Analysing the Concept Of Universal Jurisdiction, Its Problems And Prospects
By Shruthee Srinivasan July 18, 2016
By Shruthee Srinivasan, 4th Year, WBNUJS, Kolkata
Universal jurisdiction is essentially the mechanism under which the courts of any state may exercise jurisdiction without regard to the territory where the crime has occurred or the nationality of the perpetrators or victims. If governments of different nations collude together to prosecute the criminals, the result would be a host of conflicting laws suggesting different solutions, thus adding to the confusion. Through the idea of Universal Jurisdiction, by vesting jurisdiction in all states, this confusion was somewhat removed.
However, the problem comes in with the question of impartiality of the prosecuting country towards its own or certain nationals. There is absolutely no way to establish that the trial will be conducted in accordance with due process of law and that the prosecutions will be unbiased and impartial. Moreover, most of the crimes committed on an international level are usually politically motivated by one of the more powerful countries that hold a veto power in the United Nations (UN). This is the reason why most countries refrain from using Universal Jurisdiction in crimes committed in their territory.
The significant question, which this essay attempts to answer, is whether the potential benefits surrounding Universal Jurisdiction are worth the risks.
Understanding Universal Jurisdiction: History and Development
To understand the working of Universal Jurisdiction, its problems and prospects, it is important to know how the universal application of rights developed over the years.
Traditionally, the law dealing with piracy was designed in such a way as to prevent universal jurisdiction by including only private acts within its definition. Thus, the exemption of official acts of states automatically immunises piracy from coming under Universal Jurisdiction. World War II provided a major thrust to the development of the Universal Jurisdiction concept. In the post war period, various trials were set up for prosecuting the perpetrators of war crimes and crimes against humanity. Some of them included controversial jurisdictional bases and inadvertently contributed to the development of Universal Jurisdiction (UJ) in this period.
Territoriality and nationality are the two heads of jurisdiction that are unquestionably available to states with respect to all offences. With respect to extraterritorial jurisdiction, passive personality – where the nationality of the victim determines the jurisdiction ,– is gradually gaining precedence. Protective Principle allows a state to assert criminal jurisdiction over offences committed abroad by aliens where the offence is deemed to constitute a threat to some fundamental national interest. The numerous instances of courts trying offences committed in allied countries or offences committed against nationals of those allied countries, show the gradual acceptance of the principle of Universal Jurisdiction, and trace its growth and development among the different legal systems of the world.
The Nuremberg trials offer the best-known example among the post-war trials for a controversial jurisdictional issue. The allied powers jointly established the Nuremberg Tribunal and assumed joint authority over Germany. The Berlin Declaration of June 1945 makes it very clear that USA, USSR, UK and French Republic had jointly assumed supreme authority over all powers possessed by the German Government. This was one of the first instances of application of Universal Jurisdiction across state boundaries, though some scholars dispute it.
The Eichmann Case before the Israeli Supreme Court discussed the four schools of thought in this area:
- One, the power to try and punish a person is universally acknowledged only for the crime of piracy;
- Two, the extension of universality principle to extra-territorial offences is secondary to the territoriality and nationality principle being applicable;
- Three, the principle of Universal jurisdiction is applicable to all acts that are offences under the laws of nations (delicta juris gentium); and
- Four, it is a principle of natural justice that states assume jurisdiction over crimes of a heinous character.
The court ultimately applied Universal Jurisdiction to prosecute Eichmann, thus paving the way for applicability of Universal Jurisdiction over crimes against humanity and other similar heinous crimes. The proponents of Universal Jurisdiction and judges in this case never addressed the flaw in the analogy in applying UJ over piracy and extending it to war crimes and crimes against humanity.
Problems and Prospects of Universal Jurisdiction
With the advent of 1970s-1980s, new treaties on Universal Jurisdiction covered crimes such as hijack, crime against safety of maritime navigation, hostage-taking, attacks on internationally protected persons, terrorist bombing and torture. These treaties came to be recognised as a new feature of customary international law and Universal Jurisdiction of crimes was accorded a legal basis. However, a decade later in 1998 when the International Criminal Court (ICC)was set up, it rejected the scheme of universal jurisdiction over territoriality and nationality jurisdiction. This led to the obvious conflict of laws between the international customary law and the treaties jurisdictional scheme.
