What Are the Principles of Universal Jurisdiction

Universal Jurisdiction is the legal principle that allows a person to punish regardless of the location of the crime or whereabouts of the offender. The foundation is a mechanism – “either extradite or prosecute”, i.e. (the state or they themselves judged the perpetrator or the obligation to extradite him to another state party to the agreement.). Basically, universal jurisdiction is established for the acts that are considered hazardous in all states: crimes against humanity, genocide, war crimes, extrajudicial executions, torture, and enforced disappearances (when appropriate intergovernmental agreements). [1]

Universal Jurisdiction in national and international courts

For a long time the concept of universal jurisdiction and the possibility of national courts to punish human rights violations committed outside the territorial jurisdiction were almost unknown. This was true until there was the extradition of Pinochet in 1998. Until then, the heads of state, former presidents and dictators could live peacefully in almost anywhere in the world without having to worry about the crimes they had committed or treaties or conventions that were signed and that establish the obligation to punish international crimes human rights and humanitarian law. In this context, the concept of universal jurisdiction and its application were virtually unknown.

Universal jurisdiction to national jurisdiction difference gives the courts of any country the power to punish international crimes including crimes against genocide and war crimes, humanity regardless of the territory where the offense was committed and the nationality of perpetrator or victim. Universal jurisdiction is therefore, as a concept applied to a relatively recent phenomenon unknown to the majority.

States are also different ways to implement their international obligations. Other examples are Germany and Spain, where general provisions have been adopted by which the national criminal law can also be applied to acts committed abroad when there is an international obligation to punish. The lack of precision and clarity in the definition of international crimes is a major constraint in the implementation of universal jurisdiction. The result is a newly developed concept and little known, the states lack the experience and in many cases the political will to exercise it, especially when this could cause tensions in foreign relations with other states. In this perspective some legal systems, such as Germany, have introduced special limitations on the exercise of universal jurisdiction. In this case, it requires establishing a link with Germany before applying universal jurisdiction.

The fight against impunity has been at the heart of the fight for a fairer world. Long this struggle has been reserved to the States, the traditional subjects of international law, each with its national criminal law, passed laws which it deemed necessary to achieve the greatest degree of justice. Today a national struggle against impunity, we went to an international struggle, with the development of international criminal law.

International criminal law is still young. Nevertheless, gained increasing importance, especially through the adoption of the Rome Statute in 1998 and the creation of the International Criminal Court came into force in 2002. This march toward internationalization of criminal law does not allow for much believe that states, nationally, are devoid of any function. In contrast, international criminal law should be seen as complementary and alternative to the struggle of national courts against impunity. In other words, the priority remains to national, international law only intervenes in case of deficiency of the latter. [2]

Historically, the attribute that allows a State to dispense justice was perceived as a feature of its sovereignty. To regulate relations between states, competency criteria have been established: it is the territoriality and nationality. The principle of territorial jurisdiction means that each state has an absolute and exclusive jurisdiction over its territory. As to that of nationality, it means that the State may also, because of the bond of allegiance between his country and himself, exercising its powers in respect of its nationals, or not present on its territory. [3] While the territorial jurisdiction of a State is absolute, that relating to nationality may be subject to the consent of another State. Indeed, the State may exercise its national jurisdiction in respect of one of its citizens living abroad only if the host state where it is accepts such interference in its territory.

Generally, states assume jurisdiction to hear a case if it concerns a crime that was committed on their territory. Other states (e.g. France) have also allocated an alternative test of jurisdiction is the nationality. In other words, from the time the offense is coming to one of their nationals, whether the victim or the perpetrator of the violation, these states will assert jurisdiction. But what does it in cases where the accused fled precisely to escape the justice of his country and went into hiding in another state? How then to ensure that criminals do not fall through the cracks?

Different solutions can be used to remedy these situations. The first possible solution consists of extradition. This principle can be defined as “the act whereby a State to another State shall, on request thereof, a person who is present in its territory and for which the Applicant State proposes to pursue criminal jurisdiction “. [4] The second possibility is much more controversial and more restricted. There is the option offered by the concept of universal jurisdiction. It allows a State to exercise its jurisdiction regardless of any link with the situation. It suffices that the accused be present on the territory of a State, to make it competent to try him.

