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Cite as:  Thomas W. Donovan, Jurisdictional Relationships between Nations and Their Former Colonies, 6 Gonz. J. Int’l L. (2002-03), available at http://www.gonzagajil.org/.

Jurisdictional Relationships Between Nations and Their Former Colonies

By

Thomas W. Donovan[1]

Introduction

            Colonialism has greatly influenced international law and inter-governmental relations over the past two hundred years, during the time when many developing nations have experienced the rise and decline of colonialism.  Considerable research and historical analysis has sought to explain why many nations espoused, justified, and defended their rule over less-developed nations, but there has been much less successful evaluation of the contemporary after-effects.  This is especially true in jurisdictional analysis, and, as a result, there remain many unanswered questions and unresolved controversies about the jurisdictional relationship between former colonial powers and their former possessions.

            This paper addresses one overriding question.  What jurisdictional ties remain between former colonial powers and former possessions, and what contemporary conditions influence the continuation of those ties? The question has become particularly relevant in recent years, when some nations have attempted to reassert aspects of jurisdictional authority over their former colonies, either on an ad hoc basis or as a matter of continuing socio-cultural, economic, and legal hegemony.  We have seen in the past five years  dozens of examples, including the highly publicized efforts of Spain to bring to trial Chile’s former dictator, General Augusto Pinochet,  the trials in Belgium of leaders of the Rwandan genocide, and the campaign in The Netherlands to bring to trial the Suriname military strongman Desiré Bourtese.

But the outcomes of the resulting postcolonial extra-territorial jurisdiction disputes remain uncertain. The traditional notion of territorial-based jurisdiction has been replaced by a jurisdictional array of domestic courts, foreign colonial courts, and international tribunals.  The degree to which these courts have succeeded in achieving their goals is influenced by the type of continued relationships that has remained between the former colony and former ruler.  The colonial ruler seems more likely to assert jurisdictional authority over the former colony when there is a continuance of immigration trends, economic ties, and exploitation of natural resources, and when there is evidence of human rights abuses and genocide.  In the absence of satisfactory mechanisms to address these problems in the former colony, an emerging system of colonial review presents a new mode of global adjudication.

In the following sections, this paper will explore the conditions which influence jurisdictional authority issues between former colonies and their rulers.  The next section addresses the development and prevalence of colonialism and the ruling nation’s justifications for it.  Section III discusses post-colonial relationships from the perspective of relevant international relations theory.  Section IV discusses how the major colonial countries are now confronting their own historical complicity by universal jurisdiction legal actions.

I.  The Evolution of Colonial Systems

Colonialism originated in the late Eighteenth Century as the preferred system for the exploitation of lesser developed regions.[2]  By 1914, European nations dominated almost 85 percent of the world in some form of colony, protectorate, or dominion.[3] As colonialism developed it became an established governing process by which governments, especially economically developed ones in Europe, systematically controlled and exploited lesser-developed areas.  Edward Said defined imperialism in Culture and Imperialism as "the practice, the theory, and the attitudes of a dominating metropolitan center ruling a distant territory; “colonialism[]” . . .  is the implanting of settlements on distant territory."[4]

A.  Justifications and Legitimization for Colonialism

Colonialist nations believed they had good reasons to promote and develop this system.  There were profits to be made in forced trade and natural resource exploitation.[5]  Their military and geo-political influence was increased.[6] Their prestige, especially vis-à-vis other European powers, was enhanced,[7] and finally, there was racism.[8]  The ruling nation held itself and its people to be inherently superior, its task, therefore, was to help the people of the colony toward civilization,[9] and it was undertaken in the cause of religion and enlightenment.[10]  The conventional tenet of white colonizers held that there was an obligation[11] to “rule subordinate, inferior, and less advanced peoples.”[12] It was commonly referred to as the “white man’s burden.”

Because Europeans viewed their cultures, government, administrative and educational systems as superior, they deemed it worthwhile to transplant these institutions to their colonies and to supplant whatever institutions had existed in the pre-colonial region[13]  This was especially true in Africa.  Even though European colonialism had only seventy years in Africa, because of the organization and strength of many of these supplanted governmental institutions, "[colonialism] had a profound impact on indigenous African cultures and institutions."[14]

The colonial powers, and the international organizations which they founded and maintained, further sanctioned this system.  The League of Nations endorsed colonialism through what was called a “Mandate” system of governance.[15]  The idea of a mandate can be viewed as “the institutional manifestation of….protection by a colonizing power and that their interests and lands should be looked after in trust by that power.”[16]  The League of Nations Covenant Article 22 states “the well being and development” of the peoples subject to mandate formed a “sacred trust for civilization.”[17]

A later form of colonialism was the “Trusteeship,” which stemmed from Article 75 of the United Nations Charter.[18]  The U.N. Charter provided a much more precise set of obligations than were contained in the earlier mandate system.  Article 76(b) describes one of the basic objectives as the promotion of the “political, economic, social, and educational advancement of the inhabitants.”[19] Trusteeships were supervised by the General Assembly which generally gave colonial governments a very wide range of options through vague language and directives.  Nevertheless, by the end of World War II, the wave of nationalist sentiment in most colonies was inexorable.