Parties to ICC statute argued that as per the customary international law, every state had Universal Jurisdiction over genocide, war crimes, crimes against humanity and the ICC jurisdiction was flawed. At the same time, the non-party states led by United States of America, argued that this attempt to bind the non-party nationals is unlawful and against the principles envisaged by ICC statute. One of the many problems associated with Universal jurisdiction of crimes is that there is no common consensus among the states on what is a crime under international law . It is an international body that decides the gravity and heinous nature of the crimes. The underlying assumption that all courts will be law abiding and provide justice is too optimistic and ideal, and ignores the due process problems that may surface.
Lack of judicial independence represents an additional problem in implementing the due process, particularly in politically charged trials. Universal jurisdiction also contributes to interstate problems where large-scale conflicts in the nature of crimes against humanity, genocide or war crimes, lead the courts of one state to question the policies and officials of the other. One state may exercise Universal Jurisdiction as a means of gaining advantage over states it is in conflict with by prosecuting other state nationals. Additionally, Universal Jurisdiction has not been particularly effective in actually moving states to act. The courts in a state are under no obligation to follow the dictates of the courts of another state. The rationale behind allowing Universal Jurisdiction of crimes is that certain crimes are so heinous in nature like genocide, war crimes and such crimes against humanity, that they are considered to have a considerably negative impact on all states. The conditions of territory and nationality fade away in the brutality or the atrocity of such crimes. However, as already seen, there are many drawbacks associated with applicability of Universal Jurisdiction.
Universal Jurisdiction may function well at times, but it is impractical and difficult to implement in all situations. In most of the high profile cases where Universal Jurisdiction could have actually resolve the issue, the states did not agree to it. In most of the high profile cases where Universal Jurisdiction could actually resolve the issue, the states did not agree to apply it. Thus, a lot depends on the political scenario and the undercurrents flowing within the states and international organisations. Hence it can be concluded that enforcing Universal Jurisdiction upon states is not as easy as it seems to be ***
 Universal Jurisdiction in a Divided World: Conference Remarks by Madeline H. Morris, Available at http://scholarship.law.duke.edu/cgi/viewcontent.cgi?article=1846&context=faculty_scholarship (Last visited on 25th February, 2013)
 Ibid. Page 5
 Universal Jurisdiction, Clarifying the Basic Concept by Roger O’Keefe Journal of International Criminal Justice 2 (2004), 735-760, Available at http://documents.law.yale.edu/sites/default/files/O'Keefe%20-%20Universal%20Jurisdiction%20-%202004.pdf (Last visited on 21st February, 2013)
 The dissenting judges in the Lotus case [S.S. Lotus (Fr. v. Turk.), 1927 P.C.I.J. (ser. A) No. 10 (Sept. 7)] disputed the position of passive personality principle but with the Arrest Warrant Case, Judge Higgins, Kooijmans and Burgenthal held that ‘passive personality jurisdiction, for so long regarded as controversial, is now reflected..in the legislation of carious countries...and today meets relatively little opposition, as least so far as particular category of offence is concerned.’
 Supra n. 3, See also, Lotus case, diss op Loder at 35-3; Arrest Warrant sep. op. Guillaume and Rezak at §4, In the past, at least this principle has been less a general rule than the basis on which a few specific exercises of extraterritorial jurisdiction over non-nationals have been tolerated by states.
 United National Law reports on Trial of War Criminals, Available at http://www.loc.gov/rr/frd/Military_Law/pdf/Law-Reports_Vol-3.pdf
 Supra n. 1, page 6
 Id. Page 8
 Attorney General of Israel v. Eichmann, 36 I.L.R. 227 (Isr. Sup. Ct. 1962)
 Supra n. 1, Page 12
 United States Hostility to the International Criminal Court: It’s all about the Security Council, William A Schabaas, EJIL (2004). Vol. 15, No. 4, 701-720, Available at http://ejil.oxfordjournals.org/content/15/4/701.full.pdf (Last Visited on 25th February, 2013)
 It might be the permanent members of the UN Security Council or the NATO or any other such body. For example, the Pinochet government in Chile in 1998 refused to accept charges of genocide, saying that the “group” alleged to have victimized by Pinochet was not a “national, ethnical, racial or religious group” and hence charges of genocide cannot be framed by the other states using universal jurisdiction principle. The genocide charges were consequently retained and the international community could do nothing.
 Supra n. 1, page 21
 Supra n. 1, page 23
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