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According to Justice Arbour, this preference may lead more states to exercise universal jurisdiction, which has become a customary part of international law, as reflected in treaties, national legislation and the jurisprudence of international courts. Universal jurisdiction encourages states to prosecute international crimes, even if the offense occurs outside their territory and is perpetrated by a non-citizen who poses no harm to national interests.
“The possibility of criminal prosecution for war crimes anywhere in the world on the basis of universal jurisdiction has increased dramatically in the last few years, and is likely to continue to increase,” Justice Arbour said.
Citing recent history, Justice Arbour said several governments have applied universal jurisdiction with modest success so far. In one celebrated case, Great Britain, acting on a warrant issued by a Spanish court, arrested former Chilean President Augusto Pinochet in 1998 for human rights violations. Spain applied for Pinochet’s extradition, although most of the crimes were committed against Chilean nationals. Pinochet’s attorneys challenged the extradition, maintaining that heads of states should be immune from prosecution. Justice Arbour said The House of Lords set an important precedent when it struck down the challenge, ruling that torture does not qualify as an official act of State.
This year, Danish police charged Niza al-Khazraji, former Chief of Staff of Iraq’s armed forces, with committing war crimes against Kurdish civilians during the Iran-Iraq war. And, Justice Arbour said, last September a Spanish judge indicted Osama Bin-Laden and 34 others for the September 11 terrorist attacks on America. The indictment alleged al-Qaeda used Spain to plan, support, and finance the attacks.
Justice Arbour, who had favored a strong international court with primacy over national courts, said there’s no turning back now on this new global human rights culture.
“The enforcement of international humanitarian law has taken an irreversible step forward … International criminal justice as it is presently evolving is entirely consistent with an enriched concept of State sovereignty which acknowledges personal responsibility and accountability,” she said.
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