Universal Jurisdiction and the Potential of Radical Law in Ireland

On 13 September 2016, a criminal complaint was submitted to Dublin’s District Court by  a Bahraini-born British citizen. It was timed to coincide with a conference of international prosecutors taking place at the Convention Centre in Dublin, and the arrival of the Bahraini Attorney General, Ali Bin Fadhul Al-Buainain, in the country.

The complaint accused Al-Buainain of aiding and abetting torture in Bahrain. In particular, it accused him of being ultimately responsible for the torture of Jaafar Al-Hasabi, a political activist, following his arrest at Bahrain International Airport in 2010.

Al-Hasabi, whose arrest came amidst a crackdown on pro-democracy activists in the country prior to the popular uprisings of early-2011, was held in detention for six months, with his time in prison extended by Al-Buainain, in his role as Attorney General, twice. While detained, he was beaten, blindfolded, threatened, subjected to electric shocks, deprived of sleep and held in stress positions. He was released without charge in 2011.

In Ireland, he was hoping to rely on a rarely used principle of international law to see justice done.

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Jaafar Al-Hasabi at the Criminal Courts in Dublin (Credit: Global Legal Action Network)

Universal jurisdiction is a potentially radical legal weapon. At its best, it can allow victims of some of the worst crimes, abuses and attacks on human dignity to initiate ‘bottom-up’ judicial investigations into crimes perpetrated against them. It allows them to do this outside of the country in which the crimes took place.

Its roots can be traced back to Ancient Rome and the idea that laws might exist which are common to all mankind, as well as the Enlightenment conception of right and wrong as universally definable. A key part of the idea today is the thought that crimes which violate human dignity affect the entire world, and that we are all responsible for stopping them.

Through gathering testimonies, documenting and protecting evidence, compiling criminal complaints and submitting them to national prosecutors, victims and survivors of systematically orchestrated crimes including genocide, killings, kidnappings, torture, enforced disappearance, rape, sexually slavery, and racial and cultural violence can use universal jurisdiction as a legal pressure point in the battle to crack the stare of impunity often faced when those who commit these crimes hold power in victims’ home countries.

It also encompasses the opportunity for groups of victims, either independently or with the help of ordinary individuals, non-governmental organisations and human rights lawyers, to petition courts to shut down ‘safe-havens’ for political dictators, repressive military leaders and war lords fleeing justice.

It allowed British police to detain the Chilean dictator Augusto Pinochet on the basis of an arrest warrant issued in Spain for crimes committed in Chile, and for a Spanish court to prosecute the former Argentinian naval officer Adolfo Scilingo for his role in mass killings and arbitrary detentions during the “dirty war” conducted by the Argentinian military regime in the 1970s. It opened the door for survivors of the brutal regime of the Chadian dictator Hissène Habré to pursue him in courts in Senegal and Belgium before eventually bringing him to trial in Chad, and enabled the nazi war-criminal Albert Eichmann to be tried in Israel for crimes committed before it had come into existence as a state. It has even markedly reduced the size of George W. Bush’s world.

And it was recently debated in the Dáil, as the Universal Jurisdiction of Human Rights Bill, introduced by Mick Wallace in April 2015.

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Protestors in London in 1998 demand Pinochet be brought to trial (Credit: Nuremburg Human Rights Centre)

At least 147 countries can exercise some form of universal jurisdiction. As things stand, Irish courts can do so in two limited situations.

An outline for the first was drawn in September 1992, when Ireland signed up to the United Nations Convention Against Torture. The Convention places an obligation on the State to detain suspected perpetrators of torture when they come into the country and to extradite them for prosecution or prosecute them in Ireland. They must do so regardless of where the crimes are suspected to have been committed, and irrespective of the nationality of the accused or whether an Irish citizen was affected by the crimes. The obligation also extends to those who have aided or abetted torture. The Convention was incorporated into Irish law in 2010 through the Criminal Justice (United Nations Convention Against Torture) Act, with sections 2 and 3 explicitly providing for universal jurisdiction.

The second situation came about on 1 June 2002, with the coming into force of the Rome Statute and the creation of the International Criminal Court (ICC). The ICC was given the power to prosecute genocide, war crimes and crimes against humanity committed in any country that signed up to the Rome Statute. The affects of its formation were made tangible in Ireland in 2006, through the International Criminal Court Act. This granted Irish courts jurisdiction to prosecute some of the offenses falling under the mandate of the Court, namely war crimes as prescribed for in the Geneva Conventions, even if they are committed outside of Ireland and have no direct connection with an Irish person.

In spite of this, the potential of universal jurisdiction has not been realised in Ireland.

The Dublin District Court rejected Al-Hasabi’s criminal complaint, side-stepping its obligations under the UN Convention Against Torture by citing a lack of evidence to connect Al-Buainain to the crimes. And, on 30 March 2017, Wallace’s Bill was defeated, with Fine Gael and Fianna Fáil voting against it being given a second reading.

