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Universal jurisdiction
24 november 2020
A legal concept aimed to avoid impunity for core international crimes: war crimes, crimes against humanity and genocide. It must prevent that perpetrators can find safe haven in a third country after committing such crime(s) and serves to secure and repress the commission of these atrocity acts.
The international community considers these crimes to be so grave that they affect the entire international legal order. As such, the principle of universal jurisdiction enables states to prosecute perpetrators, even when they have ties to neither the perpetrator nor the criminal act. It enables states however to fulfill their duty to prosecute and punish perpetrators of core international crimes.
The principle of universal jurisdiction is an exceptional measure of criminal justice. It gives States the authority to prosecute the authors of certain serious crimes, even if States have no significant links to the accused or to the acts committed. In other words, an individual accused of a grave violation of humanitarian law can be prosecuted before any court, in any country.The principle—meant to fill the void in international law left by the absence of a competent and efficient form of international jurisdiction—was codified by the 1949 Geneva Conventions. Universal jurisdiction is applicable to all grave breaches of the Geneva Conventions, most of which fall under the category of “war crimes” or “crimes against humanity.” The definition of these crimes can be found under the entry on ▸ War crimes/Crimes against humanity (Section III) . Other specific crimes over which States may exercise universal jurisdiction include genocide (committed in times of war), torture, slave trade, attacks on or hijacking of aircraft, and certain acts of terrorism. The fact that States have the right to vest universal jurisdiction in their national courts over war crimes has become a norm of customary law (Rule 157 of the 2005 ICRC customary IHL study).
Most principles of criminal law limit the jurisdiction of domestic courts to the prosecution of crimes that took place on the territory of the country in question, or whose perpetrators or victims are nationals of that country. The very nature of war crimes and crimes against humanity, and the context in which they tend to be committed, makes it difficult to prosecute them in the courts of the country where they were perpetrated.
On 17 July 1998, the Statute of the International Criminal Court (ICC) was adopted. The Court has jurisdiction over the most serious crimes of international concern—genocide, war crimes, crimes against humanity and aggression. But the ICC still does not completely fill the void in the international legal response to the numerous grave violations of humanitarian law that take place today: indeed, according to the Rome Statute that entered into force on 1 July 2002, the Court’s jurisdiction is constrained by many limitations. This stresses the need to reinforce domestic judicial capacities. ▸ International Criminal Court
Historically, the fact that there has never been a permanent international criminal tribunal increased the chance that the individuals who have committed such crimes could act with impunity. To prevent this, the States Parties to the Geneva Conventions commit to participating in the search, prosecution, and punishment of the perpetrators of war crimes and crimes against humanity. Hence, the Geneva Conventions impose on each State Party the following obligations:
- to search for persons alleged to have committed, or to have ordered to be committed, grave breaches of the Geneva Conventions;
- to bring such persons, regardless of their nationality, before its own courts;
- possibly also to hand over such persons for trial to another High Contracting Party concerned by the case, provided such State Party has made out a valid case (GCI Art. 49, GCII Art. 50, GCIII Art. 129, and GCIV Art. 146).
The exercise of universal jurisdiction is the most effective recourse that exists at an international level today for penalizing the most serious crimes. It has been incorporated into several international conventions, such as the Convention Against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment (known as the Torture Convention), adopted in New York on 10 December 1984. A victim of torture can file a complaint before any domestic court of a foreign country, on condition that the alleged offender is present on a territory under that country’s jurisdiction and that the State in question has incorporated the provisions of the Convention into its domestic laws. ▸ Torture
In addition to this procedure, international law provides various tools, in terms of mutual assistance in criminal matters and the duty to extradite, that are meant to facilitate the punishment of these crimes. ▸ Mutual assistance in criminal matters
The Importance of Universal Jurisdiction
In theory, the victims of torture, war crimes, or crimes against humanity can file complaints before foreign domestic courts on the basis of universal jurisdiction, as established in the 1949 Geneva Conventions for its grave breaches and the 1984 Convention against Torture. Exercising this jurisdiction is currently the most effective international recourse for penalizing the most serious crimes.
These complaints may be thwarted, however, if the countries in question have not brought their domestic legislation into conformity with this international obligation. Special provisions must be incorporated into national criminal legislation and rules of procedure, so that the jurisdiction of domestic courts can take effect.
In 1999, the UN Security Council requested that States amend their domestic legislation to incorporate the principle of universal jurisdiction into their laws and be able to punish perpetrators of humanitarian law violations (SC presidential statement of 12 February 1999). The UN Secretary-General formulated the same request in his report on the protection of civilians in armed conflict (8 September 1999).
Some countries, mostly members of the European Union (and a few others—e.g., Switzerland and Canada), have harmonized their laws with this obligation. Other States are more reticent—in particular, the United States and France—and base themselves on specific national regulations regarding such crimes.
Most domestic legislation holds that the accused must be present on the national territory of the country in question in order to trigger the jurisdiction of its courts.
▸ Immunity ▸ Impunity ▸ Individual recourse ▸ International Criminal Court ▸ Mutual assistance in criminal matters ▸ Torture ▸ War crimes/Crimes against humanity
For Additional Information: Bassiouni, Cherif. “Universal Jurisdiction for International Crimes: Historical Perspective and Contemporary Practice.” In Post Conflict Justice , edited by Cherif Bassiouni, 945–1002. Ardsley, NY: Transnational, 2002.
Hall, Christopher. “Contemporary Universal Jurisdiction.” In Human Rights and Criminal Justice for the Downtrodden: Essays in Honor of Asbjørn Eide , edited by Morten Bergsmo, 111–38. Leiden: Martinus Nijhoff, 2003.
ICRC. “National Enforcement of International Humanitarian Law: Universal Jurisdiction over War Crimes.” Geneva: ICRC, February 1999.
———. “State Consent Regime vs. Universal Jurisdiction.” Geneva: ICRC, December 1997.
Macedo, Stephen. Universal Jurisdiction: National Courts and the Prosecution of Serious Crimes under International Law . Philadelphia: University of Pennsylvania Press, 2004.
Philippe, Xavier. “The Principles of Universal Jurisdiction and Complementarity: How Do the Two Principles Intermesh?” International Review of the Red Cross 862 (June 2006): 375–98.