Mher Arshakyan

1. Introduction

The basic norms, rules, and practices of contemporary international relations rest on state sovereignty and the formal equality of sovereign states. Human rights, which typically involve a state’s treatment of its own citizens in its own territory, were traditionally seen as simply a matter of domestic jurisdiction. Apparently human rights values may vary in different parts of the world due to each society’s specific tradition and culture. Nonetheless, there is little doubt that some human rights are recognized as mandatory for all countries, irrespective of treaty. The most obvious are the prohibitions against slavery, genocide, torture and other cruel and inhuman treatment, grave violations of which will definitely push aside the traditional notion of sovereignty. However, sovereignty often reasserts itself in terms of jurisdiction. Based on the doctrine of sovereignty, criminal jurisdiction is primarily associated with territoriality.

Beside the fact that states generally exercise jurisdiction when the crime occurs in their territory, there is also a legal basis for extraterritorial jurisdiction provided that there is a connection between the alleged crime and the forum state. The link can be based either on the passive personality principle (e.g. when the victim is of the nationality of the prosecuting state) or the active personality principle (e.g. when the defendant is of the nationality of a forum state). Thus, the first question that arises in regard to universal jurisdiction is whether the international community of states can prosecute and punish atrocities committed within the territory of a sovereign state, if territoriality is the primary basis for criminal jurisdiction and “such atrocities are frequently ordered by the people in control of national power who are immune, de facto and de jure , from criminal prosecution and punishment under their domestic legal system?” In this connection, can universal jurisdiction be an effective tool for fighting against the impunity of perpetrators of such serious crimes? If the answer is affirmative, then the next question is whether there is any legal basis to support this radical departure from the traditional principle of territorial criminal jurisdiction and what is the precise scope of its application?

The focus of this paper is to address the theoretical gaps and some practical problems in the effective exercise of universal jurisdiction during the last two decades.

2. Definition

Despite the recent and increasing use of universal jurisdiction to hold perpetrators of gross violations of human rights criminally accountable, the scope of application and even validity of universal jurisdiction remain topics of hot debate among scholars, NGO groups and politicians. The opponents of universal jurisdiction or supporters of its very limited application base their view, as one of their main reasons for rejecting the theory of universal jurisdiction, on the lack of any clear definition of universal jurisdiction. Thus, in order to avoid any misuse and misunderstanding, and to reach the goal of effective exercise of universal jurisdiction, there should be an attempt to define universal Jurisdiction in terms of crimes falling under its application. To have a comprehensive illustration of this concept, and as there is no universally accepted definition yet, it is best to begin with a review of the different sources which have, so far, attempted to define universal jurisdiction. Also, it should be noted from the beginning that while a universally accepted definition may be desirable, the lack thereof in no way hinders application of the concept; indeed, universal jurisdiction functions as a general principle of law, and as such it does not need precise definition. It can well play its role as guidance for domestic courts and national legislatures. Moreover, as international law in general and human rights in particular evolve, a crime that does not fall under universal jurisdiction at the moment, may fall under its application later. To support this argument it should be mentioned that even certain crimes recognized as part of jus cogens, such as torture, vary in definition not only from state to state but also from municipal law to international law.

According to Professor Randall, universal jurisdiction “provides every state with jurisdiction over a limited category of offences generally recognized as of universal concern, regardless of the situs of the offense and the nationalities of the offender and the offended.” Alternatively, the assembly of scholars and jurists representing different legal systems worldwide convened at Princeton University in January, 2001 defined universal jurisdiction as “criminal jurisdiction based solely on the nature of the crime, without regard to where the crime was committed, the nationality of the alleged or the convicted perpetrator, the nationality of the victim, or any other connection to the state exercising such jurisdiction.” Additionally, Human Rights Watch, citing from Luc Reydams has stated that “Universal Jurisdiction refers to the competence of a national court to try a person suspected of a serious international crime – such as genocide, war crimes, crimes against humanity or torture – even if the suspect nor the victim are nationals of the country where he court is located (“the forum state”), and the crime took place outside that country.” Similarly, the International Law Association in its final report on the Exercise of Universal Jurisdiction in Respect of Gross Human Rights offences (Kaminga Report) provides that “[u]nder the principle of universal jurisdiction a state is entitled or even required to bring proceedings in respect of certain serious crimes, irrespective of the location of the crime, and irrespective of the nationality of the perpetrator or the victim.”

