Authored by Ishita Chandra, III Year Student, Dr. B.R. Ambedkar National Law University, Sonepat
Introduction
Universal jurisdiction, a beacon of hope in the pursuit of justice, transcends borders, offering the means to hold perpetrators of grave crimes accountable irrespective of where these atrocities occurred or the nationality of those involved. This legal principle empowers states or international bodies to prosecute individuals for egregious offenses like genocide, war crimes, crimes against humanity, and torture, regardless of their location or nationality.
Historically, the roots of universal jurisdiction can be traced back to ancient times, when certain crimes were viewed as offenses against all of humanity. However, until the 20th century, it did not gain much recognition as a legal principle in international law. The atrocities of World War II, particularly the Holocaust, accelerated its development. The Nuremberg and Tokyo trials established a precedent, showing that individuals could be held accountable for crimes against humanity and war crimes regardless of their official position or nationality. These trials marked a significant departure from traditional sovereignty concepts, paving the way for universal jurisdiction to address the most atrocious crimes committed against humanity.
The rationale behind universal jurisdiction lies in the notion that such crimes, being injurious to the international community or order, warrant action by any nation. Perpetrators of such crimes are considered “enemies of all mankind,” justifying any nation’s authority to hold them accountable.
Universal jurisdiction is typically invoked when traditional bases of criminal jurisdiction are unavailable. For instance, if the defendant is not a state national, the crime did not occur within the state’s territory, or the state’s interests are not directly impacted. National courts can exercise universal jurisdiction when legislation recognizing and authorizing the prosecution of relevant crimes is in place. International agreements may mandate such legislation, as seen in conventions like the Convention Against Torture. While enforcement of such conventions poses significant challenges – for instance Article 7 of the Convention Against Torture which requires states to prosecute or extradite offenders, still, these challenges do not negate the importance of universal jurisdiction. On the contrary, despite practical hurdles, universal jurisdiction remains a crucial mechanism for addressing grave violations, as it upholds global accountability and reinforces customary international law norms, including the prohibitions on torture, non-refoulement, and inhuman treatment.
Several prominent cases exemplify the application of universal jurisdiction, including the UK’s consideration of Spain’s request to extradite Augusto Pinochet, showcasing how universal jurisdiction can supersede national pardons and offer redress for victims in instances where their own country neglects to take action. While Spanish courts have been instrumental in applying universal jurisdiction, the Spanish courts’ jurisdiction has after the recent amendments, become limited.
Arguments Supporting The Application Of Universal Jurisdiction
The principle of universal jurisdiction, as stated in the preamble of the International Criminal Court (ICC) Statute, highlights the necessity of preventing the gravest crimes from escaping punishment and stresses each state’s obligation to prosecute those responsible for international offenses. This principle acts as a deterrent against severe human rights abuses, eradicating sanctuaries for offenders and bypassing constraints of domestic legislation to diminish impunity.
Universal jurisdiction remains a potent tool in combating impunity, particularly in the face of transnational organized crime. Switzerland’s landmark conviction of Alieu Kosiah for crimes against humanity showcases the potential of universal jurisdiction to deliver justice even decades after the commission of crimes. With increasing support and adoption, universal jurisdiction will continue to evolve and serve as a crucial mechanism in upholding human rights within the realm of international affairs.
In the Israel-Palestine conflict, universal jurisdiction stands as imperative for ensuring accountability among both Israeli and Palestinian entities accused of breaching international law. Defined by its tumult of violence and territorial contentions, the conflict has birthed myriad allegations of war crimes and human rights transgressions. A prominent illustration unfolds through the ICC’s probe in 2021 into purported war crimes within the occupied Palestinian territories.
Additionally, countries in the East, particularly those with emerging democracies and transitioning political landscapes, have increasingly recognized the importance of universal jurisdiction in confronting impunity and promoting the rule of law. This shift reflects a broader commitment to upholding human rights norms and international legal standards, despite historical and political complexities. For example, nations in the Middle East, such as Lebanon and Jordan, have taken steps to expand their legal frameworks to incorporate universal jurisdiction for certain international crimes.
Challenges Associated With Universal Jurisdiction
Despite its potential, universal jurisdiction faces significant challenges including limited state capacity, difficulties in cross-border cooperation, variations in legal standards, and issues related to territorial sovereignty that complicate the custody of offenders. States may hesitate to employ it due to political or sovereignty concerns. Selective application can politicize and erode its impartiality, as powerful states may target adversaries while ignoring their own or allies’ crimes. Moreover, the principle’s limited recognition among Eastern and Middle Eastern states poses a significant challenge. For example, in the Middle East, nations such as Saudi Arabia have been reluctant to adopt universal jurisdiction, often due to concerns about foreign interference and prioritizing state sovereignty. Similarly, in Asia, countries like India have shown caution, with India avoiding universal jurisdiction. This could be to avoid international involvement in internal conflicts, such as those in Kashmir, and to safeguard its sovereignty. Further, nations like China and the USA have a restrictive stance on universal jurisdiction, with their government emphasizing national sovereignty and non-interference in domestic affairs. China has historically been cautious about endorsing universal jurisdiction, borders, such as those concerning Tibet and Xinjiang. Similarly, USA has also been criticized for selective application and reluctance to submit to international legal mechanisms. The application of universal jurisdiction by USA’s courts is often subject to political considerations, and the country has been hesitant to support international efforts that could potentially undermine its sovereignty or military interests, particularly regarding actions in the Middle East. Russia, similarly, resists universal jurisdiction, partly due to concerns about accountability for military actions in regions like Ukraine and Syria.
