Universal jurisdiction: Time to revisit the basics
1. The endless obscurity of universal jurisdiction
The past few years have revealed the growing excitement, interest and appreciation for universal criminal jurisdiction (henceforth, universal jurisdiction). The wide use of this notion in the media,[1] observations by States,[2] reports from several organisations,[3] discussions in the United Nations General Assembly,[4] as well as in academic sources,[5] among others, give the impression that universal jurisdiction is one of the most powerful tools in the fight against impunity for heinous crimes.[6]
To name a few examples of the contexts in which criminal cases have been brought, which have relied on the principle of universal jurisdiction, these include Afghanistan, Iraq, Liberia, Syria, Palestine, Rwanda, Ukraine and Venezuela.[7] Moreover, the increase of trials which are (at least allegedly) based on the principle of universal jurisdiction in, for instance, Argentina, Belgium, France, Germany, the Netherlands and Switzerland have contributed to the constantly increasing expectations regarding what universal jurisdiction can bring to the future of (international) criminal justice.[8] These trials have filled the hearts of many victims with high hopes, in particular in countries where there is limited (or even no) chance to seek justice in the State where the crimes are perpetrated. With the highest number of domestic cases based on universal jurisdiction, perhaps Syria is the most illustrative case as to show how universal jurisdiction can play a decisive role for victims hoping for justice when the access to it is completely blocked domestically.[9]
On the one hand, the thrilling attitude towards universal jurisdiction is justified, given that the very idea of applying national laws over extraterritorial conduct or even prosecuting a foreigner who committed a crime abroad against another foreigner, is surely revolutionary. This is because the ‘traditional’ heads of jurisdiction which include first and foremost territoriality, active personality and protective principle and (less ‘traditional’/more controversial) passive personality, all align with the positivist boundaries of State sovereignty. Differently, universal jurisdiction goes beyond ‘the traditional’ understanding of sovereignty and challenges the limitations of the State authority.[10] On the other hand, the efforts to bring the concept closer to a large audience have led to many simplifications which may leave the reader with the wrong impression about what universal jurisdiction truly is, leading to false expectations regarding how many cases of universal jurisdiction we have documented in the recent years. Additionally, the doctrinal sources do not always examine the term with sufficient scrutiny.[11]
Overall, despite the great interest in universal jurisdiction, and multiple previous academic efforts to clarify all the nuances regarding the concept, one may still sense a general unfamiliarity with the subtle distinctions on the content of the notion.[12] This paper offers a straightforward journey through the basics of universal jurisdiction, with the objective of providing clarity and to nourish reflections about the use of this term, which it is hoped can therefore have an impact on future analyses. The article begins by exploring the definition of universal jurisdiction, and continues by discussing the ongoing confusion between conditional and absolute universal jurisdiction. It also addresses the relationship between the treaty-based obligation of aut dedere aut judicare and universal jurisdiction.
2. Nuanced definition of universal jurisdiction
One of the most common ways to describe universal jurisdiction is to say that it is the possibility of a State to adopt criminal laws based on ‘universality’, meaning – at least in this context – that they would apply to conduct by a non-national which was committed abroad against another non-national, even when no other link exists between that State and the offender.[13] The prevalent doctrine considers the moment of the commission of the crime to be the relevant moment at which to assess the absence of the link, however, there is no universal consensus on this question.[14] Hence, it is impossible to judge objectively which jurisdictional basis has been applied by a State in question.[15]
Although it is often not stressed sufficiently, the abovementioned definition leaves no doubt that universal jurisdiction is per se a prescriptive (legislative) form of jurisdiction.[16] In this sense, the concept shares an essential feature with the ‘traditional’ heads of jurisdiction: it refers to the authority of the State to enact domestic laws (establishment of jurisdiction).[17] Yet, one thing which is distinctive for universal jurisdiction over other heads of jurisdiction is that it is always marked by the extraterritorial nature. Although they are both extraterritorial in nature, the two terms (universal and extraterritorial jurisdiction) should not be used interchangeably precisely because the former (universal jurisdiction) is a subcategory of the latter (extraterritorial jurisdiction).[18]
Still, a reference to extraterritorial jurisdiction as a general term to describe situations where the crime took place outside the territory of a State where the case is litigated is not per se incorrect. In fact, it may serve the purpose of emphasising the complexity of such cases (for example, due to evidence related constraints, political sensitivities, knowledge of the elements of international crimes and how to prove them by the domestic prosecutors and judiciary). Additionally, ‘extraterritorial’ as an umbrella term for universal jurisdiction is a safe choice of terminology whenever it is not yet clear which jurisdictional basis can and will be applied in the case in question. What is truly important is that the terminology is never incidental but rather a result of well-thought-out process in each individual case.[19]
Universal (prescriptive) jurisdiction tends to come with the corresponding form of the adjudicatory form of universal jurisdiction, which is about the possibility of criminal courts to address cases based on universality (exercise of jurisdiction).[20] But, can States even exercise criminal jurisdiction extraterritorially (be it on the basis of universality or other heads of jurisdiction)? The Lotus case, where the International Court of Justice (henceforth, ICJ) was asked to specify whether any principles of international law prevented Turkey from instituting criminal proceedings against the defendants, offers a response to this question.[21]
The majority in Lotus asserted that the State cannot exercise jurisdiction outside its territories unless there is a specific international law provision or customary international law which allows it to do so.[22] At the same time, most judges thought that the establishment and exercise of the extraterritorial jurisdiction in criminal matters by States in their territory is permissible, unless an international law rule encompasses an explicit prohibition to that end.[23] Conversely, the dissenting judges in Lotus were aligned with the more modern approach which goes in favour of the territoriality of criminal jurisdiction.[24] Exception are those situations where international law explicitly allows for extraterritorial jurisdiction as a head of jurisdiction (one example being international treaties).