The definitions stated above seem to suggest that there is consensus among the scholastic opinion as to overall depiction of universal jurisdiction, but that there exists a continuing debate over issues such as 1) whether the presence of the accused in the state exercising universality is required, 2) whether some “connecting link” with the sate seeking to utilize such jurisdiction is mandated, and 3) to which international crimes universal jurisdiction may be applied.

2.1

Referring to the first issue addressed above, it remains unclear whether or not the prosecution of the accused in absentia is allowed. The experience of international tribunals and domestic courts would be helpful to clarify this issue. The general rule is that in criminal proceedings the presence of the accused is mandatory. However, this is not absolute. The rationale for this rule is to secure the fair trial requirement stipulated to, not only in international instruments, but also probably in the criminal statutes of most every state. Particularly, Article 14 of International Covenant on Civil and political Rights , Article 6 of the European Convention on Human Rights and the relevant statutory articles of the International Criminal Tribunal for Yugoslavia (ICTY), the International Criminal Tribunal for Rwanda (ICTR) and the International Criminal Court (ICC), all encapsulate this norm.

Academic opinion is divided into two groups on whether the accused should be present in his/her trial in case of universal jurisdiction. The first group, namely, the comment to the early Harvard draft Convention on Jurisdiction with Respect to Crime (1935) and the Committee in the Kaminga Report, unequivocally conclude that the presence of the alleged perpetrator of the crime is required in order to allow a state to exercise universal jurisdiction over aliens. On the other hand, one Judge of the International Court of Justice, Christine Van den Wyngvert, reached the opposite conclusion as far as universal jurisdiction is concerned, stating that “there is no conventional or customary international law or legal doctrine in support of the proposition that (universal) jurisdiction for war crimes and crimes against humanity can only be exercised if the defendant is present on the territory of the prosecuting state.” Likewise, the Human Rights Watch work on “Universal Jurisdiction in Europe, the State of the Art” (hereinafter report) stipulate that “the principle of universality in international law does not require that states pursue investigations and prosecutions where a suspect is not within their territory and not susceptible to their law enforcement authorities; at the same time, neither does international law preclude a state from seeking the extradition of a non-national who is outside its territory, in order to try that person for international crimes.” Thus, while not specifically a question of jurisdiction it appears that the presence of the accused in his/her trial is required in order to secure fair trial guarantees. As a result, states are reluctant to exercise universal jurisdiction in absentia . But such a strict requirement may preclude the effective exercise of universal jurisdiction. In fact, French courts have showed willingness to exercise extraterritorial jurisdiction in absentia when the victim was a French national while they refused to exercise universal jurisdiction in absentia otherwise. There should be a fair balance and ” the meaning of this right is not be to interpreted too literally.” In Barayagwiza , the ICTR Chamber concluded that neither the refusal of the accused to attend his trial nor the absence of his council might preclude the proceedings against him provided that they were ” duly informed of his on-going trial.” Thus, whenever a state seeking to utilize universal jurisdiction duly informs the accused, or a state that is anticipated to provide ‘secure heaven’ to the perpetrator of the crime falling under the domain of universal jurisdiction, may warrant criminal proceedings without violating above-mentioned right to fair trial. Indeed, the court held in Barayagwiza “neither the ICTR Statute nor human rights law prevents the case against him from proceeding in his absence” provided that he is duly informed. The Princeton principles also suggest a solution to these conflicting approaches in the sense that even if the presence of the accused is required in principle 1(2) ” the language of the pertinent principle does not prevent a state from initiating the criminal process, conducting an investigation, issuing an indictment, or requesting extradition, when the accused is not present.” Additionally, Human rights Watch report suggests that “likely presence” or “anticipated presence” as incorporated in the German Criminal Procedure Code could provide a means to overcome difficulties concerning suspect’s presence. This is important particularly a in case when the suspect might be located in the territory of a state seeking to exercise universal jurisdiction but a lack of evidence that the suspect is actually in the state would preclude the initiation of the proceedings as may be required by the national law. In this context, “anticipated presence” may well provide guidance for such a situation.

