Jump to ContentJump to Main Navigation
The Hidden Histories of War Crimes Trials$

Kevin Heller and Gerry Simpson

Print publication date: 2013

Print ISBN-13: 9780199671144

Published to Oxford Scholarship Online: January 2014

DOI: 10.1093/acprof:oso/9780199671144.001.0001

Show Summary Details
Page of

PRINTED FROM OXFORD SCHOLARSHIP ONLINE (www.oxfordscholarship.com). (c) Copyright Oxford University Press, 2020. All Rights Reserved. An individual user may print out a PDF of a single chapter of a monograph in OSO for personal use. date: 25 February 2020

Universal Jurisdiction

Universal Jurisdiction

Conflict and Controversy in Norway

Chapter:
(p.267) 13 Universal Jurisdiction
Source:
The Hidden Histories of War Crimes Trials
Author(s):

Selman-Ayetey Julia

Publisher:
Oxford University Press
DOI:10.1093/acprof:oso/9780199671144.003.0013

Abstract and Keywords

This chapter discusses the law of universal jurisdiction and its application in Norway in the case of Public Prosecutor v Mirsad Repak. It examines constitutional issues raised by the case and addresses the question of whether any other legal forum would have been better suited to try the case. Norway's increasing tendency to investigate, arrest, extradite, and prosecute foreign war criminals demonstrates to the rest of the world that the country that respects international humanitarian law will not hesitate to utilize its extraterritorial powers when necessary. The case of Mirsad Repak illustrates that such prosecutions can be achieved in an effective and just manner, and should encourage other states to take similar action should the need arise.

Keywords:   international law, Public Prosecutor v Mirsad Repak, constitutional issues, war crimes

(I) Introduction

The media frenzy surrounding the trials of Slobodan Milosevic and Charles Taylor demonstrate the significant public attention given to the prosecution of core international crimes.1 Well-publicized trials such as these tend, however, to be prosecuted at the International Criminal Court (ICC), at ad hoc tribunals, or at hybrid courts. Unfortunately, many trials of core international crimes processed through domestic judicial systems have remained relatively obscure. The pending closure of the ad hoc tribunals and the attention given to war crimes trials that recently occurred in Bangladesh and Uganda may reflect a slow but growing trend toward states conducting domestic trials of core international crimes and the media’s willingness to cover such events. This chapter is part of larger efforts to study domestic trials and understand their potential to develop international law. To this end, the chapter will briefly outline the law of universal jurisdiction and examine its application in Norway in the case of Public Prosecutor v Mirsad Repak.2 Constitutional issues raised by the case will be critically explored and the question of whether any other legal forum would have been better suited to try the case will also be addressed. Finally, the chapter will conclude that the number of domestic prosecutions for (p.268) core international crimes, whether based on universal jurisdiction or not, must increase for impunity to decrease.

(II) Universal Jurisdiction in Brief

Whilst international adjudication is now broadly accepted, the principle of universal jurisdiction remains one of the most controversial aspects of international criminal law. The law of universal jurisdiction, a type of extraterritorial jurisdiction, permits and sometimes requires countries to prosecute individuals for specific crimes regardless of where the crime occurred or the nationality of the suspect(s) or victim(s). Its foundation rests on the premise that some crimes (generally those that amount to breaches of international humanitarian law) are so grave, of such magnitude, and so shocking to the conscience that they are an offence against the world, permitting any state to prosecute the alleged perpetrator:

In other words, universal jurisdiction, in its purest form is one in which mankind acts on behalf of itself everywhere to ensure that the perpetrators of particularly heinous crimes will not escape justice on the basis of the limitations of national judicial systems or those of international courts.3

In relation to universal jurisdiction, Anne-Marie Slaughter highlights that ‘government officials, scholars, and media officials have already expressed concern over how to tame this new beast’.4 Whilst concern has indeed been expressed, the law of universal jurisdiction is not quite so new. On the contrary, it has existed in some form or another, in both domestic and international law, since at least World War II.5 More than 100 countries have laws that provide for the exercise of universal jurisdiction over core international crimes,6 but as Kingsley Moghalu states, ‘having a law on the books is often quite different from the political will to apply it in terms of a practical assertion of universal jurisdiction’.7

Devised as a means of circumventing impunity, fears of allegations of lawfare8 and political manipulation are just two of the reasons states avoid employing universal jurisdiction. It is thus unsurprising that the ICC does not possess universal (p.269) jurisdiction, but instead operates on the principle of complementarity. Whilst the arguments for and against the law of universal jurisdiction are well documented and largely beyond the scope of this chapter, it is nevertheless argued that the assertion of jurisdiction based on universality should be viewed as legitimate when used as a last resort9 or where the most appropriate forum consents to prosecution by the ‘intervening’ state.

(III) Norway’s Disdain for War Crimes

Following the lead of other pro-universal jurisdiction countries such as Belgium, Germany and Spain, Norway has demonstrated its commitment to cooperating with other states in matters of international criminal law.10 In 2005 Norway created a special prosecutorial post and established a unit within the National Criminal Investigation Service (NCIS) to investigate and potentially extradite or prosecute individuals suspected of involvement in core international crimes.11 However, Norway’s desire to prosecute war criminals was frustrated when its attempt to have the trial of Michel Bagaragaza transferred to its jurisdiction was refused by the International Criminal Tribunal for Rwanda (ICTR) on the grounds that Norway lacked the appropriate legislation.12 Although the prosecution of Bagaragaza could have occurred in Norway under ordinary domestic offences such as murder and assault, the ICTR asserted that those charges would not adequately reflect the repugnant nature of the offences with which Bagaragaza was charged. It thus became apparent that Norway could encounter opposition in any future attempts to try war criminals under existing legislation. Consequently, in 2007, the Norwegian government announced its plan to enact legislation to prohibit core international crimes that were not specifically provided for in prior domestic law. Since then, the country has increasingly taken a stand against alleged war criminals. In 2006, Norway carried out its first extradition of a war criminal when it transferred a Croatian national, Damir Sireta, to Serbia.13 In April 2009, seven Israeli military (p.270) officers, as well as Former Israeli Prime Minister Ehud Olmert, Defence Minister Ehud Barak and opposition leader Tzipi Livni, were accused of war crimes in a complaint lodged with Norway’s National Authority for Prosecution of Organised and Other Serious Crimes. No action was taken, however, because the individuals were not in Norway. In July 2010, following an international ‘wanted notice’, the Norwegian authorities extradited Vukmir Cvetovic, a Serbian, to Kosovo where he was subsequently convicted of war crimes and sentenced to seven years’ imprisonment.14 Most recently, in September 2012, Norway’s prosecutors embarked upon their first trial for the offence of genocide.15 As a result of these events, Norway’s investigative and judicial authorities have contributed to global justice and have established a reputation for impartiality and independence. Any concerns about abuse or misuse of universal jurisdiction laws on the part of the Norwegian police or judiciary would thus be difficult to substantiate, given the tendency of Norway to engage with other states, extradite when possible, and dismiss complaints of a frivolous or politically motivated nature.