Apart from political motivations, economic considerations and historical scepticism toward Western legal norms also influence these trends. Critics, like Henry Kissinger, argue that universal jurisdiction encroaches on sovereignty and hinders national reconciliation. The critics caution against setting precedents that may lead to unjust witch-hunts by foreign judges, straining diplomatic relations. Some argue that it fails to prevent impunity as claimed.
ICC vis-à-vis Universal Jurisdiction
The International Criminal Court (ICC) is a permanent tribunal established to preserve and maintain a just social order globally. The ICC, while playing a vital role in combatting impunity, faces limitations due to its jurisdiction being restricted to offenses committed after July 1st, 2002, and to countries that ratified the Rome Statute. The reluctance of powerful nations like the US, Russia, China, and various Middle Eastern countries to ratify the statute undermines the ICC’s authority.
The ICC and universal jurisdiction both aim to address serious crimes that affect the international community, but they operate under different principles and frameworks.
1) Jurisdiction and Consent: The ICC can exercise jurisdiction over individuals from states that have ratified the Rome Statute or in cases referred by the United Nations Security Council. Additionally, The ICC’s jurisdiction is limited to crimes committed by nationals of state parties or on the territory of state parties. The lack of universal jurisdiction to ICC compromises the original purpose of establishing a permanent tribunal. To address this limitation, the Rome Statute, which is the founding treaty of the ICC, allows for referrals. Cases can be referred to the ICC by a state party to the Rome Statute, by the United Nations Security Council (UNSC), by a non-state party making a declaration to accept ICC jurisdiction in relation to a case, or by the ICC prosecutor initiating investigations proprio motu.
Universal jurisdiction, on the other hand, allows a state to claim criminal jurisdiction over an individual regardless of where the crime was committed, and irrespective of the nationality of the perpetrator or the victim. This principle does not require the consent of the state where the crime occurred or the state of nationality of the accused. Moreover, universal jurisdiction potentially offers a broader reach, as it can be invoked by any state willing to prosecute serious international crimes, regardless of the location of the crime or the nationalities involved.
2) Complementarity: The ICC adheres to the principle of complementarity, acting as a court of last resort. It steps in only when national courts are unwilling or unable to prosecute serious international crimes such as genocide. Universal jurisdiction supports the ICC in situations where it faces jurisdictional constraints by allowing states with universal jurisdiction to pursue justice if the UN Security Council has not referred the case or if a country is not a signatory to the Rome Statute.
3) Sovereignty vs. Accountability: The ICC respects state sovereignty to an extent, as it requires the state’s acceptance to exercise jurisdiction. This respect for sovereignty can limit its ability to prosecute individuals from non-ratifying states. Whereas, universal jurisdiction challenges the traditional notion of state sovereignty by asserting that certain crimes are so heinous that they affect the international community as a whole, justifying prosecution even without the consent of the state where the crime occurred.
Way Forward
The discourse surrounding the efficacy of universal jurisdiction remains prominent in international discussions, but its practical application faces challenges due to a lack of state capacity and understanding. Establishing specialized investigation and prosecution units, legislative frameworks and adequate resources for effective investigations can mitigate delays in handling cases. However, issues arise in achieving custody of offenders without violating territorial sovereignty, especially in cases involving hijackers or terrorists. Universal jurisdiction requires not only resources but also cross-border cooperation and the harmonization of legal standards, both of which can be challenging to achieve. Furthermore, issues in obtaining custody of offenders without infringing on territorial sovereignty, particularly in cases involving terrorism or transnational crime, present additional obstacles. In such scenarios, collaboration between nations is crucial, even though extradition may not always be feasible, potentially leading to trials in absentia. In such scenarios, collaboration between nations is crucial. This was evident in Belgium’s trial of Congo’s Minister of Foreign Affairs, Abdoulaye Yerodia Ndombasi, which was criticized for being conducted in his absence.
Additionally, a victim-centred approach, particularly for sexual and gender-based crimes, requires tailored protection measures to avoid re-traumatization. Cooperation among different investigations is vital to prevent duplication of victim interviews, further safeguarding their well-being. Multilateral support can bolster state capabilities and political will, as exemplified by internationalized courts in Sierra Leone and Cambodia, which, with international assistance, successfully prosecuted offenders and deterred future criminal behaviour. Collaborative efforts, such as Senegal’s partnership with the African Union to establish the Extraordinary African Chambers, demonstrate how regional initiatives can enhance victim participation and facilitate transitional justice while minimizing external interference.
While universal criminal jurisdiction is needed to serve justice, safeguards must be designed so that it is not abused by prosecutions that are frivolous or politically motivated or that violate basic due process protections. To prevent such abuses, three main safeguards can be considered: the principles of legality, necessity, and due process of law. Universal jurisdiction should not be applied by another nation if the suspect’s home country conducts a genuine investigation and prosecution, provided it adheres to international human rights standards for fair trials. Thus, national courts exercising universal jurisdiction hold a secondary role, similar to the ICC, which also intervenes only when national courts fail to conduct proper investigations or prosecutions.
Conclusion
As the world confronts conflicts and human rights abuses, universal jurisdiction underscores the principle that justice transcends borders. Crimes falling under universal jurisdiction, rooted in jus cogens, demand accountability without derogation by any state. Impunity must not prevail; perpetrators of atrocities must face legal consequences. State officials must understand that immunities serve state interests, not personal gain, and should be balanced with reason. Universal jurisdiction must align with other international legal principles, including state officials’ immunity, sovereignty, and territorial integrity. Perpetrators should face trial regardless of nationality, either in the state with territorial jurisdiction or through extradition.
Picture Credit: Human Rights Watch