2.2 Definition: connecting link required or not?

Another issue that attracts attention is whether some “connecting link” between the alleged perpetrator and the state seeking to utilize such jurisdiction is required. Such a link is used to justify the territorial principle of criminal jurisdiction: a state seeking to prosecute the accused can do so only if there is a connection to the state. The link can be found either in the form of passive or active personality principle. The former implies that the victim of the alleged crime be of the nationality of the state wishing to exercise jurisdiction while the latter connotes that perpetrator of the crime should be a national of the prosecuting state. Thus, such a link is required for the exercise of jurisdiction based on the territorial principle. Another version of jurisdiction is based on the protective principle, meaning jurisdiction for acts committed abroad that could affect the security of the state. Once again, a state-perpetrator nexus is alleged. But, universal jurisdiction, as the term itself suggests, is rather different from these three types of jurisdiction.

Scholarly opinion on this issue is not unanimous. Diane Orentlicher, in her paper “Universal Jurisdiction After Pinochet: Prospects and Perils” sharing the hesitation of Australian High Court Justice Michael Kirby asks the question “Why my court? Why not theirs?” The point raised here is why should a judge of a country rather than the country where the crime occurred adjudicate the alleged perpetrator given there is no any link to the judge’s country. The author of this statement supports her argument saying “crime is by its definition an offense against the society in which it occurs.” Does it follow necessarily from this statement that if the crime occurred in a society other than this judge’s country it is acceptable, even if the crime can be of such nature as crimes against humanity, genocide or war crimes? Should a judge, a person by their very position designed to serve for the sake of justice make such pronouncement? Lastly, are not these statements dangerous as at minimum they allow for a secure heaven for existing perpetrators and potential perpetrators of crimes of such gravity, resulting in impunity? For these reasons, “Why my court? Why not theirs?” is neither valid nor ethical argumentation.

Thus, initially it should be noted that exercising extraterritorial jurisdiction based on passive and active personality principles must not be confused with universal jurisdiction. By its very nature the universal jurisdiction is different from criminal territorial jurisdiction; and as such it does not require any link to justify the exercise of this jurisdiction. The Princeton Principles on universal jurisdiction, being “a progressive restatement of international law on the subject of universal jurisdiction,” in the subsection 3 of principle 1 stipulates that a state may seek the extradition of the accused of the crime under international law without further requirement of any connection to the state. This subsection, supported by the general principle of law aut dedere aut judicare, which will be discussed later in this paper, supports the proposition that link for the exercise of universal jurisdiction is not required.

2.3 Definition: to what crimes universal jurisdiction may apply?

It is also worthwhile to ask in the context of definition to what crimes may universal jurisdiction apply. Again there is no universal agreement among scholars regarding the crimes that universal jurisdiction might cover. The Kaminga Report has cited specifically these crimes –genocide, war crimes, crimes against humanity and torture– to fall under the application of universal jurisdiction, while the Princeton Principles added also piracy, slavery and crimes against peace. Additionally, the commentary on Princeton Principles provided that a crime against peace was included despite lack of consensus on this issue. Although aggression was considered as one of the most serious crimes under international law the opponents argued that it was practically impossible to define this crime. The Commentary also stated that the list defined by the Princeton Principles is not limited to the crimes mentioned above but might be supplemented by crimes such as Apartheid, terrorism, and drug crimes in the future because of the evolving nature of international law. The principle 2(1) is not restrictive on this issue and allows its further extension. However, this is a topic of ongoing debate and as stated by Becker ” Yet, would any reasonable jurist propose to open up Pandora’s box by allowing states to exercise universal jurisdiction for terrorism, which remains, and for political reasons will most likely in the future remain, undefined?” Thus, even if there is no universal acknowledgment as to which crimes should be covered by universal jurisdiction, the consensus over the following crimes is obviously beyond any doubt:war crimes, crimes against humanity, genocide and torture. This is also supported by the fact that these crimes are now included in the ICC statute.

