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The Principle of Universal Jurisdiction
THE principle of universal jurisdiction is classically defined as 'a legal principle allowing or requiring a state to bring criminal proceedings in respect of certain crimes irrespective of the location of the crime and the nationality of the perpetrator or the victim'. This principle is said to derogate from the ordinary rules of criminal jurisdiction requiring a territorial or personal link with the crime, the perpetrator or the victim. But the rationale behind it is broader: 'it is based on the notion that certain crimes are so harmful to international interests that states are entitled and even obliged to bring proceedings against the perpetrator, regardless of the location of the crime and the nationality of the perpetrator or the victim'.
Universal jurisdiction allows for the trial of international crimes committed by anybody, anywhere in the world. This derogation is traditionally justified by two main ideas. First, there are some crimes that are so grave that they harm the entire international community. Secondly, no safe havens must be available for those who committed them. Even though these justifications may appear unrealistic, they clearly explain why the international community, through all its components states or international organizations must intervene by prosecuting and punishing the perpetrators of such crimes.
Universal jurisdiction is a matter of concern for everybody. Historically, universal jurisdiction can be traced back to the writings of early scholars of note, such as Grotius, and to the prosecution and punishment of the crime of piracy.
However, after the Second World War the idea gained ground through the establishment of the International Military Tribunal and the adoption of new conventions containing explicit or implicit clauses on universal jurisdiction. The Geneva Conventions of 1949 are paramount in this regard, providing in unmistakable terms for universal jurisdiction over grave breaches of those Conventions. International crimes were no longer to remain unpunished.
The idea that in certain circumstances sovereignty could be limited for such heinous crimes was accepted as a general principle. Later on, other international conventions and, to some extent, rules of customary law enlarged the principle's scope of application. This was confirmed by a number of cases, starting with the Eichmann case in 1961, the Demanjuk case in 1985,14 and more recently the Pinochet case in 1999 and the Butare Four case in 2001, emphasizing that universal jurisdiction could lead to the trial of perpetrators of international crimes. International law empowered and in certain cases mandated states to prosecute crimes that were regarded as harming the whole international community.
Nonetheless, implementation of the general principle remained difficult, as the principle of universal jurisdiction is an issue not only of international but also of national law. States are entitled to grant their own courts universal jurisdiction over certain crimes as a result of a national decision, and not only of rule or principle of international law. Consequently, the universal jurisdiction principle is not uniformly applied everywhere. While a hard core does exist, the precise scope of universal jurisdiction varies from one country to another, and the notion defies homogeneous presentation. Universal jurisdiction is thus not unique concept but could be represented as having multiple international and national law aspects that can create either an obligation or an ability to prosecute.
Source: www.icrc.org.