(IV) Universal Jurisdiction and War Crimes Legislation in Norway

Norwegian legislation has enabled prosecution based on universal jurisdiction for over a century. Articles 12(3) and (4) of the Norwegian General Civil Penal Code 1902 (the 1902 Penal Code) permitted the prosecution of nationals, residents and non-nationals for certain crimes committed abroad as long as the conduct was criminal under Norwegian criminal law and the individual was in Norway.16 Whilst the ability to exercise universal jurisdiction under the 1902 Penal Code was commendable, the problem with the legislation was that perpetrators who committed acts that, for example, would amount to genocide under international law could only be charged with murder in Norway. Prior to the implementation of the Norwegian General Civil Penal Code 2005 (the 2005 Penal Code), the only war-related offences in Norway were those that pertained to acts against the state and the Norwegian Constitution (Constitution).17 The pre-existing law, the 1902 Penal Code, contained offences that could cover international core crimes in substance, but not in name. To rectify this discrepancy, the offences of genocide, war crimes, and crimes against humanity were adopted into Norwegian law on 7 March 2008 by virtue of an amendment to the 2005 Penal Code.

(p.271) The 2005 Penal Code enables the prosecution of core international crimes in Norway. Section 102 provides for the offence of ‘crimes against humanity’ and section 103 covers ‘war crimes’, with subsection 103(h) specifically referring to the unlawful confinement of protected persons. These new provisions accord in most part with the definitions under existing international criminal law. The 2005 Penal Code provides Norway with the authority to prosecute Norwegians, residents and foreigners suspected of having committed any of the stated offences regardless of where in the world those offences occurred. In contrast to many other countries, in Norway the decision to prosecute a case based on universal jurisdiction may be taken by the local prosecutor or police commissioner without any senior political input.18 This policy may assist in minimizing allegations of political influence often associated with the exercise of universal jurisdiction. As with the 1902 Penal Code, in order for this power to be exercised, the suspect must be present in Norway; however, the 2005 Penal Code additionally requires that the prosecution must be in the public interest.19

Despite Article 97 of the Constitution, which states that ‘no law must be given retroactive effect’, legislators drafted section 3 of the 2005 Penal Code in an attempt to permit such retrospectivity in clearly prescribed circumstances.

Section 3 of the 2005 Penal Code states:

The provisions in Chapter 16 [that is, the war crime provisions] apply to acts committed before their entry into force if the act at the time of its commission was punishable under the criminal legislation in force at the time and considered to be genocide, a crime against humanity or a war crime according to international law. The punishment can however not exceed the punishment that would have been imposed pursuant to the penal provisions [in force] at the time the crime was committed.

This is in contrast to section 3 of the 1902 Penal Code which stated:

If the criminal legislation has been amended in the period following the commission of an act, the penal provisions in force at the time of its commission shall be applicable to the act unless otherwise provided.

This provision has generally been interpreted as one that prohibits law being applied retrospectively.

(V) The Investigation and Indictment of Mirsad Repak

The war in the former Yugoslavia was largely fought along ethnic lines. Mirsad Repak, an ethnic Bosniak, was a member of the Croatian Defence Forces (HOS), a paramilitary group which, amongst other things, operated the Dretelj detention camp in Bosnia and Herzegovina. In 1992 most of the detainees in the camp were Serbian civilians intended to be exchanged for imprisoned Bosniaks and Croats. (p.272) The camp became notorious for its brutal guards, and the many atrocities committed there including torture and sexual abuse of both female and male detainees.20 Repak fled the armed conflict and arrived in Norway in 1993, where he sought asylum. He was granted Norwegian citizenship in 2001.

Repak was initially arrested on charges of unlawful deprivation of liberty, rape and severe injury because core international crimes did not exist in domestic law at the time the alleged offences were committed. However, after the 2005 Penal Code was brought into force and after further investigation, a revised indictment was submitted to the Oslo District Court on 9 July 2008 resulting in Repak being charged with twenty-one offences under the new provisions of the 2005 Penal Code—offences that, importantly, were cross-referenced with the related offences under the 1902 Penal Code: (i) eighteen counts of unlawful deprivation of liberty under the 1902 Penal Code constituting both war crimes and crimes against humanity under the 2005 Penal Code; (ii) two counts of grievous bodily harm (GBH) under the 1902 Code equivalent to war crimes as per the 2005 Penal Code; and (iii) one count of rape under the 1902 Code equivalent to a war crime under the 2005 Penal Code.21

The charges arose out of allegations that in 1992, during the war, Repak was complicit in the unlawful deprivation of liberty of eighteen non-combatant civilians and personally raped one woman.22 By arresting and transferring individuals to the camp, Repak was alleged to have participated in the gross mistreatment of detainees which included severe violence, psychological abuse, inhumane conditions and insufficient provision of food. It was also claimed that he was the leader of an interrogation in which a woman was beaten and tortured.23 However, this particular act of violence was not covered by the charges in the indictment as they were time-barred from prosecution.24

Often those responsible for initiating domestic investigations into international crimes are victims or relatives of victims, ordinary members of the public or campaign groups. Repak’s case, however, was initiated following receipt of information from the Danish authorities, who were conducting their own investigations into war crimes involving refugees from the former Yugoslavia.25 Beginning in 2005, and in conjunction with the State Investigation and Protection Agency in Bosnia and Herzegovina, the Norwegian police had already initiated investigations of individuals who were suspected of war crimes and resident in Norway.26 With the assistance of the International Criminal Tribunal for the former Yugoslavia (ICTY) and prosecutorial authorities in various former Yugoslav countries,27 Norwegian authorities intensified their investigation on Repak, arrested him on 8 May 2007 and detained him until February 2008, after which he was released pending trial.28

(p.273) (VI) The Trial and Appeal Judgment

Despite defence counsel’s request for dismissal on grounds of unconstitutionality (among others), the trial of Mirsad Repak commenced on 27 August 2008 in the Oslo District Court. It was conducted according to substantive Norwegian laws, the most relevant being both the 1902 and 2005 Penal Codes as well as Norwegian laws of evidence and procedure under the Criminal Procedure Act 1981. Interestingly, as there is no jury in courts of first instance in Norway, the case was solely determined by one judge and two lay members. The Court appointed a Victim’s Counsel and the prosecution and defence were composed of two attorneys each. There were more than forty witnesses, approximately half of whom testified in Court in Norway whilst the others testified via telephone or video link from the Norwegian embassies in Australia, Bosnia, Serbia and the United States (US).29 Additionally, the Court appointed four expert witnesses who gave evidence on the Balkan conflict, the injuries suffered by the alleged victims as well as witness psychology and the process of remembering.30 Both the first instance trial and appeal were conducted partly in Norwegian and, with the assistance of an interpreter, partly in Serbian/Croatian.31

