Scholars for Peace in the Middle East Legal Task Force Releases Statement on the Abuse of Universal Jurisdiction

NEW YORK, April 5, 2010 - The Legal Task Force of the Scholars for Peace in the Middle East
released its first major statement today, blasting the misuse of universal
jurisdiction (in the U.K. and elsewhere) and insisting upon reform. In light
of recent harassment of Israeli officials, the international panel of legal
scholars admonished world leaders that "selective enforcement,
under-enforcement and over-enforcement all exacerbate the risks of legal
uncertainty, unpredictability, confusion, disparity and inequity." Moreover,
the group continued, "abusive practices can jeopardize peaceful relations
among nations, by curbing international travel by senior governmental
officers and provoking retaliatory actions by states whose officials are
subjected to extraterritorial jurisdiction." Detailing the dangers of misuse,
the Legal Task Force then provided specific recommendations for reform "with
a view to prevent politically motivated judicial proceedings…"

The group firmly endorsed the British government's March declaration "the
Crown Prosecution Service will take over responsibility for prosecuting war
crimes and other violations of international law, ending the current system
in which magistrates are obliged to consider a case for an arrest warrant
presented by any individual."

As a demonstration of the seriousness of this issue, the Scholars for
Peace in the Middle East Board of Directors unanimously adopted the Legal
Task Force's statement and recommendations.

Governed and directed by academics, Scholars for Peace in the Middle East
(SPME) is a grass-roots community of more than 30,000 university and college
professors, researchers, administrators, teachers, librarians, and students
on more than 3500 campuses worldwide. As our name implies, we envision and
strive for peace in the Middle East: a world in which Israel exists as a
sovereign Jewish state within secure borders and her neighbors achieve their
legitimate peaceful aspirations. As scholars, we commit ourselves to the
promotion of research, education, and service to achieve this just peace. We
also envision and strive for a region in which human rights, stability and
economic development grow and benefit all the peoples of the area.

As part of our mission we have been concerned for some time by the abuse
of universal jurisdiction used as an extension of what has become "lawfare"
against Israel and other democratic nations. The Legal Task Force of Scholars
for Peace in the Middle East made up of law professors from the US, Canada,
Europe and Israel has released their statement on the abuses of universal
jurisdiction.

Professor Kenneth L. Marcus, Chair of the Legal Task Force commented: "It
is absurd that Tzipi Livni and Condi Rice are targeted for prosecution, while
the likes of Mahmoud Ahmadinejad and Kim Jong-il enjoy complete impunity.
Clearly the time has come for reform."

Professor Peter Haas, President of SPME noted: "The new lawfare stands in
the way of Middle East peace. The misuse of judicial tools as weapons of war
only escalates the current conflict and lessens the likelihood of diplomatic
resolution."

Professor Emeritus Samuel Edelman, Executive Director of SPME stated:
"SPME's Legal Task Force is a blue-ribbon panel of expert legal scholars from
around the world. Their recommendations could not be timelier in light of the
reforms that the British government is finally considering. But the problems
are not limited to the United Kingdom, or to Spain, and must be addressed by
governments around the world."

Statement of the Legal Task Force of Scholars for Peace in the Middle
East On the Abuse of Universal Jurisdiction

In recent years, universal jurisdiction has generated a continual stream
of controversies. Critics have challenged both the exercise of jurisdiction
in cases where it appears unwarranted (as in the U.K. arrest warrant issued
for Tzipi Livni and threatened prosecutions of George W. Bush and Condoleezza
Rice) and the failure to exercise it where it appears appropriate (as in the
cases of Mahmoud Ahmadinejad and Kim Jong Il). Inherent in universal
jurisdiction are the risks of politically motivated prosecution, loss of due
process, abandonment of legal standards, and abrogation of state sovereignty.
Selective enforcement, under-enforcement and over-enforcement all exacerbate
the risks of legal uncertainty, unpredictability, confusion, disparity and
inequity. Selective exercise may also create the appearance of
politicization, paternalism, neocolonialism, aggression or bias. Moreover,
abusive practices can jeopardize peaceful relations among nations, by curbing
international travel by senior governmental officers and provoking
retaliatory actions by states whose officials are subjected to
extraterritorial jurisdiction.

In most cases, judicial proceedings should be conducted by judicial
bodies of the state in whose territory the alleged wrong transpired in order
to further the judicial interests in full discovery of evidence, increase the
deterrent value of the proceedings and to ensure that the accused is held
accountable under laws of which he or she has had proper notice and under a
system of justice to which he or she has at least implied consented. There
are several legitimate exceptions to this rule, but each must be
circumscribed closely in order to curb the potential for abuse.

Universal jurisdiction by a domestic tribunal, still an exception in
current international law, can constitute serious judicial abuse under some
circumstances. For this reason, universal jurisdiction must be considered an
extraordinary measure subject to the strictest care, precautions and
scrutiny. States which exercise universal jurisdiction have an obligation to
ensure that adequate safeguards are established to maintain the integrity of
the judicial process, prevent criminal justice abuse, and the destabilization
of peaceful relations with other states.