3. The Rationale for Universal Jurisdiction

Historically the rationale for universal jurisdiction was to prosecute pirates who were acting in high seas ( tera nullus )-out of reach of any national jurisdiction. In order to better understand the policy of universal jurisdiction there is a need to briefly discuss the implications of state sovereignty. As traditionally conceived, sovereignty means an exclusive authority of each state over its territory, and the legal equality of states as to each other in terms of rights and obligations. Consequently, states were perceived to be subject to the law created by their free will, such as treaties, custom and general principles of law. Based specifically on these notions of sovereignty the permanent court of international justice (PCIJ) in the landmark Lotus Case stipulated that a state “may not exercise its power in any form in the territory of another state. In this sense, jurisdiction is certainly territorial; it cannot be exercised by a state outside its territory except by virtue of a permissive rule derived from international custom or from convention. It does not, however, follow that international law prohibits a State from exercising jurisdiction in its own territory, in respect of any case which relates to acts which have taken place abroad, and in which it cannot rely on some permissive rule of international law.” In 1996, the ICJ reaffirmed its position as already stipulated in Lotus and Nuremberg cases that states are bound by international law in so far as they consented to it, be it through treaty or custom. Thus, as far as criminal jurisdiction is concerned territoriality is the main basis for its exercise as a matter of sovereignty . In this context, the question that arises is how then the perpetrators of serious crimes shall be punished taking into account that these atrocities are frequently committed by high-ranking officials within their sovereign states who are de jure and de facto immune from prosecution? Given the strength of the notion of sovereignty with all its implications – “consent” in particular – is there a rational or any principle of general international law that could make exception to traditional territorial criminal jurisdiction to justify the exercise of universal jurisdiction?

3.1 Actio popularis and erga omnes : justification for the exercise of universal jurisdiction

According to Professor Bassiouni the exercise of universal jurisdiction is justified by the Roman concept actio poularis , which means the states have a legitimate interest to protect “world order” and thereby they are acting on behalf of the international community to prosecute persons “who are hostis humani generis .” In support of this argument Bassiouni goes on to elaborate that certain international crimes that reach the level of jus cogens place a duty upon states to prosecute the perpetrators of these crimes that is an obligation erga omnes. However, Rubin rejects both actio popularis and erga omnes as justification for the exercise of universal jurisdiction. He argues that neither treaty nor customary law supports the exercise of universal jurisdiction based on the doctrine of erga omnes. In his opinion, the only justification “for universal jurisdiction-to-adjudicate seems to come from publicists, not even courts.” This argumentation is flawed, however, because it ignores treaty sources: there are clear established norms both in the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment and the four Geneva Conventions obliging State Parties to prosecute persons who are alleged to be the perpetrators of these serious crimes. Also, the ICJ defined erga omnes in the Barcelona traction case distinguishing between the “obligation of a state towards the international community as a whole, and those arising vis-à-vis another state.” The court held the states will have “legal interest” in the protection of certain rights, which are “the concern of all states.” The court also brought some examples of obligation erga omnes as being part of jus cogens, even if not expressly mentioned, the existence of which were implied: “Such obligations derive, for example, in contemporary international law, from the outlawing of the acts of aggression, and of genocide, as also from the principles and rules concerning the basic rights of human persons, including protection from slavery and racial discrimination.” As regards customary law there is a bulk of case law of criminal international tribunals prosecuting crimes such as crimes against humanity and genocide based specifically on customary international law. Thus, both treaty and customary law and court pronouncements support the argument that offenders of such crimes as genocide, crimes against humanity, war crimes and torture, which are considered as part of jus cogens , should be punished regardless of where and by whom these crimes were committed. Indeed the exercise of the duty erga omnes to bring to justice in an international forum the offending state based on the theory of actio popularis shall be impeded if the latter did not consent or signed the ICJ Statute. “Only those states honestly conceived that their conduct does not fall foul of international law would be willing to subject themselves to action of this kind before the ICJ.” Therefore, even if the state has international legal standing, the lack of consent of the offending state will most likely prevent the punishment of violations of such crimes. Thus, as it is seen above, even if the legal principles exist to support the view that gross violations of human rights must not go unpunished there are real obstacles for its accomplishment in an international forum such as ICJ. Therefore, the domestic courts acting as an agent of international community should help to accomplish the goal of ending impunity through the exercise of universal jurisdiction. Indeed state practice shows that national courts are able to provide “fair” and “speedy trial.” Although one could argue that it is international criminal tribunals and the ICC that should pursue this goal and not domestic courts, however, international tribunals will not be able in fact to prosecute all the perpetrators of crimes of such gravity because of their scarce resources. Moreover, Becker opines that ‘historic rationale’ of universal jurisdiction is to exercise it when the crime is perpetrated “outside the territorial reach of any nation.” Also in his paper he erroneously concluded that genocide and crimes against humanity are not ‘heinous’ enough to “justify the exercise of universality.” The author’s opinion about heinous crimes is left without any comment. Furthermore, his argument on historical rationale is also defective since international law evolves and the ‘historical rational’ once valid might well not serve its purpose in contemporary world. The policy and rational for it is more than obvious-not to let the perpetrators of such serious crimes escape liability and to counter impunity. However, there could also be debate as to what are the criteria to define jus cogens crimes or what category of acts could place upon states the duty to qualify as obligatio erga omnes . It is not the target of this paper to dwell at length on these issues; that is a topic for further discussion. Nonetheless, the judgments of international tribunals and state practice might well provide answers to these questions.

