General Principles of International Law
Universal Jurisdiction
Universal jurisdiction is a principle of international law that allows states to investigate and prosecute a national of any state found within their borders who is alleged to have committed certain international crimes.
This principle is premised upon the idea that crimes under international law such as war crimes, crimes against humanity, airplane hijacking and genocide as well as torture, extrajudicial killings, and forced disappearances are so serious and reprehensible that any state may prosecute the offender regardless of nationality because they are in essence an “enemy of mankind.”
In exercising universal jurisdiction, the investigating and prosecuting state represents the interests of the international community as a whole in enforcing international law and ending impunity for atrocities and crimes that shock the consciousness of humanity.
Universal jurisdiction allows a state to prosecute an individual
in its courts where none of the traditional bases for jurisdiction,
i.e. territorial, nationality, passive personality, or protective,
exists. Universal jurisdiction is usually a type of permissive
jurisdiction, in that it requires a State to establish domestic
laws authorizing the right to exercise jurisdiction over
specified crimes.
An Evolving Principle
The principle of universal jurisdiction has existed for hundreds of years and has expanded in scope over time. Piracy, for instance, has been subject to universal jurisdiction since the sixteenth century. Universal jurisdiction was expanded by the nineteenth century to cover slavery, as this practice became condemned around the world.
In the twentieth century, universal jurisdiction evolved
as a legitimate and lawful means for pursuing justice and
accountability in the wake of massive human rights abuses.
After World War II, the International
Military Tribunal in Nuremburg held that war crimes
are so grave and of such international concern, that an
expansion of the normal jurisdictional bases to include
universal jurisdiction was necessary. Similarly, the atrocities
of World War II also led to the Geneva
Conventions of 1949, which placed an obligation on states
to bring violators of the laws of war to justice. Since
then these instruments have been acceded to by 194 states.
Similarly, more than 100 states have enacted legislation
that provides for universal jurisdiction over certain international
crimes.
Exercising Universal Jurisdiction
Since World War II, there have been several dozen investigations and prosecutions by states based on universal jurisdiction for serious crimes under international law. One of the first instances occurred in 1961 when Israeli agents captured former high-ranking Nazi Adolf Eichmann in Argentina and brought him to Israel to stand trial for war crimes. The basis of Israel’s claim of jurisdiction over Eichmann was a domestic Israeli law – the Nazis and Nazi Collaborators Punishment Law – that gave the courts jurisdiction over perpetrators of “crimes against the Jewish people” regardless of territoriality or nationality of the victim or perpetrator. Other prominent universal jurisdiction cases involved: the extradition request for John Demjanjuk, who was accused by the U.S. and Israel of war crimes committed as a guard at the Treblinka prison camp under the moniker “Ivan the Terrible”; Faryadi Zardad, a former Afghan warlord who had relocated to the UK and was convicted for crimes of torture and hostage taking that had taken place in Afghanistan; the extradition request by Spain for the prosecution of former Chilean dictator Augusto Pinochet for torture and other international crimes committed during his regime; and Senegal’s indictment of former Chadian dictator Hissène Habré for torture.
The main limitation on the exercise of universal jurisdiction is head of state immunity, which has been extended to other certain high-ranking state ministers. A sitting head of state or high-ranking minister is immune from prosecution by another state. This principle was reaffirmed by the International Court of Justice in the Case Concerning The Arrest Warrant of 11 April 2000 (Congo v. Belgium). Yerodia Ndombasi, Congo’s Foreign Minister, was found to be immune from prosecution by Belgium. The ICJ, however, in a concurring opinion, reaffirmed the underlying principle of universal jurisdiction as being lawful.
For More Information
Anthony Aust, Handbook of International Law, Cambridge University Press, 2005.
M. Cherif Bassiouni, Universal Jurisdiction for International Crimes: Historical Perspectives and Contemporary Practice, 42 Virginia Journal of International Law 81 (2001)
Jon B. Jordan, Universal Jurisdiction in a Dangerous World: A Weapon for All Nations Against International Crime, 9 Michigan State University DCL Journal of International Law 1 (2000).
This contribution to International
Judicial Monitor is drawn from research and a legal memo
prepared by Karen Welch, ASIL volunteer legal analyst.