Universal Jurisdiction In International Law: Principles, Challenges, And Key Cases

Author: Stefanos Papanikolaou

Introduction:

Universal Jurisdiction is deemed one of the most fundamental principles in international law and allows States to establish jurisdiction over some grave crimes, no matter where or when committed, let alone the offender's or victim's nationality. In theory, it is considered intricate and generally controversial. This, however, conceives a notion that certain serious crimes concern the whole international community, which therefore needs penal responsibility. While universal jurisdiction has the potential to be transformative for international justice, its application raises a host of complicated legal, political, and diplomatic issues.

The foundation of universal jurisdiction: 

The principle of universal jurisdiction is primarily invoked for crimes classified as jus cogens, or peremptory norms. These are universally recognized as fundamental, non-derogable rights and include war crimes, genocide, crimes against humanity, and torture. These crimes are considered so egregious that they violate basic human rights and disrupt international order, thus warranting accountability beyond national borders.

This principle, further corresponding with international conventions on such matters, such as the Geneva Conventions and the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, underpins commitments by states to prosecute these offenders found within their territories or, alternatively, to extradite them to ensure that such grave crimes do not go unpunished. The International Convention for the Protection of All Persons from Enforced Disappearance, for example, requires states parties to exercise universal jurisdiction over enforced disappearance, irrespective of where the crime was committed or who the perpetrators or victims are.

Legal basis and conditions for universal jurisdiction:

The application of universal jurisdiction is often subject to very high legal thresholds that states have to meet. Most states base their claims of universal jurisdiction on various international treaties they have signed, most of which contain express obligations to prosecute particular crimes. For example, states parties to the Geneva Conventions are obliged to prosecute war criminals.

Although some conceptions of universal jurisdiction do not, many states require that the accused be in their custody for a prosecution to take place; this approach will ensure a fair trial and emphasize due process. Furthermore, another relevant factor in legitimizing the exercise of universal jurisdiction on a global plane is the balancing act that needs to be done between purely domestic criminal proceedings and internationally perceived standards of a fair trial in the national courts. Another major challenge arising is the immunity from prosecution, more so in cases involving high-ranking officials. It is only recently that the ICJ has explained that Heads of State and some senior officials do have immunity ratione personae whilst in office, this does not normally extend to former officials for acts that amount to international crime.

Functional vs. Personal immunity:

Universal jurisdiction is also, and quite routinely, confronted by the legal challenges of immunity doctrines, in particular those of former officials. Such personal immunity-that is, ratione personae-protects Heads of State, Heads of Government, and foreign ministers from prosecution for as long as these officials remain in office. It is immunity ratione materiae, or functional immunity in respect of acts performed in that official capacity, to which former officials are entitled, though the latter immunity can be said to be limited to non-international crimes.

These subtleties were underlined by the decision of the ICJ in the Arrest Warrant case, Democratic Republic of Congo v. Belgium. The court upheld immunity from prosecution abroad for a serving foreign minister but made it clear that such immunity would not extend so as to protect former officials from prosecution for international crimes after leaving office. This landmark decision underlined the idea that the immunities cannot always avail the officials from accountability for serious violations of international law.

Notable precedents and landmark cases:

A few highly publicized cases have illustrated the principle of universal jurisdiction and, in doing so, have contributed to shaping its principles. Most noticeably, it was the case of former Chilean dictator Augusto Pinochet, whose detention in the UK at Spain's request was truly a landmark in this area of universal jurisdiction. Pinochet had invoked immunity as a former Head of State, but the UK House of Lords held that immunity did not extend to acts of torture in a landmark decision which opened the way to prosecute former officials for international crimes. Inter alia, this case developed the principle that high-ranking officials could be held accountable for actions after they had left office.