It is also possible to ‘dissociate’ prescriptive and adjudicative jurisdiction. Such an option is best manifested by the possibility of domestic courts being able to exercise jurisdiction over a certain crime, based on international law as the direct source of reference, and without having the prescriptive jurisdiction in domestic legislation.[25] However, exercising jurisdiction extraterritorially based on the direct reliance on international law – especially customary law – is rare.[26] In fact, as concerns universal jurisdiction specifically, there is no known case where the State would exercise it based on customary international law without having the basis in domestic law.[27]
Next, the French case Javor et al testifies about the challenge of relying on international law directly for the exercise of extraterritorial jurisdiction even when the basis is a treaty.[28] The case was about five Bosniacs, refugees in France, who brought a civil complaint before the French criminal courts against unknown persons for various crimes, including grave breaches of the Geneva Conventions of 1949, committed against them in Bosnia and Herzegovina during the conflict of 1992.[29] At first instance, the investigating judge asserted that the Geneva Conventions of 1949 and the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (Torture Convention) are directly applicable in the French domestic system.[30] Yet, the Court of Cassation eventually decided that both treaties were inapplicable.[31] The Torture Convention was inapplicable because the defendants were not in the territory of France whereas this is required by the concerned treaty, and the Geneva Conventions of 1949 were perceived as too general to create rules on extraterritorial jurisdiction in criminal matters which require a certain level of preciseness and hence, cannot be directly applied in a domestic criminal system.[32] Another example, which was also adjudicated on by the French courts, is Re Munyeshyaka. This case was about a Hutu priest who had participated in the genocide in Rwanda and later fled to the French territory where he was found. In Re Munyeshyaka, the French judiciary decided that international law, including the Geneva Conventions, do not impose universal jurisdiction and hence, they cannot serve as a basis for the domestic courts to exercise it.[33]
According to Stern, Re Munyeshyaka serves as a proof that the French courts were unready to accept that customary law can be the basis for universal jurisdiction.[34] As previously mentioned, such an approach is pretty widespread among domestic judiciaries as most domestic courts would require the incorporation of universal jurisdiction as a head of jurisdiction into domestic legislation.[35] Still, generally speaking, the application of international treaties as well as customary law, including when it comes to the heads of jurisdiction, before criminal courts might be possible depending on the rules of the domestic system concerned.[36]
3. The presence of the defendant and the confusion between absolute and conditional universal jurisdiction
States tend to provide conditions for universal jurisdiction in their domestic laws, and (at least probable) presence of the defendant on the territory of a State is a frequent requirement.[37] One could say that a rationale of the requirement of the presence of the defendant is the interpretation of the ‘specific link’ between the State, which extends its criminal laws over the conduct of the concerned offender, which therefore justifies State interest in the given matter. Additionally, States tend to proceed with investigations or prosecutions based on universal jurisdiction when the defendant is present on their territory.[38] Both the frequency of the ‘condition of the presence’ in the legislation on universal jurisdiction and the tendency of States to proceed with cases on universal jurisdiction when the defendant is in their territory have contributed to the occasional belief that the presence of the perpetrator is always required for a State to either apply laws over the criminal conduct, or/and to begin an investigation or prosecution based on universal jurisdiction.[39] But, is this really the case?
To be able to answer the above question, the distinction between the absolute and conditional form of universal jurisdiction comes into play. One may be tempted to simplify by saying that absolute universal jurisdiction is the type of universal jurisdiction which requires no presence of the perpetrator on the State territory. This is nonetheless not sufficiently precise. In fact, the best way to begin is with a question on whether a State can even adopt a framework to regulate the behaviour of foreigners against foreigners, when the defendants have no link with the State, they have never entered a State territory after perpetrating the crime, and there is no prospect that they will enter voluntarily. Such a broad type of jurisdiction could be described as absolute or pure universal jurisdiction,[40] sometimes (wrongly) also called ‘jurisdiction in absentia’.[41] Given that absolute universal jurisdiction is per se of a prescriptive nature, it would usually come with the corresponding adjudicatory jurisdiction, implying that a State can initiate an investigation and possibly also a prosecution without the presence of the offender on the territory.
