The First International Conference on Universal Jurisdiction promoted by Baltasar Garzón (FIBGAR) International Foundation, which brought together some fifty experts, concluded with the drafting of a proposal for discussion of the principles on Universal Jurisdiction. This proposal from Madrid was sent to institutions, universities, legal forums worldwide beginning a discussion period that is expected to last six to eight months.
When this period ends, a second forum of lawyers and experts on Universal Jurisdiction will be convened for a new pooling session and to make the conclusions public after the relevant discussion. This pooling of the First Conference held in Madrid has proven very rewarding for specialists in law and universal jurisdiction.
It’s been thirteen years since the Princeton principles were adopted in 2011 [sic: 2001] when a number of provisions were made to clarify and organize a field of international criminal law which is becoming increasingly important: that of prosecution in national courts for serious crimes under international law according to universal jurisdiction when there are no traditional jurisdictional nexus with the victims or perpetrators of crimes. Michael Rothschild, Dean of the Woodrow Wilson School of Public and International Affairs, asked me to join the meeting in my capacity as founding director of the new Program in Law and Public Affairs at Princeton.
At all times, we had hoped to combine theory with practice, i.e. study a set of difficult problems of justice and international law in order to create consensual principles. The reality of Universal Jurisdiction has changed which was often restricted and the crimes themselves have changed; we discussed including environmental and economic crimes prosecutable as crimes of universal jurisdiction. With the recession, financial crimes were put forward and how they can be considered crimes against humanity. The debate is open, it needs updating, greater presence of victims in all processes of learning how the world has changed over the years and updating them.
Madrid proposal for the discussion of the principles of Universal Jurisdiction
Foreword
Universal jurisdiction, over recent decades, has proved to be effective for the judicial response to international crimes to be more complete and satisfactory. From the precursors of International Law such as Francisco de Vitoria, Diego Covarrubias, Francisco Suarez and Hugo Grotius to the present day, the international community has managed to consolidate the idea that there are crimes that by their nature and severity cease to fall on a sovereign State in particular and affect the international community as a whole, remaining the responsibility of each and every State to identify and prosecute them in order to avoid impunity for the perpetrators.
International criminal law has made great progress since the establishment of the Tribunals in Nuremberg and Tokyo, which has continued with the creation of the ad hoc International Criminal Tribunals, the International Criminal Court and the conclusion of the Review Conference of the Rome Statute in Kampala. The adoption of the Rome Statute created by the International Criminal Court represented one of the greatest advances in the world of international law, providing a rational and measured response to the most serious criminal offenses and thus a major step forward in protecting victims and confronting impunity. But the response was not and is not enough, not only due to the lack of universality which the statute lacks, but by political, temporal, territorial limits, adjectives and nouns that define it and therefore it is essential for its function be strengthened by the application of the Principle of Universal Jurisdiction which was already recognized in several previous international instruments and various state laws as an appropriate mechanism to enforce national justice action in this area.
Following the developments in the last twenty years regarding International Criminal Law, International Law of Human Rights and Humanitarian Law, an important reflection on the achievements and failures or misunderstandings accumulated in the acceptance and use is imposed by legislators and judicial officials as an instrument of universal jurisdiction that has proved to be essential in the realization, systematization and application of conventional and customary international law on local systems, especially in the context of crimes affecting those rights, in order to obtain the meeting point in which such advances are made for all and, thus, the primary purpose of making the margin of impunity narrower and broader protection of victims a reality. The Princeton Principles on Universal Jurisdiction performed this work in 2001. However, thirteen years after publication, we find that the application of this principle has undergone changes and developments of great significance and that the circumstances and needs have varied extraordinarily. The renovation and expansion of these principles is therefore essential. This is precisely the purpose of those present, from vocations in science, education, political momentum and diffusion, as well as serving as a guide for the application of the Principle of Universal Jurisdiction.
Of the crimes included in this statement, some are already subject to persecution based on the Principle of Universal Jurisdiction and others, such as those referred to in paragraph 2 of Principle 2, have their persecution defined and established as aspiration aimed at an integral protection of humanity and the survival of the same, as well as the protection of society as a whole against great economic, financial and environmental abuse whereby all or most of society is the victim.
Our willingness to sponsor these principles in the context of an important reflection with some fifty lawyers, politicians, victims from different countries and representatives from international courts, in the field of Human Rights and the United Nations, is that these principles serve as a mechanism that arouses debate, adhesion and acceptance by the different countries and institutions, with the possibility of future adoption and commitment for the benefit of more and better protection of citizens against barbarism.
