Universal jurisdiction or universality principle is a controversial principle in international law whereby states claim criminal jurisdiction over persons whose alleged crimes were committed outside the boundaries of the prosecuting state, regardless of nationality, country of residence, or any other relation with the prosecuting country. The concept received a great deal of prominence in the late 1990s, but interest in the concept has lessened largely because most actions to be taken under universal jurisdiction can be taken under less controversial theories of law.
According to the proponents of universal jurisdiction, certain crimes pose so serious a threat to the international community as a whole, that any state ought to be able to prosecute an individual responsible for it; no place should be a safe haven for war criminals and human rights violators.
Opponents of the concept, notably Henry Kissinger, argue that pursuit of universal jurisdiction could undermine the goal of justice which proponents seek to achieve. Kissinger's opposition is particularly notable as Christopher Hitchens has argued that he should be put on trial for war crimes.
Other opponents argue that all states being equal in sovereignty, as affirmed by the United Nations Charter, no state has standing to try a crime, no matter how heinous, in another state's jurisdiction, if they have no sovereign interest in the matter. As a practical matter, since any number of states could set up such universal jurisdiction tribunals, the process could quickly degenerate into politically-driven show trials to attempt to place a quasi-judicial stamp on a state's enemies or opponents.
Comparison with other bases of jurisdiction
Jurisdiction is most commonly exercised by a state in relation to crimes committed on its territory (territorial jurisdiction). States can also exercise jurisdiction on crimes committed by their nationals abroad (extraterritorial jurisdiction), even if the act the national committed was not illegal under the law of the territory in which an act has been committed. E.g., see Age of consent. Alternatively, a "double criminality requirement" means that the act has to be forbidden in both countries.
States can also in certain circumstances exercise jurisdiction over acts committed by foreign nationals on foreign territory. This form of jurisdiction tends to be much more controversial. There are three bases on which a state can exercise jurisdiction in this way. The least controversial is that under which a state can exercise jurisdiction over acts which affect the fundamental interests of the state, such as espionage against it, even if the act was committed by foreign nationals on foreign territory.
More controversial is exercise of jurisdiction where the victim of the crime is a national of the state exercising jurisdiction. In the past some states have claimed this jurisdiction (e.g., Mexico), while others have been strongly opposed to it (e.g., the United States). In more recent years however, a broad global consensus has emerged in permitting its use in the case of terrorist offences (due in part to it being permitted by the various United Nations conventions on terrorism); but its application in other areas is still highly controversial.
The most controversial type of jurisdiction of all, at least with regard to some of its applications, is universal jurisdiction. This is where a state exercises jurisdiction over a crime, not because of any links between it and the crime, but rather because the crime is considered a crime against the human race as a whole, which any state is authorised to punish.
There is disagreement over whether universal jurisdiction is an old or new concept. Kissinger argues that it is a new one, citing the absence of the term universal jurisdiction from an authoritative law dictionary. Others contend that the concept itself is quite an old one. Since at least the nineteenth century, pirates have been recognized as hosti humanis generis (enemies of the human race), and piracy upon the high seas has been prosecutable by any state. It must be recognized, however, that since piracy is "on the high seas," i.e., not within the jurisdiction of any state, that prosecution by any state fills a unique legal vacuum. The exercise of jurisdiction over pirates is well settled international practice.
One can conclude that to avoid prosecution by any country one may have to obey each of the following:
- laws of the country one is a national of
- laws of the country one lives in
- laws of the country one is in
- for behavior in relation to someone else:
- laws of the country the other is national of
- laws of the country the other lives in
- laws of the country the other is in
- for all countries with universal jurisdiction, laws for which the principle applies
Debate over universal jurisdiction
The application of universal jurisdiction to war crimes, crimes against humanity, genocide and aggression is much more controversial.
The controversy has two aspects: a legal aspect (Is the exercise of universal jurisdiction for these crimes permitted, at the present stage of its development, by customary international law?), and a political aspect (Is the application of universal jurisdiction to these crimes a good idea? Will it actually be effective at preventing them? Is it an unwarranted interference in the sovereignty of other states? Is it open to abuse for political purposes? Will its widespread use lead to instability in international relations?).
A separate but related issue is whether heads of state, ministers of government and diplomatic representatives of a state possess immunity in relation to these crimes.
Universal jurisdiction must be distinguished from the jurisdiction of an international tribunal, such as the International Criminal Court, the International Criminal Tribunal for Rwanda and for the former Yugoslavia, or the Nuremberg Trials. In these cases criminal jurisdiction is exercised by an international organization, not by a state. Since, lacking sovereignty, the powers of an international organization are derivative of those of its member states, the legal jurisdiction of an international tribunal is dependent on powers of jurisdiction possessed by the states which established it, and to what extent they decided to transfer these powers to the international tribunal. In the case of the Nuremberg Trials, the legal basis for the tribunal was that the Allied powers were exercising German sovereign powers which had been transferred to it by the German Instrument of Surrender.
Universal jurisdictions must also be distinguished from other theories of law which allow a state to try a person who is alleged to have abused human rights. For example, Spain attempted to try former dictator of Chile Augusto Pinochet for human rights abuses not on the grounds of universal jurisdiction but rather on the grounds that some of the victims of the abuses committed in Chile were Spanish citizens. Spain then sought the extradition of Pinochet from Britain, again, not on the grounds of universal jurisdiction, but by invoking the law of the European Union regarding extradition.
Because most prosecutions can be justified under less controversial theories of law, so far, there has been only one prosecution for crimes against humanity through universal jurisdiction which can not be justified under another theory of law, and this is the Belgian prosecution of participants in the Rwandan genocide. In addition Belgium claimed jurisdiction over Israeli Prime Minister Ariel Sharon for his alleged role in the Sabra-Shatila massacre in Lebanon conducted by a Christian militia ostensibily under his control.
Belgium has thus far been the only country to put universal jurisdiction into its laws, and after pressure from the United States including the threat to move the headquarters of NATO from Brussels, it revised its laws to be more restrictive about prosecutions it could carry out.
Last updated: 05-07-2005 16:35:55
Last updated: 05-07-2005 18:09:53