Universal jurisdiction is a legal principle that allows states or international organizations to claim criminal jurisdiction over an accused person, regardless of where the alleged crime was committed and irrespective of the accused's nationality, country of residence, or any other connection to the prosecuting entity. Crimes prosecuted under universal jurisdiction are considered crimes against all, too serious to tolerate jurisdictional arbitrage. The concept of universal jurisdiction is therefore closely linked to the idea that some international norms are erga omnes, or owed to the entire world community, as well as to the concept of jus cogens—that certain international law obligations are binding on all states.See Lyal S. Sunga Individual Responsibility in International Law for Serious Human Rights Violations, Nijhoff (1992) 252 p.
According to Amnesty International, a proponent of universal jurisdiction, certain crimes pose such a serious threat to the international community as a whole that states have a logical and moral duty to prosecute individuals responsible; therefore, no place should be a safe house for those who have committed genocide,The Program for Humanitarian Policy and Conflict Research, "Brief Primer on Genocide" Accessed at crimes against humanity, extrajudicial executions, war crimes, torture, or forced disappearances.
Opponents, such as former US diplomat Henry Kissinger, argue that universal jurisdiction is a breach of each state's sovereignty. All states are equal in sovereignty, as affirmed by the United Nations Charter, and "[w]idespread agreement that human rights violations and crimes against humanity must be prosecuted has hindered active consideration of the proper role of international courts. Universal jurisdiction risks creating universal tyranny—that of judges." According to Kissinger, as a logistical matter, since any number of states could set up such universal jurisdiction tribunals, the process could quickly degenerate into politically driven show trials that attempt to place a quasi-judicial stamp on a state's enemies or opponents.
United Nations Security Council Resolution 1674, adopted by the United Nations Security Council on 28 April 2006, "[r]eaffirm[ed] the provisions of paragraphs 138 and 139 of the 2005 World Summit Outcome Document regarding the responsibility to protect populations from genocide, war crimes, ethnic cleansing and crimes against humanity" and commits the Security Council to action to protect civilians in armed conflict.Resolution 1674 (2006) Security Council passes landmark resolution – world has responsibility to protect people from genocide Oxfam Press Release – 28 April 2006
History
The Institutes of Justinian,Institutes of Justinian, Book I, Title II, "Concerning Natural Law, the Law of Nations, and the Civil Law". echoing the Commentaries of Gaius,Gaius. Commentaries on the Roman Law, Book I, Chapter I, "De Jure Gentium et Civili". says that "All nations ... are governed partly by their own particular laws, and partly by those laws which are common to all, [those that] natural Reason appoints for all mankind." Expanding on the classical understanding of universal law accessible by reason, in the seventeenth century, the Dutch jurist Grotius laid the foundations for universal jurisdiction in modern international law, promulgating in his De Jure Praedae (Of the Law of Captures) and later Dē jūre bellī ac pācis (Of the Law of War and Peace) the Enlightenment view that there are universal principles of right and wrong. (discussing in introductory notes Grotius' account of universal principles of right and wrong derived from reason and divine Will, the underpinning of much modern international law).
According to Henry Kissinger, at about the same time, international law came to recognize the analogous concept of hostēs hūmānī generis ("enemies of the human race") applying to pirates or hijackers whose crimes took place outside of nation-state territories, while universal jurisdiction subjecting senior officials or heads of states as criminal subjects was new.
From these premises, representing the Enlightenment belief in trans-territorial, trans-cultural standards of right and wrong, derives universal jurisdiction.
Perhaps the most notable and influential precedent for universal jurisdiction were the mid-20th century Nuremberg Trials. U.S. Justice Robert H. Jackson then chief prosecutor, famously stated that an International Military Tribunal enforcing universal principles of right and wrong could prosecute acts without a particular geographic location, Nazi "crimes against the peace of the world"—even if the acts were perfectly legal at the time in Fascist Germany. Indeed, one charge was Nazi law itself became a crime, law distorted into a bludgeon of oppression. The Nuremberg trials supposed universal standards by which one nation's laws, and acts of its officials, can be judged; an international rule of law unbound by national borders.
On the other hand, even at the time, the Nuremberg trials were criticized as victor's justice, revenge papered over with legal simulacra. US Supreme Court Chief Justice Harlan Fiske Stone remarked that his colleague Justice Jackson acting as Nuremberg Chief prosecutor was "conducting his high-grade lynching party in Nuremberg. I don't mind what he does to the Nazis, but I hate to see the pretense that he is running a court and proceeding according to common law. This is a little too sanctimonious a fraud to meet my old-fashioned ideas."Alpheus T. Mason, Harlan Fiske Stone: Pillar of the Law (New York: Viking, 1956), p. 716.
