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Universal Jurisdiction INTRODUCTION TO PUBLIC INTERNATIONAL LAW a

wide-spread or systematic attack directed against any


The Universality Principle. civilian population, with knowledge of the attack: (a)
The universality principle recognizes that certain Murder; (b) Extermination; (c) Enslavement; (d)
activities, universally dangerous to states and their Deportation or forcible transfer of population; (e)
subjects, require authority in all community members Imprisonment or other severe deprivation of physical
to punish such acts wherever they may occur, even liberty in violation of fundamental rules of international
absent a link between the state and the parties or the law; (f) Torture; (g) Rape, sexual slavery, enforced
acts in question. prostitution, forced pregnancy, enforced sterilization,
or any other form of sexual violence of comparable
Started with piracy gravity; (h) Persecution against any identifiable group
or collectivity on political, racial, national, ethnic,
Piracy - means any illegal act of violence or cultural, religious, gender as defined in paragraph 3, or
depredation committed for private ends on the high other grounds that are universally recognized as
seas or outside the territorial control of any state impermissible under international law, in connection
with any act referred to in this paragraph or any crime
Statute of the International Criminal Court
within the jurisdiction of the Court; (i) Enforced
Article 6. Genocide For the purpose of this Statute, disappearance of persons; (j) The crime of apartheid;
genocide" means any of the following acts committed (k) Other inhumane acts of a similar character in
with intent to destroy, in whole or in part, a national, tentionally causing great suffering, or serious injury to
ethnical, racial or religious group, as such: (a) Killing body or to mental or physical health. 2. For the
members of the group; (b) Causing serious bodily or purpose of paragraph 1: (a) Attack directed against
mental harm to members of the group; (c) Deliberately any civilian population" means a course of conduct
inflicting on the group conditions of life calculated to involving the multiple commission of acts referred to in
bring about its physical destruction in whole or in part; paragraph 1 against any civilian population, pursuant
(d) Imposing measures intended to prevent births to or in furtherance of a State or organizational policy
within the group; (e) Forcibly transferring children of to commit such attack; (b) Extermination includes
the group to another group. the intentional infliction of conditions of life, inter alia
the deprivation of access to food and medicine,
Article 7. Crimes against humanity 1. For the purpose calculated to bring about the destruction of part of a
of this Statute, crime against humanity means any of population; (c) Enslavement means the exercise of
the following acts when committed as part of
any or all of the powers attaching to the right of means the arrest, detention or abduction of persons
ownership over a person and includes the exercise of by, or with the authorization, support or acquiescence
such power in the course of trafficking in persons, in of, a State or a political organization, followed by a
particular women and children; CHAPTER 9 refusal to acknowledge that deprivation of freedom or
JURISDICTION OF STATES (d) Deportation or forcible to give information on the fate or whereabouts of
transfer of population" means forced displacement of those persons, with the intention of removing them
the persons concerned by expulsion or other coercive from the protection of the law for a prolonged period of
acts from the area in which they are lawfully present, time. 3. For the purpose of this Statute, it is
without grounds permitted under international law; (e) understood that the term gender refers to the two
Torture" means the intentional infliction of severe sexes, male and female, within the context of society.
pain or suffering, whether physical or mental, upon a The term gender does not indicate any meaning
person in the custody or under the control of the different from the above. Article 8. War crimes 1. The
accused; except that torture shall not include pain or Court shall have jurisdiction in respect of war crimes in
suffering arising only from, inherent in or incidental to, particular when committed as part of a plan or policy
lawful sanctions; (f) Forced pregnancy" means the or as part of a large-scale commission of such crimes.
unlawful confinement of a woman forcibly made 160 INTRODUCTION TO PUBLIC INTERNATIONAL LAW 2.
pregnant, with the intent of affecting the ethnic For the purpose of this Statute, war crimes means:
composition of any population or carrying out other (a) Grave breaches of the Geneva Conventions of 12
grave violations of international law. This definition August 1949, namely, any of the following acts against
shall not in any way be interpreted as affecting persons or property protected under the provisions of
national laws relating to pregnancy; (g) Persecution the relevant Geneva Convention. ...
means the intentional and severe deprivation of
fundamental rights contrary to international law by Article 8 enumerates in detail the war crimes under
reason of the identity of the group or collectivity; (h) the Geneva Convention.
