Jurisdiction is one the legal terms that must be used with extreme caution. Most generally jurisdiction is understood as the power of the State to regulate affairs pursuant to its laws.1 Controversial issues may arise when offence assumes international aspect which can cause conflict between jurisdictions of the countries. In each of the preceding bases of jurisdiction there must be a material link between the state asserting jurisdiction and the crime.
That is what distinguishes the Universality Principle from the other bases; there need not be any specific link between the crime, its perpetrator or victims, and the state undertaking to exercise jurisdiction2. It might be said, that this principle developed in regard with State’s aim not only protect its own interests, but international community’s interests as whole, as international crimes may affect all the international legal order. More specifically, international crimes, such as crimes against peace, war crimes or crimes against humanity and transnational crimes – money laundering, terrorism, piracy, etc. are global and causes threat to international community as whole.
However, universality principle has generated a great deal of controversy, in equal parts exegetical and political. 3 The aim of this essay is to identify and analyze some of the legal challenges of prosecuting international crimes under the basis of universal jurisdiction.
True meaning of universal jurisdiction is that international law permits any state to apply its laws to certain offenses even in the absence of territorial, nationality or other accepted contacts with the offender or the victim. These are offences that are recognized by the community of nations as of universal concern, and as subject of universal condemnation. 4 More and more states exercise universal jurisdiction, however primarily right to prosecute still has a state in which’s territory the crime was committed.
That means that territorial principle has preference. It must be indicated that basis for prosecution under universal jurisdiction are international conventions. Significant change in international law was the foundation of International Criminal Tribunals and the establishment of International Criminal Court.
According to the legal doctrine, the exercise of universality principle requires such conditions: the relevant criterion for the application of the universality principle is the nature of the crime, not the place where the crime was committed, the nationality of the accused or the victim, or other elements. States invoke other bases of jurisdiction under international law such as: the territorial principle (jurisdiction over crimes committed in the territory of the prosecuting state); the active nationality principle (jurisdiction over crimes committed abroad by nationals of the prosecuting state); the more controversial passive personality (jurisdiction over crimes affecting nationals of the prosecuting state); and protective principles (jurisdiction over crimes prejudicial to certain fundamental interests of the prosecuting state).
Crimes which can be prosecuted under the basis of universal jurisdiction are more specific and presuppose the interest of all international community to take an action against it. The existence of different grounds of jurisdiction invoked by national courts means that several states may have concurrent jurisdictions – that is, the criminal may be tried and punished by several different countries. International law is silent on this point, and the result may be a great hardship, unless protection of international human rights can be invoked.
Despite these difficulties, the principle of universal jurisdiction remains widely accepted by states owing to the specific nature of international crimes. It might be said, that universal consideration is one of the general strengths of the principle and difficulties arise when it comes to its concrete implementation.7 The notion of the universality principle could be derived from sources such as international conventions, customary law or national law.
The obligations of prosecuting and punishing persons, who committed international crimes, can be found in international conventions. In this sense, contracting party (state) has a duty or obligation to act, but leaves the state to determine the means of enforcing it. The inclusion of universal jurisdiction in international conventions – provided that no reservations can be made – implies that the state has the duty and responsibility to enforce it but offers no guarantee that effective trials and punishments will indeed take place, since national legal systems apply different procedural and evidence rules.
The other source – customary law recognizes universality principle as such, but does not provide directives or guidelines for the implementation. Following the legal doctrine, it is assumed that the obligation to prosecute persons for grave human rights violations is a part of customary law and it also is erga omnes. 9 Nevertheless, states are bind by this obligation international law does not provide any sanctions for disobeying this regulation or even breaching it. To conclude, one of the major legal challenges universality principle faces is that it needs clear guidelines for its implementation or clear identification of State’s duties.
The other important problem of initiating criminal prosecutions under the basis of universal jurisdiction is that it does not give rise to any obligations on behalf of territorial or nationality, State to assist in any investigation, provide evidence or extradite suspects.
One of the major problems of investigation and prosecution arise, when legal action needs to be taken against Heads’ of State or other public officers. Often, such persons keep their influence towards State’s political life. Political aspect in such cases plays a significant role – states might be concerned more in keeping stable relations than starting legal actions which may affect and interrupt them. Article 16 of ICC Statute indicates that “No investigation or prosecution may be commenced or proceeded with under this Statute for a period of 12 months after the Security Council, in a resolution adopted under Chapter VII of the Charter of the United Nations, has requested the Court to that effect; that request may be renewed by the Council under the same conditions”.