The exercise of absolute universal jurisdiction may be problematic from the perspective of the principle of legality. As one of the foundational principles of criminal law, the principle of legality calls for the accessibility and foreseeability of the prohibition of the criminal conduct and the penalties attached to it at the moment of the offence’s commission,[42] and the exercise of absolute universal jurisdiction would imply that a State may initiate an investigation or even a prosecution even when the perpetrator is not on a State territory. Therefore, applying the domestic definitions of crimes and the attached penalties to the criminal conduct committed abroad and when the State has no link to the perpetrator may clash with the principle of legality. For instance, this would happen when the law which a concerned State applies defines the alleged crime in a broader, less ‘perpetrator-friendly’ manner than the law of the State in which the perpetrator committed the crime or in the country of their nationality. Moreover, a risk to violate legality exists if the pertinent penalty for the alleged offence is harsher in the State which establishes and exercises pure universal jurisdiction compared to the pertinent law in States with other heads of jurisdiction (for example, with territorial or active personality heads of jurisdiction).[43]
Next, when it comes to conditional universal jurisdiction, it is about the application of national legislation to the conduct carried out abroad by a foreigner against a foreigner if the perpetrator is on the territory of a State.[44] The presence of the defendant on the forum State territory is in this sense necessary for the extension of the laws to the criminal conduct of the perpetrator (forum deprehensionis).[45] Similar to absolute universal jurisdiction, conditional universal jurisdictional usually comes with the corresponding form of the adjudicative jurisdiction, implying that the exercise is dependent on the presence of the perpetrator. There is also another possible scenario, which is that the presence of the defendant is not, as such, required in the title of universal jurisdiction, yet, it is mandatory for its exercise. In other words, one should distinguish between two situations: first, the question of forum deprehensionis, which is the requirement of the presence in the title of the jurisdiction, meaning that the domestic laws apply to the criminal conduct of the perpetrator who is present in the State and second, when the presence is required only for the adjudicatory jurisdiction.
Differently from the exercise of the absolute universal jurisdiction, the adjudicative form of conditional universal jurisdiction is less problematic from the perspective of the principle of legality because the presence of the subject in the territory can be interpreted as their voluntary subjection to the relevant domestic laws.[46] This is perhaps the reason why such conditional universal jurisdiction is most common in practice even in those countries which have the pure universal jurisdiction as a specific jurisdictional title in the domestic legislation, the best example being Germany.[47] At the same time, the lack of practice on the exercise of absolute universal jurisdiction does not imply that it is prohibited. Following the majority in the Lotus case, the question should actually be posed differently, namely, whether any prohibitive rule bars universal jurisdiction in the absence of a suspect on the State territory. In this regard, most scholars refer to the ICJ Arrest Warrant of 11 April 2000 case as instructive.[48] Especially the dissenting opinions clarified that the exercise of universal jurisdiction is a permissive form of jurisdiction, provided that certain requirements are met (most notably, the respect for the international law of immunities and only concerning most heinous crimes).[49] Yet, the dissenting judges in Lotus left some doubt regarding the form of universal jurisdiction, with the exception of piracy, for which they considered a possibility to assert and exercise absolute universal jurisdiction.[50]
One way to draw conclusions on the status of the absolute and conditional form of universal jurisdiction is also by referring to the gravity of certain crimes which affect the interest of international society as a whole. The notion of universal jurisdiction is often linked to crimes which are perceived to be of a particular gravity, and legitimate interest in the prosecutions based on universal jurisdiction is grounded in the seriousness of these crimes, which affect not only individual members, but society as a whole.[51] Nevertheless, even for crimes such as piracy, genocide, war crimes, crimes against humanity and (perhaps) torture, for which there seems to be a general agreement on the permissible legislative and adjudicative universal jurisdiction under customary international law,[52] there is no certainty regarding whether the permissible form of universal jurisdiction is the absolute or conditional form.[53]
4. The relationship between universal jurisdiction and aut dedere aut judicare
The relationship between universal jurisdiction and the specific treaty provision on the duty to prosecute or extradite (aut dedere aut judicare) enshrined in treaties such as the Torture Convention and the Geneva Conventions of 1949 deserves specific mention.[54] This is because the duty to prosecute or extradite can, under certain conditions, coincide with the conditional universal jurisdiction (as a prescriptive title of jurisdiction). Still, since this is not always the case, the two terms (aut dedere aut judicare and universal jurisdiction) cannot be used interchangeably.
Specifically, whereas aut dedere aut judicare imposes a duty to exercise jurisdiction, it may also be seen as imposing a duty of prescriptive jurisdiction in the sense that, for States to be able to meet their duty to prosecute or extradite, they have to adjust their criminal laws so as to include all heads of jurisdiction (including universal jurisdiction) in the national legislation to be able to fulfil such a duty.[55] Hence, whenever aut dedere aut judicare acts as a basis for establishing criminal jurisdiction, it overlaps with the conditional form of universal jurisdiction.
To illustrate the above with reference to the Torture Convention, this treaty crystallises the scope and content of the duty to prosecute or extradite by saying that States parties are required to submit the relevant case to the national authorities for the purpose of the prosecution or, alternatively, to extradite the suspect (Article 7).[56] At the same time, the heads of jurisdiction mentioned in the Torture Convention as a duty to establish criminal jurisdiction are based on principles of territoriality, active and passive personality and universality (regardless of any other link and head of jurisdiction) if the perpetrator is found on their territory (forum deprehensionis) (Article 5). One way to interpret the relationship between these two provisions, namely Article 7 and 5 of the Torture Convention, is to say that dedere aut judicare in Article 7 imposes the titles of jurisdiction, including the universal, spelled out in Article 5. In this sense, for the purpose of the Torture Convention, aut dedere aut judicare would overlap with (conditional) universal jurisdiction as a prescriptive title.
