Abstract
The primary goal of this article is to analyze Belgium’s universal jurisdiction law concerning humanitarian law violations and its relationship to global governance norms. When discussing the notion of universal jurisdiction, there are relatively few empirical situations that scholars can draw on to illuminate the debate. In general, there is a very theoretical orientation to the universal human rights debate. Belgium’s 1993 universal jurisdiction law (expanded in 1999) brings a greater degree of empirical clarity to this debate. This law allowed Belgium to hear cases concerning violations of humanitarian law, including genocide and other crimes against humanity, which happened anywhere, without any connection to Belgium. In essence, this was an attempt at the protection of human rights on a universal basis and may be the way forward in the prevention of mass atrocities.
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Notes
One need only look at the references for the universal jurisdiction section of this article to recognize that the bulk of analysis concerning this concept is located in the law journals not the IR or human rights journals.
The majority of global governance literature emphasizes non-state and/or transnational actors. If the state is discussed, it is typically as a subservient actor whose behavior is directed by these actors.
This is not to say that certain human rights NGOs and individual actors did not influence the decision. In fact, it was the influential actions of NGOs in 1995 that moved the state of Belgium to begin proceedings. However, the final act of justice was undertaken by the Belgian state. The claim of this article is that one cannot think about the state and non-state actors as competitive and/or divisive, but in cases like this one, we might need to view them as collaborative.
These definitions are only a small example of the numerous definitions that have been posed over the past decade. The importance of these examples is the lack of cohesion surrounding a definition of this concept.
The reference of regimes as “sources of governance” can be considered synonymous with the idea of “means of governance” (Young 1997, 275–280).
The classic definition of regimes is as follows: explicit or implicit norms, rules, and decision-making procedures around which international actors’ interests converge within a given issue-area (Krasner 1983). According to this definition, institutionalization is not a required attribute of a regime. A regime can simply exist around a socially accepted norm that is adhered to by the community of actors. This broad understanding of regimes enables it to be a key aspect of the means of governance.
The phrase “historical moment” is not meant to evoke images of a brief and fleeting historical period. In fact, a historical moment can be as long or as short as the governance pattern allows. But the important aspect of this phrase is that it remains defined by the dominant governance pattern.
A pattern of global governance refers to an intersubjectively accepted set of norms or rules that dominate a particular historical moment. As discussed below, an example of this pattern is the state sovereignty rule that was a primary characteristic of the Cold War global governance pattern. It is important that global governance is understood as evolutionary. Therefore, global governance is not a new phenomenon but an understanding of authority that accepts change throughout the history of world politics.
My use of the term cooperation does not connote an absence of conflict. It is cooperative in the sense that both state and non-state actors are working in coordination to manage the conflict that does exist.
Some scholars make the distinction between pure universal jurisdiction, which entails proceedings that rely solely on universal jurisdiction for their legitimacy, and universal jurisdiction plus, which relies on other jurisdictional bases to support the legality of the proceedings (Sriram 2005: 37–41). However, for the purpose of this paper, I am examining the role of pure universal jurisdiction with no reliance on other bases of jurisdiction.
This list is not an exhaustive one. Other crimes that are often included in this list are crimes against peace and torture.
A state, regardless of its member status, can also voluntary request an ICC investigation. Therefore, technically this is another form of universality contained in the Rome Statute.
Although the number of universal jurisdiction cases remains limited, the numbers are growing. Another recent case is Canada’s prosecution of Rwandan national, Desire Munyaneza, also for crimes committed during the 1994 Rwandan genocide. Switzerland and France have also prosecuted individuals for crimes committed during the Rwanda genocide, while Denemark, Germany and the Netherlands have prosecuted individuals for crimes committed during the Yugoslavia conflict (Redress 1999).
Originally, this Act even allowed for prosecution in abstentia however, a 2002 ruling by the Belgian Court of Appeals in the case concerning Ariel Sharon found that the defendant’s presence was necessary for prosecution.
These numbers are accurate as of October 3, 2014 (http://www.unictr.org/Cases/tabid/204/Default.aspx).
Gacaca is a Kinyarwanda term that loosely translates as “justice on the grass.”
Since the formal establishment of the discipline in 1919, state-centered theories have tended to dominate the study of IR. This can be seen as a reflection of a state-centered world and a governance structure that was dominated by the action of these units. But over the past decade this foundational understanding of our field has come under increased scrutiny. The primacy of the state is under fire and this attack is well documented in a wide array of recent literature (Strange 1996; Rosenau 1997; Ferguson and Mansbach 2004; Holsti 2004).
This is not to say that the end of the Cold War initiated an ontological shift, but that this event was simply part of an evolutionary process, albeit a proverbial watershed. In other words, the origins of this ontological shift are at least decades old. Within the issue-area of humanitarian law, the origin of the ontological shift stems back at least to the Holocaust. It was at this point in time that the international community began to alter their set of shared understandings on human rights. The shift evolved from that point and its culmination resulted in the ratification of the Rome Statute for an International Criminal Court.
This does not mean that accomodative SOAs are the only current form of governance or that established SOAs are the only form of governance. Other SOAs exist and there remains a significant amount of contestation among these SOAs. But the accomodative SOA appears to be the dominant one in this post-Westphalian order and the established SOA appears to have been the dominant one in the Westphalian order.
This is certainly not the only means of rectification, but unlike the ad hoc tribunals, the ICC, or the hybrid or special tribunals in places like East Timor and Sierra Leone, this form of justice is truly universal in nature, not just transnational. It is also feasible that as the ad hoc systems begin to close down in the coming years we will see a reinvigoration of the domestic court systems as a means to end impunity.
Munyaneza was convicted for his involvement in the Rwandan genocide under Canada’s Crimes Against Humanity and War Crimes Act of 2000. Munyaneza appealed his case, but in May 2014 his 25-year sentence was upheld. It should be noted that Spain, who was an activist state in the fight for universal jurisdiction, began limiting its use of the principle in June of 2009.
The United States’ action against Belgium’s universal jurisdiction law is a prime example of state backlash.
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Eric K. Leonard is a professor of Political Science, Henkel Family Chair in International Affairs, Shenandoah University, and holds a PhD.
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Leonard, E.K. Global Governance and the State: Domestic Enforcement of Universal Jurisdiction. Hum Rights Rev 16, 143–159 (2015). https://doi.org/10.1007/s12142-015-0354-6
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DOI: https://doi.org/10.1007/s12142-015-0354-6