Exercise Of Universal Jurisdiction Research Articles

Universal Jurisdiction: Law out of Context

Universal jurisdiction enables the prosecution of international crimes by domestic courts in the absence of any nexus between the prosecuting state and the crime charged. While the temptation is for domestic judges to proceed with ‘business as usual’ in the conduct of such trials, difficulties in the practice of universal jurisdiction reflect the importance of developing a better understanding of the distinctive communities, interests, crimes and cultures these trials are intended to serve. The exercise of universal jurisdiction is commonly regarded as a form of domestic jurisdiction exercised pursuant to a sovereign right under international law. This article invites a re‐conceptualisation of the concept of universal jurisdiction, explaining that it is not a form of domestic jurisdiction acquired based on sovereign nexus between the crime charged and the prosecuting state. Instead, it should be recognised as a form of decentralised ‘international jurisdiction’, exercised as part of a state's contribution to the enforcement of international criminal law. This re‐conceptualisation has implications for the way in which domestic courts engage with many of the challenges facing universal jurisdiction trials, including problems of community, case selection, proof and translation.

Responsibility for Offences against Internationally Protected Persons: Contemporary Legal Aspects

The article examines complex legal aspects of the problem of responsibility, when it comes to offences against internationally protected persons (OIPP). The article reveals that, depending on the international legal qualification of the offence, OIPP can be qualified as either an ordinary crime (the one prosecuted under domestic law following the participation of the State in the relevant international conventions the key of which is the 1973 Convention on the Prevention and Punishment of Crimes Against Internationally Protected Persons, Including Diplomatic Agents) or an international crime when it is a violent act against the protected person committed in the situation of an armed conflict. The authors argue that notwithstanding the fact that both cases entail individual criminal responsibility of the delinquent, individual criminal responsibility for OIPP as an ordinary crime occurs to the extent in which a State party to a relevant international convention has provided for punishment in its national legislation for the conduct criminalized thereby. At the same time, with regard to OIPP as a war crime, the article highlights that the commission of OIPP engenders the right to exercise universal jurisdiction under customary international law and the obligation to exercise quasiuniversal jurisdiction under the “Geneva law” for the purpose of bringing delinquents to justice. In the meantime, the most controversial issue is the question of international legal responsibility of a State in cases of OIPP. It is argued that such responsibility can arise, when OIPP is a war crime committed by a State agent or a non-State actor effectively controlled by the State, as well as when it fails to undertake necessary measures to ensure personal inviolability of protected persons in violation of diplomatic law, or in situations of the denial of justice.

Basic Concepts of Universal Jurisdiction and Determination of Its Development

The exercise of universal jurisdiction came to the stage of debate after the opinion given by the Court of Lotus. Judges in Arrest Warrant did not discuss the issue of universal jurisdiction on account of a clear consensus on the basis of universal jurisdiction. Thus the basic definition of universal jurisdiction is ambiguous for people who are fresh to this concept. This paper is written for explaining the basic concepts of universal jurisdiction based on the case study, convention analysis, and reference research. Researching informative papers written by reputable scholars could be fully helpful in clarifying the basic concepts of universal jurisdiction. And referring to treaties and States practices can contribute to determining if there is a legal ground for universal jurisdiction and how universal jurisdiction has been developed over decades.

Israel's International Legal Responsibility for Human Rights Violations in the Occupied Palestinian Territory In accordance with the provisions of international law

