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Problems of Universal Jurisdiction

Project Submission

Hemanth Rao
ID no: 211029

International Criminal law 2 Problems of Universal Jurisdiction

Universal jurisdiction is a principle of public international law which enables a state to initiate criminal prosecution against certain crimes which are internationally abhorred irrespective of where they were committed or the nationality of the victim or the perpetrator of crime.1 Historically, universal jurisdiction was limited only to piracy but today, the ambit of universal jurisdiction has increased exponentially and has also been abused time and again by many states. This warrants a critical analysis of the principle of universal jurisdiction which the author in the current paper has sought to do. The author will briefly discuss the evolution of the principle and the crimes against which such jurisdiction can be exercised. The author will then discuss the problems plaguing universal jurisdiction and also, the legal arguments made against the exercise of universal jurisdiction.

Historically, universal jurisdiction was exercised only against piracy and it was commonly perceived that principle was applicable only when the crime is committed in terra nullius i.e. where the jurisdiction of any other country was not valid e.g. High seas. 2 However, after the Second World War several conventions and treaties had clauses providing for universal jurisdiction. For instance, the Geneva Convention, 1949 provided for universal jurisdiction over crimes committed in breach of the convention. There was an evolving international consensus at that time that some crimes were committed against the whole humanity hence, irrespective of where the crime was committed, the perpetrator of the crime could be prosecuted anywhere in the world. At the same time, the principle of universal jurisdiction became a part of customary international law.3 Further, the UN War Crimes Commission opined that the right to punish war crimes is possessed by any independent State whatsoever.4 The principle of Universal jurisdiction came to be enforced in a

Kenneth C. Randall, Universal jurisdiction under international law, Texas Law Review, No. 66 (1988)

Rober Cryer, Hakan Friman, Darryl Robinson,, An Introduction to International Criminal Law and Practice (1st, Cambridge, Newyork 2007) 44 3 Ibid 4 Willard Cowles, Universality of Jurisdiction Over War Crimes (1945) 33 California Law Review 177.

International Criminal law 3 Problems of Universal Jurisdiction number of cases like Eichmann case in 1961, the Demanjuk case in 1985, Yerodia case and the famous Pinochet case in 1999 to name a few.5 However, the most famous and landmark exercise of universal jurisdiction was in the case of Adolf Eichmann. Eichmann was a Nazi who was involved in persecution of thousands of Jews. He was abducted from Argentina by Israel Security agency and tried in the district court of Israel. The District court affirming its jurisdiction observed, The abhorrent crimes defined under this Law are not crimes under Israeli law alone. These crimes, which struck at the whole of mankind and shocked the conscience of nations, are grave offences against the law of nations itself (delicta juris gentium). Therefore, so far from international law negating or limiting the jurisdiction of countries with respect to such crimes, international law is, in the absence of an international court, in need of the judicial and legislative organs of every country to give effect to its criminal interdictions and to bring the criminals to trial. The jurisdiction to try crimes under international law is universal.6 Thus, the principle of universal jurisdiction has achieved the status of customary law and has vastly, been accepted as a solution to curb heinous crimes against humanity, genocide, wars, piracy, human rights violation etc.


As is evident from the above discussion, the principle of universal jurisdiction is very important in curbing crimes and effective implementation of this principle is a prerequisite for the pursuit of justice. However, there are certain practical problems in enforcing universal jurisdiction. Firstly, the principle of universal jurisdiction does not impose obligations upon the territorial or nationality state to assist the prosecuting state in investigation or to extradite or gather evidence without a treaty imposing obligations upon the state to do so. Without cooperation from the territorial state it would be difficult to collect evidence of the crimes committed and to prosecute effectively.

Xavier Philippe, 'The principles of universal jurisdiction and complementarity: how do the two principles intermesh?' (ICRC 2006) <http://www.icrc.org/eng/assets/files/other/irrc_862_philippe.pdf> accessed 27.09.2013 6 1968) 36 ILR 5 at para. 12 (DC).