Despite admitting to having made some of the relevant arrests, Repak pleaded not guilty to all charges.32 He further admitted to having been a coordinator and bodyguard in the HOS but asserted that he ‘never participated in the mistreatment of detainees that took place in the Dretelj detention camp’.33 Interestingly, Repak’s defence counsel raised the point that an amnesty was passed in 1999 by the Parliament of Bosnia and Herzegovina that would have prevented Repak from being prosecuted in that jurisdiction. The Court found that by fleeing to Norway, Repak lost the protection of the law in Bosnia and Herzegovina and that the Norwegian authorities were thus entitled to prosecute despite the Bosnian amnesty.34

The trial concluded on 22 October 2008, and on 2 December 2008 the Court found Repak ‘guilty of eleven counts of war crime in the form of deprivation of liberty of civilian non-combatant Serbs with subsequent internment in the Dretelj camp’,35 contrary to section 103 of the 2005 Penal Code. He was, however, acquitted of rape, both counts of GBH and all the crimes against humanity charges as detailed in section 102 of the 2005 Penal Code. On the evidence, the District Court noted that whilst it accepted that the female victim in question was indeed raped, the evidence was insufficient to establish Repak as the perpetrator and suggested the possibility of mistaken identity.36 The Court also found that Repak (p.274) was not a prison guard nor had any major influence there, but did hold a middle leadership position, equivalent to that of a lieutenant, within the HOS with direct responsibilities for the HOS military police.37 The Court made it clear that although Repak was not criminally liable for the offences which took place in the Dretelj camp, ‘it must be presumed that more persons were detained and some arrived earlier at Dretelj than would have been the case without the defendant’s complicity’.38 The arrests that were conducted, or ordered, by him contributed to the detainees’ deprivation of liberty and were considered an aggravating factor in sentencing, as were the acts of violent crime and torture which were time-barred from prosecution.39 The Court sentenced Repak to five years in prison and noted that the deviation from the prosecution’s recommendation of ten years’ imprisonment was primarily the result of the offences of which Repak was acquitted.40 Additionally, Repak was ordered to pay a total of Kr 400,00041 in compensation for non-pecuniary damage to eight victims. He was not ordered to pay costs in the case as the Court stated it was more important that Repak ‘should pay the compensation for non-pecuniary damage…than paying costs of the case to the public treasury’.42

Repak’s lawyers appealed to the Bogarting Court of Appeal on the basis of incorrect application of law and factual inaccuracies. The prosecution also requested the Court of Appeal to reconsider three counts of war crimes of which Repak had been acquitted by the District Court. A re-trial with a jury43 followed, and in March 2010 the Appeal Court upheld the first instance verdict. Unexpectedly, the Appeal Court accepted most of the prosecution’s submissions and found Repak guilty of an additional two counts of war crimes based on unlawful detention, bringing Repak’s conviction to a total of thirteen offences.44 Despite the suggestion by the prosecutor for an eight-year term of imprisonment, in April 2010 the Appeal Court announced that it had reduced45 his five-year sentence to four-and-a-half years but increased the amount of damages he was to pay to his victims to Kr 1,400,000.46

(VII) The Supreme Court Judgments

Subsequently, both Repak’s lawyer and the prosecution appealed to Norway’s Supreme Court. The defence appealed on a number of grounds, the most relevant of which was the argument that the 2005 Penal Code did not provide a basis for the war crimes charges. The prosecution appeal was against the finding that the (p.275) crimes against humanity offences under the 2005 Penal Code could not apply to Repak’s acts. Upon receipt of the applications, the Supreme Court agreed to determine two issues, firstly the constitutional conundrum, which involved consideration of potential limitation of time, abuse of process and retrospectivity, and secondly the severity of punishment.

On 3 December 2010, by a decision of eleven to six47 rendered by all seventeen of Norway’s Supreme Court judges,48 the Norwegian Supreme Court handed down its judgment.49 It found that the case against Repak was not ‘time-barred’. Given that Repak’s alleged acts took place between May and September 1992 and the original indictment was filed on 8 May 2007, the fifteen-year limitation period provided for by the 1902 Penal Code, which for limitation purposes was held to be the applicable law, had not expired. With regard to abuse of process, the Court also found that the defence allegation that the charges against Repak required authorization by King in Council rather than the prosecution authority was unsubstantiated.50 As for the issue of retrospectivity, a majority of eleven Supreme Court judges held that the District and Appeal Courts were correct in finding that the offence of crimes against humanity could not apply to acts committed prior to the date of its legal effect. Surprisingly, however, they further found that the war crime offence could not apply retrospectively either.51 In effect, the Supreme Court decided that where offences took place prior to the implementation of the 2005 Penal Code, only the 1902 Penal Code could be used for prosecution.

This ruling, whilst important for the prosecution of future cases, did not absolve Repak of his criminal liability. It will be recalled that the indictment cited both the old and new laws, hence there was no need for a retrial and the thirteen counts against Repak stood, albeit for the offences of deprivation of liberty rather than the more grave offence of war crimes. As a result, the Court directed that the 1902 Penal Code be used to determine his sentence thereby reducing the maximum term of imprisonment to twenty-one years, as opposed to the thirty years available under the 2005 Penal Code.52 In a judgment rendered on 13 April 2011,53 the Supreme Court indicated that it viewed Repak’s offences as ‘extremely grievous’54 (p.276) acts ‘perpetrated against defenceless people and solely motivated by their ethnic background’55 over a period of more than four months. In accordance with that view, the Court increased Repak’s sentence to eight years in prison, two more than suggested by the Prosecution Counsel and the Attorney-General.56 He was also ordered to pay approximately Kr 30,000 to ten victims and Kr 50,000 to another.57

(VIII) Discussion

Repak’s case was complicated by the fact that two Penal Codes were cited in the indictment. Section 223 of the 1902 Code, the relevant law in force at the time Repak’s acts were committed, detailed the offence of ‘unlawful deprivation of personal liberty’ which clearly covered the acts of which Repak was accused. However the prosecution sought conviction under the 2005 Penal Code in an attempt to reflect the gravity of Repak’s conduct. In accordance with the principle of fair labelling, the defence submitted that the offences under the 2005 Penal Code ‘provide a far more defamatory description than that of deprivation of liberty’58 and thus provided an even stronger reason why the 2005 Penal Code should not be applied retrospectively. With regard to the war crimes charges, the District Court held that the acts detailed in the indictment were completely covered by section 223 of the 1902 Penal Code, which it found had the same aim as section 103(h) of the 2005 Penal Code.59 The District Court observed that, in order for the section 103 charges to be valid, the 2005 Penal Code required three questions to be answered in the affirmative: (i) was there an armed conflict? (ii) did the victims constitute protected persons? and (iii) were the offences against international law? The first question was quite easily satisfied as the war in the former Yugoslavia was clearly an armed conflict and there was sufficient evidence to link Repak’s alleged offences to the war. Secondly, it was accepted that the detainees were effectively hostages, given that the majority of them were intended to be used in a prisoner exchange with the Serbians.60 The District Court thus concluded that Repak’s victims were non-combatants, qualifying them as protected persons.61 Finally, the District Court used the 1949 Geneva Conventions and the Additional Protocols (the Conventions) to assess whether Repak’s acts were contrary to the international law in force at the time they were committed. The District Court found that whether the war in the former Yugoslavia was deemed an international or non-international conflict, Repak’s acts were in breach of the Conventions due to both the circumstances and conditions in which the civilians were arrested and detained. In its view, therefore, the war crimes charges were justiciable. Applying the same principle of interpretation, the District Court found that it would be applying (p.277) the law retrospectively in violation of the Constitution if it were to consider charges of crimes against humanity found in section 102 of the 2005 Penal Code, because it was not drafted in similar terms to any clause in the 1902 Penal Code.62 The Appeal Court agreed with the District Court’s judgment.