The crime of apartheid" means inhumane acts of a The following are a number of cases illustrative of the
character similar to those referred to in paragraph 1, universality principle:
committed in the context of an institutionalized regime
of systematic oppression and domination by one racial
group over any other racial group or groups and
committed with the intention of maintaining that F1LARTIGA V. PENA-IRALA 630 FJD 876. (1980) [This
regime; (i) Enforced disappearance of persons was a wrongful death action which was brought by two
nationals of Paraguay, the father and sister of a 17-
year old Paraguayan, who, it was alleged, was tortured Nations Documents on Human Rights," in the The
to death in Paraguay by the defendant Pena-Irala who United Nations and Human Rights, 18th Report of the
at the time was Inspector-General of the police. Commission (Commission to Study the Organization of
Jurisdiction was claimed principally on the basis of the Peace [Ed., 1968]).... Accordingly, it has been observed
Alien Tort Statute (28 U.S.C. & 1350). The Court held that the Universal Declaration of Human Rights no
that deliberate torture under the color of official longer fits into the dichotomy of binding treaty
authority violated the universal rules of international against non-binding pronouncement, but is rather an
law regardless of the nationality of the parties. In authoritative statement of the international
reaching the conclusion that the prohibition of torture community. E. Schwelb, Human Rights and the
has become part of customary international law, the International Community 70 (1964). Thus, a
Court referred as evidence to the Universal Declaration Declaration creates an expectation of adherence, and
of Human Rights and as particularly relevant, the 1975 insofar as the expectation is gradually justified by
Declaration on the Protection of all Persons from State practice, a declaration, may by custom become
Torture. [The relevant portions of the Courts opinion recognized as laying down rules binding upon the
read as follows:] The Declaration goes on to provide States. 34 UN. ESCOR, supra. Indeed, several
that [w]here it is proved that an act of torture or other commentators have concluded that the Universal
cruel, inhuman or degrading treatment or punishment Declaration has become, in toto, a part of binding,
has been committed by or at the instigation of a public customary international law. Nayar, supra, at 816-17;
official, the victim shall be afforded redress and Waldock, Human Rights in Contemporary
compensation, in accordance with national law. This International Law and the Significance of the European
Declaration, like the Declaration of Human Rights Convention, I.C.L.Q., Supp.Publ. No. 11 at 15 (1965).
before it, was adopted without dissent by the General Turning to the act of torture, we have little difficulty
Assembly. Nayar, Human Rights: The United Nations discerning its universal renunciation in the modern
and United States Foreign Policy, 19 Harv. Intl LJ. 813, usage and practice of nations. Smith, supra, 18 US. (5
816 n. 18 (1978). These U.N. declarations are Wheat.) at 160-61,5 L.Ed. 57. The international
significant because they specify with great precision consensus surrounding torture has found expression in
the obligations of member nations under the Charter. numerous international treaties and accords.... The
CHAPTER 9 JURISDICTION OF STATES 161 Since their substance of these international agreements is
adoption, [m]embers can no longer contend that they reflected in modem municipal i.e., national law as
do not know what human rights they promised in the well. Although torture was once a routine concomitant
Charter to promote. Sohn, A Short History of United with criminal interrogations in many nations, during
the modem and hopefully more enlightened era it has peace and security. The Security Council requested
been universally renounced. According to one survey, the Government of Israel to make appropriate
torture is prohibited, expressly or implicitly, by the reparation in accordance with the Charter of the
constitutions of over fifty-five nations, including both United Nations and the rules of international law.
the United States and Paraguay. Our State Department Argentina did not demand the return of Eichmann, and
reports a general recognition of this principle: There in August, 1960, the Argentine and Israeli
now exists an international consensus that recognizes governments resolved in a joint communique to
basic human rights and obligations owed by all regard as closed the incident which arose out of the
governments to their citizens. ... There is no doubt that action taken by citizens of Israel, which infringed the
these rights are often violated; but virtually all fundamental rights of the State of Argentina.