Some Facts about the Jurisdiction

Belgium goes further because it decides to open its jurisdiction to cases where the accused is not in its territory. This can be called universal jurisdiction by default. The story begins in 1993 when Belgium decided to ratify the Geneva Conventions. The law of 16 June 1993 concerning the punishment of grave breaches of international Geneva Conventions of 12 August 1949 and Protocols I and II of 8 June 1977 provides for universal jurisdiction in Belgium with regard to war crimes. In 1999 a law was passed that extends universal jurisdiction to genocide and crimes against humanity.

This set of texts will form the basis of universal jurisdiction in Belgium, which will wipe many critics. Two factors have especially caught the attention of the doctrine: the first concerns the very jurisdiction of Belgium. Universal jurisdiction, as we have seen, is not a new concept. However, the aspect “default” of the Belgian jurisdiction has been considered offensive by many people. The second element was also surprised on immunities. Indeed, the 1999 law mentioned in Articles that “the immunity attached to the official capacity of a person does not preclude application of this law.” Thus, even the highest state representative is seen likely to fall under the Belgian law, which goes against the current state of international law.

How to justify the competence of Belgium by default? It seems reasonable to think that Belgium is primarily based its jurisdiction over the Geneva Conventions. Indeed, these agreements open to each state jurisdiction to enforce the provisions thereof. Thus, in taking jurisdiction, Belgium is just following the provisions of the conventions it has ratified. Another possible explanation for the extension of the Belgian jurisdiction could be based on the concept of international community. In other words, the state may exercise universal jurisdiction for any crime. We can consider that this reasoning has already been used by the international community to the genocide in Rwanda in 1994. Indeed, it was an internal conflict, domestic opponents of the same country. Why then the international community did she mixed? Because the crimes were so atrocious that they ended up in touch, by their gravity, the international community itself. The same considerations apply to the conflict concerning the former Yugoslavia.

However, the reference in the decision of the termination of any immunity after the Minister’s functions suggests some hope. Indeed, since the Court did not rule on universal jurisdiction, and it clearly distinguishes the “during” the “after” in the exercise of official function, one might conclude that the Belgian laws are open only to a provisional, pending the termination of the accused.

The second setback comes shortly after the decision: an amendment introduced by a member is taken by the Belgian Senate. On April 6, 2003, the Belgian universal jurisdiction loses its default. Some say that the complaint filed against former President George Bush and former Secretary of State Colin Powell, for the bombing of a shelter during the first Gulf War of 1991, which had 403 deaths, eventually embarrass Belgian diplomacy. Faced with disapproval from all quarters, both of which Israel has recalled its ambassador “for consultations” or Colin Powell, Belgium chose to change its vision of universal jurisdiction for a more accepted, and some would say acceptable. The Belgian laws may no longer apply to nationals of another State without the latter can be found on Belgian territory.

Universal Jurisdiction Today

Today, the option of universal jurisdiction seems to be ignored by the states and it is customary in nature (piracy) or conventional (Geneva Conventions). And when a country decides to use this option, which is offered by international law, it is frowned upon within the international society. However, universal jurisdiction is of considerable importance in an international society where the criminal justice systems are nationalized and is an effective instrument to fight against impunity, both in cases where the national state is complicit in that accused is a fugitive. [5]

What should you do to achieve greater acceptance of universal jurisdiction? From a general point of view, it seems that certain uniformity is de rigueur. This is a harmonization of terms and concepts relating to universal jurisdiction. If a consensus existed at the international level of what is supposed to be universal jurisdiction, its adoption at national level will be facilitated.

Approaches to Use Universal Jurisdiction

This is the approach adopted by leading experts and lawyers who met in order to bring some uniformity to universal jurisdiction. They developed the “Princeton Principles”, document to guide the use of universal jurisdiction as a tool to fight against impunity. In their view, the definition of universal jurisdiction would be “universal jurisdiction based solely on the nature of the crime without regard to where the crime was committed, the nationality of the alleged perpetrator, the nationality of the victim, or any other connection to the such state exercising jurisdiction“. [6]

Universal jurisdiction by default raises the issue of trials in absentia. This risk does exist since it allows the opening of proceedings while the accused person is not present on the territory. The solution to avoid such a trial in absentia is to promote extradition between States. Today, extradition is entirely within the discretion of the State where the accused has taken refuge. The State pursues the latter is obliged to ask the host to send the accused, but it is quite free to refuse. The State pursues the accused is therefore to thank you the control of the host State. Thus, without cooperation between the two states, the fight against impunity is doomed to failure. The solution to this problem could be the adoption of an international convention, where, in the case of serious international crimes, the possibility of accepting the extradition of the accused would become an obligation.

