ACKNOWLEDGEMENTS

REDRESS would like to express their sincere thanks to all those who have helped in the preparation of this report, especially Lord Avebury, Karine Bonneau, William Bourdon, Iain Edwards, Maame Ewusi-Mensah, Susie Howells,
Menno Kamminga, Rebecca Ledwith, Antonio Marchesi, Alice Mayhew, Sven Reckewerth, Luc Reydams, Michael Verhaeghe and Professor Colin Warbrick.

Researched and written by Fiona McKay Legal Officer, REDRESS

CONTENTS

INTRODUCTION	1
WHAT IS UNIVERSAL JURISDICTION?	3
UNIVERSAL JURISDICTION IN EUROPE IN PRACTICE:
a) Putting International Principles into Practice: Domestic Legislation	5
b) The Experience so Far: Cases in European States in the 1990s	8
c) The role of the victim	12
ANNEX: LAW AND CASES IN TEN EUROPEAN COUNTRIES
Austria	16
Belgium	18
Denmark	22
France	24
Germany	28
Italy	31
The Netherlands	34
Spain	37
Switzerland	41
United Kingdom	44

INTRODUCTION

The Pinochet case has raised the prospect of a person being put on trial in a court in one country, to answer for crimes of torture committed elsewhere. While Spain, France, Belgium and Switzerland have requested General Pinochet’s extradition, REDRESS and others have sought his prosecution in the UK.

This briefing explains the concept of " universal jurisdiction " which provides the basis for some of the criminal cases opened against Chile’s General Pinochet, and for a number of other prosecutions in European states. According to this principle, certain crimes - such as war crimes and torture - are regarded as so abhorrent that they are categorised as international crimes. When a person suspected of having committed such a crime enters a state’s territory, that state is permitted or even obliged under international law to prosecute them or to extradite them to be brought to justice elsewhere.

Universal jurisdiction has been the basis of criminal investigations and trials around Europe, many of them arising out of the conflicts in former Yugoslavia and Rwanda. Since 1993, there have been six completed trials in Switzerland, Denmark, Austria and Germany - resulting in four convictions and two acquittals - and at least five other cases where suspects have been formally charged.

REDRESS views such proceedings as a crucial element of reparation for victims, whose wounds cannot heal so long as there is impunity. Victims have also played a crucial role in initiating prosecutions in a number of states.

It is significant that a number of these cases have proceeded in national courts even where an international criminal tribunal exists which also has jurisdiction over the case. This demonstrates that even once a permanent international criminal court is established, there will still be a role for national courts in prosecuting international crimes.

The first part of the briefing explains the duties placed on states by international law, and uses three key tests to assess whether European states are able and willing to exercise universal jurisdiction effectively. First, we look at the extent to which European states have set in place the necessary legislation and other institutional and judicial mechanisms. Second, we review the case law in order to assess the actual experience in Europe to date. Third, we examine the role played by victims. The second part of the briefing comprises an Annex, detailing the law and recent cases in ten European states.

The picture which emerges is that while prosecutors and the judiciary are increasingly being called upon to deal with allegations raised against persons within their jurisdiction, and are becoming more and more willing to rise to the challenge, significant obstacles remain to the exercise of universal jurisdiction in many states. The shortcomings of international law, lack of adequate legislation and lack of political and judicial will are among the problems needing to be addressed.

The briefing focuses on criminal proceedings initiated in relation to recent violations of human rights and the laws of war, in countries other than where the violation took place. It does discuss some bases of extra-territorial criminal jurisdiction other than universal jurisdiction, such as the passive personality principle, where a state prosecutes on the basis that the victim of the crime is one of its own nationals. However the report does not discuss war crimes trials relating to events of World War II, such as the trial of Anthony Swank, concluded in March 1999, the first completed trial in the UK for war crimes.

Prosecuting on the basis of universal jurisdiction for the most heinous of crimes is becoming accepted practice in Europe, but there is a long way to go before the principle of universal jurisdiction is firmly established in European legal systems.

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