governments acknowledge their validity. Eichmann was then tried in Israel under Israels Nazi
Collaborators Law (a law enacted after Israel became a
INTRODUCTION TO PUBLIC INTERNATIONAL LAW state in 1948). He was found guilty and the conviction
ATTORNEY GENERAL OF ISRAEL v. EICHMANN was subsequently upheld by the Supreme Court of
Trial Court Decision 36 Intl. L. Rep. 5 (Israel, Israel. On May 31,1962, Eichmann went to the gallows,
Dist. Ct. Jerusalem 1961) the only person ever formally executed by the State of
Adolf Eichmann was a high ranking SS officer who Israel. Learned defence counsel... submits: (a) that the
played a central role in the planning and Israel Law, by imposing punishment for acts done
implementation of the persecution of Jews in Germany, outside the boundaries of the State and before its
Poland, Hungary and several other countries before establishment, against persons who were not Israel
and during World War II. At the end of the war, he citizens, and by a person who acted in the course of
escaped to Argentina where he lived and worked under duty on behalf of a foreign country (Act of State),
an alias until May, 1960 when he was kidnapped by conflicts with international law and exceeds the
Israeli agents. Argentina complained to the Security powers of the Israel Legislature; (b) that the
Council about this clear violation of Argentine prosecution of the accused in Israel following his
sovereignty. The Security Council, while making it clear abduction from a foreign country conflicts with
that it did not condone Eichmanns crimes, declared international law and exceeds the jurisdiction of the
that, acts such as that under consideration [the Court.... CHAPTER 9 JURISDICTION OF STATES 163 From
kidnapping of Eichmann] which affect the sovereignty the point of view of international law, the power of the
of a Member State and therefore cause international State of Israel to enact the Law in question or Israels
friction, may, if repeated, endanger international right to punish is based, with respect to the offences
in question, on a dual foundation: the universal retroactive legislation of the Israel legislator. ... The
character of the crimes in question and their specific accused in this case is charged with the
character as intended to exterminate the Jewish implementation of the plan for the final solution of the
people.... 12. The abhorrent crimes defined in this Law problem of the Jews. Can anyone in his right mind
are not crimes under Israel law alone. These crimes, doubt the absolute criminality of such acts? ...
which struck at the whole of mankind and shocked the INTRODUCTION TO PUBLIC INTERNATIONAL LAW 28. ...
conscience of nations, are grave offenses against the The contention of learned counsel for the defense that
law of nations itself (delicta juris gentium). Therefore, it is not the accused but the State on whose behalf he
so far from international law negating or limiting the had acted, who is responsible for his criminal acts is
jurisdiction of countries with respect to such crimes, only true as to its second part. It is true that under
international law is, in the absence of an International international law Germany bears not only moral, but
Court, in need of the judicial and legislative organs of also legal, responsibility for all the crimes that were
every country to give effect to its criminal interdictions committed as its own acts of State, including the
and to bring the criminals to trial. The jurisdiction to crimes attributed to the accused. But that
try crimes under international law is universal.... 26. ... responsibility does not detract one iota from the
It is superfluous to add that the crime against the personal responsibility of the accused for his acts....
Jewish people, which constitutes the crime of
genocide, is nothing but the gravest type of crime EICHMANN V. ATTORNEY-GENERAL OF ISRAEL
against humanity (and all the more so because both Supreme Court of Israel (1962) 136 IIJl. 277
under Israel law and under the Convention a special Judgment Per Curiam:
intention is requisite for its commission, an intention The crimes created by the Law and of which the
that is not required for the commission of a crime appellant was convicted must be deemed today to
against humanity). Therefore, all that has been said in have always borne the stamps of international crimes,
the Nuremberg principles about crimes against banned by international law and entailing individual
humanity applies a fortiori to crime against the Jewish criminal liability. It is the particular universal character
people. ... 27. ... It is indeed difficult to find a more of these crimes that vests in each State the power to
convincing instance of a just retroactive law than the try and punish any who assisted in their
legislation providing for the punishment of war commission. . . . [Reference the Genocide Convention
criminals and perpetrators of crimes against humanity and the Nuremberg judgment].. ... As is well known,
and against the Jewish people, and all the reasons the rules of the law of nations are not derived solely
justifying the Nuremberg judgments justify eo ipse the from international treaties and crystallized
international usage. In the absence of a supreme intentional machinery for the imposition of
legislative authority and international codes, the punishment. But, for the time being, intentional law
process of its evolution resembles that of the common surmounts these difficulties ... by authorizing the
law;... its rules are established from case to case, by countries of the world to mete out punishment for the
analogy with the rules embodied in treaties and in violation of its provisions. This they do by enforcing
intentional custom, on the basis of the general these provisions either directly or by virtue of the
principles of law recognized by civilized nations, and municipal legislation which has adopted and
in the light of the vital international needs that impel integrated them.... The classic example of a
an immediate solution. A principle which constitutes a customary international crime ... is that of piracy
common denominator for the judicial systems of jure gentium. ... [Another] example ... is that of a war
numerous countries must clearly be regarded as a crime in the conventional sense. ... the group of acts
general principle of law recognized by civilized committed by members of the armed forces of the
nations. ... [C]ustomary international law is never enemy which are contrary to the laws and customs of
stagnant, but is rather in a process of constant war. individual criminal responsibility because they
growth.... ... [As to] the features which identify crimes undermine the foundations of intentional society and
that have long been recognized by customary are repugnant to the conscience of civilized nations.
