Dificultad para contar con un significado compartido de reflexión

142. Universal jurisdiction provides another basis upon which states can investigate and prosecute corporations or their representatives for pillaging natural resources. The often controversial notion of universal jurisdiction has developed based on the idea that certain offenses are sufficiently grave that all states can assert criminal jurisdiction

over the perpetrators regardless of where the offenses took place or the nationality of the respective participants. War crimes clearly meet the requisite degree of gravity. As a Swiss Military Court found when exercising universal jurisdiction over a Rwandan mayor accused of war crimes, “given their qualification as war crimes, these infractions are intrinsically very serious.”315 War crimes are also widely regarded as peremptory in character and thus enjoy a higher rank in the international hierarchy of norms than treaty law or even ordinary customary rules. The Kupreškic´ Trial Judgment affirmed this proposition in declaring that “most norms of international humanitarian law, in par- ticular those prohibiting war crimes, crimes against humanity and genocide, are also peremptory norms of international law or jus cogens, i.e. of a non-derogable and overrid- ing character.”316 On the strength of a comprehensive synthesis of state practice on the subject, the International Committee of the Red Cross has also concluded that “[s]tates have the right to vest universal jurisdiction in their national courts over war crimes.”317 143. There are at least two different variations of universal jurisdiction. One group of states has enacted a more restrained form of universality that requires the presence of the accused within the state’s territory before jurisdiction can be asserted. In Canada, the Crimes against Humanity and War Crimes Act provides that any person who has committed a war crime within or outside Canada may be prosecuted on the condition that the accused is present in Canada after the offense was committed.318 This jurisdic- tional principle may allow the investigation and prosecution of foreign companies or their representatives who, aside from operating in war zones, also maintain offices or carry out commerce within Canadian borders. One might therefore anticipate a more frequent exercise of universal jurisdiction conditional upon the presence of the author within countries that enjoy this jurisdictional capacity in response to allegations of cor- porate pillage, especially given the ever increasing mobility of commercial actors within a globalized market.

144. Other states have enacted an unconditional or pure rendition of universal juris- diction, which presents states with even greater possibilities for the judicial scrutiny of corporate pillage. These unconditional versions of universal jurisdiction formally disregard the requirement that the accused be present within the territory. The Ger- man Code of Crimes against International Law states that “[t]his Act shall apply to all criminal offences against international law designated under this Act, to serious criminal offences designated therein even when the offence was committed abroad and bears no relation to Germany.”319 In declining to exercise the jurisdiction conferred by this article over acts of torture allegedly committed by Donald Rumsfeld and others in Afghanistan, Cuba, and Iraq, the German prosecutor general insisted that she retained a discretion not to proceed in cases committed abroad “if a perpetrator is neither present

8 8 C O R P O R A T E W A R C R I M E S

in the country nor can be expected to be present.”320 Nonetheless, according to German criminal procedure, this discretion will not exist when the perpetrator is German or located within German territory.321 This not only covers German business representa- tives operating abroad, it also has consequences for foreign businesses that operate within Germany.

145. Other courts, particularly in Spain, have already proved willing to exercise uncon- ditional universal jurisdiction over individuals for pillaging natural resources. In Febru- ary 2008, a Spanish judge confirmed the indictment of several high ranking Rwandan military officials for a range of international crimes that included the pillage of natural resources in the Democratic Republic of the Congo.322 In particular, the court indicted the chief of staff of the Rwandan Army for the pillage of natural resources, ignoring that an official Belgian Parliamentary Commission indicated that the same Rwandan official habitually sold minerals to a series of companies jointly owned by a Swiss national.323 As previous chapters of this manual demonstrate, there is little legal basis for distin- guishing between the indicted Rwandan military leader who extracted the resources and the Swiss businessman who purchased the proceeds. Although changes to the Spanish law on universal jurisdiction now mean that this case will proceed on the basis that nine of the victims were Spanish, the case remains an important illustration of the potential of universal jurisdiction. It is plausible that universal jurisdiction could be employed to charge businesses and their representatives implicated in the illegal acquisition of natural resources from war zones.

Further Reading

Luc Reydams, Universal Jurisdiction: International and Municipal Legal Perspectives (Oxford Univ. Press, 2003).

Universal Jurisdiction: National Courts and The Prosecution Of Serious Crimes Under Inter- national Law (Stephen Macedo ed., 2004).