The Concept of Universal Jurisdiction: A Reality in the Making

Abstract

Traditional thinking shows that jurisdiction of prosecution will depend on the laws of State of which such perpetrator (active personality) or victim (passive personality) is citizen, or the place where the crime was committed (ideally where the perpetrator would be tried by the territorial state); or where the suspect physically located (the custodial state). In the 1980’s, a new concept however emerged. It has been known as the principle of universal jurisdiction which allows states to examine and prosecute persons who committed a serious crime under international law, regardless of the perpetrator’s nationality, either of the victims; or where the crime was committed. For example, in the case of the genocide, the International Court of Justice (ICJ), the highest judicial body of the United Nations, since 1951 has recognised that the 1948 Convention against Genocide codified relevant customary law. The principles of the Convention “were principles recognised by all nations which obligate all states outside of any conventional relationships, possessing a universal character”. It is specifically recognised that the crime of genocide can be pursued through the courts of any nation, without regard to the fact that such State has not signed up to the 1948 Convention against Genocide. Furthermore, the ICJ Judge Lauterpacht clearly says that “the Convention against genocide creates two separate obligations: one of prevention and the other of sanction or punishment. If either is not met, the obligation is contravened”. Therefore, it is easy to conclude that for a certain of crimes the ICJ has recognised the universal jurisdiction of any national court. Universal jurisdiction will apply in any case of genocide, crimes against humanity, war crimes, torture, extrajudicial execution and forced disappearances, which are considered the most serious crimes under international law. This universal jurisdiction may be even refered in cases of ordinary crimes under domestic laws such as murder, kidnapping, assault and abuse. The recognised non-governmental organisation - Amnesty International, an integral part of civil society, formed to defend human rights, has carried out a world investigation into domestic laws which showed that no fewer than 125 nations have adopted and incorporated the principle of universal jurisdiction in their national laws, regarding at least one of the aforementioned crimes.