Origin, Development and Evolution of the Principle of Universal Jurisdiction: A Study of its Application in National Courts and Practical Obstacles Facing its Implementation

Abstract

The application by municipal courts of their own powers and the rules of their state to cases involving foreign persons, property or events is a crucial topic although complicated by the convergence of principles from international law and conflict of laws. A number of definite principles upon which to base jurisdiction have emerged, with varying degrees of support and of different historical legitimacy. Discussed here is the universality principle. Under this principle, each and every state has jurisdiction to try particular offences. The basis for this is that the crimes involved are regarded as particularly offensive to the international community as a whole. There are two categories that clearly belong to the sphere of universal jurisdiction. These are piracy and war crimes. However, there are a growing number of other offences which by international treaty may be subject to the jurisdiction of contracting parties. This paper attempts to discuss in detail the concept of universal jurisdiction and prosecution of international crimes by municipal courts irrespective of its occurrence or incidence in its jurisdiction. It traces the principle’s genesis, especially after the World Wars including the Nuremberg and Military Tribunals of World War II, and follows it up with the Eichmann trial, Pinochet and other contemporary cases where universal jurisdiction was utilised. It further studies in depth the criminal codes of a number of nation states authorising them to exercise universal jurisdiction for certain crimes. In addition, the researcher also endeavours to understand the pitfalls of universal jurisdiction and the misuse of this principle by national courts as well as a discussion on the practical obstacles facing the implementation of universal jurisdiction in nation states. Finally the paper summarises the discussion by assessing whether universal jurisdiction is recognised as customary international law.