Essay: Universal jurisdiction

This article analyzes and evaluates the principle of universal jurisdiction and the difficulties in its implementation. There is still a number of obstacles legal and non legal to proper and better implementation even if this principle is well known. About the principles of universal jurisdiction can something original or new be discovered or asserted? Universal jurisdiction is one of the talked topics in today’s world. Concept of universal criminal jurisdiction is very complex. When we talk about universal jurisdiction sovereignty also comes to raise its voice.
When dealing with the subject of universal jurisdiction there is a starting point that cannot be ignored. In practice there are still various international crimes that go unpunished despite the international obligation to prosecute those who committed them, though principle of universal jurisdiction is extensively discussed. Constraints of real politics or diplomacy clashed with the concept of universal jurisdiction. Political reasons have prevailed over legal reasoning in a number of cases.
This article also examines the meaning and implementation of universal jurisdiction. For no sanction mechanisms have been created to induce them, without their consent, to abide by their obligations, until now only the goodwill of states could be relied on to guarantee their implementation in good faith. Before ending with some possible remedies to minimize potential threats to the practical enforcement of universal jurisdiction the Article underscores the obstacles to the principle of universal jurisdiction.
General meaning of Universal criminal jurisdiction
The idea of Universal jurisdiction is that some offences are so grave that all states have an interest in their jurisdiction. All states have jurisdiction with regards to such offences, consequently. Jurisdiction grows from ‘community interest’ rather than the ‘national interest’, in this sense. Universal jurisdiction allows for the trial of international crimes by anybody, anywhere in the world. Universal jurisdiction is a matter of concern for everybody.
After the Second World War the idea gained ground through the establishment of the International military tribunal and the adoption of new conventions containing explicit or implicit clauses on universal jurisdiction. The Geneva conventions of 1949 are paramount, providing in unmistakable terms for universal jurisdiction over grave breaches of those conventions. Sovereignty could be limited for such heinous crimes was accepted as a general principle as the idea in certain circumstances. Later on, other international conventions and to some extent, rules of customary law enlarged the principle’s scope of application. This was confirmed by number of cases starting with the Eichman case in 1961, the Demanjuk case in 1985, the Pinochet case. In Arrest warrant case by the doctrine of state immunity the international court of justice decided that Congo’s foreign minister was entitled to be protected. Belgium had no jurisdiction to arrest and to prosecute him, consequently.
However, as the principle of universal jurisdiction is an issue not only of international but also of national law, implementation of the general principle remained difficult. The universal jurisdiction principle is not uniformly applied everywhere, consequently.
History of Universal criminal jurisdiction
“All countries,” says the Institutional Treatise distributed under the power of Roman Emperor Justinian (c. 482-565) “…are administered incompletely by their own specific laws, and mostly by those laws which are normal to all, [those that] common Reason names for all mankind.” Expanding on the established comprehension of general law open by reason, in the seventeenth century, the Dutch legal scholar Grotius established the frameworks for all inclusive locale in modern international law, proclaiming in his De Jure Pradae (Of Captures) and later De jure belli ac pacis (Of the Law of War and Peace) the Enlightenment see that there are all inclusive standards of right and wrong. At about the same time, global law came to perceive the comparable to idea of hostes humani generis (enemies of human race): Private officials, pirates, and comparative fugitives whose violations were commonly dedicated outside the domain of any state. The thought that heads of state and senior open authorities ought to be dealt with like pirates before the worldwide bar of equity is, as per Henry Kissinger, another shine on this old concept. From these premises, speaking to the Enlightenment faith in trans-regional, trans-social gauges of good and bad, infers universal jurisdiction.
Means of Implementation
To make it an operative legal norm the recognition of universal jurisdiction by the state as a principle is not sufficient. There are 3 necessary steps to get the principle of universal jurisdiction working: the subsistence of a specified ground for universal jurisdiction, a sufficiently transparent definition of the offence and its constitutive elements, and national means of enforcement allowing the national judiciary to exercise their jurisdiction over these crimes. Where the broader concept includes the possibility of initiating proceedings in the absence of the person sought or accused, the narrow concept enables a person accused of international crimes to be prosecuted only if he or she is available for trial. Even though some countries such as Belgium or Spain have made some efforts to give concrete effect to the principle of universal jurisdiction by amending their penal code, it has in most cases remained unimplemented, thus more theoretical than practical.
The challenges faced by the principles of universal jurisdiction
The principle of universal criminal jurisdiction can be understood from its definition. A deeper analysis its interaction, both theoretical and practical, remains necessary.
General acceptance of the principle of universal jurisdiction
The principle of universal jurisdiction remains widely accepted by states owing to the specific nature of international crimes, despite its inherent difficulties. No state can officially uphold these crimes and the absence of punishment for them! This truly universal consideration is one of the main strengths of the principle. Difficulties arise when it comes to its concrete implementation. Its precise meaning is to some extent vague, and its real legal implications continue to be discussed. In seeking to identify the origin of universal jurisdiction, 3 possible sources can be considered: international agreements, international customary law and national law.