            B.  Dissolution of Colonialism and Consequential Intervention

The pressure on colonial powers to relinquish their holds on their colonies was accompanied by a gradual shift away from the beliefs that sought to legitimize colonial rule. Direct colonial control was no longer possible. As Nkrumah stated “[n]o Imperial power has ever granted independence to a colony unless the forces were such that no other course was possible, and there are for many instances where independence was only achieved by a war of liberation.”[20]

Nationalism in the colonies was asserted in the localities, but finally espoused by the United Nations with the 1960 Declaration on the Granting of Independence to Colonial Countries and Peoples.[21] The Declaration stressed that "all peoples have the right to self-determination."[22]  By the 1970s, most colonies had achieved political independence. Most of the colonial powers had gradually, or sometimes abruptly, abandoned their colonies in favor of home rule, even though many of the new nations were not yet politically, economically or socially viable.

The former colonial power no longer had to justify its rule on the basis of racial or cultural inferiority; it claimed a laissez-faire approach to its former subject.  The dominant nation’s public stance tended to be apologetic.[23]  It usually maintained its stated objective of seeking to help the former colony to progress developmentally.[24]  However, when the former colony seems incapable of assuming basic government functions or caring for its people, the former ruler considered itself compelled to consider some forms of intervention.

After independence, many former colonies found it increasingly difficult to perform basic governmental functions and deliver essential services to their populations; resulting in severe societal problems.[25]  These states are deemed “failed” or “failing”, and according to Robert Oakley, former Ambassador at large for the United States, even “Twice-Failed” when a state repeatedly does not succeed in asserting its sovereignty and basic services for citizens.[26]  Certain scholars have asserted a return to the League of Nations sponsored Trusteeship or models of governance, whereby a single former colonial country is responsible for ensuring basic services.[27]  Others have asserted different levels of intervention in the failing state where there is “simply is no alternative in nations where governments have crumbled and the most basic conditions for civilized life have disappeared."[28]

William Pfaff, in his article, A New Colonialism? Europe Must Go Back into Africa, asserts that it should be the responsibility of the former colonizing countries to re-build their former colonies.[29]  A combination of good and bad motives is the reason given for certain former colonies to be in their “failed” or “failing” state.  Pfaff asserts that there has always been a cultural connection between colonized and colonizer, and this relationship would be the groundwork for a return to a new colonialist identity. As Pfaff states:

[I]n some respects Europe has never left Africa.  France's persisting presence in Western and Central Africa still evokes hostility from American and British commentators and many non-Francophone Africans . . . the overall judgment must also be that French Africa for more than three decades has been the Africa that worked, the place where life for ordinary Africans has been markedly better than where the old colonial powers, as one commentator put it, "absconded with no forwarding address.[30]

Outright intervention to protect former colonial citizens has occurred intermittently in the post-colonial age.  Most recently, in 2002, French armed forces intervened in the Côte d’Ivore to evacuate French citizens.  It has also been seen with the United States in Liberia.[31]

II.  The Emergence of Neo-Colonialism

With the end of direct colonialism, new relationships between former colonies and former colonial powers became necessary.  Even though direct colonial control was no longer possible, the economic allure of maintaining a colony (often with many natural resources) did not diminish.  Social, economic, and legal ties had become too intertwined for easy dissolution.  A system now referred to as “neo-colonialism” began to emerge, in which some forms of continuing control was asserted by the former colonial power.[32] The essence of neo-colonialism is that a former colonized country has the outward appearance of sovereignty and independence, but is in reality economically, judicially, and politically dependent on the former colonizer.[33]  These links can take various shapes, either by direct garrisoning of troops in the former colony, economic dependence, indebtedness, control over the bureaucracy, or the continuation of large multi-national corporations that have exclusive rights to operate in the former colony.[34]

A.  Economics of Neo-colonialism

Under neo-colonialism, the economics of colonialism remain as before.  The banking system, currency markets, natural resources, and industrial complexes in the former colony cannot fully develop, primarily because they continue to exist for the benefit of the colonial power.[35]  These neo-colonial economies never enter into full capitalist competition, and supply/demand models of economics, because the primary buyer remains the former colonial country.