The main issue for the Norwegian Supreme Court was to determine whether the 2005 Penal Code was in breach of Article 97 or could lawfully be applied retrospectively. As indicated above, the Supreme Court agreed with the District and Appeal Court’s treatment of the crimes against humanity charges in Repak’s case but overruled their assessment of the legality of the war crimes charges. The Supreme Court found that the application of the 2005 Penal Code provisions to acts that occurred in 1992 would be a breach of Article 97.63

Did the Supreme Court get it right? In the circumstances, yes. Nevertheless, some might say that section 3 of the 2005 Penal Code is not unconstitutional, despite the names of the offences it outlines being different. It could be argued that Repak’s conduct (which gave rise to the charges of war crimes) was sufficiently similar in substance to the ‘unlawful deprivation of liberty’ offence that existed under section 223 of the 1902 Penal Code64 so that any issue of retrospectivity was merely theoretical. In fact, the six dissenting Supreme Court judges went even further by concluding that convictions based on both ‘sections 102 and 103 of the Penal Code 2005 would not be manifestly more onerous than conviction pursuant to section 223 of the Penal Code 1902 which applied at the time’65 and thus would not be in violation of Article 97. However, bearing in mind the failed Bagaragaza transfer and the principle of fair labelling, on balance it is argued that the Supreme Court made the right decision. They took the widely accepted approach by finding that ‘developments in international law and Norway’s interest in assisting international criminal courts could not undermine the fundamental requirement that a criminal conviction must have an authority in Norwegian law.66 With Article 97 prohibiting retrospective application of law there was, at least on a literal interpretation, no basis for the charges in domestic legislation. Thus section 3 of the 2005 Penal Code, on which the prosecution based the 2005 offences in the indictment, was ultra vires. It is suggested that had Article 97 not existed, section 3 would be intra vires and the reasoning of the District and Appeal Court perfectly sound. Unfortunately, Norway had two sets of laws, neither of which were an appropriate basis for prosecution. The 1902 Penal Code was insufficient because, arguably, it did not adequately reflect Repak’s acts, and the 2005 Penal Code was insufficient because it was not in effect at the time. It is suggested that the Norwegian authorities consider amending Article 97 to accord with section 3 of the 2005 Penal Code. This would enable Norwegian courts to validly convict a defendant, whose acts occurred prior to 7 March 2008, of war crimes and crimes against humanity should a case with similar complexities arise in the future.

(p.278) It is generally held that the relevant laws for determining jurisdiction and charges are those in effect at the time the offences were committed and not at the date of prosecution. To hold otherwise would legitimately raise concerns of unfairness:

Legal certainty, which underlies the principle of legality, requires that, upon committing their acts, persons know what laws apply and what legal consequences attach to them. If they know that, at the time of commission, under then valid laws, their acts are not amenable to universal jurisdiction, they may decide to commit them (and flee abroad to a State which will possibly not extradite them). Conversely, if they know that their acts are amenable to universal jurisdiction, they may, facing denial of a safe haven abroad, refrain from committing them.67

If a suspect is charged with an offence that did not exist at the time of the relevant act, the ability to know the consequences of one’s actions is severely impaired, if not made impossible, because jurisdiction is only provided for post factum. Whilst the Supreme Court eventually found that the war crime provisions under the 2005 Penal Code could not apply to Repak’s acts, it is noted that in 1992 Repak could only have foreseen prosecution in Norway under the 1902 Penal Code. It may thus reasonably be argued that the prosecution should not have been permitted to cite the 2005 Penal Code in the indictment. This would have negated the need for an appeal based on unconstitutionality.

Nevertheless, despite the absence of contemporaneous domestic international criminal offences, and despite the globally entrenched principle of non-retrospectivity, it may not be unreasonable for states that have since adopted offences that may be prosecuted under universal jurisdiction legislation to assert that jurisdiction. First, the principle of legality, the essence of which is clarity and non-retrospectivity of law, is arguably not applicable to rules of procedure, of which jurisdiction is one.68 Second, many of the international offences prosecuted under universal jurisdiction have existed in treaty and customary international law for decades; hence the lack of domestic universal jurisdiction laws at the time of commission may be said to be irrelevant. The failure of Norwegian prosecutors to have the core international offences against Repak upheld has also been encountered in other European jurisdictions and often attributed to the general lack of domestic legislation covering such conduct prior to 2000.69 However, it is a fallacy to assert that where such offences are not reflected in domestic legislation, the principle of legality prevents such charges from being laid. It is a norm of customary international law that states are permitted to assert universal jurisdiction over international crimes that were recognized at the relevant time.70 Crimes against humanity have been recognized in international law for over fifty years and therefore satisfy that test. (p.279) It is recognized that many states require domestic implementing legislation in order to utilize international law; nevertheless, in states where discretion exists as to the direct application of international law, the prosecution of core international crimes is perhaps one scenario where that discretion should be exercised.

Most legal academics would agree that prosecutions of core international crimes have more of an impact and have the capacity to attain a higher degree of justice if they are carried out in the country where the atrocities occurred. Stigen aptly states that a case arising out of core international crimes:

[M]‌ost naturally belongs in the territorial state or in the home state of the victim or the suspect. But sometimes extraditing to an affected state is no real option. The suspect might risk torture or the death penalty there; the legal system might be too weak; the authorities might be implicated in the crimes; or the state might be socially and politically inclined not to prosecute the crimes. If extraditing the suspect to a third state or an international(ised) criminal court is also not an option, prosecution in the custodial state is the only way to avoid impunity.71

In Repak’s case, Norway was neither home to the crimes nor the country of his birth or that of his victims. Further, Bosnia was not in a period of transition and had already prosecuted a number of war criminals. Thus, despite the statutory authority to do so, some may question Norway’s motivation for prosecuting Repak. The answer is found in the fact that, according to the Norwegian Extradition Act, Repak’s Norwegian citizenship prevented him from being extradited.72 The question then arises as to why Repak was not stripped of his Norwegian citizenship. It is not unprecedented for those who have obtained citizenship by fraud/deception or have concealed their involvement in core international crimes and other related offences to have their citizenship revoked. For example, in some cases where naturalized citizens have been suspected of committing core international crimes prior to the acquisition of American nationality, the US authorities have withdrawn citizenship and deported those individuals back to their country of origin or to third countries that wanted them for prosecution.73 It is believed that at the time of arrest Repak still benefitted from Bosnian citizenship, hence he would not have been rendered stateless if Norway had revoked his citizenship. Whilst not impossible, historically it has been difficult to revoke citizenship in Norway.74 Given that extradition was not an option and revocation of citizenship not seriously considered, the only (p.280) options available to the Norwegian authorities were to prosecute or afford Repak a life without criminal responsibility for his offences.