Another example of aut dedere aut judicare provisions are the Geneva Conventions of 1949.[57] Specifically, the obligation is formulated as the duty to search for persons who have allegedly committed grave breaches, bring them before their own courts or to hand them over to another State party for trial if that State has made a prima facie case, regardless of the nature of the link between the grave breach and the State.[58] Interestingly, the Geneva Conventions make no reference to the presence of the suspect on the territory, thus the question arises whether States parties should also search for and bring before their own courts perpetrators outside their territory.[59] Doctrine and also State practice speak against such a conclusion, and most countries have made prosecution conditional on the temporary or permanent presence of the alleged offender on the territory of the State party.[60]
Precisely because the obligation to search for and submit for prosecution is not limited to any specific jurisdictional basis, some scholars,[61] judicial opinions,[62] the International Committee of the Red Cross[63] and the majority of States[64] have concluded that the Geneva Conventions of 1949 provide for mandatory universal jurisdiction, arguing that the only way to implement the duty to search for or extradite is through including universality in the domestic legislation. More specifically, the choice of words at the beginning of the second paragraph on penal sanctions ‘each high contracting party shall be under the obligation to search (…) and shall bring such persons, regardless of their nationality, before its own courts (…)’, which establishes aut dedere aut judicare, is decisive for many States and commentators to believe that ‘universality’ is implied in the Geneva Conventions.[65] Others, however, have opposed the view, suggesting that aut dedere aut judicare does not as such include an obligation to assert extraterritorial jurisdiction because it is conceptually distinct.[66]
Independently of the view one adopts, it is evident that universal jurisdiction and aut dedere aut judicare also cannot be used interchangeably in the context of the Geneva Conventions. This is, as previously stated, because aut dedere aut judicare is about the exercise of jurisdiction, which might imply the corresponding duty of establishing prescriptive jurisdiction for this obligation to be met. At the same time, the aut dedere aut judicare principle is broader in nature than just referring to universality, as it encompasses an obligation for States to prosecute under any applicable jurisdictional basis. It also exists independently from the titles of jurisdiction. This makes the concepts of universal jurisdiction and aut dedere aut judicare interrelated but inherently distinct.[67]
5. Concluding remarks
With the hope of clarifying the persistent confusion regarding universal jurisdiction, this paper has highlighted that first, universal jurisdiction is per se a prescriptive form of universal jurisdiction, which is usually accompanied by the corresponding adjudicative form. Second, one should distinguish between the different roles which the presence of the offender may play in absolute and conditional forms of universal jurisdiction. The exercise of absolute universal jurisdiction (which would imply no requirement of presence of the defendant on the territory of a State exercising jurisdiction) is the one which raises the most controversy. Finally, by using the examples of the Torture Convention and the Geneva Conventions of 1949, this paper has portrayed the difference between universal jurisdiction and aut dedere aut judicare, and how they interact whenever the latter is imposed by an international treaty. Whereas aut dedere aut judicare may, whenever it is enshrined in the laws as a head of jurisdiction, sometimes overlap with a conditional form of universal jurisdiction, these two terms are not synonymous.
The progress on universal jurisdiction can only be appreciated if there is an understanding about what the notion really means. A desirable step in the future would be to conduct a study into how many cases, which have been labelled as ‘instances of universal jurisdiction’ would correspond to any of the described forms of universal jurisdiction, and why. This would allow us to get closer to the reality regarding the state of the art on universal jurisdiction.
* PhD Candidate and Teaching Assistant, Geneva Graduate Institute. The author is grateful to Agustina Becerra Vázquez, Chiara Gabriele, Victoria Priori, and anonymous reviewers for their constructive comments on the previous versions of this article.
[1] L Morris, ‘Why Germany Is Becoming a Go-to Destination for Trials on the World’s Crimes’ Washington Post (6 March 2021) <www.washingtonpost.com/world/europe/germany-war-crimes-justice/2021/03/05/b45372f4-7b78-11eb-8c5e-32e47b42b51b_story.html>; F Franchini, ‘Universal Jurisdiction Gains Ground in Switzerland’ SWI swissinfo.ch (21 July 2023) <www.swissinfo.ch/eng/society/universal-jurisdiction-gains-ground-in-switzerland/48669650>.
[2] ‘The Scope and Application of the Principle of Universal Jurisdiction. Information Concerning the Position of Switzerland Submitted under Paragraph 3 of General Assembly Resolution 75/142 of 15 December 2020’ <www.un.org/en/ga/sixth/75/universal_ jurisdiction/switzerland_e.pdf>; ‘Observations by Belgium on the Scope and Application of the Principle of Universal Jurisdiction’ <www.un.org/en/ga/sixth/65/ScopeAppUniJuri_ StatesComments/Belgium_E.pdf>; ‘United States Submission. Information and Observations on the Scope and Application of the Universal Jurisdiction’ <www.un.org/en/ga/sixth/65/ ScopeAppUniJuri_StatesComments/United%20States.pdf>.
[3] ‘A Conceptual Framework for Dealing with the Past’ (swisspeace) Essential 2/2016 10; S Finnin, ‘Breaking Down Barriers: Access to Justice in Europe for Victims of International Crimes’ (International Federation for Human Rights, European Center for Constitutional and Human Rights, REDRESS 2020); ‘Universal Jurisdiction over War Crimes’ (Advisory Service on IHL, International Committee of the Red Cross 2021).