international law[,] ... they constitute acts which When the belligerent State punishes for such acts, it
damage vital international interests ... they impair does so not only because persons who were its
CHAPTER 9 JURISDICTION OF STATES the foundations nationals ... suffered bodily harm or material damage,
and security of the international community; they but also, and principally, because they involve the
violate universal moral values and humanitarian perpetration of an intentional crime in the avoidance
principles which are at the root of the systems of of which all the nations of the world are interested....
criminal law adopted by civilized nations. The In view of the characteristic traits of international
underlying principle in intentional law that governs crimes and the organic development of the law of
such crimes is that the individual who has committed nations a development that advances from case to
any of them and who, at the time of his act, may be case under the impact of the humane sentiments
presumed to have had a thorough understanding of its common to civilized nations, and under the pressure of
heinous nature must account in law for his behavior. It the needs that are vital for the survival of mankind and
is true that intentional law does not establish explicit for ensuring the stability of the world order it definitely
and graduated criminal sanctions; that there is not as cannot be said that when the Charter of the
yet in existence either an intentional Criminal Court, or Nuremburg International Military Tribunal was signed
and the categories of war crimes and crimes distinct from the contractual obligations embodied
against humanity were defined in it, this merely therein had already been part of customary
amounted to an act of legislation by the victorious intentional law at the time of the shocking crimes
countries.... ... [The interest in preventing and which led to the Resolution and the Convention.... ...
imposing punishment for acts comprised in the [T]he crimes established in the Law of 1950 ... must be
category in question especially when they are seen today as acts that have always been forbidden by
perpetrated on a very large scale must necessarily customary international law acts which are of a
extend beyond the borders of the State to which the universal criminal character and entail individual
perpetrators belong INTRODUCTION TO PUBLIC criminal responsibility. ... [T]he enactment of the Law
INTERNATIONAL LAW and which evinced tolerance or was not, from the point of view of international law, a
encouragement of their outrages; for such acts can legislative act that conflicted with the principle nulla
undermine the foundations of the international poena or the operation of which was retroactive, but
community as a whole and impair its very stability.... If rather one by which the Knesset gave effect to
we are to regard customary international law as a intentional law and its objectives.... ... [I]t is the
developing progressive system, the criticism becomes universal character of the crimes in question which
devoid of value.... [E]ver since the Nuremberg Tribunal vests in every State the power to try those who
decided this question, that very decision must be seen participated in the preparation of such crimes, and to
as a judicial act which establishes a precedent punish them therefor.... One of the principles whereby
defining the rule of international law. In any event, it States assume, in one degree or another, the power to
would be unseemly for any other court to disregard try and punish a person for an offence he has
such a rule and not to follow it. ... If there was any committed is the principle of universality. Its meaning
doubt as to this appraisal of the Nuremberg is, in essence, that that power is vested in every State
Principles as principles that have formed part of regardless of the fact that the offence was committed
customary international law since time immemorial, outside its territory by a person who did not belong to
such doubt has been removed by ... the United Nations it, provided he is in its custody at the time he is
Resolution on the Affirmation of the Principles of brought to trial. This principle has wide support and is
International Law Recognized by the Charter and universally acknowledged with respect to the offence
Judgment of the Nuremberg Tribunal and that affirming of piracy jure CHAPTER 9 JURISDICTION OF STATES 167
that Genocide is a crime under intentional law ... and gentium.... [One view] holds that it cannot be applied
as [is seen] in the advisory opinion of 1951 ... the to any other offence, lest this entail excessive
principles inherent in the [Genocide] Convention as
interference with the competence of the State in which
the offence was committed.