Demjanjuk Case – 1985
In this case, Israel requested the extradition of Ukrainian-American John Demjanjuk from the United States based on the Nazis and Nazi Collaborators (Punishment) Law adopted by Israel following World War II. Demjanjuk was suspected of being the notorious camp guard “Ivan the Terrible” from the Treblinka concentration camp. Following an initial request by Israel in 1983,115 a US court agreed to extradite Demjanjuk to Israel in 1985.
The US court found that the Nuremberg tribunals:
“exercised a much broader jurisdiction which necessarily derived from the universality principle. Whatever doubts existed prior to 1945 have been erased by the general recognition since that time that there is a jurisdiction over some types of crimes which extends beyond the territorial limits of any nation.”
It also ruled that “Israel is seeking to enforce its criminal law for the punishment of Nazis and Nazi collaborators for crimes universally recognized and condemned by the community of nations. The fact that Demjanjuk is charged with committing these acts in Poland does not deprive Israel of authority to bring him to trial.”
In 1986, as a result of this decision, Demjanjuk was extradited to Israel to face war crimes and crimes against humanity charges. Although convicted to death by a court of first instance in 1993, he was acquitted on all counts by the Supreme Court of Israel on the basis that, although he was a guard at the Sobibor and Trawniki concentration camps, he was mistakenly identified as “Ivan the Terrible.” Following his return to Ohio in 2009, Germany requested his extradition, alleging he was an accessory to the murder of over 29,000 people at the Sobibor concentration camp.
He was extradited to Germany the same year. In 2011 Demjanjuk was convicted and sentenced to five years in prison on 28,060 counts of accessory to murder but was released pending his appeal. He died in 2012 before his appeal was decided.
Kumar Lama
Case in the United Kingdom (UK) During the internal conflict in Nepal from 1996–2006, Colonel Kumar Lama was an officer in the Nepalese army and served in the Gorusinghe Army Barracks in Kapilvastu. He was accused of torturing two detainees, who were suspected of being involved in the Maoist insurgency.
In 2008, Lama was convicted by a district court in Nepal for the torture of one of the detainees and was ordered to pay compensation. Although disciplinary proceedings were recommended, he was sent on a peacekeeping mission to South Sudan with the United Nations.138 Unhappy with the lack of accountability at the local level, two victims launched a complaint against Lama in the United Kingdom (UK).
Lama was arrested in the UK in 2013 and subsequently charged with two counts of torture under Section 134(1) of the Criminal Justice Act 1988, which provides universal jurisdiction before the British courts for torture committed anywhere in the world.139 In 2016, Lama was acquitted of one of the torture charges, and the court was unable to reach a verdict on the second.
The Crown Prosecution Service decided not to seek a retrial, and as a result, the court acquitted Lama of the second charge. Criticism was levelled against the prosecution’s handling of evidentiary issues and the failure to provide adequate protection to victims and witnesses in the United Kingdom.
Former President of Chad, Hissène Habré Prosecuted in Senegal
The case of Hissène Habré, former Chadian president and dictator (1982–1990) commenced in 2001, after seven torture victims from under Habré’s reign filed an application before the UN Committee against Torture requesting Senegal either try Habré or extradite him.146 Because one of the victims was a Belgian national, a judge in Belgium requested Senegal to extradite him to Belgium for prosecution.
Fearing backlash on the continent for extraditing an African to the Western state, Senegal referred the case to the AU for review, which culminated in a request to Senegal to try Habré for international crimes in its domestic courts. In 2012 the ICJ ordered Senegal to take the necessary measures to try Habré or extradite him to Belgium for trial. That same year, Senegal and the AU agreed to establish the African Extraordinary Chambers (EAC) in the domestic Senegalese judicial system in order to try alleged perpetrators of international crimes committed in Chad between June 1982 and December 1990.
The trial of Habré began in September 2015 and lasted until February 2016. In May 2016 the EAC convicted Habré of crimes against humanity, war crimes, and torture, including rape and sexual slavery, and sentenced him to life imprisonment. In July 2016 he was ordered to pay reparations to victims.
In 2017, the Senegalese Appeal Chamber confirmed the ruling by the court of the first instance and the sentence,148 and it ordered Habré to pay 123 million euros in compensation to a victims’ trust fund.149 The trial of Habré was the first trial in the world in which the courts of one country prosecuted a former head of state for international crimes. It was also the first case in Africa to be tried on the principle of universal jurisdiction.
Mirsad Repak
Case in Norway Mirsad Repak, an ethnic Bosnian, was a member of the paramilitary group the Croatian Defence Forces and a guard at the notorious Dretelj detention camp in Bosnia and Herzegovina. Numerous reports of torture and sexual violence emerged from the camp. Repak fled the armed conflict in 1993, and after arriving in Norway as an asylum seeker, he was granted Norwegian citizenship in 2001. Initially, Repak was arrested and charged under the 1902 Norwegian Penal Code, but after Norway adopted a new penal code that incorporated international crimes into its legal system in 2005, his indictment was amended to include war crimes and crimes against humanity.
In 2008, Repak was found guilty of eleven counts of war crimes and sentenced to five years in prison and a fine, but he was acquitted of all crimes against humanity charges. The conviction with some modifications was upheld by Norway’s Court of Appeal. The verdict was further appealed to the Supreme Court, which upheld the convictions of the ordinary crimes, but found that Repak should not have been charged with war crimes and crimes against humanity for acts that had been committed before the new Penal Code entered into force in 2005.
The court applied a strict interpretation of the principle of legality, in particular, nonretroactivity of laws, although the conduct in question had been prohibited under customary international law at the time of the offense.