Concluding, it should be noted that universal jurisdiction is a mechanism for implementing the maxim aut dedere out judicare . This theory (embodied in a number of international instruments) is deemed to also be a general principle of law. Thus, this principle of international law justifies the exercise of universal jurisdiction as a genuine tool to achieve these goals as well while placing a duty on states either to prosecute or extradite.

4. Legal basis for universal jurisdiction

So far in this paper only theoretical aspects have been considered. But it is also worthwhile to consider some practical issues concerning universal jurisdiction, namely whether a judge of a certain country would be able to initiate criminal proceedings specifically based on universal jurisdiction. The practice of states varies in part due to the specific nature of their legal systems. For the sake of this argument there is a need to distinguish international law obligations stemming from general principles of law as discussed above as well as treaty and customary international law from domestic law.

4.1 Legal basis in international law

As far as international law is concerned, the primary legal basis for the exercise of universal jurisdiction is treaties and rules of customary international law. The treaties, such as the four Geneva conventions and the convention against torture, provide such legal basis by placing upon each state a duty either to prosecute or extradite those who are alleged to have committed serious crimes within the meaning of these conventions despite a lack of any nexus to the forum. Thus, war crimes and torture (already stated to be part of jus cogens ) should be prosecuted by states as a treaty obligation as a matter of international law. So, how can the crimes of genocide and crimes against humanity be prosecuted as a matter of universal jurisdiction? Unlike war crimes and torture, there is no treaty obligation to exercise universal jurisdiction for genocide and crimes against humanity. The genocide convention stipulates that member states to this convention should prosecute those suspected of committing genocide within their territory or should submit them to international tribunals. However, the language of the convention does not exclude the possibility of prosecuting persons alleged to have committed genocide outside their territory. Amnesty International in its paper “Universal Jurisdiction – the duty of states to enact and enforce legislation” stated that “indeed, the logic of the obligations imposed on states parties by the Convention as a whole may well require that they exercise such jurisdiction when territorial states fail to fulfill their responsibilities under the Convention to bring those responsible for this crime to justice.”

However, customary international law can well serve as a legal basis for the exercise of universal jurisdiction. This argument is supported by the fact that all international criminal tribunals to date ( Nuremberg to ICTY and ICTR comprehensive) in their statutes criminalize genocide and crimes against humanity. Furthermore, these crimes are also contained in the ICC statute. It should also be mentioned that the most legal norms incorporated in the Convention against torture and Geneva Convention are declaratory of customary international law and states which are not parties to these conventions are bound by these norms as well.

4.2 Domestic law

The principal question is whether domestic courts will be able to effectively exercise universal jurisdiction in the absence of implementing legislation given the difference of legal systems in terms of monist and dualist systems. While monist systems do not require any implementing legislation, dualist systems do in order to put their international obligations-either based on treaty or customary law-into operation. For monist systems, a ratified treaty automatically becomes a law within that legal system; however this it is not the case in the countries operating under a dualist system. The latter needs implementing legislation in order for treaty obligations to be incorporated into the domestic law. Thus, if the situation is clear for dualist system countries it needs some clarification whether or not countries of monist system need such implementing legislation to give effect to their international obligations. There are two reasons why implementing legislation should still be enacted in a monist system. First, the implementing legislation would define the crime with a clear set of penalties in accordance with procedure to be followed by domestic law. Indeed, this will ease the job of domestic courts in a practical sense providing apparent legal basis for the exercise of universal jurisdiction. Second, enacting legislation would also defeat any defenses based on a violation of principle of legality.

