Complementarity: Contest or Collaboration? - FICHL

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Complementarity and the Exercise of Universal Jurisdiction for Core International Crimes cols, 97 irrespective of the nationality of the offender, the nationality of the victim, or the place where the criminal offence had been committed. 98 The Act of 1993 did not require the defendant‟s presence in Belgium in order to initiate an investigation. Moreover, because of the system of partie civile, Belgian courts‟ universal jurisdiction could be triggered by a victim acting as complainant, regardless of the prosecutor‟s desire to pursue the case. 99 The Act of 1993 was amended in 1999 to include crimes against humanity and genocide. 100 Additionally, Article 5(3) of the Act of 1999 further denied that immunities could apply to genocide, crimes against humanity and war crimes. 101 Similarly, Article 23(4) of Spain‟s Ley Orgánica del Poder Judicial (Organic Law of Judicial Power), incorporated into Spanish criminal law in 1985, allows for the prosecution of certain crimes committed outside Spain by non-Spanish nationals which may, according to Spanish law, qualify as genocide, terrorism and any other crimes which under international treaties should be prosecuted by Spain. 102 Like the Belgian law, the Spanish provision at its inception was an example of universal jurisdiction allowing investigations to begin without the presence of the accused in Spain. Also like the Belgian law, Article 23(4) of the Law of 1985 could be invoked by civil parties who, upon convincing the investigating magis- 97 Article 1 of the Act of 1993. It is interesting to note that the Act of 1993 does not follow the traditional distinction in international humanitarian law between international and non-international armed conflicts for the purpose of defining grave breaches as the Act of 1993 extends its protection to persons or objects protected by Additional Protocol II of 8 June 1977, see Tom Ongena and Ignace Van Daele, “Universal Jurisdiction for International Core Crimes: Recent Developments in Belgium”, in Leiden Journal of International Law, 2002, vol. 15, no. 3, p. 689. 98 Tom Ongena and Ignace Van Daele, “Universal Jurisdiction for International Core Crimes: Recent Developments in Belgium”, see supra note 97, pp. 689-690. 99 Tom Ongena and Ignace Van Daele, “Universal Jurisdiction for International Core Crimes: Recent Developments in Belgium”, see supra note 97, p. 692.; Naomi Roht- Arriaza, “Universal Jurisdiction: Steps Forward, Steps Back”, in Leiden Journal of International Law, 2004, vol. 17, no. 2, p. 376. 100 Loi relative à la répression des violations graves du droit international humanitaire, 10 février 1999, Moniteur Belge, 23 March 1999, p. 9286 (“Act of 1999”); see Tom Ongena and Ignace Van Daele, “Universal Jurisdiction for International Core Crimes: Recent Developments in Belgium”, see supra note 97, p. 689. 101 Article 5(3) of the Act of 1999 provides: “L'immunité attachée à la qualité officielle d'une personne n'empêche pas l'application de la présente loi”. 102 Ley Orgánica 6/1985 del Poder Judicial, 1 July 1985 (“Law of 1985”). FICHL Publication Series No. 7 (2010) – page 276
The Principle of Complementarity: a Means Towards a More Pragmatic Enforcement of the Goal Pursued by Universal Jurisdiction? trate that a valid case existed, were able to force a full investigation even without the endorsement of the public prosecutor. 103 Article 23(4) of the Law of 1985 was first used in the context of core international crimes in 1996 in cases against Argentine and Chilean military officers and civilians involved in those countries‟ respective military dictatorships. 104 Most famously, the Spanish courts attempted to instigate the extradition of General and former President Augusto Pinochet from the U.K. – where he was receiving medical care – to Spain with the intention of prosecuting him for crimes of genocide, terrorism and torture allegedly committed during his notorious rule over Chile and the infamous Operation Condor. 105 The case was initiated by the complaint of a civil party, without the support of the public prosecutor. Indeed, prior to the extradition request, the public prosecutor had appealed to the Audiencia Nacional, questioning Spain‟s jurisdiction to try Pinochet. The Audiencia Nacional heard the jurisdictional challenges and in November 1998 found that Spain could properly hear the cases under Spain‟s universal jurisdiction law. 106 Though there was a case for passive personality jurisdiction, as some of Pinochet‟s alleged victims were Spanish, the holding did not rest on this basis, but was instead based on an assertion of Spain‟s universal jurisdiction under Article 23(4) of the Law of 1985. This put the matter in the hands of the British courts, which needed to determine whether an ex-president could be questioned or prosecuted for crimes committed outside U.K. borders. On 25 November 1998, reversing a decision by the High Court that held that Pinochet was protected by sovereign immunity, a specially constituted Appellate Committee of the House of Lords, acting in its capacity as Britain‟s highest court of appeal, granted the extradition request on the ground that Pinochet did not enjoy immunity in relation to crimes committed under international 103 Naomi Roht-Arriaza, “Universal Jurisdiction: Steps Forward, Steps Back”, in Leiden Journal of International Law, see supra note 99, p. 377. 104 Id., p. 376. 105 Richard A. Falk, “Assessing the Pinochet Litigation: Whither Universal Jurisdiction?”, in Macedo, Stephen (ed.), Universal Jurisdiction: National Courts and the Prosecution of Serious Crimes Under International Law, see supra note 60, p. 107. 106 Naomi Roht-Arriaza, “Universal Jurisdiction: Steps Forward, Steps Back”, see supra note 99, p. 377 and n. 4. FICHL Publication Series No. 7 (2010) – page 277
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Complementarity and the Exercise of
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TABLE OF CONTENTS Preface .........
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