Another good example is the trial of Hissène Habré, former President of Chad, for crimes against humanity, torture, and war crimes committed during his regime, tried in Senegal. The courts in Senegal, therefore, used the principle of universal jurisdiction to apply the obligations incumbent upon it under the CATOCIDTP for the purposes of holding the highest leadership levels responsible, efficiency that universal jurisdiction assumes when trying cases against impunity. These cases demonstrate that there is one guideline standing above all others in universal jurisdiction-that no national border shields any person from accountability for grave crimes that shock the conscience of humanity.

Limitations and controversies:

While noble, its practice is usually mired in controversy. One of the major issues is one of sovereignty. The application of universal jurisdiction often leads to states getting embroiled in legal disputes over issues considered domestic. It is also argued that such prosecution of individuals for acts committed in their official capacity is interference in domestic affairs. The tension between the application of universal jurisdiction and a State's domestic criminal law, with the challenge it poses on its national sovereignty, is very sharp.

Further, critics hold the view that States abuse the principle of universal jurisdiction for political reasons and apply it in a highly selective manner; in this regard, undermine its legitimacy. In fact, political motives often are what make the difference between those cases that get prosecuted under universal jurisdiction, inviting in many instances charges of partiality or even neo-colonialism. This might undermine the credibility of universal jurisdiction as an instrument of international justice.

Another problem that arises is the dual jurisdictional claims over a case, especially when the accused happens to be some former official. International law should balance carefully between a State's right to prosecute heinous crimes and respect for the legal competence of the home country of the official concerned. It is a very complex legal deliberation as to whether it is a case of universal jurisdiction or purely domestic, considering the international principles coupled with diplomatic considerations.

The role of the ICJ: Along with jurisdictional disputes arising between states, the ICJ would have an important role in assuring that any exercise of universal jurisdiction is carried out in a way that is compliant with international law. Where there are disputes-such as questions of immunity, or the propriety of prosecuting an individual for perceived international crimes-the ICJ could provide the necessary clarification and guidance. For example, when the assertion of universal jurisdiction by one State conflicts with another State's claim for immunity from criminal processes for its officials, the ICJ is able to decide upon such claims and the legitimacy of each with a view to weighing justice for an international crime against the diplomatic sensitivity accompanying these cases. The involvement of the ICJ in matters of jurisdiction helps in demarcating the boundaries of universal jurisdiction and reinforces international norms governing the treatment of high-ranking officials.

Conclusion:

One of the more important and complicated concepts under international law is universal jurisdiction. It is said to bolster such a view that some crimes are repugnant to humanity itself, thus meriting prosecution outside particular national boundaries. The practice thereof, as highlighted in the highly publicized cases of Pinochet and Habré, brings in its wake legal, moral, and political setbacks.

In the future, universal jurisdiction needs to continue to evolve in the face of newer challenges. The exercise of universal jurisdiction must be non-arbitrary and respectful of State sovereignty, not selective, while upholding international standards of human rights for credibility and effectiveness. If applied carefully according to these guiding principles, universal jurisdiction can protect justice worldwide and deter crimes in the future, making accountability and human rights tangible, real, and international.

It means that the objectives of the current paper are fully well-balanced: to discuss in particular the principles, famous cases of universal jurisdiction, and some of its controversies which show up in practice under international law.

BIBLIOGRAPHY:

Books
J Crawford, Brownlie’s Principles of Public International Law (9th edn, OUP 2019) 442–452.
M Evans (ed), International Law (4th edn, OUP 2014) 597–598.
M Shaw, International Law (9th edn, CUP 2021) 636–637.

Articles
Y A Abdelkarim, ‘A Multi-Dimensional Approach to Impose Universal Jurisdiction in International Legal Practice’ (2024) 3(1) International Journal of Law in Changing World 21–52.

Chapters in Edited Works
A Lagerwall and M-L Hébert-Dolbec, ‘Universal Jurisdiction’ in Max Planck Encyclopedias of International Law, Max Planck Encyclopedia of International Procedural Law (2022) 1–10.

Cases
Arrest Warrant (Democratic Republic of the Congo v Belgium), Judgment [2000].
Jurisdictional Immunities of the State (Germany v Italy, Greece intervening), Judgment [2012].