That presupposes that criminal prosecution can never be initiated, if it is thought that issue can be solved with political means. It is also important to notice, that regularly officials invoke immunity or other special privileges as a tool to avoid responsibility.
The aim of the immunity is to provide a complete protection against national criminal jurisdiction. One of the major questions arises if the crimes committed in regard with direct functions of Head of State. This principle has been held recently even with respect to international crimes. In the Pinochet case, the judges emphasized “head of state is till protected while in office by immunity ratione personae even in respect of serious international crimes.”
That means a serving head of state or diplomat can still claim immunity if charged with [torture]. “The nature of charge is irrelevant his immunity is personal and absolute.12 It is usually difficult to prove that Heads’ of State are responsible for committed international crimes, because often they do not directly participate in committing unlawful actions and perform in organizing, planning or instigating them. However, international legal practice forms the practice, that such leaders must be tried for giving orders and organizing international crimes, despite the fact that they did not directly participate in committing international crimes.
Such position was implemented in Security Council Resolution 1329 (2000), that “(…) civilian, military and paramilitary leaders should be tried before them in preference to minor actors (…)”. 13 It must be stated, that it had to be proved that Head of State or other High rank official knew about the committed crimes. Officials also can be prosecuted if they knew about “criminal policy” and did not take an action to stop it. In Pinochet case, the judges concluded that criminal acts could hardly be described as ‘private’ acts and therefore had to be official acts. They rejected the argument that serious international crimes could not be functions of a head of State.
States try to strengthen their national jurisdiction in regard with prosecution of international crimes adopting binding international treaties. Such examples are 1984 Convention against Torture and Other Cruel, Inhumane or Degrading Treatment or Punishment, Four Geneva Conventions of 1949 as followed by the two Additional Protocols of 1977. Treaties impose an obligation on contracting parties to pass legislation for the exercise of criminal jurisdiction (often in the form of universal jurisdiction) over such crimes.
If State is not willing to start a legal action, it has to extradite the suspect to other State who has ability and willingness for prosecution (aut dedere, aut judicare) principle. Highly important was the establishment of International Criminal for the Former Yugoslavia (ICTY) and Rwanda (ICTR) which both were established by Chapter VII Security Council resolutions, by which all members of the UN were bound by decision to remove immunity for state officials.
However, this progress did not fully satisfied international community’s aim to make international crimes prosecution process more effective and this problem had to be solved by establishing permanent institution. The Statute of Rome, which established the ICC adopted in 1998 article 27, which provides that there was no entitlement to immunity for any person subject to the Jurisdiction of the ICC.17 Heads’ of States are being prosecuted for the grave breaches in international law (genocide, crimes against humanity, torture, war crimes, etc.) and which are considered as violation again international community as whole.
For the other violations of international law, such persons are being tried in accordance with domestic law. It is important to indicate, that immunity or other privileges cannot be invoked in avoiding responsibility for committed crimes and this in never way could lead to impunity.
To conclude, universal jurisdiction as the basis of prosecuting international crimes might often be controversial and face legal challenges. Universality principle developed in regard to protect international community’s interests as whole, as international crimes may affect all the international legal order.
In other words, universal jurisdiction is a matter of concern for everybody18. The weakness of Universality principle is that it needs clear guidelines for its implementation or clear identification of State’s duties. Also it requires State’s good will, cooperation and objectiveness in cases when criminal prosecution must be initiated against Heads’ of States or other officials obtaining immunity from domestic prosecution. However, it must be noted, that international crimes such as genocide, crimes against humanity or war crimes are universally condemned and universal jurisdiction is being more actively exercised by States.
It is very likely that this legal institute will expand and develop as well as will embrace more international crimes for prosecution under this basis.
1. R. Cryer H. Friman, D. Robinson and E. Wilmshurst, “An introduction to international criminal law and procedure” (Cambridge University press, 2nd edition, 2010); 2. H. D. Gould, “The legacy of punishment in international law” (Palgrave Macmillan, 2010); 3. Theodor Meron, “International Criminalization of Internal Atrocities”, The American Journal of International Law, vol. 89:554 (1995); 4. Michael Akehurst “Modern Introduction to International Law” (Routledge, 7th edition, 1997); 5. G. Bottini, “ Universal jurisdiction after the creation of the international criminal court” 36 N.Y.U.J. INT’L L. & POL. 503 (2004) URL: http:[email protected]_law_website__journals__jou