Still, given the issues that arose in Norway’s prosecution of Repak, one would be forgiven for questioning whether a different legal forum would have been more appropriate. The ICC is only authorized to hear cases concerning acts that occurred after 1 July 2002, when the Rome Statute came into effect. The crimes Repak was alleged to have committed took place in 1992, so his case was not eligible to be heard before the ICC. Thus, apart from the unlikely possibility of a country asserting pure universal jurisdiction, any potential prosecution would be left to the ICTY, the Court of Bosnia and Herzegovina (the BiH Court) or Norway, where Repak was residing and had gained citizenship.

Unlike the ICC, the ICTY is permitted to hear cases where the criminal conduct occurred as early as 1 January 1991. Its jurisdiction is to prosecute crimes against humanity, genocide, grave breaches of the Conventions, and violations of the laws or customs of war,75 and thus would have covered the acts committed by Repak. However, given that the mandate of the ICTY is to ‘prosecute persons responsible for serious violations of international humanitarian law’,76 it is conceivable that the acts allegedly committed by Repak would not be considered to be of sufficient seriousness, in comparison to previous defendants, to warrant a prosecution by the ICTY. Interestingly, the fact that the ICTY chose not to exercise its right under Article 9(1) of its Statute77 implies that it had no interest in prosecuting Repak and had faith in the Norwegian judiciary. That said, technically, Repak could still be charged and tried before the ICTY, as Article 10(2) of the ICTY Statute provides that:

A person who has been tried by a national court for acts constituting serious violations of international humanitarian law may be subsequently tried by the International Tribunal only if:

  1. (a) the act for which he or she was tried was characterized as an ordinary crime; or

  2. (b) the national court proceedings were not impartial or independent, were designed to shield the accused from international criminal responsibility, or the case was not diligently prosecuted.

As a result of the Supreme Court decision, Repak’s conviction was no longer for ‘war crimes’ but for ‘unlawful deprivation of liberty’ and thus could be characterized as an ordinary crime as per Article 10(2)(a). However, given the lengths to which the Norwegian Court strived to be transparent78 and the comparatively minor offences79 Repak was alleged to have committed, it is very unlikely that the ICTY would seek to do so.

(p.281) The BiH Court was established in May 2002 to ‘ensure the protection of fundamental human rights and freedoms at the state level, as guaranteed by the Constitution of BiH’.80 Its criminal division has a dedicated War Crimes Chamber that usually consists of a panel of three judges, one of whom is international.81 The Court is not limited to acts committed within a specific time frame and is not restricted to prosecuting cases in which the defendant is deemed to be amongst those most responsible. Thus Repak’s case could have fallen within the remit of the BiH.

It has been said that ‘only when the directly affected states fail to investigate and prosecute do they forfeit their legal interest in primary prosecution and thus enable third states to fill the prosecutorial vacuum in order to protect international community values’.82 There is no indication that the BiH sought extradition or opposed the trial in Norway. In fact, they assisted the Norwegian authorities with the prosecution.83 For example, BiH police, prosecutors and judicial authorities shared information and found and examined witnesses.84

It is clear that BiH consciously yielded to Norway. But what if Bosnia had also wanted to assert its jurisdiction to try Repak? In such an instance, precedent generally affords jurisdiction to the state to which the suspect has a ‘genuine link’.85 The Norwegian authorities would argue there was a genuine link to Norway because at the time of arrest Repak had citizenship, had worked and lived there for fourteen years, and domestic law prevented, or at least made difficult, extradition. Similarly, Bosnia could assert that the fact that Repak was a citizen by birth and had committed the atrocities on its territory provided more of a bona fide link with Bosnia. What at first seems like a relatively straightforward test is thus not so easily applied. Perhaps a better litmus test to decide which state is entitled to jurisdiction is to ask which state has ‘closer links’.

Despite the numerous countries that have enacted universal jurisdiction laws:

[t]‌oday there is significant support in doctrine for the idea that no State may unilaterally establish order through criminal law, against everyone and the entire world, without there being some point of connection that legitimises the extraterritorial extension of its jurisdiction.86

(p.282) States are therefore hesitant to assert authority solely on the grounds of ‘pure’ universal jurisdiction and usually justify their decision to prosecute on additional grounds of extraterritoriality such as passive personality or the protective principle.87 One may thus question whether Repak’s case is a genuine instance of ‘pure’ universal jurisdiction, as Norway justified its decision to prosecute on the basis of Repak’s residency and acquired citizenship. For these reasons some may be inclined to view the case as one of active nationality rather than universality. However, according to the AU-EU Expert Report on the Principle of Universal Jurisdiction:

Universal criminal jurisdiction is the assertion by one state of its jurisdiction over crimes allegedly committed in the territory of another state by nationals of another state against nationals of another state where the crime alleged poses no direct threat to the vital interests of the state asserting jurisdiction. In other words, universal jurisdiction amounts to the claim by a state to prosecute crimes in circumstances where none of the traditional links of territoriality, nationality, passive personality or the protective principle exists at the time of the commission of the alleged offence.88

As Repak did not possess Norwegian citizenship at the time the atrocities were committed, it is submitted that his case can rightly be categorized as one of universal jurisdiction.89

The prosecution of Mirsad Repak was the first war crimes trial in Norway in over fifty years and was also the first case to be tried under the new provisions of the 2005 Penal Code. The trial consequently raises a number of questions: should all domestic trials of core international crimes be obligated to have a jury at first instance? Should they require the entire judging panel to be legally qualified and specialize in international criminal or humanitarian law? Should they have a Victim’s Counsel? Additional questions are raised where universal jurisdiction is concerned. Should the implementation of an amnesty in the country where the offence occurred bar prosecution by an intervening state? Should limitation periods prescribed by domestic legislation apply to international core crimes?

The difficulty in applying a new law for the first time, particularly one of this nature, combined with the difficulty in investigating and prosecuting offences committed in another country sixteen years prior, was acknowledged by the prosecutor.90 It has been suggested that a trial at the ICTY or the BiH Court would have resulted in Repak’s defence being ‘far more effective’91 due to those judicial institutions having ‘far better (p.283) knowledge about international humanitarian law and relevant legal standards’.92 Some might therefore question whether Repak had a fair trial. Two of the three individuals who presided over his first instance trial were lay members, one of whom was a psychologist and the other a web designer.93 Trials of core international crimes are difficult on any account, even more so when constitutional law and universal jurisdiction are factors to be considered. These trials thus demand a high standard of expertise. It is doubtful whether lay jury members have sufficient knowledge and experience of the law in this area to satisfy the degree of competency required to adjudicate these international offences as demanded by the world community. Whilst Repak was subject to the same procedures any other Norwegian would have at first instance, it is questionable whether such procedures are sufficient for a war crimes trial.

