War crimes and torture in treaty obligations
War crimes and torture merit particular attention because they are serious human rights violations which create treaty obligations for countries to utilise universal jurisdiction. 1
Universal jurisdiction deriving from treaty obligations exists in Germany, Austria, Belgium, Denmark, Finland, France, Portugal and Sweden. 2
Greece and Italy respectively refer to the Geneva Conventions of 12 August 1949 on war crimes and the United Nations Convention of 10 December 1984 against Torture and Other Cruel, Inhuman or Degrading Treatment.
The Netherlands introduced a clause whereby States are obliged either to extradite perpetrators arrested on their soil (or transfer them to an international court) or to prosecute and judge them themselves (aut dedere, aut judicare) once obliged to do so by an international convention. The Netherlands exercises jurisdiction only if an extradition request from a third country has been received and rejected.
The United Kingdom observes a similar approach to that of the Netherlands. Universal jurisdiction is authorised by special legislation only when expressly required by treaty to do so. 3
Ireland and Luxembourg both recognise the universal jurisdiction of their courts for war crimes and torture, inter alia.
In Spain, Article 23(4) of the LOPJ which, before 2014 provided for universal jurisdiction was recently modified by the Organic Law 1/2014 which limited and conditioned the scope of universal jurisdiction to the following cases:
- crimes against humanity and genocide if committed against a spanish national, resident or anyone present in spanish territory a foreigner whose extradition has been denied.
- Torture if the crime is committed against a spanish national.
- enforced dissapereance if the victim is a spanish national.
In a decision of June 17, 2019, the Constitutional Court clarified the scope of universal jurisdiction 4 . The case concerned a Spanish journalist - José Couso - who died in Iraq in 2003 after an American tank shot the hotel where he was staying with other international journalists. The victim’s heirs brought the case before the Spanish courts, claiming that it was a war crime. Since Spain does not recognize a general jurisdiction based on passive personality (see above), the victim’s heirs relied on the principle of universal jurisdiction. 5
The investigation had been opened in application of universal jurisdiction, but had to cease with the entry into force of the law of 2014, which left outside Spanish jurisdiction the crimes of genocide, crimes against humanity or war crimes committed abroad, by foreigners, against Spanish victims. An appeal has therefore been filed with the Constitutional Court regarding the compatibility of the decision with the right to an effective judicial remedy guaranteed by Article 24 of the Spanish Constitution. The Constitutional Court rejected the appeal, and recalled that the recognition of absolute and unconditional universal jurisdiction does not fall within the protection granted by the right to an effective judicial remedy.
Consequently, it is clear that the former principle of universal jurisdiction has now been reduced and has become dependent on the existence of a link with Spain, including the principle of passive personality in cases of grave international crimes 6 .
In France, Article 689-2 of the Code of Criminal Procedure grants French courts universal jurisdiction to prosecute persons suspected of torture as defined by the 1984 Convention on the basis of universal jurisdiction. In contrast, French courts do not recognise the direct applicability of the Geneva Conventions and due to a failure to codify war crimes in domestic law France cannot prosecute such crimes under universal jurisdiction.
In 2010, the Rome Statute was transposed into domestic law. Thus, article 689-11 of the French Criminal Procedure Code provides that French courts have universal jurisdiction over crimes against humanity and genocide as defined in the Rome Statute and war crimes and offences, if the acts are punishable under the law of the State where they were committed or if that State or the State of nationality of the alleged perpetrator is a party to the Rome Statute.
The prosecution of these crimes can only be exercised at the request of the public prosecutor and if no international or national court requests the extradition of the person. To this end, the Public Prosecutor’s Office shall ascertain that no prosecution has been initiated by the International Criminal Court and shall verify that no other State has requested his extradition.