[4] United Nations General Assembly (UNGA) ‘The scope and application of the principle of universal jurisdiction. Report of the Secretary-General’ UN Doc A/73/123 (3 July 2018); UNGA ‘The scope and application of the principle of universal jurisdiction. The Report of the Secretary-General’ UN Doc A/74/144 (11 July 2019); UNGA ‘The scope and application of the principle of universal jurisdiction. Report of the Secretary-General’ UN Doc A/76/203 (21 July 2021).
[5] G Abi-Saab, ‘The Proper Role of Universal Jurisdiction’ (2003) 1 J Intl Crim Justice 596; AJ Colangelo, ‘The Legal Limits of Universal Jurisdiction’ (2006) 47 Virginia J Intl L 149; M Langer, M Eason, ‘The Quiet Expansion of Universal Jurisdiction’ (2019) 30 Eur J Intl L 779; M Tiernan, A Al-Zien, ‘Domestic Modes of Liability in Universal Jurisdiction Cases: The Case of Eyad Al-Gharib in Koblenz, Germany’ Rethinking SLIC (11 April 2022) <https://rethinkingslic.org/blog/ criminal-law/150-domestic-modes-of-liability-in-universal-jurisdiction-cases-the-case-of-eyad-al-gharib-in-koblenz-germany>; YM Dutton, ‘Prosecuting Atrocities Committed in Ukraine: A New Era for Universal Jurisdiction?’ (2023) 55 Case Western Reserve J Intl L 391; RL Phillips, ‘2nd Time’s the Charm: France’s Cour de Cassation Broadens Universal Jurisdiction Law’ Just Security (24 May 2023) <www.justsecurity.org/86689/2nd-times-the-charm-frances-cour-de-cassation-broadens-universal-jurisdiction-law/>; J Rémond Tiedrez, ‘France’s Highest Court Confirms Universal Jurisdiction’ EJIL: Talk! (1 June 2023) <www.ejiltalk.org/france-is-back-on-the-universal-jurisdiction-track/>.
[6] Since the risk of impunity is particularly high when serious crimes are committed by State officials or others who are not likely to face prosecution domestically, universal jurisdiction is particularly (but not exclusively) useful in these scenarios. However, universal jurisdiction can be efficient in the fight against impunity in such cases only if one accepts the non-applicability of (at least functional) immunities for international crimes before domestic courts. P Gaeta, ‘Measures for Strengthening the Effectiveness of International Legal Principles Concerning Universal and International Jurisdiction’ in F Haldemann, T Unger (eds), The United Nations Principles to Combat Impunity: A Commentary (OUP 2018) 226.
[7] For an overview of universal jurisdiction cases, see the reports in ‘Universal Jurisdiction Annual Review – UJAR’ TRIAL International <https://trialinternational.org/ resources/ universal-jurisdiction-tools/universal-jurisdiction-annual-review-ujar/>; ‘Universal Jurisdiction Interactive Map’ TRIAL International <https://ujim.trialinternational.org/>. See also ‘Overview of National Jurisprudence’ (Genocide Network Secretariat and Eurojust 2022).
[8] See eg ‘Universal Jurisdiction Interactive Map’ (n 7); ‘Universal Jurisdiction in the European Union. Country Studies’ (REDRESS).
[9] As of 29 May 2024, most of the cases based on universal jurisdiction are regarding crimes perpetrated in Syria. ‘Universal Jurisdiction Interactive Map’ (n 7). Another database, which documents Syrian cases on universal jurisdiction, is ‘MAIN UJ Database’ Syria Justice and Accountability Centre <https://experience.arcgis.com/experience/d33632f4c36146d2b62ec3727 ed8ded6>. See also J Triscone, ‘Universal Jurisdiction, the Only Hope for Prosecuting International Crimes Committed in Syria?’ TRIAL International (6 September 2021) <https://trialinternational.org/latest-post/universal-jurisdiction-the-only-hope-for-prosecuting-international-crimes-committed-in-syria/>. Finally, the podcast Syrian Trials includes references by the victims to universal jurisdiction as their ‘only hope’ for criminal justice. ‘The Syria Trials’ 75 Podcasts <https://75podcasts.org/series/1/>.
[10] For an in depth analysis, see D Hovell, ‘The Authority of Universal Jurisdiction’ (2018) 29 Eur J Intl L 427. To explain why extending criminal laws to extraterritorial conduct challenges sovereignty, Pedretti refers to the potential conflict of jurisdictions, which may arise between the territorial and other States with different heads of jurisdiction. R Pedretti (ed), Immunity of Heads of State and State Officials for International Crimes (Brill/Nijhoff 2014) 344.
[11] For instance, Dutton defines universal jurisdiction as permission to ‘prosecute’ crimes, failing to distinguish between legislative and adjudicative forms of jurisdiction. Dutton (n 5) 5-6.
