WHAT IS UNIVERSAL JURISDICTION? The notion that certain crimes are so universally abhorred that they constitute crimes against international law is now widely recognised. War crimes, crimes against humanity, genocide and torture are examples of such crimes. The need to hold individuals accountable for such atrocities has also become an accepted part of international law. Since the Nuremberg and Tokyo trials following World War II, the principle that it is the right or even the duty of states to bring to justice those responsible for international crimes when they are not prosecuted in their own countries has gathered momentum.
Certain international treaties place states parties under a duty to ensure that suspects who come within their borders are brought to justice, either by prosecuting them in their own courts or by extraditing them to stand trial elsewhere. This duty to either prosecute or extradite is contained in the four Geneva Conventions of 1949. States parties to the Geneva Conventions are obliged to seek out and either prosecute or extradite those suspected of having committed " grave breaches " of those Conventions:(1)
" Each High Contracting Party shall be under the obligation to search for persons alleged to have committed or to have ordered to be committed, such grave breaches, and shall bring such persons, regardless of their nationality, before its own courts. It may also, if it prefers, and in accordance with the provisions of its own legislation, hand such persons over for trial to another High Contracting Party concerned, provided such High Contracting Party has made out a prima facie case. " (2)" Grave breaches ", as defined in the Conventions, includes wilful killing, torture or inhuman treatment, causing great suffering or serious injury to body or health, and other serious violations of the laws of war.(3) A serious weakness in the Conventions is that they only require the exercise of universal jurisdiction for offences committed in international armed conflict, and not in internal armed conflict. However the Statutes of the International Criminal Court and the International Criminal Tribunal for Rwanda do specifically give jurisdiction for these courts over violations committed in an internal armed conflict.(4)
Parties to the UN Convention against Torture are similarly obliged to either extradite or prosecute alleged torturers who come within their borders. Article 7.1 provides:
" The State Party in the territory under whose jurisdiction a person alleged to have committed any offence referred to in Article 4 is found shall in the cases contemplated in Article 5, if it does not extradite him, submit the case to its competent authorities for the purpose of prosecution. "In addition to these treaties which impose obligations on states parties in relation to specific offences, it is widely recognised that customary international law permits the exercise of universal jurisdiction for genocide(5) and crimes against humanity, (6) and possibly for serious violations of the laws of war in internal armed conflicts.(7) All of these are within the jurisdiction of the International Criminal Court in the Rome Statute of July 1998, and this may encourage states to provide for universal jurisdiction for these offences. (8)The exercise of universal jurisdiction, whereby a state prosecutes a person regardless of where the crime was committed or against whom, is an example of extra-territorial jurisdiction, and an exception to the normal situation where a state prosecutes for crimes committed within its own territory. Extra-territorial jurisdiction is becoming increasingly common. Typically, European states have legislated to provide extra-territorial jurisdiction for offences such as terrorism, hijacking and hostage taking and, more recently, to tackle international paedophile rings. (9)
Another type of extra-territorial jurisdiction accepted by some states is jurisdiction on the basis of passive personality, according to which a state will prosecute a person for committing a crime against its own nationals, even if the crime was committed abroad.(10) While strictly speaking the passive personality principle is not an example of universal jurisdiction, it is discussed in this report because of its importance in the international enforcement of human rights and international humanitarian law.
International human rights law imposes a duty on states to investigate and prosecute violations committed within their jurisdictions, and the primary duty to end impunity rests with the state authorities where the violation is committed. However all too often, violators are not brought to justice in their own countries. The sight of large scale human suffering and mass violations of human rights and humanitarian law in recent years has given new impetus to international determination to bring violators to justice. Accountability for international crimes is increasingly viewed as a matter of concern for the international community as a whole, and there has been a trend towards the establishment of international mechanisms for criminal justice. International criminal tribunals were established by the UN Security Council in response to the conflicts in former Yugoslavia and Rwanda, and in July 1998, states agreed to establish a permanent international criminal court to try perpetrators of war crimes, crimes against humanity and genocide.
Despite these important moves to create a system of international criminal justice, for the foreseeable future there will still remain a role for national courts in prosecuting those suspected of international crimes who come within their borders.(11) We already have some indications of how this will work. One example is Germany’s proceedings against suspected war criminals from former Yugoslavia. Since 1992 Germany has apprehended four individuals suspected of involvement in atrocities in the conflict in former Yugoslavia. The International Criminal Tribunal for former Yugoslavia in the Hague only requested the transfer of one, namely Tadic, who was duly transferred and stood trial. The prosecutions of the others continued in Germany. To date two of the three, Novislav Djajic and Nikola Jorgic, have been convicted and sentenced.
The effective exercise of universal jurisdiction is one important tool in the struggle to end impunity for international crimes. Most European states have accepted universal jurisdiction for the prosecution of war criminals and human rights violators through ratifying international treaties, and many have exercised jurisdiction on this basis during the 1990s. Nevertheless, an adequate legal basis for exercising universal jurisdiction remains lacking in many instances. The following analysis, and the Annex describing law and case law on a country by country basis, seeks to demonstrate the strengths and weaknesses of the commitment to universal jurisdiction in ten European states.
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1. Geneva Conventions for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea, Relative to the Treatment of Prisoners of War, and Relative to the Protection of Civilian Persons in Time of War
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2. This Article is contained in each of the four Geneva Conventions, for instance in Article 146 of the Fourth Geneva Convention
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3. For instance, Article 147 of the Fourth Geneva Convention
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4. Articles 8.2(c) of the ICC Statute and 4 of the ICTR Statute
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5.Restatement (Third) of the Foreign Relations Law of the United States, para. 404
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6.UN General Assembly Resolution 95(1) of 1946, reiterating the principles in the Nuremberg Charter and Judgment. Crimes against humanity has now been defined in the Rome Statute of the International Criminal Court to include a number of acts committed as part of a widespread or systematic attack directed against any civilian population, including murder, enslavement, deportation or forcible transfer of population, imprisonment in violation of international law, torture, rape, sexual slavery, persecution of a group, enforced disappearance and apartheid.
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7. This is suggested in the Tadic case, where the Appeals Chamber of the International Criminal Tribunal for Former Yugoslavia held that customary international law did impose criminal liability for serious violations of Common Article 3 of the Geneva Conventions, which relate to internal armed conflict. Judgment of 2nd October 1995, para 137, 35 ILM (1996) 32.
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8. Rome Statute of the International Criminal Court, adopted 17 July 1998
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9.For instance, legislation in the UK providing for extra-territorial criminal jurisdiction includes: Suppression of Terrorism Act 1978, Taking of Hostages Act 1982, Sexual Offenders Act 1997
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10. There are two additional bases on which states sometimes assume extra-territorial jurisdiction: jurisdiction on the basis of the nationality of the offender, and the protective principle (jurisdiction for acts committed abroad which affect the security of the state)
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11.Article 9 of the Statute for the International Criminal Tribunal for former Yugoslavia, adopted by UN Security Council Resolution 827 of 25/5/93, states that " The International Tribunal and national courts shall have concurrent jurisdiction ... The International Tribunal shall have primacy over national courts. At any stage of the procedure, the International Tribunal may formally request national courts to defer to the competence of the International Tribunal .." " The Statute for the Rwanda Tribunal contains similar terms. The Rome Statute for the ICC, Article 1, states that the Court shall be complementary to national criminal jurisdictions.
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