The West Bank, Gaza Strip, and the city of Jerusalem are occupied territories occupied by Israel following hostilities in the 1967 war. Israel was a State party to the Fourth Geneva Convention of 1949, which refused to apply it to the occupied territories since the common article I of the four Geneva Conventions showed respect for and universal adherence to the principles contained therein. However, Israel has not complied with this but has committed serious violations of the rights of Palestinian citizens, criminalized under the Rome Statute of the International Criminal Court. The research aims to hold Israel internationally responsible for its illegal actions in the occupied Palestinian territories for violating the provisions of international law and resolutions of international legitimacy. The importance of the search for international criminal and civil accountability of Israel for its human rights violations in the Occupied Palestinian Territories is important, as Palestine's accession to the International Criminal Court comes as an important step in terms of ending the impunity of Israeli war criminals in addition to prosecuting them wherever they are regardless of their nationality and the place where the crime was committed in accordance with universal jurisdiction. The problem of the research revolves around: How long will Israel remain without international accountability for its violations of the rights of citizens in the Occupied Palestinian Territory? The researcher followed the descriptive and analytical approach and reached a set of conclusions and recommendations, the most prominent of which are: holding Israel internationally responsible for its internationally wrongful actions in the occupied Palestinian territories represented by the violation of international obligations. Among the most prominent recommendations are the implementation of the recommendations of Amnesty International's report regarding the call of the International Criminal Court to consider the crime of apartheid as part of its investigations into the Palestinian situation before it and that all States exercise universal jurisdiction to bring the perpetrators of apartheid crimes to justice.

The Legality and Scope of Universal Jurisdiction in Criminal Matters

Abstract Universal jurisdiction in criminal matters has been a hot topic for many decades already. In discussions on its legality and scope, waters are usually muddied by the inclusion of unrelated issues or by the use of inappropriate methodologies. The purpose of this article is to discuss the legality and scope of universal jurisdiction, mainly by clarifying the concept and addressing the main misunderstandings characterising the discussions on its legality. The main claim is that objections to the legality and to the extended (unlimited) scope of universal jurisdiction in criminal matters are based on two confusions/conflations of notions. Firstly, this paper demonstrates that the so-called conflicts between the exercise of universal jurisdiction and general norms of international law are only imaginable in a framework that misrepresents/misunderstands the concept of jurisdiction itself by conflating the notions of jurisdiction to prescribe and jurisdiction to enforce. Secondly, it argues that the view which limits the scope of universal jurisdiction to a few crimes fails to clearly distinguish states’ international duties and rights in criminal law matters. In terms of methods, the paper takes the (traditional) view that states are allowed to do everything international law does not prohibit.

Eichmann in Jerusalem: A Study of the Legitimacy of Jurisdiction Based on Universal Interests

Although the trial of Adolf Eichmann by the Israeli court has been more than half a century, the case has been widely discussed by the academic community during the trial and for a considerable period of time thereafter, especially about the issue of the jurisdiction of the Israeli court which is still worthy of study now. On the issue of Eichmann’s trial jurisdiction, from a legal point of view, the “Eichmann case” has neither the nationality of the victim nor the national interest relationship between the “Eichmann case” and the State of Israel. Israeli Court adopts Negative Personality Doctrine to “Localize” Eichmann’s Crimes and makes the crime become a crime against Jews only, and because of this, the court believes that it judges crimes on behalf of all human beings and not its own nationals, thus ignoring the nature of the Holocaust crime against all human beings. The exercise of universal jurisdiction over international crimes is justified only because the crimes against humanity as a whole. Therefore, we need the objectivity of historical events and the moral judgment of human beings, and the use of universal jurisdiction in the trial of international crimes should only focus on justice and not be influenced by external politics.

A Study on the Relationship between Universal Jurisdiction and Rule of Law

The principle of universal jurisdiction allows individual states to prosecute perpetrators of international crime irrespective of the location of the crime and the nationality of the perpetrator or the victim. Since universal jurisdiction creates no safe haven for perpetrators of international crime, it has been praised for its role in enhancing rule of law. Domestic courts that exercise universal jurisdiction could protect victims’ right to access to justice, offer fair trials, and help bring justice. Universal jurisdiction, however, has also been criticized for diminishing rule of law. As the international community still have not yet come to an agreement on the definition and the scope of universal jurisdiction, there are problems in disparity in its application. Furthermore, universal jurisdiction not only could infringe other states’ sovereignty, but it could also be abused for political gains. Although universal jurisdiction is a controversial subject, one cannot deny its positive effects. Therefore, it is vital for the international community to cooperate with each other to advance universal jurisdiction and ultimately to promote rule of law.