[12] See eg ‘Tribunals. Universal Jurisdiction’ JusticeInfo.net <www.justiceinfo.net/en/tribunals/ universal-jurisdiction>. The title ‘Trying the people wherever they are, whatever their nationality’ seems to wrongly suggest that universal jurisdiction is about the exercise of jurisdiction. It also gives an impression that for universal jurisdiction, the defendant does not have to be present at trial, whereas the presence at trial depends on the rules of the criminal procedure of the prosecuting State (the latter is an issue totally separate from universal jurisdiction). The following sentence is also an example of a phrase which fails to distinguish between universal jurisdiction as a prescriptive form of jurisdiction and its corresponding form of adjudicative jurisdiction: ‘Universal jurisdiction allows for the investigation and prosecution of serious crimes regardless of where the crimes were committed or the nationality of victims and perpetrators’. W-M Nosakhare, ‘Some Hope in the Struggle for Justice in Syria’ Human Rights Watch’ (15 March 2022) <www.hrw.org/news/2022/ 03/15/some-hope-struggle-justice-syria>.
[13] See in this sense Council of the European Union, ‘The AU-EU Expert Report on the Principle of Universal Jurisdiction’ (2009) 8672/1/09 REV1 7 para 8; J Geneuss, ‘Fostering a Better Understanding of Universal Jurisdiction: A Comment on the AU-EU Expert Report on the Principle of Universal Jurisdiction’ (2009) 7 J Intl Crim Justice 945, 948; Gaeta, ‘Measures for Strengthening the Effectiveness’ (n 6) 230.
[14] R O’Keefe, ‘The Grave Breaches Regime and Universal Jurisdiction’ (2009) 7 J Intl Crim Justice 811, 812.
[15] See on this Gaeta, ‘Measures for Strengthening the Effectiveness’ (n 6) 230-231.
[16] R O’Keefe, ‘Universal Jurisdiction: Clarifying the Basic Concept’ (2004) 2 J Intl Crim Justice 735, 745.
[17] Pedretti (n 10) 340.
[18] See in this sense H Varney, K Zduńczyk, ‘Advancing Global Accountability: The Role of Universal Jurisdiction in Prosecuting International Crimes’ (International Center for Transitional Justice 2020) 8.
[19] A simple way to improve the clarity of the following sentence ‘(…) Syria, victims have turned towards other countries – such as Germany, Sweden, France and The Netherlands – to investigate cases based on what is known as extraterritorial or universal jurisdiction’ would be to reformulate its last part as follows ‘extraterritorial, including universal jurisdiction’. The sentence appears in ‘Q&A on the Dabbagh Case: French Judges Order the Trial of Three Senior Syrian Officials before the Paris Criminal Court’ (International Federation for Human Rights, April 2024) <www.fidh.org/en/issues/ international-justice/universal-jurisdiction/q-a-on-the-dabbagh-case-french-judges-order-the-trial-of-three-senior>.
[20] Kreß highlights that adjudicative jurisdiction covers the activity of both the domestic courts and prosecutorial authorities. Claus Kreß, ‘Universal Jurisdiction over International Crimes and the Institut De Droit International’ (2006) 4 J Intl Crim Justice 561, 564, fn 16. In reality, the meaning of ‘exercise’ and ‘adjudicative jurisdiction’ may vary in domestic criminal systems. For instance, in some systems, ‘exercise’ would include also the investigation phase. However, Gaeta suggests that the extension of a criminal law to cover extraterritorial acts characterised by the absence of link between the State and the concerned act includes the possibility to carry out investigations over the alleged commission of a crime abroad. P Gaeta, ‘The Need Reasonably to Expand National Criminal Jurisdiction over International Crimes’ in A Cassese (ed), Realizing Utopia (OUP 2012) 602.
[21] Lotus (France v Turkey) (Judgment) [1929] PCIJ Rep Series A No 10.
[22] ibid Part III, 18-19.
[23] ibid Part III, 19.
[24] ibid. See eg the Dissenting Opinion by M Loder, 35; Dissenting Opinion by M Weiss, 44-45, 49; Dissenting Opinion by Lord Finlay, 52; Dissenting Opinion by M Nyholm, 60-61; Dissenting Opinion by M Altamira, 95-96.
[25] ‘Universal Jurisdiction over War Crimes’ (n 3) 2.
[26] Just as an example, Germany does not allow for non-written law because this would be considered a violation of the principle of legality. However, by way of contrast, some Anglo-American countries accept it. R Cryer and others, An Introduction to International Criminal Law and Procedure (2nd edn, CUP 2010) 74.
[27] Varney, Zduńczyk (n 18) 11.
[28] For the key facts of the case, see Javor et al v X International Crimes Database Project <www.internationalcrimesdatabase.org/Case/1117/Javor-et-al-v-X/>. Ferdinandusse mentions that Javor et al apparently departed from the previous jurisprudence in France which had considered the Geneva Conventions of 1949 to be self-executing. WN Ferdinandusse, ‘Direct Application of International Criminal Law in National Courts’ PhD Thesis (U of Amsterdam 2005) 76 fn 406.
[29] Even though the case was initiated by a civil complaint, the decision concerned criminal jurisdiction.
[30] France, Tribunal de Grande Instance de Paris, Juge destruction, In re Javor, Ordonnance, 6 May 1994 as cited in Ferdinandusse (n 28) 76, fn 404. The case is available at <https://competenceuniverselle.wordpress.com/wp-content/uploads/2011/07/jugement-tgi-6-mai-1994-javor.pdf>.
[31] France, Court of Cassation, In re Javor (26 March 1996) Bull, crim., no 132 as cited in ibid 76, fn 405. The case is available at <https://competenceuniverselle.wordpress.com/wp-content/uploads/2011/07/cass-26-mars-1996-javor1.pdf>.