International Criminal law 4 Problems of Universal Jurisdiction The second problem with universal jurisdiction is that it violates the sovereignty of states. All member states of United Nations enjoy equal sovereignty while universal jurisdiction directly violates sovereignty of a state by prosecuting a head/official/member of another state thereby, interfering into the internal matters of another state.7 Another problem with universal jurisdiction is it gives powers to exercise universal jurisdiction to all states even those which would not be able to carry out such a task efficiently. As observed in the Yerodia case, to confer universal jurisdiction upon every state is to risk creating total judicial disarray.8Thirdly, the burden that a home state enforcing universal jurisdiction has to face. The financial resources and the time and energy of the local judiciary in such cases might result in sidetracking of local and daily cases of the court. Also, the prosecution has to be justified on an international level as there will always be pressure on a country to maintain cordial relations with all states and prosecuting heads or officials of another state might result in inter-state conflict. Another problem is with respect to forum shopping i.e. victims can initiate prosecution in various forums so as to ensure conviction. The Defendant can be prosecuted several times in several countries over the same issue violating the ne bis in idem principle.9 It is a settled principle of customary law that one must exhaust local remedies before approaching international fora.10 A claimant can only approach international fora if he has exploited all the available domestic remedies and denied justice by the domestic legal system. This principle basically seeks to provide an opportunity to the domestic legal system to right the wrongs committed and ensure justice to victims of crimes. This argument is further sustained by the fact that even the Rome statute requires exhaustion of domestic remedies as a prerequisite to bring claims before International Criminal Court.11 Further, it has also been argued that universal jurisdiction vitiates the amnesty that has been granted by the government of a state like in South Africa as domestic amnesty is not binding upon other states especially when the crimes committed fall under the category of crimes against

Art. 2(1) of the U.N. Charter reads: The Organisation is based on the principle of the sovereign equality of its members. 8 DRC v. Belgium: The Warrant of Arrest from the 11th of April 2000 Case, ICJ, 14 February 2002 9 Supra Note 5 10 Sarei v Rio Tinto, 2008, U.S. Court of Appeals; Article 17, Rome Statute 11 Artitcle 17(2), Rome Statute

International Criminal law 5 Problems of Universal Jurisdiction humanity.12 Also, developing countries are apprehensive of the possibility that powerful countries might abuse this principle leading only to selective application for political gains. As observed in Yerodia case, universal jurisdiction encourage the arbitrary for the purposes of the powerful, purportedly acting for an ill-defined international community.13In the same case, Judge Rezeks apprehended that powerful countries could bully the developing countries and would never accept if a developing country prosecuted their head of state or officials for committing crimes against humanity and remarked, It is not without reason that the Parties before the court have discussed the question of how certain European countries would react if a judge from the Congo had indicted their officials for crimes supposedly committed on their orders in Africa.14 Hence, attributing universal jurisdiction to the International Criminal Court would be an appropriate solution to stop the principle of universal jurisdiction from being abused. Even though ICC does not have universal jurisdiction15, it has jurisdiction over genocide, crimes against humanity, war crimes and the crime of aggression which are also, crimes for which universal jurisdiction is granted.

As stated by Henry Kissinger, Any universal system should contain procedures not only to punish the wicked but also to constrain the righteous. It must not allow legal principles to be used as weapons to settle political scores.16While the principle of universal jurisdiction has novel aim of pursuing justice without systematic legal implementation at the national level the principle of universal jurisdiction will be abused and hence, will be of no aid in dispensing justice to the victims of heinous crimes. A systematic and uniform implementation seems utopian but the only practical solution is to empower International Criminal Court to exercise universal

Diane Morrison, Justus Reid Weiner, 'Curbing Enthusiasm for Universal Jurisdiction' [2010] BERKELEY J. INTL L. PUBLICIST , 4 13 Supra Note 8 14 Ibid 15 Diane Morrison, Justus Reid Weiner, 'Curbing Enthusiasm for Universal Jurisdiction' [2010] BERKELEY J. INTL L. PUBLICIST, 8 16 Henry Kissinger, 'The Pitfalls of Universal Jurisdiction' (Foreign Affairs 2001) <http://www.foreignaffairs.com/articles/57056/henry-a-kissinger/the-pitfalls-of-universal-jurisdiction> accessed 27.09.2013

International Criminal law 6 Problems of Universal Jurisdiction jurisdiction. Again, states which are not party to the Rome convention might view it as a violation of their sovereignty which undermines the authority and legitimacy of the International Criminal Court. However, including the universal jurisdiction principle in the Rome statute

would be a progressive step in proper implementation of the principle of universal jurisdiction and also, would effectively achieve the purpose of Rome statute to end impunity for perpetrator of heinous crimes.