to the state by the nationality of the suspect or the victims or by harm to the state’s own national interests. The Sixth (Legal) Committee of the UN General Assembly began having annual discussions of the scope and application of this rule of customary international law four years ago at the request of the African Union (AU). In that request, the AU proclaimed its support for “the principle of universal jurisdiction within the context of fighting impunity as well as the need to punish perpetrators of genocide, crimes against humanity and war crimes”, but expressed its concerned about the supposed “ad hoc and arbitrary application, particularly towards African leaders”. 1 That request followed the publication of a joint study of an ad hoc expert group that had been commissioned by the AU and European Union Troika. 2 As explained below, this updated preliminary survey by Amnesty International of legislation around the world is designed to assist the Sixth Committee in its annual discussions of universal jurisdiction. The updated version takes into account amendments to national legislation in Luxembourg and Comoros extending the scope of jurisdiction of their courts to provide for universal jurisdiction over genocide, crimes against humanity and war crimes that have taken place since the preliminary survey was published in October 2011. It also includes information received since October 2011 concerning a similar extension of the scope of jurisdiction of the courts of Mauritius that had taken place earlier and it clarifies that the courts of Ghana can exercise universal jurisdiction over war crimes in both non-international and international armed conflict. In addition, Amnesty International is publishing simultaneously a separate paper, Universal jurisdiction: Strengthening this essential tool of international justice , that provides advice to states on how, at both the international and national levels, they can improve the effectiveness of their role as agents of the international community in enforcing international criminal law and provides information about positive developments and setbacks over the past year. 3 Brief summary of results of the preliminary survey. This updated preliminary survey indicates that 166 (approximately 86%) of the 193 UN member states have defined one or more of four crimes 1 Request for the inclusion of an additional item in the agenda of the sixty-third session, The scope and application of the principle of universal jurisdiction, Letter dated 29 June 2009 from the Permanent Representative of the United Republic of Tanzania to the United Nations addressed to the Secretary-General, U.N. Doc. A/63/237/Rev.1, 23 July 2009 (http://daccess-dds- ny.un.org/doc/UNDOC/GEN/N09/421/25/PDF/N0942125.pdf?OpenElement). 2 This expert group concluded that • international law did not give states where the crimes were committed priority over investigation and prosecution; • the majority of AU member states have universal jurisdiction legislation regarding crimes defined in treaties and customary international law which only one has ever tried to use; • Thirteen African states have abolished in national law, or have agreed to do so, provisions recognizing claims of immunity by state officials for crimes under international law; • EU universal jurisdiction cases involve a broad range of nationalities; and • some of the cases that have been cited as evidence of “abuse” of universal jurisdiction were not even based on universal jurisdiction. The study is available at: http://register.consilium.europa.eu/pdf/en/09/st08/st08672.en09.pdf . 3 Universal jurisdiction: Strengthening this essential tool of international justice , Index: IOR 53/020/2012, September 2012. Index: IOR 53/019/2012 Amnesty International October 2012 2 UNIVERSAL JURISDICTION A preliminary survey of legislation around the world – 2012 update under international law (war crimes, crimes against humanity, genocide and torture) as crimes in their national law. As noted below, however, not only have many states failed to define all of these crimes under international law as crimes under national law, but in many instances the definitions are not consistent with the strictest requirements of international law, creating a serious impunity gap. 24 states apparently have not defined any of them as crimes in their national law. No relevant legislation could be located in one state (Swaziland) and insufficient legislation in another (Suriname), making it impossible to determine whether they had included any of these crimes in national law. In some states, legislation could be located regarding only one crime. In addition, it appears that 147 (approximately 76.2 %) out of 193 states have provided for universal jurisdiction over one or more of these crimes. In addition, at least 16 (approximately 8.29%) out of 193 UN member states can exercise universal jurisdiction over conduct amounting to a crime under international law, but only as an ordinary crime (indeed, a total of 91 states have provided universal jurisdiction over ordinary crimes, even when the conduct does not involve conduct amounting to a crime under international law). Thus, a total of 163 states (approximately 84.46%) can exercise universal jurisdiction over one or more crimes under international law, either as such crimes or as ordinary crimes under national law. As explained below in Section II.D on ordinary crimes, this ability has proved to be very useful when the state concerned has not yet included particular crimes under international law as crimes under national law, but it is an unsatisfactory substitute for defining crimes under international law as crimes under national law. As previously noted, no relevant legislation could be found in some states and in some states not all relevant legislation could be located. Unfortunately, as noted below, the mere existence of universal jurisdiction legislation does not mean that the state can effectively act as an agent of the international community to enforce international criminal law. All too often, the legislation contains numerous obstacles to the effective use of this tool of international justice. However, the preliminary survey is a useful compilation