Fostering a Better Understanding of Universal Jurisdiction: A Comment on the AU-EU Expert Report on the Principle of Universal Jurisdiction

Abstract

The recent issuance of arrest warrants by European judges against African officials on the basis of universal jurisdiction has led to diplomatic tensions between African and European states. For this reason, at the 11th AU–EU Ministerial Troika Meeting the Ministers agreed to set up a technical ad hoc expert group to provide a description of the legal notion of the principle of universal jurisdiction and to outline its respective understandings on the African and the European side. On 16 April 2009, the final AU–EU Expert Report on the Principle of Universal Jurisdiction was issued. This comment examines the concerns expressed and the legal arguments and recommendations made in the Report. The author describes where those arguments may be located within the complex concept of universal jurisdiction under international law, stressing the distinction between universal jurisdiction to prescribe and universal jurisdiction to adjudicate. According to the Report, both customary and conventional international law allow for universal jurisdiction. The exercise of universal jurisdiction is, moreover, restricted neither by a requirement that the suspect be present on the territory of the prosecuting state, nor by considerations of subsidiarity. However, the vagueness of international law relative to the legal parameters of universal jurisdiction as well as its difficult relationship with long-established ‘ordinary’ national procedural regimes may provoke criticism.