Though it is clear that the Norwegian courts went to great length to ensure Repak’s trial was transparent and just, as the old adage goes, justice must not only be done but must be seen to be done. It is likely that had Repak been prosecuted in a more experienced war crimes court, such as the ICTY or the BiH Court, fewer questions would have been raised as to whether justice was indeed seen to be done. It is acknowledged that national courts will, and should, have a degree of autonomy with regard to judicial procedures implemented in domestic prosecutions of core international crimes. Nevertheless, given that these offences may be said to be brought on behalf of the world community, there needs to be further international discussion with the aim of creating a level of consistency across domestic courts that choose to prosecute international offences. Such requirements may reduce appeals, minimize allegations of unfairness and support the legitimacy of domestic prosecutions. Whilst there is always the option of creating new rules, the most practical course of action would be for the international community to come to a consensus concerning which pre-existing international rules of procedure should be adopted for the domestic prosecution of core international crimes (not just those based on universal jurisdiction).94

Some academics hold the view that states will continue to view universal jurisdiction with trepidation, preventing it from becoming a common feature of international criminal justice. However, the poor state of the global economy, which will make it difficult to establish more special tribunals in the near future, combined with the relative inefficiency and expense of the international judicial system, reasonably leads one to conclude that if atrocities are to be dealt with at all, it is likely they will need to be prosecuted through domestic systems, many using extraterritorial jurisdiction. Thus it is suggested that the application of universal jurisdiction—though not necessarily ‘pure’ universal jurisdiction—will indeed become more common.

(p.284) (IX) Conclusion

The decision of a state to prosecute core international crimes when the conduct took place in another country, the victims were not nationals, and the offender was not a national when the crimes were committed, is of great significance, particularly given that universal jurisdiction is capable of being used as a conduit for politics. However, where the power is used genuinely in an attempt to maximize global justice, it should be used with pride and without fear of political controversy. Norway’s increasing tendency to investigate, arrest, extradite and now prosecute foreign war criminals not only discourages disreputable individuals from seeking refuge there, but also demonstrates to the rest of the world that Norway is a country that respects international humanitarian law and will utilize its extraterritorial powers when necessary. The paucity of media reports on the prosecution of Mirsad Repak should not be taken as an indication of it being legally irrelevant. The trial was an important one because it achieved the appropriate balance between idealism and pragmatism, law and politics, and justice and impunity. Though legitimate concerns arose, the prosecution and conviction of Mirsad Repak illustrates that such prosecutions can be achieved in an effective and just manner and should provide impetus to other states to take similar action should the need arise. Whilst questions may persist as to whether the BiH Court would have been better placed to try the case, any argument that Norway was wrong to assert its jurisdiction is relatively weak.

The debate surrounding the merits of domestic versus international prosecution of core international crimes is understandable. What cannot be denied is the fact there are far more perpetrators of these heinous crimes than can be tried by international institutions. Hence domestic war crimes trials—whether based on territoriality, nationality, passive personality, the protective principle or universality—will become a vital mechanism for upholding human dignity and ensuring that those deemed to be a hostis humani generis 95 do not escape prosecution for the devastation they cause to victims, their families and the world community.

Although it is acknowledged that there have been, and for the foreseeable future will continue to be, important practical, political and legal obstacles that hinder or taint the prosecution of core international crimes in national courts, the increasing calls for the establishment of war crimes tribunals in countries such as Brazil, Liberia and Sri Lanka demonstrate a desire for justice at a local level. Further academic debate is therefore needed regarding the intricacies of such prosecutions, particularly concerning whether domestic courts should be free to prosecute core international crimes entirely according to the substantive and procedural laws of their state, or whether certain standards should be internationally agreed and implemented in an effort to ensure consistency. Additionally, states that currently (p.285) restrict the extradition of their nationals should consider enacting laws to permit the extradition of citizens accused of core international crimes to a country that has closer links with the alleged offences and are willing to prosecute.

Norway is not the first third-party state to try individuals accused of committing war crimes in the Former Yugoslavia. Austria, Denmark, Germany and Switzerland have also prosecuted offenders for these atrocities.96 The further legitimization of domestic prosecutions of core international crimes will be dependent on the encouragement and support given to states that take such action.97 Just as the establishment of the ICC and international tribunals brought challenges, so too do domestic trials of core international crimes.98 But these challenges must be confronted and overcome and countries that attempt to do so must be applauded for blazing the trail of global justice via domestic means. (p.286)

Notes:

(1) For brevity here the term ‘core international crimes’ is used to encompass war crimes, crimes against humanity and genocide unless otherwise specified. The term is adopted from Jo Stigen, ‘The Right or Non-Right of States to Prosecute Core International Crimes under the Title of “Universal Jurisdiction”’ Baltic Yearbook of International Law , 10 (2010). It should be noted that Stigen also includes the offence of torture. Some academics would understandably also include crimes against peace, slavery and piracy in the definition of core international crimes.

(2) The Public Prosecuting Authority vs Mirsad Repak, 08-018985MED-OTIR/08, 2 December 2008 (Oslo District Court, Norway).

(3) Kingsley Chiedu Moghalu, Global Justice: The Politics of War Crimes Trials (Westport, CT: Praeger, 2006), 77.

(4) Anne-Marie Slaughter, ‘Defining the Limits: Universal Jurisdiction and National Courts’, in Stephen Macedo (ed), Universal Jurisdiction: National Courts and the Prosecution of Serious Crimes under International Law (Philadelphia, PA: University of Pennsylvania Press, 2004), 168.

(5) See Joseph Rikhof, ‘Fewer Places to Hide? The Impact of Domestic War Crimes Prosecutions on International Impunity’, Criminal Law Forum, 20/1 (2009), 1–51; Supreme Court of Israel, Attorney-General of the Government of Israel v Eichmann (1962) 36 ILR 277; J.E.S. Fawcett, ‘The Eichmann Case’, British Yearbook of International Law, 38 (1962), 181–215.

(6) Amnesty International, Universal Jurisdiction: The Duty of States to Enact and Implement Legislation (International Secretariat, 2001).

(7) Moghalu, above n 3, 82. See also Stigen, n 1.

(8) See Joshua Rozenberg (2010), ‘Proposals to restrict the right to prosecute “universal jurisdiction” offences’ Law Society Gazette [online], <http://www.lawgazette.co.uk/opinion/joshua-rozenberg/proposals-restrict-right-prosecute-universal-jurisdiction-offences> (accessed 6 March 2013).

(9) The last resort is generally held to be the situation where the most appropriate forum state is unwilling or unable to act.

(10) For example, Norway has financially contributed to the Extraordinary Chambers in the Courts of Cambodia (ECCC). See ECCC (21 April 2011), ‘Norway Contributes NOK 6,000,000 to ECCC’, ECCC [press release], <http://www.eccc.gov.kh/sites/default/files/media/5-ECCC%20PR%2021% 20Apr%202011%20(Eng).pdf> (accessed 6 March 2012). Additionally Norway’s International Development Minister, Erik Solheim has suggested that the UN should investigate alleged war crimes in Sri Lanka, see Kristoffer Ronneberg (27 August 2009), ‘Solheim krever etterforskning etter Sri Lanka-video’, The Aftenposten (Norway) [online], <http://www.aftenposten.no/nyheter/uriks/article 3237855.ece> (accessed 6 March 2013).