[32] ‘(…) que ces dispositions revêtent un caractère trop général pour créer directement des règles de compétence extraterritoriales en matière pénale, lesquelles doivent nécessairement être rédigées de manière détaillée et précise (…)’. ibid.
[33] For the facts and an analysis of this case, see B Stern, ‘In Re Javor. 1996 Bull. Crim., No. 132, at 379 In Re Munyeshyaka. 1998 Bull. Crim., No. 2, at 3’ (1999) 93 AJIL 525, 527-529; I Bantekas, S Nash (eds), International Criminal Law (3rd edn, Routledge-Cavendish 2007) 90-91.
[34] Stern (n 33) 529.
[35] See in this sense Bantekas, Nash (n 33) 88.
[36] For a detailed study on the different legislation and practices regarding the direct application of international treaties and international customary law before domestic courts, see Ferdinandusse (n 28).
[37] See eg the Penal Code of Norway, LOV-2005-05-20-28 Section 5. For an overview of the different national universal jurisdiction frameworks, see ‘Universal Jurisdiction Law and Practice Briefing Papers’ Open Society Justice Initiative and TRIAL International <https://trialinternational.org/universal-jurisdiction-tools/universal-jurisdiction-law-and-practice-briefing-papers/>.
[38] With regard to the beginning of investigations regarding the crimes committed in Syria, see W Kaleck, P Kroker, ‘Syrian Torture Investigations in Germany and Beyond’ (2018) 16 J Intl Crim Justice 165, 173. See also ‘Overview of National Jurisprudence’ (n 7). The jurisdictional basis for the cases mentioned in the latter report is not always clear, but it appears the active personality principle or/and the presence of the alleged perpetrator on the State territory is in many cases the decisive element.
[39] According to Geneuss, however, the State practice is too scarce to conclude that the presence of the offender is one of the requirements for the exercise of universal jurisdiction under customary international law. Geneuss (n 13) 955.
[41] See eg O’Keefe, ‘Universal Jurisdiction’ (n 16) 749-752; Langer, Eason (n 5) 816. Since universal jurisdiction is a prescriptive form of jurisdiction, the reference to in absentia is superficial. This is because in absentia actually refers to the adjudicative or enforcement form of universal jurisdiction. J Crawford, ‘Jurisdictional Competence’ in James Crawford (ed), Brownlie’s principles of public international law (9th edn, OUP 2019) 453. Also, the term universal jurisdiction in absentia creates a risk of confusion with the question of trials in absentia, which are manifestations of States’ own enforcement jurisdiction and are in some States not allowed as they are perceived as a violation of the defendants’ rights. A Korynevych, O Chubinidze, ‘Legal Regulation of Universal Jurisdiction in National Legislation: A Comparative Aspect’ (2019) Actual Problems of Intl Relations 45, 48.
[42] The principle of legality also applies to the modes of liability and circumstances precluding wrongfulness. Claus Kreß, ‘Nulla Poena Nullum Crimen Sine Lege’ in Max Planck Encyclopedia of Public International Law (OUP 2010) 5 para 20.
[43] In this regard, some scholars suggested that the chosen provision should be the one which is the most lenient for the perpetrator. Yet, they have also acknowledged the limitation of this idea, which is the unlikely situation that the judges would actually apply the law of a different country. Gaeta, ‘The Need Reasonably to Expand’ (n 20) 604. A more realistic solution could be to consider all potentially applicable laws to decide on the definition and penalty, which however, still have to fall within the frame provided for the concerned offence in the domestic legislation of the forum State.
[44] A Cassese, P Gaeta (eds), Cassese’s International Criminal Law (3rd edn, OUP 2013) 278.
[45] Forum deprehensionis is the basis in most international treaties. At the same time, it is less common to have a requirement of presence for the whole investigative stage because this would mean that a formal investigation could probably never begin – before enough evidence had been collected, the defendant would already have left. Geneuss (n 13) 956. One country where the presence of the defendant is however required throughout the investigation is the Netherlands. ‘Universal Jurisdiction Law and Practice in the Netherlands’ (Open Society Justice Initiative and TRIAL International 2019) 11.
[46] Gaeta, ‘The Need Reasonably to Expand’ (n 20) 602.
[47] Code of Crimes against International Law of 26 June 2002 (Federal Law Gazette I, 2254), as last amended by Article 1 of the Act of 22 December 2016 (Federal Law Gazette I, 3150) Section I.
[48] Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v Belgium) (Merits) [2002] ICJ Rep 2000. The majority in this case did not contest the general possibility of trying the defendant based on universal jurisdiction. Yet, they did not address the specific detail, including whether the permission entails the exercise of universal jurisdiction in its absolute or conditional form.
[49] ibid. See eg Joint Separate Opinion of Judges Higgins, Kooijmans and Buergenthal, 80-81 paras 59-60. Cassese stresses that there is gradually increasing acceptance of absolute universal jurisdiction as ‘admissible under international law’. A Cassese, ‘When May Senior State Officials Be Tried for International Crimes? Some Comments on the Congo v. Belgium Case’ (2002) 13 Eur J Intl L 853, 862.
