THE CAIRO-ARUSHA PRINCIPLES ON UNIVERSAL JURISDICTION IN RESPECT OF GROSS HUMAN RIGHTS OFFENCES: DEVELOPING THE FRONTIERS OF THE PRINCIPLE OF UNIVERSAL JURISDICTION

African Yearbook of International Law/Annuaire Africain de droit international

Volumn 10, Issue , 2004, Pages 407-430

  Kwakwa, Edward ^a,b,c,d  

^a UNIVERSITY OF GHANA   (Ghana)

^b QUEEN S UNIVERSITY   (Canada)

^c YALE UNIVERSITY   (United States)

^d WORLD INTELLECTUAL PROPERTY ORGANIZATION   (Switzerland)

Author keywords

[No Author keywords available]

Indexed keywords

EID: 84922178589     PISSN: 13807412     EISSN: None     Source Type: Book Series    
DOI: 10.1163/22116176-90000109     Document Type: Chapter

References (29)

1. th ed. 1998).
2. See M. KAMMINGA, “The Exercise of Universal Jurisdiction in Respect of Gross Human Rights Offences,” International Law Association, Report of the Sixty-Eighth Conference held at Taipei, Taiwan, Republic of China, 24-30 May 1998, (1998), pp. 563-583.
3. See (http://www.web.amnesty.org/ai.nsf/recent/ior530011999) (last visited 30 June 2003).
4. The Princeton Principles on Universal Jurisdiction (Princeton University Program in Law and Public Affairs (2001), reprinted at (http:/www.princeton.edu/~lapa/principles.html) (last visited 30 June 2003).
5. In the Arrest Warrant Case, the Court concluded that as Congo was not challenging Belgium’s attempt to exercise universal jurisdiction, the dispute between the parties was only about the immunity of a foreign minister. The Court therefore declined to decide whether Belgium’s issue of an arrest warrant, in a purported exercise of universal jurisdiction, was in accordance with the applicable rules. Nevertheless, three of the Justices discussed universal jurisdiction in detail in their joint separate opinion. See Arrest Warrant of 11 April 2000 (Democratic Republic of Congo v. Belgium), I.C.J., 14 February 2002) (Separate Opinion of Judges Higgins, Kooijmans and Buergenthal). For a general review of the case, see N. BOISTER, “The ICJ in The Arrest Warrant Case: Arresting the Development of International Criminal Law,” Journal of Conflict and Security Law 7 (2002), pp. 293-314. See also Universal Jurisdiction in Theory and Practice (The Asser Institute), at (http://www.asser.nl/vr/query.htm) (last visited 30 June 2003).
6. The Arrest Warrant Case (Democratic Republic of Congo v. Belgium), supra note 5 (dissenting opinion of Judge Van Den Wyngaert).
7. The List of Participants at the said meetings is attached as an Annex to this Note.
8. See Africa Legal Aid, Report of the Seminar on Universal Jurisdiction for Crimes against Humanity, 18 April 2000, Maastricht, available at (http://www.afla.unimaas.nl/en/act/Seminar%20on%20Universal%20Jurisdiction%20for%20Crimes%20against%20Humanity.htm) (last visited 29 June 2003).
9. The Cairo-Arusha Principles are attached as an Annex to this Note.
10. th ed. 1984), pp. 102-104; I. BROWNLIE, supra note 2, pp. 303-309.
11. Statute of the International Criminal Tribunal for Rwanda, International Legal Materials 33 (1994) 1602, available at (http://www.ictr.org) (last visited 30 June 2003).
12. These are (i) grave breaches of the 1949 Geneva Conventions, (ii) violations of the laws and customs of war, (iii) genocide, and (iv) crimes against humanity. See Statute of the International Criminal Tribunal for Yugoslavia, adopted 25 May 1993 by UN Security Council Resolution S/RES/827 (1993), as amended by UN Security Council Resolutions S/RES/1166 (1998), S/RES/1329 (2000) and S/RES/1411 (2002). Amended text available at (http://www.un.org/icty) (last visited 30 June 2003).
13. See Rome Statute of the International Criminal Court, 7 July 1998, UN Doc. A/CONF.183/9*, International Legal Materials 37 (1998) 999, corrected through July 1999 by UN Doc. PCNICC/1999/INF/3*, reprinted at (http://www/un.org/law/icc) (last visited 30 June 2003). See also J. DUGARD, “Universal Jurisdiction for Crimes against Humanity,” Africa Legal Aid Quarterly 7 (April-June 2000)(making clear that, due to the limited nature of the ICTY, ICTR and ICC’s jurisdiction, “if any of Africa’s tyrants are to be tried, it will be before a national court and not before an international court”).
14. It is also noteworthy that the Statute of the ICC stresses in its Preamble that the ICC is “complementary to national criminal jurisdictions,” and provides in its Article 17 that the ICC should only step in when national courts are unwilling or unable to investigate or prosecute a case.
15. Corfu Channel (United Kingdom v. Albania), I.C.J. Rep. 1947, p. 4 (Merits).