United Kingdom Policy Towards Universal Jurisdiction Since the Post-War Period

Abstract From the 17th century onwards, Britain played a leading role in asserting the application of the universality principle to international piracy, the first crime to which the principle applied. Thereafter, during the quest for abolition, it exercised universality over slave traders at sea. With the exercise of universal jurisdiction over atrocity crimes in the post-War period there was a notable shift in the UK position to the principle. This article traces the history of UK policy towards the application of the universality principle to atrocity crimes since wwii. Using archival research from the UK National Archives and the travaux préparatoires to international treaties, it analyses UK policy towards the inclusion of universal jurisdiction in international treaties concerning atrocity crimes. It argues that historically, the UK supported the application of the principle to atrocity crimes committed during an international armed conflict, as this position supported its interests. The nexus between universal jurisdiction and international armed conflict shielded colonial abuses from prosecution in foreign courts. Once the colonial period had come to an end, there was a shift in UK support for the inclusion of universal jurisdiction in international treaties, which is evident since the negotiation of uncat and the Rome Statute.

The Authority of Universal Jurisdiction

The aim of this article is to flesh out the implications of seeing universal jurisdiction as a claim to authority. While the idea that jurisdiction is an exercise of authority may seem obvious, the article invites attention to the ‘claim’ inherent within it, particularly where the exercise of jurisdiction intrudes upon or displaces competing claims. Legal scholars and practitioners tend to focus on the legal source of authority to exercise universal jurisdiction. The consequence is a tendency to think in binary terms: a court either has jurisdiction, in which case the matter will proceed (without further attention to the question of jurisdiction), or it does not, in which case the whole matter is at an end. Jurisdictional thinking invites attention to the need for those asserting such a claim to take responsibility for these claims to authority, encouraging responsiveness to the normative communities such claims put into relation and the potential need to rethink conventional modes of operation. The article proceeds in two parts. Part I examines the deficiencies in the dominant ‘legal source’ narrative on universal jurisdiction. Part II assesses the value of understanding the legal-political dimension of universal jurisdiction as a claim to authority that must be understood, and justified, with attention to its purpose and the community (or communities) it is intended to serve.

The Authority of Universal Jurisdiction

The aim of this article is to flesh out the implications of seeing universal jurisdiction as a claim to authority. While the idea that jurisdiction is an exercise of authority may seem obvious, the article invites attention to the ‘claim’ inherent within it, particularly where the exercise of jurisdiction intrudes upon or displaces competing claims. Legal scholars and practitioners tend to focus on the legal source of authority to exercise universal jurisdiction. The consequence is a tendency to think in binary terms: a court either has jurisdiction, in which case the matter will proceed (without further attention to the question of jurisdiction), or it does not, in which case the whole matter is at an end. Jurisdictional thinking invites attention to the need for those asserting such a claim to take responsibility for these claims to authority, encouraging responsiveness to the normative communities such claims put into relation and the potential need to rethink conventional modes of operation. The article proceeds in two parts. Part I examines the deficiencies in the dominant ‘legal source’ narrative on universal jurisdiction. Part II assesses the value of understanding the legal-political dimension of universal jurisdiction as a claim to authority that must be understood, and justified, with attention to its purpose and the community (or communities) it is intended to serve.