Natural resource development in the former colony typically remains under the control of the former power.  This is so despite the generally held view that a nation has the right to use its own natural resources for its own interests.[36] This view was sustained when the U.N. General Assembly passed Resolution 1803 which declares “The right of peoples and nations to permanent sovereignty over their natural wealth and resources must be exercised in the interest of their national development and the well-being of the people . . . concerned.”[37]  Similarly, “[A]rticle 1(2) of both the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights describes the right of [a] people to control” their own natural wealth.[38]

Nevertheless, adherence to this rhetoric is easier to declare than to implement.  The large initial capital investments that must be made for future possibilities of natural resource exploration are so great that many former colonial countries cannot afford to invest in their own natural resources.[39]  The large multi-national corporations and conglomerates, which may form joint ventures, or profit sharing relationships with the former colony government, are the main beneficiaries of such a relationship.[40]

Under the neo-colonialist system, international debt from the developing world to the West exacerbates the effects of colonialism.[41]  In 2001, Sierra Leone, a former French colony, paid 116.2% of its gross domestic product to pay interest on its foreign debt.[42]  The French and Belgian former colonies of the Republic of Congo paid an astonishing 282% of GDP towards foreign debt, and the Côte d’Ivore paid 115%.[43]

Foreign aid from the former colonial powers exacerbates the dependency condition.  For example the former colonies of the United Kingdom, the Netherlands, France, and Belgium allocate a significant proportion of their Gross Domestic Product to aid for their formerly held colonies.[44]  In 1999, The United Kingdom gave its former colonies Ghana 4%, Uganda 4%, Bangladesh 5%, India 6% and Tanzania 4%, of its total foreign aid.[45]  The Netherlands gave its former colony of Indonesia 3%.[46]  France gave its former colonies Côte d’Ivore 5%, Cameroon 3%, Senegal 5% of its total foreign aid.[47]  Conversely, the former colonized areas have the highest dependence on foreign aid.  Burundi views foreign aid as 319% of its gross domestic product.[48]  The Democratic Republic of Congo is dependent to the term of 53.4%, and Sierra Leone is dependent to 348%.[49]

B.  Jurisdictional Ties in Neo-Colonialism

The socio-cultural, economic, and military ties that remain between former ruler and colony make it necessary and inevitable that jurisdictional ties would also exist. Legal distinctions were prevalent in the legal codes of colonizing countries between European and non-European subjects.[50]  In terms of a judiciary, the resulting colonies were not institutions separate from their colonial rulers.  Local city authority, called “metropolitan authority” was deemed “plenary.”[51]  During the colonial period, international law viewed such colonies as a part of the metropolitan state of the possessor.[52] The colony, therefore, possessed no international personality.[53] As Ruth Gordon states “under international law, colonies were non-existent; all international personality resided in the imperial power….these entities were still classified as part of the metropolitan state.”[54]

Because the colonies and possessions were not separate entities, jurisdiction was founded in the territorial principle of international law.  Under the territorial principle, a country’s jurisdiction extends to the limits of its territorial sovereignty, but no further.[55]  The territoriality principle stems from “a distinct and delineated territory, a known and loyal population, and an independent government.”[56]  The territorial principle was affirmed by the United States Supreme Court in the Schooner Exchange, where the Court asserted the principle of “full and absolute territorial jurisdiction…of every sovereign.”[57]

The legal systems of the colonial possessions were based on the systems of the ruling nation, and the legitimacy of these new systems was reinforced by international law.  "International law existed only among the civilized nations of Europe and only European states were fully sovereign. . . . The non-European world became incorporated into this exclusive legal system only by virtue of its engagement with the European world."[58]  The legal system of the colonial powers was consequently imparted into the colonized areas and in many instances persists as the legal heritage today.[59]

The territorial concept between former colony and possessor can be seen in Hilao v. Estate of Marcos[60], and In Re Estate of Ferdinand E. Marcos,[61] where the United States asserted jurisdiction over its former colonial holdings through civil proceedings.[62]  In Re Estate of Marcos was a suit under the Alien Tort Claims Act and Torture Victims Protection Act [63] against former Philippine President Marcos alleging torture and other cruel, inhuman and degrading treatment.[64]  It found that torture, execution and disappearances are not sovereign acts because they had to be considered as done pursuant to Marcos’ own authority rather than by official mandate.[65]

In Hilao, a former torture victim of the Marcos regime sued for damages in Hawaii, attaching personal Marcos estate assets that were supposedly gleaned through vast corruption.[66]  Hilao held that jurisdiction did exist over the Marcos family even though the torture, killings and disappearances upon which the suit was based occurred outside the United States.[67]

