Universal jurisdiction and the fight against impunity

Universal jurisdiction and the fight against impunity

Universal jurisdiction has begun its journey with the complaint made to the Argentine justice system to investigate Álvaro Uribe

Faced with the humanitarian catastrophes of the 20th and 21st centuries and the serious violations of human rights caused by wars and dictatorships – the two world wars, Iraq, Bosnia-Herzegovina, Somalia, Rwanda, Syria, Argentina, Chile – cosmopolitan theorists have argued for the need to create an impartial global criminal justice system, based on cosmopolitan law and allowing those who have committed serious crimes to be tried, even if this means placing limits on state sovereignty.

In this context were created: first, The Nuremberg and Tokyo Tribunals; 50 years later, the “ad hoc” tribunals to judge crimes in Rwanda and the former Yugoslavia; later, in 1998 it was created the International Criminal Court (ICC) and universal jurisdiction was also consolidated.

The ICC opened up the possibility of prosecuting criminals for serious, massive and systematic violations of human rights. Its most important feature is that it is a complementary jurisdiction to that of national courts and can only be used when states are unable or unwilling to initiate proceedings against an alleged criminal. The Rome Statute restricted the jurisdiction of the ICC to war crimes, genocide, crimes against humanity and the crime of aggression.

The ICC has accused and prosecuted Sudanese Omar al-Bashir and Libyan leader Muammar Gaddafi, among others, for war crimes and crimes against humanity. In recent years, the ICC has issued an arrest warrant for Russian President Vladimir Putin for alleged war crimes, and ICC Chief Prosecutor Karim Khan has sought arrest warrants for Israeli Prime Minister Benjamin Netanyahu and Hamas chief Yahya Sinwar for possible war crimes and crimes against humanity.

On the other hand, it has also been developed universal jurisdiction which has “become the preferred technique for those seeking to prevent impunity for “International crimes”. This could be used against former President Álvaro Uribe Vélez as I will explain later.

Universal jurisdiction transcends national sovereignty. “Additionally, the exercise of universal jurisdiction displaces the right of the accused to be tried by the ‘natural judge’, a hallmark of the traditional exercise of territorial jurisdiction.” Universal jurisdiction established that there are minimum standards, in terms of rights and freedoms, that must be protected and guaranteed. These minimum standards led to the belief that there are a series of crimes that exceed all limits: the civilian population should not be annihilated, tortured, subjected to slavery, forced disappearance or the murder of civilians to show them as combat casualties —false positives—.

The Pinochet case It is probably the best known case in the application of universal jurisdiction, although the case against the former president of Chad, Hissein Habré, was also well-known. The former Chilean dictator was arrested in London on the basis of the accusation formulated by the Spanish judge Baltazar Garzón, which was based on the category of universal jurisdiction and which grants national judicial systems, in this case the Spanish one, the authority to arrest and try individuals for crimes committed outside their own territory.

The British judiciary, acting through the House of Lords Judicial Committee, decided on 24 March 1999, by six votes to one, that Pinochet could be extradited by Spain in order to be tried there; this was a major achievement for universal jurisdiction. However, the British government, under strong international pressure from the United States and Chile, accepted the concept of the British doctors who declared Pinochet unfit to be tried and allowed his return to Chile. This was a major blow to universal jurisdiction.

In Colombia, universal jurisdiction has begun its difficult journey with a complaint filed with the Argentine federal courts to investigate former President Álvaro Uribe Vélez for his alleged criminal responsibility in crimes against humanity committed between 2002 and 2008.

The complaint was filed in November 2023 by 11 relatives of victims of civilian murders to show them as combat casualties —false positives— and three human rights organizations. It was accepted on July 1, 2024 by the Federal Criminal and Correctional Court 2 of Buenos Aires in Argentina. The principle of universal jurisdiction assumes that each State has an interest in exercising jurisdiction to combat crimes that all nations have condemned. This has been adopted by the Argentine justice system.

Colombian society, which has had an armed conflict for more than 50 years, is fighting hard and with hope to achieve peace and put an end to impunity through criminal proceedings before the ordinary normal justice system. In addition, through restorative justice processes before the extraordinary justice system developed by the Special Jurisdiction for Peace (JEP)the Truth Commission (TC) and the Search Unit for Missing Persons.

However, impunity continues in many forms. Although many of the serious human rights violations, crimes against humanity and war crimes are being clarified by the JEP and the CV, other violations and crimes, initiated or promoted by the State, remain uninvestigated and unpunished. The Final Agreement with the FARC restricted the JEP’s field of criminal action to FARC members and State agents, and excluded non-combatant civilians. Thus, those non-combatant civilians who have not joined the JEP, allegedly involved in massacres and serious crimes – for more factual than normative reasons – will not be prosecuted or punished under national criminal law.

This shows us that in these cases, investigation and prosecution of some human rights crimes are impossible at the national level because the national justice system is inefficient for structural reasons. There are obstacles in the JEP to access those most responsible, as can be seen in Macrocase 03. The Accusations Commission of the House of Representatives is ineffective, we have always known this. It is therefore necessary to resort to foreign courts that can provide an alternative arena for the prosecution of those who have gone unpunished.

Here are some questions that will be posed with great vehemence against any form of trial of a former head of state. What right do foreign courts have to interfere in the delicate internal justice process of a sovereign and independent national state? What guarantees could exist for a Colombian national that the judicial authorities of another country are sufficiently impartial to conduct a fair trial? And can a former head of state invoke immunity as a prohibition on the exercise of universal jurisdiction?