The Prohibition of Genocide as an International Norm of jus cogens and its Implications for International Law

The crime of Genocide is considered as one of the most severe crimes against humanity. The international legal definition of the crime of genocide is found in Article (II) and (III) of the 1948 Convention on the Prevention and Punishment the Genocide. However, the Convention failed to cover many of the major human rights violations and mass killings committed by perpetrators and their accomplices. This article focuses on the interpreting the definition of genocide, and addressing the problems involved in both the prosecution and defence of charges of genocide when committed by individuals. It will argue that not every act committed with intention to destroy, in whole or in part, a protected group will lead to a rise in the responsibility for genocide. Only those, which are mentioned in Article (II) of the Genocide Convention, may form the intent (Actus Reus) of genocide. Rather, it will analyse how the Genocide Convention allows the establishment of Universality Jurisdiction against the crime of genocide by prescribing that genocide is a crime under international law, and how the States can exercise Universal Jurisdiction over acts committed outside a State’s territory by a foreigner.

The Socio-Historical Case for the Existence of a Nexus Requirement in the Application of Universal Jurisdiction to Maritime Piracy

Abstract This article provides a historical account of the application of universal jurisdiction to piracy jure gentium and details the nexus requirement. Prior work by Kontorovich and Art noted an increase in the application of universal jurisdiction concurrent with the rise of piracy off the coast of Somalia, yet did not address the historical case for the attribution of nexus to its application. This appears to be a non-sequitur, as the vast majority of scholars suggest that by definition the exercise of universal jurisdiction does not require a nexus. I argue that any presupposition of a lack of connection in the application of universality should be questioned, as not only is there a normative connection between the seizing and the adjudicating state, but that historically this has always been the case until just prior to the advent of third-party jurisdictional piracy courts in Kenya and the Seychelles that address Somali piracy, and only Somali piracy.

The Universal Jurisdiction of South African Criminal Courts and Immunities of Foreign State Officials

Under the "complementarity" regime of the Rome Statute of the International Criminal Court (ICC), the jurisdiction of the ICC is secondary to the jurisdiction of domestic courts. States Parties, not the ICC, have the primary responsibility of investigating and prosecuting international crimes. The ICC acts only when States are "unable" or "unwilling" to prosecute. As a State Party, in order to give effect to the complementarity principle, South Africa enacted the Implementation of the Rome Statute of the International Criminal Court Act 27 of 2002, which determines the modalities of prosecuting perpetrators of the crimes of genocide, crimes against humanity and war crimes in South African courts.
 The Implementation Act also provides that South African courts will have jurisdiction over these crimes not only when they are committed on the territory of South Africa but also when they are committed outside the Republic. By granting South African courts jurisdiction over a person who commits a crime outside the Republic when that person is later found on South African territory, without regard to that person's nationality or the nationality of the victims, the Implementation Act empowers South African courts with universal jurisdiction over international crimes.
 This paper seeks to determine whether and to what extent foreign State officials, such as foreign heads of State, heads of government and ministers of foreign affairs, can plead immunity when they are accused of international crimes before South African courts when exercising their universal jurisdiction in terms of the Implementation Act and in accordance with the complementarity regime of the Rome Statute. In other words, the article endeavours to determine whether international law rules regarding immunities of State officials may or may not limit the ability of South African courts to exercise universal jurisdiction over international crimes committed in foreign States.