16. See generally K.C. RANDALL, “Universal Jurisdiction Under International Law,” Texas Law Review 66 (1988) 785, pp. 791-800.
17. Article 77 of the ICC Statute provides that one of the penalties that may be imposed on a person convicted of a crime falling within the jurisdiction of the Court is “a forfeiture of proceeds, property and assets derived directly or indirectly from that crime.” See Rome Statute of the International Criminal Court, supra note 14.
18. S. RATNER and J.S. ABRAMS, Accountability for Human Rights Atrocities in International Law: Beyond The Nuremberg Legacy 141 (1997).
19. On the issue of kleptocracy and its relationship to universal jurisdiction, see generally C. EBOE-OSUJI, “Kleptocracy: A Desired Subject of International Criminal Law that is in Dire Need of Prosecution by Universal Jurisdiction,” Africa Legal Aid Quarterly 18-20 (July-September 2001).
20. It is, however, noteworthy that the crime of “unjust enrichment” exists in certain common law countries.
21. On the Constitutive Act in general, see T. MALUWA, “The Constitutive Act of the African Union and Institution-Building in Postcolonial Africa,” Leiden Journal of International Law 16 (2003), pp. 157-170; C.A.A. PACKER and D. RUKARE, “The New African Union and Its Constitutive Act,” American Journal of International Law 96 (2002), pp. 365-379.
22. Article 4(h) of the Constitutive Act states the principle of “the right of the Union to intervene in a Member State pursuant to a decision of the Assembly in respect of grave circumstances, namely: war crimes, genocide and crimes against humanity.” See Constitutive Act of the African Union, 11 July 2000, at (http://www.africa-union.org/About_AU/Constitutive_Act.htm) (last visited 30 June 2003).
23. Others raise a question whether universal jurisdiction is a concept which will primarily be implemented on citizens of weaker nations by courts in the more powerful States. See, e.g., E. ANKUMAH, “Introduction,” Africa Legal Aid Quarterly 5 (April-June 2000)(quoting Shadrack Ghutto’s observation: “What would happen if an African State like Djibouti would prosecute let us say a national of the United States for crimes against humanity? The prosecuting State would either be bombed or will not receive aid from the World Bank.”).
24. The 34 countries currently on the list of the 49 least-developed countries (“LDCs”) are: Angola, Benin, Burkina Faso, Burundi, Cape Verde, Central African Republic, Chad, Comoros, Democratic Republic of Congo, Djibouti, Equatorial Guinea, Eritrea, Ethiopia, Gambia, Guinea, Guinea-Bissau, Lesotho, Liberia, Madagascar, Malawi, Mali, Mauritania, Mozambique, Niger, Rwanda, Sao Tome and Principe, Senegal, Sierra Leone, Somalia, Sudan, Togo, Uganda, United Republic of Tanzania and Zambia. The list of LDCs is reviewed every three years by the Economic and Social Council of the United Nations (“ECOSOC”). In general, the criteria used to determine whether a country falls within the category of LDCs include: (i) the Gross Domestic Product (“GDP”) per capita, (ii) a composite index (the “Augmented Physical Quality of Life Index”) based on indicators of life expectancy at birth, per capita calorie intake, combined primary and secondary school enrollment, and adult literacy; and (iii) a composite index (the “Economic Diversification Index”) based on the share of manufacturing in GDP, the share of the labor force in industry, annual per capita commercial energy consumption, and UNCTAD’s merchandise export concentration index. See generally (http://www.unctad.org/en/pub/ldcprofiles2001.en.htm) (last visited 30 June 2003).
25. On the difficulty and expense, in general, of universal jurisdiction cases, see M. KAMMINGA, “Universal Jurisdiction in Practice,” Africa Legal Aid Quarterly 12-13 (July-September 2001).
26. Thus, for example, in respect of the Sierra Leone Peace Agreement, the United Nations specified that the amnesty and pardon provisions in Article IX of the Agreement would not apply to the international crimes of genocide, crimes against humanity, war crimes and other serious violations of international humanitarian law.
27. See The Princeton Principles, supra note 5.
28. See Principle 11 of the Amnesty Principles, supra note 4.
29. On obstacles to the harmonization of the application of universal jurisdiction, see generally S. SCHAIRER and C. EBOE-OSUJI, “The Jurisdiction to Prosecute Foreigners for Crimes Against Humanity Committed Abroad,” Africa Legal Aid Quarterly 12-19 (April-June 2000).