- The well-established universal jurisdiction principle
(UJ) holds that certain crimes are too grave to ignore, including genocide,
crimes of war and against humanity.
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- Thus, under UJ, nations may investigate and prosecute
foreign nationals when their country of residence or origin won't, can't,
or hasn't for any reason. Israel used it to convict and execute Adolph
Eichmann. A US court sentenced Chuckie Taylor, son of the former Liberian
president, to 97 years in prison for torture.
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- In March 2003, the Special Court for Sierre Leone (SCSL)
indicted his father, Charles Taylor, for crimes of war and against humanity.
His trial at The Hague's International Court of Justice (ICC) remains ongoing.
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- Though never held accountable for murdering Chileans
and committing other human rights abuses, Britain used a Spanish court
provisional warrant to apprehend Augusto Pinochet, hold him under house
arrest for 18 months, and set a precedent, making other heads of state
and top officials vulnerable. Pinochet's bogus ill health claim sent him
home, irreparably damaged and disgraced.
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- Under Article 7 of the Charter of the International Military
Tribunal at Nuremberg:
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- "The official position of defendants, whether as
Head of State or responsible officials in Government departments, shall
not be considered as freeing them from responsibility or mitigating punishment."
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- No one deserves immunity for high crimes demanding accountability.
It's time that applied to America and Israel, the two worst offenders.
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- In June 2009 at a Madrid, Spain conference, Raji Sourani,
Palestinian Centre for Human Rights (PCHR) Director made the case, saying:
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- "Today, the Gaza Strip lies in ruins" months
after Israel's offensive, killing about 1,500, injuring over 5,000, and
causing vast destruction - "an illegal form of collective punishment"
ongoing for over three years under siege. "For too long now, Israel
has been allowed to violate international law with impunity....This situation
cannot be allowed to prevail....It is for this very reason that universal
jurisdiction is so important....(It) offers hope to victims throughout
the entire world, in many cases, it is their only hope." It's long
past time to hold Israel accountable.
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- The Compelling Case for UC
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- A recent PCHR publication is titled, "The Principle
and Practice of Universal Jurisdiction," explaining it in detail with
examples, its highlights discussed below.
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- Though horrific, Cast Lead was just the latest example
of decades of Israeli lawlessness - little discussed, unaddressed and unresolved.
"Regrettably, this lack of accountability, and the resultant climate
of impunity, has been a longstanding feature of Israel's" illegal
occupation. "Israel has been allowed to act as a State above the law."
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- Yet it exists to be enforced. Otherwise, it's irrelevant.
However, Palestinians have "limited judicial mechanisms available."
According to the 1995 Israel-Palestine Interim Agreement on the West Bank
and Gaza Strip, the Palestinian Authority (PA) has no jurisdiction over
Israel, including its officials, armed forces members, or other citizens.
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- Nonetheless, Israel is required to investigate and prosecute
its citizens accused of international crimes, a responsibility it's ducked
with impunity, a glaring deficiency in its judicial system, exempting war
criminals from accountability, in violation of inviolable international
standards and principles.
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- "Justice for Palestinians is not attainable within
this system." UJ is the remedy, a "stepping stone (to) universal
justice," to protect everyone without discrimination, to address crimes
too grave to ignore, to set a precedent for future prosecutions, and warn
offenders they're vulnerable.
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- No accountability encourages criminality, offenders knowing
they're safe and can act lawlessly with impunity, especially Israel, shielded
by America, the West, and regional indifference or complicity. As a result,
Palestinians have suffered grievously for decades, world leaders not giving
a damn about their rights or the rule of law, breaking it themselves for
not caring.
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- It's high time UJ principles enforce accountability,
using Israel as a test case, including its top government and military
officials, guilty of high crimes too grave to be ignored, raising hope
for all victims of injustice globally.
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- Above all, "The pursuit of universal jurisdiction
is (the) pursuit of justice. It seeks to ensure an effective remedy for
victims - combined with the goal of deterrence - and accountability for
those responsible for crimes which 'shock the conscience of humanity.'
"
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- The Applicable Legal Framework
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- Palestine is belligerently occupied. As a result, international
law applies, including the four Geneva Conventions, Hague Regulations,
other international humanitarian law (IHL), and Additional Protocols to
the Geneva Conventions. As a signatory, Israel is legally bound, including
under International Covenant on Economic, Social and Cultural Rights (ICEPR)
provisions such as:
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- -- Article 2, concerning the right to an effective remedy;
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- -- Article 14, regarding the right to a fair trial; and
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- -- Article 26, affirming the right of everyone to protection
under the law.