C.  Legal Remnants in Neo-Colonialism

Independence did not absolve former colonies from most of the jurisdictional issues that had been established by their former rulers, but the issues had become less clear.  The Mandate system and the Trustee systems, established for colonies decades ago were still cited in establishing modern law.  For example, the Mandate system between England and the Palestine territories, was addressed in the 1949 U.S. case of Klausner v. Levy.[68]  In Klausner, the court was confronted with a claim of citizenship between England and Palestine. The court held that individuals in Palestine were not citizens of a "foreign state" because Palestine was not recognized by the Executive Branch of the United States government as an independent sovereign while under the League of Nations mandate.[69]

The 9^th Circuit U.S. Court of Appeals dealt with the vague nature of the trusteeship model of colonialism in Saipan v. Dep’t of Interior.  The Court held that “the substantive rights guaranteed through the Trusteeship Agreement are not precisely defined.  However, we do not believe that the agreement is too vague for judicial enforcement.”[70] The later case of In re Complaint of Bowoon Sangsa Co. confirmed the ability of the United States to act as the Trustee of the area known today as Micronesia,[71] under the Trusteeship Agreement which “directs the United States to promote the economic self-sufficiency and self-government of the territory inhabitants under the supervision of the United Nations.”[72]

III.  Confronting Colonial Complicity Through Universal Jurisdiction

The concept of universal jurisdiction asserts that certain crimes are so egregious to the world community that they offend traditional norms of international behavior.[73]  In these instances, every state may initiate proceedings based on the heinous character of the crime.[74]  Universal jurisdiction notions began as early as the Justinian Code of the Sixth Century; however its first highly noted historical application were treaties to combat piracy in the sixteenth century.[75]  The international concept was later strengthened through the four Geneva Conventions and today has been generally accepted in many national courts.[76]

There is no standard application of universal jurisdiction.  In Israel v. Eichmann, the court held that “crimes which offend[] the whole of mankind and shock[] the conscience of nations are grave offences against the law of nations itself . . . [I]nternational law is in need of the judicial and legislative authorities of every country, to give effect to its penal injunctions and to bring criminals to trial.”[77]  In Filartiga v. Pena-Irala, the U.S. Second Circuit held that “the torturer has become like the pirate and slave trader before him hostis humani generic, an enemy of all mankind.”[78]  Because of the disparities involved in the application of universal jurisdiction, the Princeton Principles were drafted.[79]

The practice of universal jurisdiction in national courts is most practiced by former colonial courts.[80]  The national courts have ratified universal jurisdiction codes for many reasons.  Belgium, which has the most far-reaching of any universal jurisdiction statute, did so to admit its colonial past.[81]  Recent case law from the Netherlands takes into consideration the shared colonial history in allowing for universal jurisdiction.[82]  Belgium has specifically applied its 1993, 1999 universal jurisdiction in its former colonies of Rwanda[83] and Congo.[84]

A.  International Court of Justice Belgium v. Congo Opinion

The International Court of Justice dealt indirectly with the concept of state-practiced universal jurisdiction in the recent arrest warrant case, i.e., Congo v. Belgium.[85]  In this case, Belgium issued an international arrest warrant for the acting Minister of Foreign Affairs of Congo, Abdoulaye Yerodia Ndombasi.[86]  Belgium asserted that Foreign Minister Ndombasi breached the 1949 Geneva Conventions and engaged in torture and genocide.  Congo challenged the arrest warrant, claiming Belgium ‘had violated the principle that a state may not exercise its authority on the territory of another state’[87] the provision of sovereign equality of member states of the United Nations, as well as the diplomatic immunity of a Minister of Foreign Affairs.[88]

The International Court of Justice held that an incumbent foreign minister is immune from jurisdiction, even when he is on a private visit or acts in a private capacity while holding office.[89]  Therefore, the Belgian arrest warrant was invalid and interfered with official governmental activities of the Congolese Minister.  The majority holding of the court did not discuss whether states are authorized by international law to exercise universal criminal jurisdiction.  The concurring opinions of Guillaume,[90] Higgins, Kooijmans and Buergenthal,[91] and the dissenting opinion of van den Wyngaert [92]did, however, elucidate the concept of universal jurisdiction.

