Universal Jurisdiction over International Crimes and the Institut de Droit international

Abstract

The 2005 Resolution of the Institut de Droit international (IDI) on universal jurisdiction lends support to the idea that states may exercise universal jurisdiction over crimes under international law. It subjects such exercise to a set of limitations including, in particular, the principle of subsidiarity and the observance of human rights. Regarding the controversial issue of so-called universal jurisdiction in absentia, the Resolution steers a middle course by allowing investigative measures while excluding trials in absentia. The author agrees with these notions. At the same time, he is of the view that the Resolution suffers from a number of weaknesses and that several of its propositions may bear refinement. Conceptually, the Resolution adopts an unduly modest approach. It deals with the jurisdiction element of universal jurisdiction in an unspecified manner. Universality requires a distinction between universal jurisdiction by representation of one or more states directly connected with the crime and true universal jurisdiction to be exercised in the interest of the international community as a whole. True universal jurisdiction is confined to crimes under international law (as distinct from transnational crimes) and its adjudicative exercise is subject to a special regime. Regrettably, the Resolution remains inconclusive as to what extent crimes against humanity and war crimes are subject to universal jurisdiction. The Resolution suggests that states may exercise adjudicative universal jurisdiction in the form of investigative measures in the absence of the suspect and that they may, where the investigation so justifies, request the suspect's extradition. According to this author, the correct explanation for this proposition is the fact that to the extent that a customary title to true prescriptive universal jurisdiction has been proven to exist, states may exercise adjudicative universal jurisdiction by investigating alleged crimes in absentia, because of the absence of a prohibitive customary rule. The author argues that the adjudicative exercise of true universal jurisdiction has become subject to a legal limitation of subsidiarity vis-a-vis one or more states directly concerned. Such limitation applies as from the end of the investigation stage and is, in turn, conditioned by the genuine will and ability of the state(s) of primary jurisdiction to investigate and, where appropriate, prosecute. The article concludes with an appeal to the states to face the challenge to work out an international convention on true universal jurisdiction.