The Prevalence of 'Present-In' Jurisdiction

In August 2011, President Obama issued Presidential Study Directive No. 10 (PSD-10), declaring the prevention of genocide and other mass atrocities to be a ‘‘core national security interest and core moral responsibility’’ of the United States. He thus directed the National Security Advisor to launch an interagency process to comprehensively review the U.S. government’s anti-atrocity capabilities and recommend steps for creating a whole-of-government policy framework for preventing mass atrocities that includes the creation of an Atrocities Prevention Board (APB) featuring high-level interagency representation. In April 2012, President Obama approved the recommendations generated by this review and directed his administration to take a range of steps to strengthen the U.S. government’s ability to foresee, prevent, and respond to mass atrocities.In one particular line of effort, the U.S. government (USG) is identifying ways to improve the ability of U.S., foreign, and international courts to prosecute atrocity crimes. To this end, the Departments of Justice, Homeland Security, and State have been directed to develop proposals that would strengthen the USG’s ability to prosecute perpetrators of atrocities found in the United States, and permit the more effective use of immigration laws and immigration fraud penalties to hold accountable perpetrators of mass atrocities. We are also working to support national, hybrid, and international accountability mechanisms when doing so advances U.S. interests and values, consistent with the requirements of U.S. law. In addition, State, DOJ, and DHS are developing options for assisting with witness protection measures and providing technical assistance in connection with foreign and international prosecutions.As part of this process, we surveyed the practice of other national systems in both incorporating international crimes into their penal codes and prosecuting such crimes under the full range of jurisdictional bases — including universal jurisdiction (UJ) — in an effort to identify the relevant law, state practice and opinio juris. Although there are multiple ways to tally relevant statutes and cases, the results of this empirical research reveal a distinct trend toward the codification of the core international crimes (subject to a certain degree of definitional variation), but more limited state practice when it comes to actual prosecutions. In addition, states are finding creative ways to build forms of oversight and limiting principles into their exercise of UJ to protect against prosecutorial over-reaching and ensure high-level engagement in any prosecution. This comparative approach provides a set of useful models as the USG looks for ways to expand our own prosecutorial authorities in keeping with PSD-10.

Human Rights as a Security Threat: Lawfare and the Campaign against Human Rights NGOs

In this article, I show how the term lawfare is being deployed as a speech act in order to encode the field of human rights as a national security threat. The objective, I claim, is to hinder the work of human rights organizations that produce and disseminate knowledge about social wrongs perpetrated by military personnel and government officials, particularly evidence of acts emanating from the global war on terrorism—such as torture and extrajudicial executions—that constitute war crimes and can be presented in courts that exercise universal jurisdiction. Using Israel as a case study, I investigate the local and global dimensions of the securitization processes, focusing on how different securitizing actors—academics, nongovernmental organizations, think tanks, policy makers, and legislators—mobilize the media, shape public opinion, lobby legislators and policy makers, introduce new laws, and pressure donors to pave the way for a form of exceptional intervention to limit the scope of human rights work.

Ending the 'Catch and Release' Game: Enhancing International Efforts to Prosecute Somali Pirates Under Universal Jurisdiction

While successful hijackings and ransoms off the coast of Somalia have recently receded, the inability of the international community to provide an effective and consistent legal deterrent to pirate activity remains. The prevailing policy of “catch and release” enables pirate activity to persist in international waters – allowing criminals to roam the seas as a constant threat to commercial shipping and with a sense of impunity. The text herein explores the weaknesses of the international legal regime in combating maritime piracy, focusing on the inability and unwillingness of states to prosecute captured pirates under universal jurisdiction.This essay highlights that one of the greatest impediments to prosecutions is a lack of legal capacity by states to charge and punish individuals for the crime of piracy. An absence of domestic legislation either criminalizing piracy or providing for the exercise of universal jurisdiction directly prohibits certain nations from bringing to justice many of the pirates captured on the high seas. This thesis also presents evidentiary issues as a crucial factor in the persistence of the “catch and release” policy. Accordingly, this text explores how the adoption of “equipment articles” could mitigate some of these issues and facilitate the prosecution of maritime piracy. Furthermore, the essay directly addresses how equipment articles and domestic legislation would be added to the current international legal framework.This text first examines the relevant international law that both defines piracy and provides for its criminalization and punishment by individual states. In order to ground the successes and failures of international prosecution efforts in their all-important context, this essay also explores the characteristics of Somali piracy, including the root causes of pirate activity and the mechanics of piracy operations. Likewise, this text surveys the conventional efforts to combat piracy in the region and the interaction between naval personnel and captured piracy suspects. Additionally, this essay focuses on the legal capability of states to arrest and prosecute pirates that are captured on the high seas.While the conclusions in this essay are specifically tailored to the pirate activity off the coast of Somalia and the unique characteristics of this incidence, wider implications for the deterrence of global maritime piracy can be gleaned from the analysis and arguments herein.