According to Broomhall, it was not until reaching such harmonization that universal jurisdiction could gain strength and credibility. “Without a comprehensive system of laws at the national level, and laws without being such adopted by a sufficient number of states, universal jurisdiction cannot be expected to function in practice as a working pillar of the international justice system.

Rome Statute of the International Criminal Court (ICC)

Rome Statute of the International Criminal Court (ICC) states that:

1. “This Statute shall apply equally to all without distinction based on official capacity. In particular, official capacity as a person, as Head of State Government, a member of a government or parliament, an elected representative or official of government, in no case exempt from prosecution and shall constitute per reason for reduction of sentence.

2. Immunities or special procedural rules which may attach to the officer of a person under domestic law or international law, no preclude the Court from exercising jurisdiction over it” [7]

The Former Yugoslavia Statute of the International Criminal Tribunal (ICTY) states that:

“The official position of any accused person, whether as Head of State or Government or as a senior government official, not release him from criminal responsibility and is not reason for reduction of sentence “. It was mainly in accordance with the provision of Slobodan Milosevic which was tried by the ICTY indeed he was the Yugoslavia’s head of State Federal Republic. [8]

Thus, in conclusion we can identify the difference and the Rome statute that the substantive immunity has been eliminated because of few crimes and few legal tools. A progressive advancing position with explanation may be that the elimination of the immunity for crimes against humanity, genocide, and war crimes are the related parts of customary international law. Its is argues and believed to be very strict and is mandatory to follow now because of the usual cases that incurred during the time and the situations that caused the growth of the crime rate on higher level. The opponents argue that progressive vision deletion is linked to few judicial processes and legal instruments that do not reflect the customary States practice.

Conclusion

A State may rely on universal jurisdiction in the use of power to legislate. The law came into force August 9, 2010 adapting the French criminal law to the Rome Statute defines the extraterritorial jurisdiction of French courts for crimes within the jurisdiction of the ICC: genocide, crimes against humanity and crimes war. [9] Has thus been introduced in Article of the Procedure of Code of Criminal, which governs the exercise of that jurisdiction to four conditions: the habitual residence of the alleged facts on the French territory, [10] the criminality of the acts by the law State where they were committed, the monopoly of prosecution by the Crown and the waiver of jurisdiction by the Court of International Criminal.

The residency requirement had been especially critical following the adoption of the bill by the Senate June 10, 2008 The Foreign Affairs Committee of the National Assembly, the National Consultative Commission of Human Rights, the French Coalition for the International Criminal Court, the National Council of the Bars and the United Nations Committee against Torture had pointed out then that the restrictive bill that would invalidate the universal jurisdiction. With the Act of August 9, 2010, the legislature, rather than spending a universal jurisdiction for serious crimes are relatively depending on the mere existence of the perpetrator in that particular territory, preferred to sit on this new jurisdiction of residence, the author, a criterion that is more the principle of personal jurisdiction. In addition, the conditions governing the exercise of extraterritorial jurisdiction are subject to criticism and some authors point to a possible contradiction with the international commitments of France.

End Notes

Henry J. Steiner, ‘Three cheers for universal jurisdiction – or is it only two?’, Theoretical Inquiries in Law,(2004)

Kenneth C. Randall, ‘Universal jurisdiction under international law’, Texas Law Review, (1988)

L. S. Sunga, The Emerging System of International Criminal Law: Developments in Codification and Implementation, 1997

Xavier Philippe, “The principles of universal jurisdiction and Revue, International Review of the Red Cross, 2006

Roth, ‘The Court the US Doesn’t Want’, NY Review of Books, 1998

Peyro Ana Llopis, The universal jurisdiction of crimes against humanity, Brussels, 2003

Rome Statute of the International Criminal Court, Article 7. 1998.

H. Fischer, The International Criminal Court: A Critical Review of the Rome Conference, Erasmus University Rotterdam, 1998

A. Bos, paper presented at the symposium on The International Criminal Court: A Critical Review of the Rome Conference, Erasmus University Rotterdam, 1998