President Guillaume’s concurring opinion distinguished between ‘universal jurisdiction,’ which denotes jurisdiction over extraterritorial crimes by foreigners based on the presence of the accused in the forum state, and ‘universal jurisdiction in absentia,’ which is jurisdiction asserted by a state without any link or nexus with the accused (not even his presence on the territory).[93]  President Guillaume asserted that neither category of jurisdiction is authorized by international law.  Instead, international law only authorizes a narrow view of ‘universal jurisdiction is accepted in cases of piracy,’ where treaties alone oblige parties to exercise universal jurisdiction actions.[94]

The Higgins, Kooijmans and Buergenthal (hereinafter “Higgins, et. al.”) concurring opinion distinguished between ‘universal jurisdiction properly so called’ that is jurisdiction over crimes committed abroad by foreigners against foreigners, without the accused being in the territory of the forum state, and ‘territorial jurisdiction over persons for extraterritorial events’ that is jurisdiction over persons present in the forum state who have allegedly committed crimes abroad.[95]  The use of ‘universal jurisdiction properly so called’, is admissible, yet should be subject to a set of conditions that were detailed in the opinion.[96]

The separate opinion of Higgins, et. al. noted the need to balance between two conflicting requirements, one being unimpaired conduct of a state’s foreign relations, and the second the need to safeguard international legal values.[97]  In particular, the opinion mentioned the need to prosecute and punish perpetrators of grave crimes against humanity.[98]  In discussing this balance, the Higgins et. al. opinion elucidated a strict set of conditions for universal jurisdiction to be used against a sitting minister.  However, the Higgins opinion excluded the issue of whether state officials could be brought to trial after leaving office, for acts outside of their official capacity.[99]

The dissenting opinion by ad hoc judge Christine van den Wyngaert explicated the concept of universal jurisdiction.[100]  In doing such, she disagreed with the majority by stating there is no rule of customary international law protecting incumbent Foreign Ministers against criminal prosecution.  “[I]nternational law does not prohibit, but instead encourages, States to investigate allegations of war crimes and crimes against humanity, even if the alleged perpetrator holds an official position in another State.”[101]  Van den Wyngaert also asserted that universal jurisdiction is admissible in international law because it is consistent with the previously decided International Court of Justice opinions, notably the ‘Lotus Test.’[102]  The Lotus Test asserts that a State has a right to provide extraterritorial jurisdiction unless there is a prohibition under international law.[103]  In the instance of Belgium v. Congo Arrest Warrant case, van den Wyngaert argues, there is no prohibition against the use of universal jurisdiction against Minster Yerodia.  Therefore Belgium had the ability to issue the Arrest Warrant for his trial in Belgium.

B.  Dissemination of Universal Jurisdiction into State Practice of Former Colonial States 

The van den Wyngaert dissent in Belgium v. Congo discusses the prevalence of universal jurisdiction in national courts.[104]  One of the most recent universal jurisdiction examples can be found in Germany’s Sokolovic case.[105] In Sokolovic, the German Supreme Court (Bundesgerichtshof) ruled that “when the jurisdiction of German courts is provided for in an international treaty, those courts are entitled to try genocide and other international crimes even absent any link between the crime, or the offender, or the victim and Germany.”[106]

The German Criminal Code contains a provision (Section 6§1), whereby “regardless of the law of the place of commission, the German criminal law is also applicable to the following acts committed outside of Germany.”[107]  In the past, courts tended to interpret Sections 6§1 and 9 to the effect that some nexus was required with Germany for German courts to exercise jurisdiction.[108]  In Sokolovic, the Federal Supreme Court held that a factual link was not required.[109]  The court noted that in its earlier decision of November 29, 1999 the Düsseldorf Court of Appeals (Oberlandsgericht Düsseldorf), following the traditional German case law,[110] held that a factual link was required by law (legitimierender Anknupfungspunkt) for a German court to exercise jurisdiction over crimes committed abroad by foreigners.[111]  The Sokolovic case stated

not to hold as necessary these additional factual links that would warrant the exercise of jurisdiction. . . . Indeed, when, by virtue of an obligation laid down in an international treaty, Germany prosecutes and punishes under German law an offence committed by a foreigner abroad, it is difficult to speak of an infringement of the principle of non-intervention.[112]

Germany also asserted principles of universal jurisdiction during the drafting process of the Statute of the International Criminal Court.[113]  The German delegation expressed the view that international customary law authorizes universal jurisdiction over major international crimes, stating: “Under current international law, all States may exercise universal criminal jurisdiction concerning acts of genocide, crimes against humanity and war crimes, regardless of the nationality of the offender, the nationality of the victims and the place where the crime was committed.”[114]

1.  Desiré Delano Bouterse

The historical ties between the Netherlands and its former colony, Suriname, were taken into consideration when deciding whether these ties constitute a jurisdictional nexus.  Desiré Delano Bouterse, a military commander in Suriname, allegedly tortured and killed fifteen individuals in December 1982.[115]  In May 2000, Bouterse was inaugurated as a Member of Parliament, and today leads the largest opposition party.[116]  Because of Bouterse’s senior position he has obstructed every attempt by the Government of Suriname to prosecute him for crimes.[117]  Due to Suriname’s lack of ability to prosecute Bouterse, and the clear evidence of genocide and torture, the Netherlands decided to prosecute.[118]