Presence on a country’s soil is required for a prosecution to move forward only when the appropriate international treaty demands it, which occurs in a majority of cases. Articles 5, 7 and 8 of the convention against torture hold that prosecution is mandatory only when the suspect is present on the soil of the forum court. The geneva conventions and official comments on them, however, are silent on this point, but most international and national jurisprudence requires prosecution when the suspect is present. 7 Although prosecutions are never required when a suspect is not present on the soil of a country, some courts hold that prosecutions in absentia are permissible. 8 Some, however, stress the importance of a specific extradition request to avoid conducting a trial in the absence of the accused. 9 This situation is particularly interesting when it involves the prosecution of a company. State authorities have a greater incentive to prosecute when companies are fully absent from their soil and there is no risk to the national economic interest. Individuals – especially leaders – would be denied criminal refuge as hiding in a country unlikely to prosecute (because it has not ratified the relevant international conventions) would not pose an obstacle to criminal proceedings in another State. There is disagreement concerning the admissibility of prosecution in absentia, 10 however, and the risk of multiple prosecutions could negatively affect the system as a whole.
Complaint in Belgium against the french parent company of the former Elf Group suspected of complicity in serious violations of international humanitarian law committed in congo-Brazzaville
On 11 October 2001, three plaintiffs from the Congo lodged a civil complaint in a Brussels examining court against Sassou Nguesso, President of Congo-Brazzaville, for war crimes, crimes against humanity, torture, arbitrary arrest and kidnapping in the Congo, but also against the French parent company of the multinational oil company Total (formerly Elf) for involvement in the abovementioned offences. The plaintiffs sought to establish Total’s participation in these crimes by demonstrating the company’s financial and logistical support to Sassou Nguesso’s repressive military regime.
The complaint was the first in Belgium to draw links between the Belgian Law of 4 May 1999 establishing the criminal liability of legal persons and the former Law of 16 June 1993 (amended on 10 February 1999) on the repression of serious violations of international humanitarian law. 11 The complaint cited absolute universal jurisdiction with no requirement for minimal ties with Belgium, or even the presence of suspects on Belgian soil. This approach created exceptional opportunities for prosecution. Multinational corporations that were either directly or indirectly responsible for serious violations of international humanitarian law abroad could be brought before Belgian courts, regardless of the location of the parent company’s headquarters or other entities which depend upon the parent company
The French company was primarily criticised for having provided helicopters to armed militias. The plaintiffs cited the public testimony of French deputy Noël Mamere submitted at a 28 February 2001 hearing before the 17th Criminal Chamber of the Tribunal de Grande Instance of Paris (in Denis Sassou Nguesso v. Verschave FX and Laurent Beccaria). Mamere spoke of ethnic cleansing operations carried out in the southern districts of Brazzaville between December 1998 and late-January 1999. “These facts are proven, there were witnesses. Families were massacred; young Lari men were systematically accused of being part of the ninja militias (in opposition to Sassou Nguesso’s Cobras). From January to August 1999, entire regions in the south were virtually erased. I have no figures to give you, because I do not know the exact magnitude of the support Elf (Aquitaine) provided to Sassou Nguesso. I think you will hear more evidence of frightening things, such as massacres carried out from the helicopters upon which it was easy to read the Elf logo[…] Clearly, Elf did not limit itself to supporting Sassou Nguesso, the company also assisted Lissouba. It helps those who can serve its interests. This company acts only according to its interests […] Evidence […] clearly demonstrates the role of what might be called the armed wing of France’s African policy, the Elf Group.”
Having met the criteria set forth in the transitional provisions of the new Law of 5 August 2003, the case appears to still be active.
In the meantime, the Assize Court of Brussels has ruled in a case involving logistical support economic actors provided in the Commission of war crimes. Between 9 May 2005 and 29 June 2005, Belgium held its second trial for war crimes committed 11 years prior during the Rwandan genocide. Two notable traders from Kibungo and Kirwa were sentenced to 12 and 9 years imprisonment for having participated in the preparation, planning and carrying out of massacres largely committed by the Interahamwé genocide militias (Hutu extremists). After the killings broke out, claiming some 50,000 lives in the Kibungo region, the two traders made their trucks and supplies available to the militias for their murderous expeditions.
The repeal of the Law of 16 June 1993 and its replacement by the Law of 5 August 2003 had no effect on the proceedings. Given that the accused were on Belgian soil, the prosecution should be carried out in accordance with the 1949 Geneva Conventions on war crimes.