To prosecute and punish those who have committed international crimes international conventions sometimes impose an obligation. This is the case in the Geneva Conventions through the notion of grave breaches of international humanitarian law. 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. When it comes to international crimes customary international law can also be a source for the recognition of universal jurisdiction. Nonetheless, it just provides for the principle itself and does not necessarily contain precise directives or guidelines for the implementation of universal jurisdiction. In two ways customary international law can be viewed. It can be seen as a general obligation to which conventions later give concrete effect through more precise obligations. It can also be seen as an extrapolation of conventional rules so widely accepted that non-party states consent to be bound by the principle as equivalent to a general rule. With regard to universal jurisdiction, this could be the situation of states which refuse to become party to a specific instrument for political reasons, but accept the substance of that principle.
Universal jurisdiction can also be accepted by states as a voluntary commitment, to punish some crimes for which no general international obligation to do so exist, within their municipal framework. To recognize universal jurisdiction in this way can create an asymmetrical obligation for some states. Analysis of the sources of universal jurisdiction would thus appear to show that the principle is not self-sufficient enough to be implemented. It needs both general recognition and measures of implementation, or at least clear obligations to identify the duties of states. It would be more accurate to consider that the principle of universal jurisdiction should be completed by legal norms giving precise grounds and designating the conditions or the exact nature of the obligations. It is not in itself revolutionary to say this, but it could explain why the principle frequently remains so disappointing in practice.
Another aspect often left out of the analysis of universal jurisdiction is its twofold belonging, to both international law and municipal law. Universal obligation entails a first duty for the state to organize- and if need be, to amend- its own legal system to make the exercise of universal jurisdiction possible by national courts. It must not be forgotten that universal jurisdiction is quite abnormal for national criminal courts, and that it could be difficult for judges to implement it without precise municipal provisions framing or organizing that empowerment. This aspect of universal jurisdiction can in fact impair the whole system or its efficiency if national legislation, most often statutory provisions, is not adopted. Universal jurisdiction can become – and sometimes is a not a real principle owing to a total or partial lack of enactment.
State structures and the influence of political regimes on the possible indictment of perpetrators of international crimes
The constitutional system of a state may give complete independence to the judicial power. Between the various authorities on the prosecution of an international crime there is consequently a risk of disagreement. There could be some disagreement from the point of view of the judiciary, even if the executive or legislative authorities are in favor of prosecuting an international criminal. Since an investigation must be initiated when there are allegations of international crimes, the judicial authority is bound to do so.
National judicial structures
International crimes are often first and foremost crimes mala in se, meaning that they can frequently be tried directly under a more general indictment. Second, if international crimes fall within the framework of an armed conflict, exclusive jurisdiction could be granted to military courts that could be tempted to moderate or mitigate the sanction for such a crime. One general dilemma is the exclusion of extradition for political crimes. Another side-issue is the discretionary power granted to the executive to decide whether the extradition is appropriate. As was shown by the Pinochet case, this is far from being a purely theoretical issue.
Conclusion
First of all, it seems necessary to identify clearly – in a practical manner- the role that should be played by the ICC (international criminal court). To the end, the assembly of states parties to the ICC statute could use its central position and policies to explore the following avenues. First, it could propose to states a certain harmonization of definitions and working procedures in order to enhance their efficiency and lead to a greater equality between them of prosecutions and trials. The organs of the ICC should aim at helping the states, not at combating them. Second, the assembly of states parties, without interfering in the internal affairs of states, could also formulate and propose some guidelines on practical steps to improve enforcement of the universality principle. Third, the assembly of states parties and the ICC, later through its case-law, could also play a federative role between states- not to impose solutions but to convince them that universal jurisdiction is a necessary course to take. A second idea could be to provide more responsibilities to regional international organizations in the initiation and follow-up of prosecutions of international crimes. The current situation is quite often this: international crimes are committed; states are unable or politically unwilling to try international criminals who committed their crimes abroad; the ICC does not have sufficient grounds to initiate the proceedings and the crime remains unpunished. Regional political organizations could be a possible solution, as they meet these two conditions. It would have to be understood that they would not play this role themselves, but would take responsibility for passing on the initiative to one member state that would either organize the prosecution and trial on behalf of that community of states or refer the matter to the Security Council. Rethinking universal jurisdiction can only be a multidimensional process without any single answer. A combination of solutions, ranging from national truth and reconciliation process through national prosecutions who bear the greatest responsibility, should be examined and implemented. An attempt has been made in this article to show a number of interrelated considerations that should be dealt with if the international community wants to better address that issue. Justice and dignity for the victims are the underlying objectives of each word of this contribution, and should not be bypassed by the idea that universal jurisdiction is a mere dream for academics or idealists.
[Sources: 1) Akehurst, M. (1972-73) ‘Jurisdiction in International Law’ 46 BYIL 146
2) Harvard research draft convention on criminal jurisdiction (1935) 29 AJIL Supp. 443.
3) Lowe, V. and Staker, C. (2010) ‘Jurisdiction’, in Evans (ed.) International Law, 3rd edn. Oxford University Press.
4) Ryngaert, C., and Jurisdiction in International Law (Oxford: Oxford University Press, 2008).