The Amsterdam Court of Appeals held that the historical and colonial ties that exist between the two countries amount to a significant jurisdictional nexus and justify the extraterritorial application of the Netherlands Criminal Code.  As the Court of Appeals stated:

[t]he Republic of Suriname is in principle obliged under the International Covenant on Civil and Political Rights to which it has been a party since 1977 to institute a criminal investigation into offences possibly committed in its own territory, which constitute infringements of human rights. . . . However, the submission of complaints’ counsel that it cannot be expected that Bouterse will be prosecuted and tried in Suriname or elsewhere in the world in the foreseeable future for the offences to which the complaint relates is correct.[119]  The Netherlands has close historical ties with Suriname.  A large number of people of Surinamese origin are living in the Netherlands.  The events in December 1982 shocked not only this group but also society at large in Netherlands.  There are indications that at least one of the victims and possibly more had Dutch nationality.  Finally, the complainants, who are relatives of two of the victims, live in the Netherlands.  As a prosecution elsewhere in the world cannot be expected in the foreseeable future, as explained above, they have now applied to the most appropriate authorities.  Prosecution in the Netherlands should be appropriate on all these grounds.[120]

The prosecution against Bouterse, however, did not succeed due to the Supreme Court’s (Hoge Raad) interpretation of the retroactive application of the 1984 UN Torture Treaty as being inconsistent with the ex post facto provisions established in Article 16 of the Dutch Constitution as well as Article 1 of the Dutch Penal Code.[121]  Although the Supreme Court’s did not allow for his eventual prosecution, the lower court’s view of jurisdictional nexuses created by colonial and historical ties was not directly overruled.[122]  Nor was the ability of the Court to obtain jurisdiction over Bouterse on the passive personality principle.[123]  Because one of the victims of the December killings was a Dutch national and the heinous nature of the crimes directly affects the large numbers of Surinamese immigrants living in the Netherlands, customary international law would permit extending jurisdiction over Bouterse because his actions directly affected the Netherlands.[124]

2.  Ex Parte Pinochet

On October 17, 1998, General Augusto Pinochet, the former President of Chile, was on a visit to the United Kingdom for medical treatment, where he was arrested based on an arrest warrant issued by Spain.  The warrant asserted Pinochet was responsible for the murder of Spanish citizens in Chile at a time when he was President.[125]  On October 22, 1998 General Pinochet was served with a second Spanish arrest warrant alleging that he was responsible for “systematic acts in Chile and other countries of murder, torture, "disappearance," illegal detention and forcible transfers.”[126]

On November 25, 1998, the House of Lords concluded that a former head of state did not have immunity with respect to crimes against humanity (R. v. Stipendary Magistrate ex Parte Pinochet).  On December 17, 1998, the House of Lords set aside its earlier decision because one of the deciding judges was linked to Amnesty International.[127]  Following this decision, Home Secretary Jack Straw permitted the extradition of Senator Pinochet to proceed on the torture charge, but not the genocide charge, based on the court's decision that he was not entitled to immunity.

According to the English Court, the 1984 Torture Convention did not create an international crime but established a system for prosecuting torturers.  The Torture Convention created a system based on the principle of aut detere aut punire, (either you extradite or you punish.)  If the state with traditional jurisdiction does not prosecute or attempt to extradite a torturer, the state in which he is found must do so.[128]  The Torture Convention ultimately created what the English court labeled "worldwide universal jurisdiction."  The court also stated that, as parties to the Torture Convention, Spain, England and Chile are contractually "bound" to give effect to the Convention's provisions from at least December 8, 1988.  Based on the court's rationale, both England and Spain could try Senator Pinochet for acts of torture committed in Chile.  Following a medical examination by doctors selected by the British government, Pinochet was found too ill to stand trial.  He was released from British custody on March 2, 2000, and flew back to Chile that day.[129]

The Spanish High National Court (Audencia Nacional) also confirmed that the Spanish Court has jurisdiction over genocide and terrorism committed in Chile.[130]  The Spanish court held that Spanish jurisdiction was based on Article 23 (4) (g), of the1984 Torture Convention.[131]  The Court further concluded that “Spain has jurisdiction to hear the facts, derived from the principle of universal prosecution of certain offenses…incorporated into our domestic law.  [It] also has a legitimate interest (interes legitimo) in the exercise of its jurisdiction, as more than fifty Spaniards were killed or disappeared in [the former Spanish colony of] Chile.”[132]