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- Traditional v. Universal Jurisdiction
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- Legally, jurisdiction is "the authority of states
to prescribe their law, to subject persons and things to adjudication in
their courts and other tribunals, and to enforce their law, both judicially
and non-judicially," by civil or criminal means.
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- Five "prescriptive jurisdiction" bases include
nationality, territoriality, the protective principle, the passive personality
principle, and universal jurisdiction, this discussion focusing on UJ.
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- It requires "no link of territoriality or nationality
between the State and conduct of the offender, nor is the State seeking
to protect its security or credit." Only the crime matters, UJ reserved
for the worst, ones too serious to go unpunished, their gravity justifying
UJ's existence.
-
- Initially for piracy, they were considered outlaws, operating
extraterritorially in international waters. Today, international crimes
are considered so "threatening to the international community or so
heinous in scope and degree that they offend the interest of humanity,"
all states needing to address them.
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- However, until post-WW II, UJ applied only to piracy
and slave trading, thereafter to genocide, crimes of war and against humanity,
as established by the Nuremberg Charter and Judgment, now defined by the
ICC to include systematic attacks against civilians, including murder,
enslavement, deportation or forcible transfer, false imprisonment, torture,
rape, sexual slavery, collective punishment, enforced disappearance, and
apartheid.
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- Guilty parties are considered hostis humani generis -
enemies of mankind. War crimes are against the jus gentium - the law of
nations, international law established to address them.
-
- The International Law Commission's (ILC) principle VI
of the Principles of International Law Recognized in the Charter of the
Nuremberg Tribunal and in the Judgment of the Tribunal, determined that
crimes of war and against humanity "rise to the level of international
crime," now recognized under customary international law.
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- A national court exercising UJ acts not in its name,
but for the international community - only when responsible countries won't,
can't or haven't. In other words, as a last resort.
-
- In addition, various post-WW II Conventions, including
the four Geneva ones and their Common Article 1 obligates all High Contracting
Parties to "respect and ensure respect for the present Convention
in all circumstances;" namely, to apply its principles universally,
requiring High Contracting Parties "search for persons alleged to
have committed, or to have ordered to be committed, such grave breaches,
and shall bring such persons, regardless of their nationality, before its
own courts."
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- At Nuremberg, the concepts of individual and command
criminal responsibility were addressed, the Tribunal Principles holding
that "(a)ny person who commits an act which constitutes a crime under
international law is responsible therefor and liable to punishment....(c)rimes
against international law are committed by men, not by abstract entities,
and only by punishing individuals who commit (them) can the provisions
of international law be enforced."
-
- The Rome Statute's Article 25 of the ICC codified this
principle, affirming the culpability of persons committing crimes of war
and against humanity. In addition, commanders and their superiors are specifically
culpable if they "either knew or, owing to the circumstances at the
time, should have known that the forces were committing or about to commit
such crimes, (and) failed to take all necessary and reasonable measures
within his or her power to prevent or repress their commission or to submit
the matter to the competent authorities for investigation and prosecutions."
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- Nuremberg established that immunity is null and void,
including for heads of state, other top officials, and top commanders.
In addition, genocide, crimes of war and against humanity are so grave
that statute of limitation provisions don't apply.
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- Final Comments
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- UJ is to ensure that individuals committing high crimes
are held accountable, essential under the rule of law. Otherwise, it's
meaningless. All too often, however, populations, like the Palestinians,
are abused for many decades, Israel getting away with mass murder and other
grave breaches of law.
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- As a result, UJ is the only alternative, national courts
willing to use it an essential judicial remedy. It's high time they take
the first step to universal justice, sending a powerful message that crimes
this egregious won't stand, no matter who commits them or shares responsibility.
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- Stephen Lendman lives in Chicago and can be reached at
lendmanstephen@sbcglobal.net. Also visit his blog site at sjlendman.blogspot.com
and listen to cutting-edge discussions with distinguished guests on the
Progressive Radio News Hour on the Progressive Radio Network Thursdays
at 10AM US Central time and Saturdays and Sundays at noon. All programs
are archived for easy listening.
-
- http://www.progressiveradionetwork.com/the-progressive-news-hour/.
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