Universal Jurisdiction

The principle of universal jurisdiction stems from the postulate that some crimes are so serious that they harm the international community as a whole and that, as a consequence, States are entitled, if not required, to bring proceedings against the perpetrators, regardless of the location of the crime and the nationality of the perpetrator or of the victims. Among those serious crimes are genocide, crimes against humanity, torture, some war crimes, apartheid and slavery.

The principle of universal jurisdiction derogates from the usual rules of jurisdiction as recognized by international law and according to which there are four main criterions to establish jurisdiction:

• Territorial jurisdiction: the State has legal jurisdiction to judge crimes committed on its territory;

• Active personality jurisdiction: the State has legal jurisdiction to judge crimes committed by its nationals;

• Passive personality jurisdiction: the State has legal jurisdiction to judge crimes committed against its nationals;

• Compétence réelle (protective principle): the State has legal jurisdiction to judge crimes deemed to constitute a threat to some fundamental national interests.

In a world where borders tend to blur, universal jurisdiction circumvents the classic criterions used by states to have jurisdiction by giving ground to the prosecution of the author of a crime, wherever he might be, following a fortuitous arrest, a complaint or a denunciation.

In practice however, several conditions have to be fulfilled for the principle of universal jurisdiction to apply:

• a specific ground for universal jurisdiction;

• a clear and precise definition of the crime and of its constitutive elements;

• national means of enforcement allowing the judiciary to exercise their jurisdiction over these crimes.

Thus, the principle of universal jurisdiction is not immediately operative. In its implementation, States have developed two distinct views:

• a narrow concept according to which a minimum link between the State and the author of the crime is required, i.e. the author of the crime must be on the territory of the State seeking to prosecute him;

• a broader concept according to which a claim can be lodged without the accused or sought being actually present (in absentia).

In international law, the narrow concept seems to be the more widely accepted.

Evolution

Originally, the crime of piracy was the case in which the principle of universal jurisdiction could be used. It is only in the aftermath of the Second World War that a new stage was reached as the principle was recognized by the four Geneva Conventions of 1949. According to these, the High Contracting Parties “undertake to enact any legislation necessary to provide effective penal sanctions for persons committing, or ordering to be committed, any of the grave breaches of the present Convention […]. Each High Contracting Party shall be under the obligation to 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.” (Common articles 49, 50, 129, 146, and article 85 Additional Protocol I). However, this first step in favor of universal jurisdiction only refers to a certain category of crimes: grave breaches of the Geneva conventions (willful killing, torture or inhuman treatment, biological experiments, unjustified destruction and appropriation of property, deportation, taking of hostages, unlawful detention, etc.).

Later on, other international conventions repeated the principle in its narrow concept by laying upon the States the duty to prosecute the authors if international crimes. The first breakthrough for the principle of universal jurisdiction is related to the protection against international terrorism, even though only in a subsidiary manner, as States have the duty either to extradite authors of such crimes or to prosecute them according to the saying ‘aut dedere aut judicare’ (Convention for the suppression of unlawful seizure of aircraft of 1970, art. 4; International convention against the taking of hostages of 1979, art. 5). The same solution will be used in the future in several conventions of the United Nations and of its specialized agencies as well as by regional organizations (1973 International convention on the suppression and punishment of the crime of apartheid, art. 4; 1984 Convention against torture, art. 5; Convention on the safety of United Nations and associated personnel, art. 10; International convention for the protection of all persons from enforced disappearance, art. 9; Inter-American convention on forced disappearance of persons, art.4; etc.).

Nowadays, the principle of universal jurisdiction is considered as being of customary nature, at least with regards to the prosecution of war crimes (rule 157 of the ICRC study on customary international humanitarian law of 2005).

Current situation

It is in 1998, as former Chilian dictator Augusto Pinochet was arrested in London, that the issue of universal jurisdiction came back into the spotlight. Previously, the 90ies had seen a new interest for the prosecution and the punishment of serious violations of human rights, as shown by the creation of two international criminal tribunals. As of today, several States acknowledge that they can and should exercise their universal jurisdiction in order not to let go unpunished cases of torture, war crimes, crimes against humanity or even genocide. However, it appears difficult to do in reality, particularly because of the lack of political will of the States and of the difficulty to prosecute and try cases which took place on foreign territory and have been committed by nationals of another State. Yet, one can observes that more and more State give themselves universal jurisdiction, such as Belgium, Spain, Switzerland, the Netherlands, Great Britain, Canada, etc.

Political difficulties created when resorting to such a jurisdiction have been illustrated by the case of Belgium. Belgium had a 1993 legislation which made an extensive implementation of the principle, that is to say that it authorized prosecution in the absence of the alleged authors of the crimes on Belgian territory. Following direct pressure, particularly from the United-States and NATO within the framework of the Sharon case in 2003 however (see ‘Main cases’), it decided to limit the scope of its universal jurisdiction in its legislation, making prosecutions impossible without any direct link with Belgium.

Yet, when the author of a crime is on their territory, more and more European States allow for prosecution to take place (France, Belgium, the Netherlands, United Kingdom, Switzerland, etc.). As for Spain, such a condition is not required. The fact that those States resort more frequently to universal jurisdiction demonstrates that the principle is more deeply rooted in the legislations of States of western Europe. Furthermore, States also need to give themselves the necessary financial resources and instruments to examine and try international crimes. It seems not to be the case of Germany, for instance, despite the fact that the country has one of the best legislation with regards to universal jurisdiction. The effectiveness of universal jurisdiction depends mostly on political will.

Progresses to be made

Despite several breakthroughs for universal jurisdiction in the past years, some obstacles remain and prevent its full implementation. As of today, several States have not yet introduced into their national legislation the necessary provisions to incriminate and prosecute international crimes. As a consequence, those crimes cannot, in practice, be imprescriptible. The issue of amnesties and of immunities are also obstacles to the implementation of universal jurisdiction, for it is delicate for States to go against an amnesty or immunity granted by another State (even though several Conventions provide that immunity cannot be regarded as an obstacle to the prosecution of authors of international crimes). Likewise, the issue of the presence of the suspect on the territory of the State and the discretionary power of the prosecuting authorities limit the scope of this jurisdiction. Finally, one must not forget that the use of universal jurisdiction implies that another State has also jurisdiction according to the classic criterions of jurisdiction and as such, could have primacy over the case. This is the reason why the practice of universal jurisdiction is often associated to a prerequisite of subsidiarity, argument set forth by some State to explain their reserve with regard to cases in which their diplomatic and economic interests could be affected.

Universal jurisdiction and the International Criminal Court

The Rome Statute of the International Criminal Court provides in its preamble that the jurisdiction of the court is complementary to national criminal jurisdictions. Thus, the International Criminal Court will have jurisdiction if States prove unable to try, on their own, authors of international crimes or if they refuse to do so. However, the Statute does not specify which States are concerned: those under whose jurisdiction the crimes have been committed (jurisdiction based on classic criterions), or those with universal jurisdiction over such crimes? It will be up to the Court to answer this question in the years to come.

At the same time, the implementation of the Rome Statute into national legislations of States Parties constitutes a real breakthrough for the evolution of universal jurisdiction. Indeed, even if States Parties are not compelled by the Statute to adopt universal jurisdiction for the targeted crimes, several States have chosen to give universal jurisdiction to their national jurisdictions in order to prosecute the authors of those crimes on the basis of the principle of universal jurisdiction by integrating them in their national legislation.