The Audencia Nacional’s assertion of jurisdiction was, however, not grounded in the theory of passive nationality; i.e. the physical presence of Spanish victims.  The fact that Spaniards were indeed victims was only a “legitimate interest” of Spain in the exercise of universal jurisdiction.  In the decision of September 24, 1999 the Court reiterated that the principle of universal jurisdiction was the jurisdictional basis over the crimes committed by Pinochet.  Moreover, the Audencia Nacional held that Pinochet could not invoke his immunities attributed to his Senator for life status.[133]

In Pinochet III, the Law Lords considered the extradition request from Spain that accused Pinochet of torture, murder, hostage taking and conspiracy to carry out these crimes.  The Chilean National Corporation of Reparation and Reconciliation and its predecessor, the National Commission of Truth and Reconciliation, also known as the Rettig Commission, documented cases of 3,197 killings and “disappearances.”[134]  Pinochet III presented two major issues.  “First, whether the Spanish charges constituted “extradition crimes” within the meaning of the Extradition Act of 1989; and second, whether Pinochet, as a former head of state, was entitled to immunity from arrest and prosecution in the U.K. for crimes committed while he was Chile’s head of state.”[135]

The Law Lords based the extradition issue on a narrow reading of the UK Extradition Act as requiring that the offenses be crimes in the U.K on the date committed.[136]  This would force a retroactive interpretation of §134 of the Criminal Justice Act of 1988, which criminalized extraterritorial torture.  The Act did not set out a new crime, because torture has long been considered a malum in se crime, throughout the world at large, as well as in Chile, the U.K. and Spain.[137] Furthermore, holding §134 to be retroactive is not contrary to the rule of nullum crimen sine lege (no crime without law).[138]  The Criminal Justice Act merely conferred jurisdiction on the courts of the U.K. to prosecute torture that occurred outside its borders.[139]

The immunity of a former head of state was seen by the Law Lords as being closely intertwined with the concept of state immunity.[140]  Therefore, they turned to the 1978 State Immunity Act, of which Part III is most relevant for the Pinochet matter.  Part III of the Act states that “subject...to any necessary modifications, the Diplomatic Privileges Act of 1964 shall apply to a sovereign or other head of state in the same way it applies to the head of a diplomatic mission.”[141]  In turn, the Diplomatic Privileges Act invokes the Vienna Convention on Diplomatic Relations of 1961, giving it “the force of law in the United Kingdom.”[142]

The majority used this article to justify giving immunity from criminal prosecution to a former head of state, at least for official actions.[143]  As Lord Browne-Wilkinson explained:

[t]he effect is that a head of state will, under the statute, as at international law, enjoy state immunity so long as he is in office, and after he ceases to hold office will enjoy the concomitant immunity ratione materiae ‘in respect of acts performed [by him] in the exercise of his functions [as head of state]. . . .[144]

The majority of the Law Lords treated this statutory immunity for a former head of state as reflective of customary international law.[145]  This is in accord with the Vienna Convention which, in its preamble, states that customary international law governs questions about immunity which are not addressed by that convention.[146]

3.  1993, 1999 Belgium Universal Jurisdiction Statute

Belgium, one of the worst human rights abusers during its colonial period, enacted its universal jurisdiction statute to confront its colonial past. This colonial past, as seen through the application of the 1993, 1999 universal jurisdiction law has been applied to the former colonies of the Congo and Rwanda.[147]

The area which is presently Rwanda and Burundi was colonized by the Germans in 1903.  The first Germans to the area encountered a country inhabited by three distinct ethnic groups: the Twa, the original inhabitants; the Hutus, who had entered the area between the 4th and 7th centuries A.D.; and the Tutsis, who represented the newest inhabitants.  Following Germany's defeat in the First World War and the 1919 Treaty of Versailles, the Rwanda and Burundi colonies were ceded to Belgium, which “took a more invasive approach to governing.”[148]  This more invasive approach translated to sponsoring the Tutsi minority as the superior tribe.

Although there is direct evidence that prior tension existed between the Hutu and Tutsis, the Belgian rule greatly exacerbated it.  "Colonialism lasted long enough to destroy the preexisting social and political institutions, but not long enough to put anything solid and lasting in their place."[149]  By supporting the Tutsis throughout the colonial period, the Belgians heightened ethnic tensions.  Ultimately, leaving behind conditions that would produce genocide.[150]