Another aspect of implementing legislation is that even if the legal basis for the exercise of universal jurisdiction for the crimes of genocide and crimes against humanity can be based on customary law, as opposed to war crimes and torture, for which there is clear treaty based obligation to exercise universal jurisdiction, state courts are usually reluctant to resort to customary law. However, the lack of implementing legislation is not the only impediment to the exercise of universal jurisdiction. Even if there is a clear legal basis for jurisdiction based on universality, it will still not be exercised in the absence of willingness and capacity on the part of states in charge of prosecuting the crimes of such gravity committed abroad. Thus, for the effective exercise of universal jurisdiction the states need not only implementing legislation providing clear legal basis in terms of definition, penalties to be imposed on the convictions and procedure but also willingness to exercise such extraterritorial jurisdiction beyond political motivations.

Conclusion

Thus, the theoretical problems as discussed in this paper are not as acute as practical ones for the exercise of universal jurisdiction. Although there is no universally recognized definition for universal jurisdiction, this alone cannot hinder its effective exercise. The principles on universal jurisdiction embodied in the Princeton Principles can serve as guidance for national legislatures to enact laws, and domestic courts to write decisions, in line with those principles. Additionally, such an approach seems to be more flexible, allowing states some discretion to achieve the ultimate objective, that is, to put an end to impunity through universal jurisdiction by whatever legal technique that is dear to their legal system. It is beyond any doubt that crimes of genocide, crimes against humanity, war crimes and torture are now recognized as jus cogens crimes; and as such the perpetrators of these crimes should not go unpunished. This list is not limited to the above-mentioned crimes but is amenable to further extension as international law is not static but evolving. To hold perpetrators of such serious crimes accountable before domestic courts is justified by general international law principles such as obligatio erga omnes and aut dedere out judicare. States acting on behalf of international community have a duty either to prosecute or extradite those accused of serious international crimes. Indeed, there are a few international instruments giving effect to these international obligations. In addition, customary international law provides legal basis for the prosecution of crimes against humanity and genocide for which there is no treaty obligation based on the doctrine of universality. However, these convention and customary law norms alone are not sufficient for the effective exercise of universal jurisdiction. The domestic courts will need sufficient legal basis to prosecute aliens for acts committed abroad. This can be achieved through implementing legislation that provides a clear legal basis in terms of the definition of the crime with penalties to be imposed and procedure. Equally, the willingness on the parts of states is a precondition for initiation of criminal proceedings against those suspected to commit gross human rights violations without regard to evidence that the accused is without doubt situated in the state seeking to prosecute the offender.

Appendix 1

Note on Universal Jurisdiction and the Republic of Armenia (RA)

Armenia is a monist system country, and as such it may exercise universal jurisdiction based directly on four Geneva conventions and two additional protocols and the convention against torture. According to the Constitution and the Law On Legal Acts whenever Armenia ratifies a treaty its provisions are directly applicable and if there is a contradiction between local law and treaty provisions, treaty shall prevail. Nevertheless, article 15(3)(1) of the Criminal Code of Armenia provides a legal basis for the courts to exercise jurisdiction over foreign citizens for crimes provided in the treaties which are ratified by Armenia . However, the question is whether or not Armenian courts may exercise universal jurisdiction for the crime of genocide and crimes against humanity if there is no such treaty obligation. The Genocide Convention requires that persons who are suspected of committing genocide be tried in the territories where the act was committed or be submitted to an international tribunal. Although the Criminal Code of Armenia criminalizes genocide and crimes against human security it is not clear whether those suspected of committing these crimes outside the territory of Armenia could be prosecuted by Armenian courts. While the crime of genocide and crimes against humanity can be prosecuted by an Armenian court based on customary international law it is doubtful that Armenian courts would rely on customary law as a legal basis: most Armenian judges lack significant practice and experience in applying customary law and this may impede the exercise of universal jurisdiction for the crime of genocide and crime against humanity in Armenia. However, article 15(3)(2) of the Criminal Code also provides jurisdiction over foreign citizens for ” such grave and particularly grave crimes which are directed against the interests of the Republic of Armenia or the rights and freedoms of the RA citizens.” Whether the crime of genocide committed abroad will be considered as “directed against the interests of Armenia “, considering that Armenians suffered the first genocide of the 20 th century, is to be decided by case law in the future.