(11) Human Rights Watch, Universal Jurisdiction in Europe: The State of the Art, 18(5D) (2006).

(12) The Prosecutor v Michel Bagaragaza, Case No. ICTR-2005-86-S, ‘Decision on the Prosecution Motion for Referral to the Kingdom of Norway’ (TC) 19 May 2006, [16]; see also The Prosecutor v Michel Bagaragaza, ‘Decision on Rule 11 bis Appeal’ (AC), 30 August 2006.

(13) Sireta was sentenced to twenty years imprisonment by the District Court of Belgrade, later reduced to fifteen years. He was previously tried in absentia in Croatia and sentenced to twelve years’ imprisonment.

(14) See EULEX Kosovo (13 July 2010), European Union Rule of Law Mission [website], <http://www.eulex-kosovo.eu/en/pressreleases/0074.php> (accessed 6 March 2013).

(15) The trial pertains to acts which occurred during the Rwandan civil war, see ‘Rwandan genocide trial opens in Norway’ (25 September 2012), Huffington Post [website], <http://www.huffingtonpost.com/huff-wires/20120925/eu-norway-rwanda-trial/> (accessed 6 March 2013).

(16) General Penal Code, Act of 22 May 1902, No. 10 as subsequently amended by Act of 1 July 1994 No. 50.

(17) Repak, above n 2, [65].

(18) In the United Kingdom, for example, universal jurisdiction over serious international crimes can only be exercised with the express approval of the Attorney-General. Some countries require permission of the State Prosecutor or senior politicians.

(19) International Review of the Red Cross, National Implementation of International Humanitarian Law: Biannual update on National Legislation and Case Law, 91 (2009).

(20) Repak, above n 2, [15].

(21) Repak, above n 2 [15].

(22) Repak, above n 2, [204].

(23) Repak, above n 2, [16].

(24) Repak, above n 2, [252].

(25) Interview with Petter Mandt, Senior Public Prosecutor, Norwegian National Authority for Prosecution of Organised and Other Serious Crimes (telephone interview, 27 July 2011).

(26) Balkan Insight (25 August 2008), ‘Bosnia War Trial First for Norway since 1945’, <http://old.balkaninsight.com/en/main/news/12606/?tpl=299&ST1=Text&ST_T1=Article&ST_AS1=1&ST_max=1> (accessed 6 March 2013). The investigation also focused on suspects from Rwanda.

(27) Balkan Insight, above n 26.

(28) Mandt, above n 25.

(29) Repak, above n 2, [51].

(30) Repak, above n 2, [50].

(31) Mandt, above n 25.

(32) Repak, above n 2, [60].

(33) Denis Dzidic and Nidzara Ahmetasevic (26 September 2008), ‘Norwegian Courts Try War Crimes’, Balkan Investigative Reporting Network [website], <http://www.balkaninsight.com/en/article/norwegian-courts-try-war-crimes> (accessed 6 March 2013).

(34) A v The Public Prosecution; The Public Prosecution v A, Supreme Court Judgment, 13 April 2011, [39] and [98], at <http://www.domstol.no/upload/HRET/English%20translation%20war%20crimes%20case.doc> (accessed 6 March 2013).

(35) Repak, above n 2, [258].

(36) Repak, above n 2, [206].

(37) Repak, above n 2, [18].

(38) Repak, above n 2.

(39) Repak, above n 2, [19], [252] and [263].

(40) Repak, above n 2, [23]–[24].

(41) Approximately 43,000 British pounds.

(42) Repak, above n 2, [282].

(43) In Norway a jury will participate in Appeal Court cases where there is a possible sentence of six years’ imprisonment or more. The jury consists of ten members split equally between men and women: Petter Mandt, above n 25.

(44) A v The Public Prosecution; The Public Prosecution v A, above n 34, [8]‌.

(45) Upon consultation with four members of the jury who are randomly chosen to assist the three appeal judges in deciding on the sentence: Mandt, above n 25.

(46) Public Prosecutor v Mirsad Repak, LB-2009-24039 (April 12, 2010). Kr 1,400,000 is approximately 151,500 British pounds.

(47) Mandt, above n 25.

(48) Traditionally only five judges sit in Norwegian Supreme Court cases.

(49) See Supreme Court of Norway (22 December 2010), ‘Summary of Recent Supreme Court Decisions 2010(caseno.2010/934)’,<http://www.domstol.no/en/Enkelt-domstol/-Norges-Hoyesterett/Summary-of-Recent-Supreme-Court-Decisions/Summary-of-Supreme-Court-Decisions-2010/> (accessed 6 March 2013).

(50) A v The Public Prosecution; The Public Prosecution v A, above n 34, [32]–[33].

(51) ‘Norway Court Cancels Bosnian’s War Crimes Sentence’, The Telegraph [online], 3 December 2010,<http://www.telegraph.co.uk/news/worldnews/europe/bosnia/8179811/Norway-court-cancels-Bosnians-war-crimes-sentence.html> (accessed 6 March 2013).

(52) This is consistent with Article 7 of the European Convention on Human Rights, which Norway has ratified.

(53) Prosecutor v Mirsad Repak, Supreme Court of the Kingdom of Norway, 13 April 2011. See Supreme Court of Norway, ‘Summary of Recent Supreme Court Decisions 2011 (Case No. 2010/934)’, <http://www.domstol.no/en/Enkelt-domstol/-Norges-Hoyesterett/Summary-of-Recent-Supreme-Court-Decisions/Summary-2011/> (accessed 6 March 2013).

(54) International Review of the Red Cross, What’s New in Law and Case Law Across the World: Biannual Update on National Legislation and Case Law, January–June 2011, 93 (2011), 868.

(55) Prosecutor v Mirsad Repak, above n 53.

(56) Prosecutor v Mirsad Repak, above n 53. See also, 14 April 2011, ‘Norwegian Court Sentences Mirsad Repak to Eight Years in Prison’, Balkan Investigative Reporting Network, < http://www.bim.ba/en/265/10/32188>.

(57) Approximately 3,300 and 5,500 British pounds respectively.

(58) Repak, above n 2, [85].

(59) Repak, above n 2, [8]‌.

(60) Repak, above n 2, [42].

(61) See the Geneva Conventions of 12 August 1949.

(62) Repak, above n 2, [79].

(63) Summary of Recent Supreme Court Decisions, above n 49.

(64) Repak, above n 2, [76].

(65) Summary of Recent Supreme Court Decisions, above n 49.

(66) Summary of Recent Supreme Court Decisions, above n 49.

(67) Cedric Ryngaert, ‘Universal Jurisdiction Over Genocide and War-Time Torture in Dutch Courts: An appraisal of the Afghan and Rwandan Cases’, Hague Justice Journal , 2 (2007), 21.