Cyber terrorism challenges: The need for a global response to a multi-jurisdictional crime

With the widespread concerns about cyber terrorism and the frequent use of the term “cyber terrorism” at the present time, many international organisations have made efforts to combat this threat. Since cyber terrorism is an international crime, local regulations alone are not able to defend against such attacks; they require a transnational response. Therefore, an attacked country will invoke international law to seek justice for any damage caused, through the exercise of universal jurisdiction. Without the aid of international organisations, it is difficult to prevent cyber terrorism. At the same time, international organisations determine which state court, or international court, has the authority to settle a dispute. The objective of this paper is to analyse and review the effectiveness and sufficiency of the current global responses to cyber terrorism through the exercise of international jurisdiction. This article also touches upon the notion of cyber terrorism as a transnational crime and an international threat; thus, national regulations alone cannot prevent it. The need for an international organisation to prevent and defend nations from cyber terrorism attacks is pressing. This paper finds that, as cyber terrorism is a transnational crime, it should be subjected to universal jurisdiction through multinational cooperation, and this would be the most suitable method to counter future transnational crimes such as cyber terrorism.

Searching for Common Ground on Universal Jurisdiction: The Clash between Formalism and Soft Law

Abstract The possibility of prosecuting serious international crimes before domestic foreign courts when territorial courts are unwilling and unable to perform this function and international criminal tribunals with suitable competences are unavailable has been intensively debated since the time of the Spanish arrest warrants against Pinochet. The African disapproval of decisions by European courts to exercise universal jurisdiction over serious crimes allegedly perpetrated by former African leaders indicates the absence of common ground on where and how such jurisdiction is to be utilized. The recent judgment of the International Court of Justice in the dispute between Belgium and Senegal sheds new light on how consensus on these issues might be forged. The Court’s commitment to formalism in the ascertainment and application of international law together with its ends-focused reasoning on the substance of that law reinforces the view that the UN Convention against Torture offers a non-controversial legal basis for upholding universal jurisdiction competences in these cases. However, the conclusions reached in the judgment can also be criticized for clashing with soft law recommendations in the field, pointing to the advantages of the organization of high-profile trials located in Africa in spite of the practical difficulties involved.

Piracy Prosecutions in National Courts

At least for the time being, the international community must rely on national courts to prosecute modern-day pirates. The first wave of domestic piracy prosecutions suggests, however, that domestic courts have yet to achieve the necessary consistency and expertise in resolving key questions of international law in these cases. This article evaluates how courts trying modern-day pirates have addressed common questions of international law regarding the exercise of universal jurisdiction, the elements of the crime of piracy, and the principle of nullum crimen sine lege. In doing so, it evaluates five decisions issued in 2010 by courts in Kenya, the Netherlands, the Seychelles and the United States, and it proposes some clear answers to these recurrent questions of international law in domestic piracy prosecutions.

Thailand and Terrorism: Is Thailand's Law on Terrorism an Ambiguous Prosecutorial Tool that Can Combat International Terrorist Activities?

International terrorism threatens human security and international community as a whole for many decades. Thailand is one of the most popular countries in Southeast Asia for terrorism, this causes country has been experienced of terrorism in many occasions. Even a number of both legal and administrative measures have been taken by the government to combat terrorism, to prevent the violence as well as to protect civilians from those disasters; nevertheless, terrorism acts are still being committed to shock conscience of people not only in the country, but also in world community. This article provides some critiques on Thailand’s law on terrorism, which is promulgated as a prosecutorial tool to combat terrorism. However, law on terrorism of Thailand has been criticised on the ambiguity of the provisions in many aspects, in particular, a broad definition of terrorism and the exercise of universal jurisdiction over terrorism. Hence, Thailand has to take law on terrorism into consideration in the near future.