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Universal jurisdiction

Universal jurisdiction 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.

According to the proponents of universal jurisdiction, certain crimes pose so serious a threat to the international community as a whole, that any state can 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.

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 overseas, even if the act the national committed was not illegal under the law of the territory in which an act has been committed.

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 where a state can exercise jurisdiction over acts which affect the fundamental interests of the State, such as espionage against it or calling for the overthrow of its government, 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. The exercise of jurisdiction over pirates is well settled international practice.

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 Tribunals for Rwanda and 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 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 abuse 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 a massacre conducted by a Christian minister 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.

In The Pitfalls of Universal Jurisdiction, Henry Kissinger writes,

"The very concept of universal jurisdiction is of recent vintage. The sixth edition of Black's Law Dictionary, published in 1990, does not contain even an entry for the term. The closest analogous concept listed is hostes humani generis ("enemies of the human race"). Until recently, the latter term has been applied to pirates, hijackers, and similar outlaws whose crimes were typically committed outside the territory of any state. The notion that heads of state and senior public officials should have the same standing as outlaws before the bar of justice is quite new." [1]

In The Case For Universal Jurisdiction , Kenneth Roth writes,
"Strictly speaking, the ICC will use not universal jurisdiction but, rather, a delegation of states' traditional power to try crimes committed on their own territory." [1]