Principle 1 – Concept
The Principle of Universal Jurisdiction determines the obligation to investigate and, if appropriate, prosecute via the recognizing domestic courts, in the interest of the international community, crimes identified in Principle 2 herein, regardless of where committed, the nationality of the suspect, victim or the existence of any connecting link with the State exercising this jurisdiction, by applying the Domestic and International Criminal Law, provided that the facts have not been tried in another national or international court and, if already prosecuted, the right to due process was not respected.
Principle 2 – Crimes of universal persecution
The Principle of Universal Jurisdiction shall apply to the following offenses:
1. Serious International Law Crimes: genocide, crimes against humanity, crimes committed in the context of an armed conflict, piracy, slavery, enforced disappearance, torture, extrajudicial, summary or arbitrary executions and other inhumane acts such as the illegal use of force which constitutes a flagrant violation of the UN Charter.
2. Serious crimes against nature and the environment and economic crimes seriously and generally affecting the fundamental rights of individuals and the community, such as food fraud, price gouging on staples for the survival or health of a generality of persons, illegal child labour exploitation without fulfilling the internationally recognized rights of workers, illegal exploitation of natural resources that seriously affect the health, life or peaceful coexistence of people with the natural environment in the area where exploitation occurs, the illicit diversion of international funds approved to alleviate humanitarian disasters, the smuggling of weapons into conflict zones or export expressly prohibited by the United Nations, the illegal use of property of victims of crimes identified in these principles, the irreversible destruction of ecosystems and any others defined as such in international agreements or treaties.
Principle 3 – The extraterritorial application of criminal law
States, without prejudice to the above principle, shall lay down in their national law rules governing the extraterritorial application of the law in respect of those offenses which form the core of transnational organized crime and the pursuit of which has an essential foundation in the cooperation and coordination among States in accordance with the provisions of international treaties that contain them.
Principle 4 – Criminal liability
1. Any natural or legal person may be criminally and/or civilly liable for offenses as set forth in Principle 2, in particular, senior officials in organized structures of power and their subordinates who cannot claim obedience due to superior orders.
2. Criminal liability of legal persons shall be recognized in domestic or conventional legislation for implementation and is independent of the identification, prosecution and conviction of individuals who have physically committed the crime.
Principle 5 – Application of the Principle of Universal Jurisdiction without it being stated in national legislation
1. All States should incorporate the Principle of Universal Jurisdiction into their national legislation.
2. Judicial bodies of States should apply the Principle of Universal Jurisdiction even when not covered by national legislation.
Principle 6 – Prescription, amnesty and pardon
1. The provisions of the States where the acts were committed with respect to prescription, amnesty, pardons and other measures to exclude liability shall not apply to crimes under international law.
2. Judicial authorities exercising universal jurisdiction in relation to crimes of international law shall not be linked to the provisions of the States on prescription, amnesty, pardons and other measures to exclude liability. In any case the provisions in the second paragraph of this principle should be taken into account.
Principle 7 – Principle of international criminal law
The acts and omissions constituting the offenses listed in principle 2 will be judged under the Principle of Universal Jurisdiction, provided that, at the time of commission, they constitute crimes under international law, even when the domestic criminal laws of both the State where the acts were committed and the State exercising universal jurisdiction do not specify these acts or omissions as offenses or crimes.
Principle 8 – Initiation of the investigation when the suspect is present in the national territory
The State in which the suspect is found in any degree of participation of the commission of any of the offenses listed in Principle 2 will initiate an investigation and will agree the relevant personal and property precautionary measures with respect thereto, as soon as that presence is declared regardless of the existence of an extradition request.
Principle 9 – Presence of the person under investigation
The courts of the States shall investigate the facts and responsibility of alleged perpetrators, under the principle of universal jurisdiction, until such time that the procedural laws of the State require their physical presence in the process.
Principle 10 – Complementarity of the International Criminal Court
Through their national courts and the exercise of universal jurisdiction, States will complement the International Criminal Court in the investigation and/or prosecution of crimes within the jurisdiction of the Court.
Principle 11 – Conflicts of national jurisdictions
1. The judicial investigation of the same event can be started concurrently by the national jurisdictions of two or more States, who must cooperate for the best resolution of the case.
2. According to the pro actione principle, the State which proves itself better able to judge the facts will have priority for the investigation, without a pre-established hierarchy of jurisdiction. In assessing the conditions for prosecution the following will be taken into account, among others: the possibility of credible prosecution in the country where the acts were committed, the place where the alleged offender is imprisoned, access to evidence, the protection measures available to victims and witnesses, as well as the independence and impartiality with which it has been substantiated and is to conduct the procedure. In any case, the competent court shall take the necessary personal and financial investigation measures of affected people until the conflict is resolved, with decisions made remaining valid and effective.
