Comparing Universal Jurisdiction in Europe and Latin America: Resurgence and Renewal or Reluctance and Retreat?

A particular concern in recent years has been the limited options for prosecutions of persons responsible for atrocities in a number of States not amenable to ICC jurisdiction, such as non-state actors in Iraq and government officials in non-ICC members Syria and Myanmar. The need for accountability in such circumstances builds on long histories of human rights practice, spearheaded by the work of the ECtHR and the IACHR mechanisms, and pioneered in large part by the Pinochet case.

One factor has clearly been the limited capacity of the ICC, where even only one investigation takes an exceedingly long time to complete the pre-trial stage, the trial itself, and often an appeal against conviction. Another key factor is undoubtedly the fact of the Russian veto – given it is not an ICC member, Syria and similar candidates can only be referred to the Court by a resolution from the Security Council, a very unlikely prospect given current geopolitics, particularly in the wake of the invasion and occupation of eastern Ukraine.

Accountability thus requires another path, and this is where universal jurisdiction (UJ) can fill the lacuna. Yet UJ as it has been practised has serious limitations. Following Belgium’s cowing by the United States in the late 1990s and early 2000s for its use of UJ in absentia after the latter’s invasion of Iraq, some other previously forum-liberal European states have introduced curbs on cases being initiated by victims themselves, and many jurisdictions now require a jurisdictional link such as nationality of the victim or the accused (the minimum as per the Rome Statute), as well as political agreement to prosecutions going ahead. Further, the vast majority require custody of the accused, thus eliminating the possibility of UJ in absentia. These requirements are steadily turning the exercise of universal jurisdiction into extraterritorial legislation based on active or passive personality rather than ‘true’ universal jurisdiction. Worryingly, it is ensuring politics and foreign relations becomes the arbiter of international justice rather than the nature of the offence, which is a development never intended in the early days of UJ when piracy and hostage taking were the only recognised international crimes. These recent hurdles suggest a worrying future for UJ.

Some commentators observe a resurgence in UJ in recent years based on a number of trials of ex-ISIS members and Syrian regime members in European courts. Latin America has also been busy with its own raft of investigations and prosecutions on the basis of UJ. This article examines and compares the recent uptick in European and Latin American usages of universal jurisdiction, noting the significant headwinds which still need to be overcome in both regions for this avenue of accountability to be utilised effectively.