It was due to this colonial past that Belgium enacted its universal jurisdiction statute of 1993,[151] and its use of universal jurisdiction has undergone significant evolution over the last fifty years.  In 1951, Belgium ratified the 1949 Geneva Conventions, which granted universal jurisdiction over crimes against humanity; however, no domestic legislation was implemented.  It was not until 1993 that Belgium enacted a law implementing punishment for grave breaches of the Geneva Conventions of 1949 Protocols.  The 1993 Act gave Belgium universal jurisdiction over “willful killing, torture or inhuman treatment, including biological experiments, willfully causing great suffering or serious injury to body or health, and extensive destruction of property, not justified by military necessity and carried out unlawfully and wantonly.”[152]  In 1999, Belgium amended its 1993 universal jurisdiction law and adopted a new domestic law expanding it to cover grave breaches of international humanitarian law, including genocide, crimes against humanity, and war crimes.[153]

The first conviction under this law was in June 2001, when two Rwanda Catholic Nuns and a local businessman were convicted.  Commentators have stated that, “the Belgian trial both vindicated international law by punishing the 1994 violations of human dignity, and simultaneously recalled international law's role in colonialism, which institutionalized the violations of human dignity in which the 1994 violations were arguably grounded.”[154]  A court of war crimes ruled that a crime of genocide should apply for the complicity of allowing some 7,000 Tutsis who had sought refuge in their convent in southern Rwanda in 1994 to be systematically killed.  Sister Mukangango was sentenced to 15 years, Sister Mukabutera to 12 years, and Alphonse Higaniro was sentenced to 20 years.[155]    As Barbara Stark stated, “The conviction for war crimes of four Rwandans…was both an effective exercise of universal jurisdiction and a painful reminder of imperialism.”[156]

All of these state-practiced instances of universal jurisdiction vis-à-vis former colonies point to the acceptance of universal jurisdiction as an admissible practice under international law to rectify colonial pasts.

C.  Forthcoming International Criminal Court
(ICC) International Criminal Tribunal for the Former Yugoslavia (ICTY) and International Criminal Tribunal for Rwanda (ICTR) 

The forthcoming International Criminal Court (ICC) will undoubtedly raise new jurisdictional concerns.  The jurisdiction of the ICC will not be on a universality principle.  The ICC will only be able to exercise jurisdiction if the crime occurs on the territory of a state, or is committed by a person who is a citizen of a state that is party to the Treaty of Rome, the so-called active personality principle.[157]  The subject matter jurisdiction of the ICC is limited to the “ability to prosecute genocide, crimes against humanity, war crimes, and aggression.”[158]  All concepts were defined in the Treaty of Rome Negotiations, except for aggression, which is scheduled for review seven years after ratification of the Treaty of Rome.[159] 

The ICC is established on the principle of complementarity jurisdiction:  principal responsibility for war crimes and crimes against humanity lie with national courts.[160]  The ICC will, in general, only be able to act if states which have jurisdiction are unwilling or unable to conduct a prosecution.[161]  Commentators have labeled this a “jurisdictional gap,” asserting that the ICC will only function properly if domestic courts function properly.[162]  The preamble to the ICC states, “[I]t is the duty of every State to exercise criminal jurisdiction over those responsible for international crimes.”[163]

The ICC will eventually take the place of the two ad hoc international tribunals dealing with Rwanda (ICTR) and Yugoslavia (ICTY).[164]  The two ad hoc tribunals were established before the ICC because of the grave crimes against humanity which occurred in both areas.[165]  In terms of jurisdiction, the ad hoc tribunals may prosecute four types of offenses: grave breaches of the 1949 Geneva Conventions, violations of the laws or customs of war, genocide, and crimes against humanity.[166]  The ad-hoc tribunals have superior jurisdictional powers in relation to domestic courts.[167]  This correlates to “at any state of the procedure, the International Tribunal may formally request national courts to defer to the competence of the International Tribunal.”[168]

Conclusion

The assertion of universal jurisdiction by certain nations onto their former colonial possessions is not by happenstance.  It does not happen in a vacuum.  It owes its genesis to the shared legal history between the former colonizer and the colonized, neo-colonialist notions, immigration trends, prevalence of civil cases, and economic interdependence.

This modern jurisdictional relationship has now become an attempt to right the historical complicity and inherent racist notions that allowed colonialism to be so widespread.  Today the human rights abuser has become as the pirate before him, an enemy of the civilized world hiding beyond boundaries.  In an interdependent world, where distances between not only countries, but also people are growing smaller, these modern pirates face an array of domestic courts, international tribunals, and former colonial courts that seek their capture and eventual conviction. It is in this landscape, the former colonial countries must give their former possessions not only the means of development but also the tools.  A remedy for the developing world must establish equitable conditions which uphold the autonomy and sovereignty of developing nations.  Long term developmental trends should be designed to leave the Third World with a more advanced and less corrupt judiciary that will allow transparency of institutions and a thriving civil society.  Simply taking the modern human rights abuser to face trial in a former colonial court only leaves an arrogant post-colonial notion that former colonies are unable to develop and create sustainable and separate judicial entities.