When the Bill was debated in the Dáil on 9 March 2017, Wallace argued that its enactment would send a clear message as to Ireland’s stance on impunity and justice in the midst of an increasingly repressive geo-political environment characterised by a growing prevalence of war, the entrenchment of dictatorial regimes and growing inequality.

He claimed it would be a step away from the State’s hitherto underlying principle when defending human rights, as demonstrated by the State’s close and strengthening ties with serial human-rights violators such as Saudi Arabia and the UAE, chiefly that “murder, death and destruction are of no consequences when weighed against economic imperatives.”

He was supported by David Cullinane of Sinn Féin and the Independent TD Clare Daly in arguing for the necessity of specific legislation on universal jurisdiction to better define the conditions under which it might allow criminal proceedings to be opened in Ireland, and the grounds on which the refusal to open them might be justified, with Daly stating: “If there is a weakness in universal jurisdiction legislation, it is that political considerations can, and often do, override the universal and fundamental principles and the aims it attempts to uphold. That is why the Bill is being moved.

The Bill would have expand the wording of section 7 of the International Criminal Court Act from: “Any person who commits genocide, a crime against humanity or a war crime is guilty of an offence” to: “Any person, whatever their nationality and wherever in the world, who commits a crime against humanity, a war crime or genocide, is guilty of an offence.” This would have given Irish courts the power to prosecute irrespective of the perpetrator’s home country having signed and ratified the Rome Statute or not. In doing so, it would escape one of the Court’s greatest flaws. To date, 124 states have signed up to the Rome Statute, but, in terms of human rights violations, some important ones have not, including China, Russia, the United States, India, Israel, Turkey, Saudi Arabia and the majority of the Central-Asian bloc, all of who stand outside its jurisdiction as a result.

The Bill would also have granted Irish courts jurisdiction over crimes against humanity and genocide, which section 12 of the International Criminal Court Act currently keeps out of their reach.

The Minister for Justice, Frances Fitzgerald, was absent for the debate, so the Minister at the Department of Agriculture, Food and the Marine, Andrew Doyle, spoke on behalf of the Government, opposing the Bill.

He explained its refusal to support with reference to the opinion of the Attorney General that it would be “constitutionally unsafe” to go ahead with it in its current form without a “widespread and thorough review of international law”, on the basis of Article 29 of the Constitution, which holds that Ireland must follow “generally recognised principles of international law” in its conduct with other States.

Doyle went on to state the view of the Department of Foreign Affairs and Trade that “it would be problematic to take universal jurisdiction in this way as it would not be consistent with the approach generally taken by other states…”

The conservative approach adopted by the Government is the kind often seen when it comes to universal jurisdiction.

The tool is deemed politically sensitive, potentially de-stabilising, and diplomatically dangerous, with political leaders, usually covered by immunity whilst in office, fearing they will be met with reprisals for their acts come the end of their term.

As a result, where specific national legislation providing for universal jurisdiction is put in place, it commonly frames it in the narrowest terms possible, packing itself with obstacles for victims and survivors, as potential litigators, to overcome.

This is now the case in Belgium, which had taken a lead role in the development of universal jurisdiction following the enactment of a broad national law in 1993, but which repealed it in 2003 under pressure from the US and others, and replaced it with a much weaker one.

However, this is not the only trend. Several countries have taken a different approach to universal jurisdiction, most prominently France, Luxembourg, the Scandinavian countries, Argentina, Senegal and Germany, where the capacity for universal jurisdiction investigations was increased in 2009, and a case has recently been submitted against high-ranking members of the Assad-regime by Syrian victims of war crimes and crimes against humanity.

In arguing that the Bill should not be moved forward because doing so would have necessitated an analysis of a complex part of international law, and thus implying that it did not merit the time or resources the analysis would require, the Government showed its true colours when it comes to human rights and impunity. An analysis of the state of the relevant international law was actually carried out by Amnesty International in a submission made to the Government during the preparation of the International Criminal Court Act, in 2003. They found there to be strong arguments not only that universal jurisdiction for genocide and crimes against humanity is part of international customary law, but that a duty is owed by States to the international community to ensure that these crimes do not go unpunished. Since then, the application and scope of universal jurisdiction has only increased.

At the 66th Session of the UN General Assembly, before a Committee established to examine the use of universal jurisdiction, Nuala Ní Mhuircheartaigh, of the Department of Foreign Affairs and Trade, stated, “The technical aspects of our work should not obscure in our minds the reality that universal jurisdiction may often be the last defence against impunity.” These “technical aspects” have now been used by the Government as a shield to stop clear path for universal jurisdiction’s application in Ireland being put in place.

The Universal Jurisdiction Bill may have been halted by the Government, however it should get us thinking about ways in which we can turn existing instruments, such as international law and the national courts, into weapons to circumvent the intransigent conservative ideology of Irish politics, and (re)empower the locally and globally disenfranchised.