THE UNIVERSALITY PRINCIPLE

The generally accepted definition of the principle of universal jurisdiction is – ‘a legal principle allowing or requiring a state to bring criminal proceedings in respect of certain crimes irrespective of the location of the crime and the nationality of the perpetrators or the victims’.[1] ‘It is based on the notion that certain crimes are so harmful to international interests that states are entitled – and even obliged -  to bring proceedings against the perpetrator, regardless of the location of the crime and the nationality of the perpetrator or the victim’.[2] It is a jurisdiction based solely on the (heinous) nature of the crime.[3]

The crimes being referred to in the above definitions in widely accepted to be either of the following:

• Genocide
• War crimes
• Crimes against humanity
• Crimes of aggression

The jurisdiction of the ICC, when it comes to a crime, requires a link with the crime, i.e. the crime should have either been committed in the territory of the state or committed against a citizen of the state. This is what the principle of universal jurisdiction changes. The words ‘irrespective of the location of the crime and the nationality of the perpetrators or the victims’, make it clear that under this principle the trial for an international crime can be held anywhere. It allows for the trial of ‘crimes committed by anybody, anywhere in the world’. [4]

This deviation from the traditional norms is justified by two reasons. First, there are some crimes that are so grave that they harm the entire international community. Secondly, no safe havens must be available for those who commit them.[5]

The history of the principle can be traced back to scholars of the early years. One such example is Grotius and his book De Jure Belli ac Pacis. The principle was first applied to crimes committed by pirates. Pirates have been a nuisance on the international level since the very beginning and their punishment by any state is a classic example of this principle. But it was after the establishment of the International Military Tribunal under the London Agreement of 8^th August 1945, after the Second World War, that the principle was awarded some actual backing. The idea that in certain circumstances sovereignty could be limited for such heinous crimes was accepted as a general principle.

The principle finds mention in the preamble of the statute of the ICC also:

“Affirming that the most serious crimes of concern to the international community as a whole must not go unpunished and that their effective prosecution must be ensured by taking measures at the national level and by enhancing international cooperation. Recalling that it is the duty of every State to exercise its criminal jurisdiction over those responsible for international crimes. (Para 6)”[6]

1. Canada

Canadian Crimes Against Humanity and War Crimes Act 2000 states that:

“persons alleged to have committed crimes outside of Canada which are genocide, crimes against humanity, war crimes or breach of a commander’s responsibility may be prosecuted for these offences if:

(a) at the time the offence is alleged to be committed, (i) The person was a Canadian citizen or was employed by Canada in civilian or military capacity (ii) the person was a citizen of a state that was engaged in an armed conflict against, or was employed in a civilian or military capacity by such a State, (iii) the victim of alleged crime was a Canadian citizen, (iv) the victim of the alleged offences was a citizen of a State that was allied with Canada in an armed conflict, or,

(b) at the time the offence is alleged to have been committed, Canada could, in conformity with international law, exercise jurisdiction over the person with respect to the offence on the basis of the person’s presence in Canada and, after that time, the person is present in Canada.”

2. Spain

There is no statutory requirement demanding the application of the universality principle in Spain, but the prosecutors have done so since 1998. The Supreme Court of Spain reconstructed the principle naming it “Principle of necessity of jurisdictional intervention” in the Peruvian Genocide Case of 2003[7]. Additionally, in 2006, on the grounds that China was unwilling to prosecute alleged violations, on the orders of the Spanish National Court an investigation was started into an alleged genocide against Tibet by China.

3. France

France follows the Principle of Universality but only over crimes of torture. They do not apply the jurisdiction in even cases of crimes against humanitarian law.

4. Belgium

In 2003, Belgium made a modification to their legislation that dealt with crimes that were against international humanitarian law and too grave to be ignored. This legislation ensured universal jurisdiction as a statutory provision under the Preliminary Title of the Code of Criminal Procedure. The key point making in it so is the fact that the Belgian law doesn’t follow stringent rules on ability and willingness to prosecute and investigate. The only requirement is that its courts are “independent, impartial, and fair”, without it apparently being required that in a given case, they are also able and willing to dispense in an equitable manner[8].

5. Germany

Similar to Belgium, Germany also has a statutory provision allowing for Universal Jurisdiction. The §153 (f) of the Code of Criminal Procedure, counsels the national prosecutors from prosecution in cases of international humanitarian law if the case is already being tried before an international court, or a State that has territorial jurisdiction.

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Written By:

Harshita Chaarag
IV Year

Disclaimer: The views and opinions expressed in the article are those of the author and do not necessarily reflect the views and opinions of the Blog.

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[1] Kennerth C. Randall, ‘Universal jurisdiction under international law’ (1988),  Texas Law Review, No. 66, pp. 785-8; International Law Association Committee on International Human Rights Law and Practice, ‘ Final report on the Exercise of Universal Jurisdiction in Respect of Gross Human Rights Offences’, 2000, p. 2.

[2] Mary Robinson, ‘Foreword’, The Princeton Principles on Universal Jurisdiction, Princeton University Press, Princeton, 2001, p. 16.

[3] Principle 1(1) of the Princeton on Principles on Universal Jurisdiction (2001), without regard to where the crime was committed, the nationality of the alleged or convicted perpetrator, the nationality of victim, or any other connection to State exercising such jurisdiction.

[4]Géraud de La Pradelle, ‘La compétence universelle’, 2000 in Hervé Ascencio, Emmanuel Decaux and Alain Pellet (eds.), Droit international pénal,éd. Pédone, Paris, p. 974.

[5] Xavier Phillipe, ‘The principles of universal jurisdiction and complementarity: how do the two principles intermesh?, 2006, International Review of the Red Cross, Volume 68 Number 862 June, p. 379.

[6] Rome Statute of the International Criminal Court, 1998

[7] Supreme Court of Spain, Peruvian Genocide, 42 I.L.M. 1200 (2003)

[8] Cedric Ryngaert, Applying the Rome Statute’s Complementarity Principle: Drawing Lessons from the Prosecution of Core Crimes by States Acting under the Universality Principle, Institute for International Law University of Leuven, Belgium, Working Paper N0 98.