Specifically, all states should limit the potential for abuse of
universal jurisdiction by establishing four basic safeguards: (i) requiring
special circumstances, such as a limitation of the offences that can give
rise to its invocation or the requirement of a nexus between the state and
the alleged transgression, (ii) providing mechanisms to prevent either
politicization or judicial overreaching, (iii) recognizing qualified
immunities for certain governmental officials, and (iv) requiring prior
exhaustion of adequate and available domestic remedies. Some of these
limitations are contained within the important joint separate opinion of the
International Court of Justice in the Arrest Warrant case (April 11, 2000).

According to the ICJ's joint separate opinion of judges Higgins,
Kooijmans and Buergenthal "special circumstances" are a necessity to commence
proceedings under universal jurisdiction. This may entail a request from a
source external to the prosecutorial office, such as the victim's family.
This is intended to ameliorate the prospect of politically motivated
prosecutions. An alternative limitation on offices is to require a nexus
between the state exercising jurisdiction and the alleged crime. This
requirement may limit jurisdiction to cases where a national of the state
exercising jurisdiction is victim or accused or where the state is mandated
by treaty to exercise it.

Various limitations have arisen to minimize the prospect of
politicization or judicial overreaching. One such mechanism is the
requirement of prior approval by an appropriate cabinet officer, such as a
minister of justice, before judicial proceedings may take place. Another
limitation, suggested by the ICJ, is that prosecution must be conducted by a
prosecutor independent of any state organ, in order to reduce the likelihood
that charges are brought for political reasons. To date, many cases brought
on the basis of universal jurisdiction have suffered from both official and
private sector politicization, neither of which serves the cause of
international justice. The initiative for prosecutions must be in the hands
of a sovereign criminal justice system - which includes consent from the
Minister of Justice for any indictment or prosecution to proceed - in order
to prevent private sector legal agitation from taking hold of a prosecutorial
agenda for which state officials must be responsible. On the other hand, the
prosecution itself must be carried out by a prosecutorial staff that is
independent of any pressure by the political branches of government, in order
to prevent the justice system being misused for foreign policy goals.

The "exhaustion of domestic remedies" requirement is an important
limitation of unnecessary use of universal jurisdiction. As the ICJ has
explained, this requirement means that any state which chooses to assert
universal jurisdiction in absentia "must first offer to the national State of
the prospective accused person the opportunity itself to act upon the charges
concerned." This limitation both protects comity among nations and also
respects the superior jurisdictional claims of the state in whose territory
the alleged wrongdoing occurred. Some commentators have observed that
international scrutiny of domestic judicial proceedings, together with the
prospect of subsequent proceedings abroad (subject to limitation on double
jeopardy), would enhance the likelihood of good faith prosecution. This
requirement must however be limited to cases in which domestic remedies are
adequate and available to ensure that the purposes of universal jurisdiction
are not frustrated.

The ICJ has recognized that "no exercise of criminal jurisdiction may
occur which fails to respect the inviolability or infringes the immunities of
the person concerned[, but] commencing an investigation on the basis of which
an arrest warrant may later be issued does not of itself violate those
principles." In other words, states exercising universal jurisdiction must
honor the privileges and immunities which the officials of other states may
exercise, but they may nevertheless conduct investigations. The exercise of
universal jurisdiction is necessarily subject to various privileges,
including a qualified immunity for heads of state. This privilege should be
recognized for former as well as present heads of state. It should also be
recognized for certain inferior officers. Universal jurisdiction should not
be used in a manner which undermines the fundamental right of self-defense of
all sovereign states.

FOR THESE REASONS

We appeal to all states to provide adequate legal guarantees with a view
to prevent politically motivated judicial proceedings, making abuse of any
law permitting universal jurisdiction. If necessary, domestic laws should be
drafted or amended accordingly.

We welcome and endorse the British government's declaration of March 4,
2010 that "… the Crown Prosecution Service will take over responsibility
for prosecuting war crimes and other violations of international law, ending
the current system in which magistrates are obliged to consider a case for an
arrest warrant presented by any individual."

We encourage the British government and any other government to act in a
speedy and timely manner in order to ensure judicial integrity, avoid
frictions between nations and restore the good understanding among friendly
nations.

Members of the SPME Legal Task Force

Kenneth L. Marcus (chair)

Lillie & Nathan Ackerman Chair in Equality & Justice in America,
CUNY/Baruch College & Director, Initiative on Anti-Semitism & Anti-Israelism,
Institute for Jewish & Community Research, USA

    Marc Cogen
    Professor of International Law
    Ghent University, Belgium

    Karen Eltis
    Associate Professor of Law
    University of Ottawa, Canada

    Ed Morgan
    Professor of Law
    University of Toronto, Canada

    Mohammed Saif-Alden Wattad
    Lecturer in Law
    Zefat Law School, Israel

Kenneth L. Marcus, +1-530-570-8137, klmarcus at aim.com, or Samuel Edelman, +1-530-570-8137, spmeexecdir at gmail.com, both of Scholars for Peace in the Middle East