Mher Arshakyan currently serves as a Teaching Assistant at the Law Department of the American University of Armenia (AUA). He holds a Masters in Comparative Legal Studies Degree from AUA and an undergraduate degree in History from Yerevan State University .

For example, consider the events of Andijan , Uzbekistan . See generally, ” Germany : Prosecutor Denies Uzbek Victims Justice” Human Rights News , Human Rights Watch, April 6, 2006. http://hrw.org/english/docs/2006/04/06/german13124.htm

KRIANGAAK KITTICHAISAREE, INTERNATIONAL CRIMINAL LA W (2001)[hereinafter Criminal Law]

Steven W. Becker, Universal Jurisdiction: How universal is it? A Study of Competing Theories , 12 Palestine Yearbook of International law, 49 (2003)[hereinafter Becker]

Prinseton Project, commentary

ASL The American Journal of Comparative Law, Developments in Private International Law, Volume 53, Fall 2005, pp. 743-58

Backer, supra note 4.

The Princeton Principles on Universal jurisdiction, Principle 1(1), [hereinafter Princeton Project] also available at internet (visited November 6, 2006) < http://www.princeton.edu/~lapa/unive_jur.pdf > .

Human Rights Watch, Universal Jurisdiction in Europe The State of the Art, 18, 5(D), (2006), at 1,[hereinafter Watch], also available at internet (visited November 6, 2006), < http://hrw.org/reports/2006/ij0606/ >

Becker, supra note 4, (page 3 of the article), n6

International Covenant on Civil and Political Rights, March 23, 1976 , art 14

European Convention on Human Rights, 1950, Art 6(3),(c),( to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require)

Statute Of The International Tribunal for The Former Yugoslavia, Art 21(4)(d) (” In the determination of any charge against the accused pursuant to the present Statute, the accused shall be entitled to the following minimum guarantees, in full equality: (d) to be tried in his presence, and to defend himself in person or through legal assistance of his own choosing; to be informed, if he does not have legal assistance, of this right; and to have legal assistance assigned to him, in any case where the interests of justice so require, and without payment by him in any such case if he does not have

sufficient means to pay for it” )

Statute of the International Tribunal for Rwanda, Art 20(4)(d), (“In determination of any charge against the accused pursuant to the present Statute, the accused shall be entitled to the following minimum guarantees, in full equality: To be tried in his or her presence, and to defend himself or herself in person or through legal assistance of his or her own choosing; to be informed, if he or she does not have legal assistance, of this right; and to have legal assistance assigned to him or her, in any case where the interest of justice so require, and without payment by him or her in any such case if he or she does not have sufficient means to pay for it”)

Rome Statute of the International Criminal Court , Art 63 (” 1. The accused shall be present during the trial.”)

Becker, supra note 4, (page 3 of the article), n7

Becker, supra note 4, (page 4 of the article), n8

Becker, supra note 4, (page 4 of the article), n12

Watch, supra note 10, at29

Redress, Universal Jurisdiction in Europe , (1999), at 11, [hereinafter Redress], also available at internet (visited November 6, 2006), < http://www.redress.org/documents/unijeur.html >

Redress, supra note 21, at 11

Redress, supra note 21, at 11,

Criminal Law, supra note, at 291

Prosecutor v. Kanyabashi, Case N ICTR -96. 15

Id.

Princeton Project, supra note 9, principle 1(2) (” Universal jurisdiction may be exercised by a competent and ordinary judicial body of any state in order to try a person duly accused of committing serious crimes under international law as specified in Principle 2(1), provided the person is present before such judicial body. “)

Becker, supra note 4, (page 5 of the article), n14

Convention against Torture and Other Cruel, Inhuman or Degrading Treatment, Dec. 10, 1984 [hereinafter Torture Convention]

Four Geneva Conventions provide protection to (The First Convention )- wounded and sick members of the armed forces in the field; (The Second Convention) – wounded, sick, and shipwrecked members of the armed forces at sea as well as shipwreck victims; (The Third Convention )- prisoners of the war; (The Fourth Convention )- civilians in times of war.

