Xue Hanqin has just been elected to the International Court of Justice. You can find some glimpses of her views in a 2006 article: vaguely supportive of the ICC, not a fan of universal jurisdiction. Relevant section on UJ below:
At the moment, one of the most controversial issues with international criminal law is the question of universal jurisdiction. Under traditional international law, states establish universal jurisdiction over certain international crimes by treaty terms except for one case, piracy. In other words, regardless of general jurisdictional grounds on territory, nationality, protection and so on, states establish national criminal jurisdiction over certain offences simply by the physical presence of the alleged suspect. In exercising such criminal jurisdiction, not only judicial assistance is assured between the state parties under the relevant treaty, rules of sovereign immunity are also respected under general international law. The early conventions on human rights are vague on the point, but state practice and international court decisions support this position. In the Pinochet case, although the British House of Lords declined to embrace one Lord's opinion grounding extradition on international custom regarding universal jurisdiction, its ruling did affect the doctrine of Act of State as practiced in the past. By pronouncing what constitutes or does not constitute an act of state of another state, or by national legislation to establish absolute universal jurisdiction, national courts would likely exercise jurisdiction over cases that may lead to international disputes by unduly encroaching upon the domestic affairs of other states. So far state practice shows over-extended national jurisdiction, either civil or criminal, is not conducive to promoting international efforts in suppressing international crimes, nor to maintaining international peace and stability.
HT: Julian Ku at Opinio Juris
A lot of heat, but very little, light has been generated by the suggestion that the Pope be prosecuted in the UK for crimes against humanity.
The sexual crimes of paedophiles need to be punished appropriately, and any form of obfuscation and cover-up by authorities exposed, condemned and rectified. However, the suggestion that the Pope be arrested in the UK or crimes against humanity is a dead end for those looking for justice and accountability.
The UK doesn't have jurisdiction over non-residents for crimes against humanity - we don't have ‘true' universal jurisdiction. This idea fails at the first hurdle - regardless of the subsequent questions of whether he is immune, whether the acts qualify as crimes against humanity, and whether the UK Director of Public Prosecutions and Attorney General would agree that such a prosecution would pass the public interest test. Myself I suspect that the answer to the last 3 questions are a) he'd be considered immune, b) doubtful, c) never.
Canada's war crimes programme is the longest running in the world, designed to prevent Canada from becoming a safe haven. Usually they rely on immigration law to deport suspects - like this Iranian Revolutionary Guard - however, Canadian courts have just convicted Désiré Munyaneza on seven counts of genocide, war crimes and crimes against humanity.
Prosecutions are much rarer than the use of immigration law because a) of the costs of a prosecution, and b) it's easier to resort to immigration law - the standard of proof is much lower than that required for a criminal conviction.
Read:
- the judgment in English or French
- the entry in the always excellent Trial Watch website
- Criteria for selecting and prioritising core international crimes cases from PRIO which includes a paper by Terry Beitner of the Canadian War Crimes program, describing where, when and why they choose prosecution over immigration action.