Kenneth Roth, the executive director of Human Rights Watch, argues that universal jurisdiction allowed Israel to try Adolf Eichmann in Jerusalem in 1961. Roth also argues that clauses in treaties such as the Geneva Conventions of 1949 and the United Nations Convention Against Torture of 1984, which requires signatory states to pass municipal laws that are based on the concept of universal jurisdiction, indicate widespread international acceptance of the concept.
Theory of universal jurisdiction application Amongst the vast spread of literature surrounding the theory, application, and history of Universal Jurisdiction, there are two approaches: the "global enforcer" and the "no safe haven". "Global enforcer" refers to the usage of universal jurisdiction as an active way of preventing and punishing international crimes committed anywhere while "no safe haven" takes on a more passive tone, referring to the usage of this principle to ensure that the specific country is not a territorial refuge for any suspects of international crimes.
Universal distinct from extraterritorial jurisdiction Universal jurisdiction differs from a state's prosecuting crimes under its own laws, whether on its own territory (territorial jurisdiction) or abroad (extraterritorial jurisdiction). As an example, the United States asserts jurisdiction over stateless vessels carrying illicit drugs on international waters—but here the US reaches across national borders to enforce its own law, rather than invoking universal jurisdiction and trans-national standards of right and wrong.
States attempting to police acts committed by foreign nationals on foreign territory tends to be more controversial than a state prosecuting its own citizens wherever they may be found. Bases on which a state might exercise jurisdiction in this way include the following:
A state can exercise jurisdiction over acts that affect the fundamental interests of the state, such as spying, even if the act was committed by foreign nationals on foreign territory. For example, the Indian Information Technology Act 2000 largely supports the extraterritoriality of the said Act. The law states that a contravention of the Act that affects any computer or computer network situated in India will be punishable by India irrespective of the culprit's location and nationality. A state may try its own nationals for crimes committed abroad. France and some other nations will refuse to extradite their own citizens as a matter of law, but will instead try them on their own territory for crimes committed abroad. More controversial is the exercise of jurisdiction where the victim of the crime is a national of the state exercising jurisdiction. In the past some states have claimed this jurisdiction (e.g., Mexico, Cutting Case (1887)), while others have been strongly opposed to it (e.g., the United States, except in cases in which an American citizen is a victim: US v Yunis (1988)). In more recent years, however, a broad global consensus has emerged in permitting its use in the case of torture, "forced disappearances" or terrorist offences (due in part to it being permitted by the various United Nations conventions on terrorism); but its application in other areas is still highly controversial. For example, former dictator of Chile Augusto Pinochet was arrested in London in 1998, on Spanish judge Baltazar Garzon's demand, on charges of human rights abuses, not on the grounds of universal jurisdiction but rather on the grounds that some of the victims of the abuses committed in Chile were Spanish citizens. Spain then sought his extradition from Britain, again, not on the grounds of universal jurisdiction, but by invoking the law of the European Union regarding extradition; and he was finally released on grounds of health. Argentinian Alfredo Astiz's sentence is part of this juridical frame.
International tribunals invoking universal jurisdiction
Established in The Hague in 2002, the International Criminal Court (ICC) is an international tribunal of general jurisdiction (defined by treaty) to prosecute state-members' citizens for genocide, crimes against humanity, war crimes, and the crime of aggression, as specified by several international agreements, most prominently the Rome Statute of the International Criminal Court signed in 1998. A serious international crime is outlined in Article 7 of the Rome Statute of the International Criminal court as a serious criminal act committed as part of a "widespread or systematic attack directed against any civilian population, with knowledge of the attack", including murder, rape, slavery, persecution, extermination, and torture.UN General Assembly. Rome Statute of the International Criminal Court (last amended 2010). 17 July 1998. . Universal jurisdiction over the crimes enumerated in the Rome Statute was rejected by the signing parties; however, universal jurisdiction is what allows the United Nations Security Council to refer specific situations to the ICC. This has only happened with Darfur (2005) and Libya (2011).
In addition, the United Nations has set up geographically specific courts to investigate and prosecute crimes against humanity under a theory of universal jurisdiction, such as the International Criminal Tribunal for Rwanda (1994) and the International Criminal Tribunal for the former Yugoslavia (1993).
The International Criminal Tribunal for the former Yugoslavia investigated war crimes that took place in the Balkans in the 1990s. It convicted former Bosnian Serb leader Radovan Karadžić on 10 charges relating to directing murders, purges and other abuses against civilians, including genocide in connection with the 1995 massacre of 8,000 Muslim men and boys in Srebrenica; he was sentenced to 40 years in prison.
Particular states invoking universal jurisdiction
Universal jurisdiction may be asserted by a particular nation as well as by an international tribunal. The result is the same: individuals become answerable for crimes defined and prosecuted regardless of where they live, or where the conduct occurred; crimes said to be so grievous as to be universally condemned.