(68) This appears to be supported by Ryngaert, see above n 67, 20.

(69) Morten Bergsmo (ed), Complementarity and the Exercise of Universal Jurisdiction for Core International Crimes (Brussels: Torkel Opsahl Academic EPublisher, 2010), 74; Rikhoff, above n 5, 34.

(70) See for example, Jean-Marie Henckaerts and Louise Doswald-Beck, Customary International Humanitarian Law: Volume 1: Rules (Cambridge: Cambridge University Press, 2005); M. Cherif Bassiouni, Crimes Against Humanity in International Criminal Law (The Hague: Kluwer Law International, 2nd edn, 1999), 240; Prosecutor v Tihomir Blaskic, Case IT-95-14-AR, 29 October 1997; Prosecutor v Tadic, Interlocutory Appeal on Jurisdiction, IT-94-1AR72, 2 October 1995. Though not a case of universal jurisdiction see also Kononov v Latvia (2011) 52 EHRR 21; 29 BHRC 137.

(71) Stigen, above n 1, 96 (citations omitted).

(72) Norwegian Extradition Act, No. 39 of 13 June 1975. See also European Convention on Extradition 1957.

(73) See for example, T.M. Beiner, ‘Due Process for All? Due Process, the Eighth Amendment and Nazi War Criminals’, Journal of Criminal Law and Criminology, 80 (1989), 293–337; AP (17 March 2012), ‘John Demianjuk, convicted Nazi death camp guard, dies aged 91, The Guardian [online], <http://www.guardian.co.uk/world/2012/mar/17/john-demjanjuk-nazi-camp-guard-dies> (accessed 6 March 2013).

(74) Mandt, above n 25.

(75) ICTY Statute, Articles 2–5.

(76) ICTY Statute, Article 1.

(77) ICTY Statute, Article 9(1): ‘The International Tribunal shall have primacy over national courts. At any stage of the procedure, the International Tribunal may formally request national courts to defer to the competence of the International Tribunal’.

(78) Despite the underreporting of the trial in the media, in its judgment the District Court stated: ‘Because of the special nature of the case at hand the Court finds reason to emphasise that Norwegian courts operate with complete independence from Norwegian and foreign authorities; nor have such authorities had any influence on the Court’s compositions or the present judgment. The Court has not been approached by any foreign authorities—or by Norwegian authorities.’ See Repak, above n 2, 2[2]‌.

(79) Repak, above n 2, [17].

(80) The Court of Bosnia and Herzegovina [website], <http://www.sudbih.gov.ba> (accessed 6 March 2013).

(81) The Court of Bosnia and Herzegovina website above n 80.

(82) Julia Geneuss, ‘Universal Jurisdiction Reloaded? Fostering a Better Understanding of Universal Jurisdiction’, Journal of International Criminal Justice , 7 (2009), 958.

(83) Mandt, above n 25.

(84) Denis Dzidic and Marina Ferhatovic, ‘Refugee War Criminals Pose Dilemma to Scandinavia’, Balkan Insight, 1 June 2009. The Serbian War Crimes Prosecutor’s Office also cooperated with Norwegian authorities, see Public Relations Service (17 April 2011), ‘Successful Cooperation of the War Crimes Prosecutor’s Office and Norwegian Investigators Results in Conviction of Mirsad Repak for War Crimes in Dretelj Camp’, Republic of Serbia: Office of the War Crimes Prosecutor [website], <http://www.tuzilastvorz.org.rs/html_trz/VESTI_SAOPSTENJA_2011/VS_2011_04_19_ENG.pdf> (6 March 2013).

(85) See Nottebohm Case (Liechtenstein v Guatemala) Second Phase, International Court of Justice (ICJ), 6 April 1955. See also section 153f German Code of Criminal Procedure, which asserts that German authorities will not commence proceedings where it is shown that a state with a stronger link to the crimes is investigating the matter.

(86) Judgment on the Guatemala Genocide Case No. 327/2003, 25 February 2003, available at <http://www.derechos.org.nizkor/guatemala/doc/stsgtm.html>.

(87) See Gerry Simpson, Law, War & Crime (Cambridge: Polity Press, 2007); Menno T. Kamminga, ‘Lessons Learned from the Exercise of Universal Jurisdiction in Respect of Gross Human Rights Offences’, Human Rights Quarterly, 23 (2001), 940–74.

(88) Technical Ad hoc Expert Group on the Principle of Universal Jurisdiction (16 April 2009), ‘Report’ Council of the European Union: Council Secretariat, <http://www.africa-eu-partnership.org/node/847> [8]‌ (emphasis added) (accessed 6 March 2013).

(89) This view is supported by the categorization of Repak’s case as one of universal jurisdiction by some NGOs such as International Federation for Human Rights and Redress: see FIDH and Redress (2 June 2009), ‘Universal Jurisdiction Developments: January 2006–May 2009’, FIDH [website], <http://www.fidh.org/IMG//pdf/UJ_Informal_Update_Draft020609.pdf> (accessed 6 March 2013).

(90) See Dzidic and Ahmetasevic, above n 33.

(91) Denis Dzidic (16 February 2010), ‘Verdict Against Mirsad Repak Expected Soon’, Balkan Investigative Reporting Network [website], <http://www.bim.ba/en/206/10/25878/?tpl=30> (accessed 6 March 2013).

(92) Dzidic, above n 91.

(93) See Repak, above n 2.

(94) See also E. Jessberger, ‘Universal Jurisdiction’ in A. Cassesse et al. (eds) The Oxford Companion to International Criminal Justice (Oxford: Oxford University Press, 2009), 557; C. Kress, ‘Universal Jurisdiction over International Crimes and the Institut de Droit International’, JICJ, 4 (2006), 581; Luc Walleyn, ‘Universal Jurisdiction: Lessons from the Belgian Experience’, Yearbook of International Humanitarian Law, 5 (2002), 394–406.

(95) Latin for ‘enemy of mankind’. See Filartiga v Pena-Irala, 630 F. 2d 876 (2d Cir.1980); Prosecutor v Furundžija, IT-95-17/1-T, 10 December 1998.

(96) C.L. Sriram, ‘Exercising Universal Jurisdiction: Contemporary Disparate Practice’, The Journal of Human Rights, 6 (2002), 49–76.

(97) See for example David A. Kaye, Council of Foreign Relations, ‘Justice Beyond The Hague: Supporting the Prosecution of International Crimes in National Court’, Special Report No. 61 (June 2011); Mark S. Ellis, ‘International Justice and the Rule of Law: Strengthening the ICC through Domestic Prosecutions’, Hague Journal on the Rule of Law, 1 (2009), 79–86.

(98) For problems in Croatia see Amnesty International (2010), ‘Behind a Wall of Silence: Prosecution of War Crimes in Croatia’, Amnesty International [website] <http://www.amnesty.org/en/library/asset/EUR64/003/2010/en/81544213-9880-4a5e-acea-d5269d0bc8ad/eur640032010en.pdf> (accessed 6 March 2013).