Barcelona Traction, supra note, at 32

Id

Id

see CTTR and ICTY judgments

Criminal law, supra note 3

Criminal law, supra note 3

Watch, supra note10, at 3, “Council Decision 2003/335/JHA of 8 May 2003, Official Journal L 118, 14/052003 P.0012-0014, [online]http://europa.eu.int/eur-lex/pri/en/oj/dat/2003/l_118/l_11820030514en00120014.pdf, preambular paras. 1, 6.”

Redress, supra note 21, at 12

Becker, supra note 4, at 14

Should only jus cogens crimes be characterized as obligatio erga omnes or there are crimes other than jus cogens to be prosecuted as an obligation erga omnes?

Encyclopedia of Public International Law, volume three, (1997), at 66, “national courts have also recognized the existence of rules of jus cogens in public international law. In a decision of 1965 the German federal Constitutional Court expressly referred to those rules which are essential for the existence of international law and are deeply entrenched in the opinio juris of states.; see also Prosecutor v. Anto Furundija, Case No.: IT-95-17/1-T, pp60-61, para151-156

aut dedere out judicare ( The Obligation to extradite or prosecute)

Four Geneva Conventions provide protection to (The First Convention )- wounded and sick members of the armed forces in the field; (The Second Convention) – wounded, sick, and shipwrecked members of the armed forces at sea as well as shipwreck victims; (The Third Convention )- prisoners of the war; (The Fourth Convention )- civilians in times of war.(I- Art 49; II-Art 50; III-Art 129; IV- Art 146)

Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, art 5 and 7

Watch, supra note 10, at 2

Art 26 of Vienna Convention On The Law Of Treaty, January 27, 1980, art 26, (every treaty in force is binding upon the parties to it and must be performed by them in good faith.)

Convention on the Prevention and Punishment of the Crime of Genocide, December 9, 1948, Art. 6 ( Persons charged with genocide or any of the other acts enumerated in Article 3 shall be tried by a competent tribunal of the State in the territory of which the act was committed, or by such international penal tribunal as may have jurisdiction with respect to those Contracting Parties which shall have accepted its jurisdiction.),

Redress, supra note 21, at8

Amnesty international legal basis for genocide

supra

Redress, supra note 21, at 5;

ALFRED ZAAS,THE GENOCIDE AGAINST THE ARMENIANS 1915_1923 AND THE RELEVANCE OF THE 1948 GENOCIDE CONVENTION (2005), at 21, (the genocide convention is declaratory of pre-existing international law)

of customary law

ICC Statute Art 6, Art 7

Redress, Supra note 21, at4, n7

Redress, Supra note 21, at 6

Redress, Supra note 21, at 10

Prosecutor v.Tadic, ICTY, No.: IT-94-1-A and IT-94-1-A bis ( Jurisdiction Appeal)

Redress, Supra note 21, at 10, (“Courts will not normally rely on customary international law alone to found jurisdiction. For instance the courts, in the case of N were not willing to base charges of genocide and crimes against humanity on customary international law alone.”) In rare cases ( Belgium )

Redress, supra note 21, at 12; Bassiouni

Watch, Supra note 10, at 9

Armenia has ratified all four Geneva Conventions and the Convention Against Torture.

Article 6 of the RA Constitution states: “International treaties shall come into force only after being ratified or approved. International treaties are a constituent part of the legal system of the Republic of Armenia . If a ratified international treaty stipulates norms other than those stipulated in the laws, the norms of the treaty shall prevail. International treaties not complying with the Constitution can not be ratified.”

Article 21(2) of the Law On Legal Acts states: “The principles and norms of international law that have obtained universal recognition, as well as the international treaties of the Republic of Armenia , are the constituent part of the legal system of the Republic of Armenia .” Article 24(2) states: “In case there are contradictions between legal acts, the legal acts with higher juridical force stipulated by the Constitution of the Republic of Armenia and this law are effective, except for the cases prescribed by Part 7 of this Article.”

Criminal Code of Armenia , Article 15(3)