[50] Piracy is at least from the Arrest Warrant of 11 April 2000 case onward the most widely endorsed example of the crime for which there is the permissive universal jurisdiction under custom. See in this regard Arrest Warrant (n 48), specifically Separate Opinion of President Guillaume, 37-38 para 5. Differently, Cassese argues that even piracy is a manifestation of conditional universal jurisdiction. Cassese, ‘When May Senior State Officials Be Tried’ (n 49) 857-858.
[51] F Jessberger, ‘Universal Jurisdiction’ in A Cassese (ed), The Oxford Companion to International Criminal Justice (OUP 2009) 556; Varney, Zduńczyk (n 18) 8. In some States, domestic legislation nonetheless allows for the exercise of universal jurisdiction over ordinary crimes such as kidnapping, rape, and murder. ‘Universal Jurisdiction: The Challenges for Police and Prosecuting Authorities’ (Amnesty International 2007) 3.
[52] Varney, Zduńczyk (n 18) 11.
[53] One concern is that the representativeness of the principle is generally questionable, since the majority of trials on the abovementioned crimes have taken place in the Western sphere. Hovell (n 10) 434.
[54] Along the same lines as the Torture Convention, see eg the International Convention on the Protection of All Persons from Enforced Disappearance; The Ljubljana-The Hague Convention on International Cooperation in the Investigation and Prosecution of the Crime of Genocide, Crimes against Humanity, War Crimes and other International Crimes; and ILC Draft articles on Prevention and Punishment of Crimes against Humanity.
[55] See in this sense Questions Relating to the Obligation to Prosecute or Extradite (Belgium v Senegal) (Merits) [2012] ICJ Rep 2012, 33, para 74; R van Steenberghe, ‘The Obligation to Extradite or Prosecute: Clarifying Its Nature’ (2011) 9 J Intl Crim Justice 1089, 1104-1105.
[56] Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (adopted 10 December 1984, entered into force 26 June 1987) 1465 UNTS 85. The wording ‘submit to the authorities’ suggests that domestic systems have prosecutorial discretion, as long as the latter exists in the concerned system, in taking the decision on whether they will prosecute. Gaeta, ‘Measures for Strengthening the Effectiveness’ (n 6) 233. On prosecutorial discretion in the Torture Convention, see also R Schmidt, ‘Aut Dedere Aut Judicare’ in M Nowak, M Birk, G Monina (eds), The United Nations Convention against Torture and its Optional Protocol: A Commentary (2nd edn, OUP 2019) 278-280.
[57] Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field (adopted 12 August 1949, entered into force 21 October 1950) 75 UNTS 31 (Geneva Convention I) art 49. See also the corresponding articles in Geneva Conventions II (art 50), III (art 129) and IV (art 146).
[58] The obligation to bring persons before their own courts is the obligation to prosecute which arguably cannot be subject to prosecutorial discretion if there is sufficient evidence, unless the perpetrator is extradited to another party. Gaeta, ‘Measures for Strengthening the Effectiveness of International Legal Principles Concerning Universal and International Jurisdiction’ (n 6) 234.
[59] For one view, see Pedretti (n 10) 379-380. In the Javor et al case, the court asserted that the obligation to search cannot apply beyond the French border because of the jurisdictional requirement of the presence of suspected persons on the French territory. See (n 31).
[60] Cassese, Gaeta (n 44) 287; ‘Convention (I) for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, Geneva, 12 August 1949. Commentary of 1949. Article 49 – Penal Sanctions’ ICRC IHL Databases 2866 <https://ihl-databases.icrc.org/ en/ihl-treaties/gci-1949/article-49/commentary/2016#110>.
[61] O’Keefe, ‘The Grave Breaches Regime and Universal Jurisdiction’ (n 14) 817; Pedretti (n 10) 347. The Geneva Conventions nevertheless do not explicitly require that States parties have to adopt any specific head of jurisdiction to bring the alleged perpetrators before domestic courts. Gaeta, ‘The Need Reasonably to Expand’ (n 20) 600, fn 9.
[62] Arrest Warrant (n 48), Dissenting Opinion by Van den Wyngaert, 173-174 para 59; Dissenting Opinion by Bula-Bula, 122 para 65.
[63] ‘Convention (I) for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field. Geneva, 12 August 1949. Commentary of 1949. Article 49 – Penal Sanctions’ (n 61) 2863-2867.
[64] O’Keefe, ‘The Grave Breaches Regime and Universal Jurisdiction’ (n 14) 814.
[65] M Cherif Bassiouni, ‘Universal Jurisdiction for International Crimes: Historical Perspectives and Contemporary Practice’ (2001) 42 Virginia J Intl L 81, 117-118; P Gaeta, ‘War Crimes and Other International “Core” Crimes’ in A Clapham, P Gaeta (eds), The Oxford Handbook of International Law in Armed Conflict (OUP 2014) 739 fn 9.
[66] van Steenberghe (n 55) 1105. As for Garrod, he admits that universality was used in the diplomatic conference during the negotiations of the Geneva Conventions but in the context of the jurisdiction to search and prosecute regardless of the nationality, including those who do not belong to the enemy. M Garrod, ‘Unravelling the Confused Relationship Between Treaty Obligations to Extradite or Prosecute and “Universal Jurisdiction” in the Light of the Habré Case’ (2018) 59 Harvard Human Rights J 125, 185.
[67] Gaeta, ‘Measures for Strengthening the Effectiveness’ (n 6) 232.