3. They are invited to the creation of a body at the UN headquarters to settle potential jurisdictional conflicts, with its decisions binding within a period not exceeding 30 days.
Principle 12 – Mutual legal assistance
1. Judicial bodies of the States shall assist in any proceeding instituted under the Principle of Universal Jurisdiction provided that the requesting judicial authority acts in good faith and there is no reason to believe that the suspect could be subjected to torture and other cruel, inhuman or degrading treatment, enforced disappearance, sentenced to death or subjected to a judgment contrary to the international standards of due process, even if there are guarantees by the State requesting legal assistance to the contrary.
2. The claim of the absence of dual criminality shall not be an impediment to the provision of legal assistance in accordance with the provisions of Principle 7.
3. Failure to recognize the Principle of Universal Jurisdiction by the State requested for assistance shall not preclude the provision of legal assistance claimed.
Principle 13 – Extradition
1. States shall refuse extradition requests from another state with jurisdiction, including universal jurisdiction, where there are substantial grounds for believing that the alleged offender shall be subjected to torture and other cruel, inhuman or degrading treatment, enforced disappearance, sentenced to death or subjected to a judgment contrary to international standards of due process, even when there are guarantees by the State requesting extradition contrary.
2. The State which refuses the extradition request for any reason will investigate and, if appropriate, prosecute the alleged perpetrators of the crimes stated in Principle 2.
3. The claim of the absence of dual criminality shall not be an impediment to the provision of legal assistance in accordance with the provisions of Principle 7.
4. Failure to recognise the Principle of Universal Jurisdiction by the requested State shall not prejudice the granting of extradition.
Principle 14 – Ne bis in idem
1. Judicial bodies of States shall ensure that no one is prosecuted or punished for an act for which he has already been convicted or acquitted by a final judgment or equivalent resolution.
2. States applying the Principle of Universal Jurisdiction exceptionally may prosecute acts which have already been tried in another State provided that the process has not complied with international standards of due process, and especially if it was not conducted impartially and independently or had been aimed at shielding the person accused from criminal responsibility for crimes committed.
Principle 15 – Transitional Justice
States may exceptionally apply the Principle of Universal Jurisdiction for Transitional Justice processes when the international standards of justice applied impartially and independently had not been met or had been aimed at shielding the person responsible for the crimes committed.
Principle 16 – Independence of the judicial or fiscal authorities responsible for the investigation
The judicial or tax authorities responsible for the investigation shall act with complete independence and impartiality in relation to proceedings initiated under the Principle of Universal Jurisdiction. Their decisions should be based solely on legal considerations, not political interference of any kind and shall interpret internal rules according to the Universal Declaration of Human Rights and the international treaties and agreements on Human Rights and Economic, Social and Cultural Rights, International Humanitarian Law and the decisions of the Courts of Human Rights and International Justice.
Principle 17 – Specialized judicial and procuratorial bodies
States shall create specialized judicial and prosecutorial units in the investigation and prosecution of crimes subject to the Principle of Universal Jurisdiction.
Principle 18 – Victims and witnesses
1. Applying the principle of Universal Jurisdiction shall mean victims are those which, individually or collectively, have suffered harm as a result of the commission of the crimes of principle 2, as well as their families or dependents who have immediate relationship with the direct victim and persons who have suffered harm in intervening to assist victims in distress or to prevent victimization, regardless of whether the perpetrator of the violation is identified, apprehended, prosecuted or convicted.
2. Judicial bodies shall ensure the rights of victims to the truth, justice and integral reparation and guarantees of non-repetition in making all decisions in accordance with international standards in this regard. As for the financial reparation of the victims concerned, bank secrecy shall not apply.
3. The interests of the victims will be taken into account before, during and after the procedure initiated under the Principle of Universal Jurisdiction. In addition, they will be guaranteed access to and participation in the process.
4. States that investigate, prosecute and/or collaborate with another State throughout the proceeding under the Principle of Universal Jurisdiction shall take all appropriate measures to ensure the security, participation, privacy and physical and psychological well-being of victims and witnesses at all times.
5. The special needs of particularly vulnerable victims will be taken into consideration to protect their interests and security and avoiding their revictimization.
Principle 19 – Interpretation
Nothing herein shall be construed as restricting the application of the principle of universal jurisdiction under international law and its further development, or as restricting the right of victims to truth, justice, reparation and guarantees of non-repetition.