Universal Jurisdiction Essay ⋆ Political Science Essay Examples ⋆ EssayEmpire

Universal jurisdiction is one of the most problematic and misapplied concepts in international relations. One of the most notable definitional problems with this concept is its relationship to issues of extraterritoriality. Therefore, it is important to recognize, from the outset, that extraterritorial jurisdiction is not synonymous with universal jurisdiction. Instead, universal jurisdiction is one form of extraterritoriality. This becomes apparent when examining the defining conceptualizations of extraterritorial jurisdiction. In international law, there are five bases or fundamental principles of jurisdiction: (1) territoriality, (2) nationality, (3) passive personality, (4) protection principle, and (5) universality. The first four forms of jurisdiction are predicated on some sort of territorial or national link to the prosecuting state. However, universal jurisdiction lacks such limitations, thus making it the most expansive, but also the least employed of these jurisdictional justifications.

Extraterritorial And Not Universal

Once again, extraterritoriality does not necessitate universality. The only defining characteristic of extraterritoriality is that it entails jurisdiction that somehow extends beyond traditional state boundaries. The most widely accepted form of extraterritorial jurisdiction is based on the principle of territoriality. In these cases, the perpetration of a crime must occur within the territory of the prosecuting state. In other words, authority to prosecute is predicated on the location of the defendant’s act. International law allows states to regulate the actions of any individual—regardless of nationality—or punish those individuals within its territorial boundaries. For instance, the United States can prosecute any individual who commits an illegal act, as defined by U.S. legal statute, within its territory.

Another widely accepted principle of extraterritorial jurisdiction is the nationality principle. This principle is predicated on a state’s right to regulate or punish the actions of its citizens regardless of the location of the offense. For example, if an American citizen commits a crime, according to U.S. legal statute, in a foreign territory, the U.S. government retains the right to prosecute that person in the individual’s domestic judicial system. The fundamental justification for this principle concerns the reciprocal obligations and rights that exist between the state and its citizens. The state must protect its citizens when abroad, but the state can also take punitive action when a citizen’s conduct harms the interests of the state.

The third jurisdictional principle is the passive personality principle. This principle allows states to protect their citizens, through punitive action, from foreign nationals regardless of the location of the crime. Therefore, if a state’s national is a victim of a crime that violates the state’s domestic legal statutes, then the state may proceed with an investigation and prosecution of the perpetrator irrespective of where the crime was committed or who committed the crime.

The fourth form of jurisdiction is the protective principle. According to this principle, the state retains the right to protect its security interests abroad. A state may prosecute individuals, regardless of nationality, for acts that the state deems a threat to national security, political independence, or even territorial integrity.

Although all of these forms of jurisdiction are extraterritorial in nature, none of them espouses a right to prosecute for reasons beyond a territorial or national link to the prosecuting state. It is only with the inclusion of universal jurisdiction that extraterritorial principles extend beyond these traditional territorial or nationalistic links to a rationale—one that embodies the idea of hostis humanis generis (enemies of humankind).

Universal

Extraterritorial And Not Universal

Universal Jurisdiction

Universal jurisdiction simply translates to instances in which jurisdiction is universal in nature—regardless of where the crime was committed, by whom the crime was committed, or whom the victim(s) might be. As defined by Kenneth Randall in the Texas Law Review (1988):

This principle provides every state with jurisdiction over a limited category of offenses generally recognized as of universal concern, regardless of the situs of the offense and the nationalities of the offender and offended. While the other jurisdictional bases demand direct connections between the prosecuting state and the offense, the universality principle assumes that every state has an interest in exercising jurisdiction to combat egregious offenses that states universally have condemned.

Unlike the other jurisdictional principles, universality does not require any relation to the prosecuting state, only that the crimes committed are considered hostis humanis generis. Thus, the nature of prosecution is based solely on the crime itself, and states are entitled, possibly even obligated, to the initiation of legal proceedings regardless of the perpetrators’ or victims’ nationality, or the location or origin of the crime.

The crimes that may result in the initiation of universal jurisdiction are the most heinous and abhorrent within international law and, therefore, remain limited in number. The most widely accepted list of crimes that may trigger universal jurisdiction includes: piracy, slavery, war crimes, crimes against humanity, genocide, and apartheid. Other crimes often included in this list include torture and crimes against peace.

In regards to the initiation of universal jurisdiction proceedings, the primary actor in applying this principle is the state, via its national legal infrastructure. International tribunals, whether they are ad hoc in nature or permanent, tend not to fulfill the basic requirements of universality. Ad hoc tribunals such as the International Criminal Tribunal for the Former Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR) are predicated on the notion of universality but remain limited in their jurisdictional capacity because they apply to a particular territory. Therefore, these courts may exercise their jurisdiction over universally defined crimes, but the establishing states or institution—the United Nations (UN) Security Council in the case of the ICTY and ICTR—prescribe a territory in which the offense must have occurred. Therefore, there is a territorial limitation to the legal proceedings.

In the case of the recently formed permanent International Criminal Court (ICC), only the UN Security Council can grant the court universal jurisdiction (e.g., the initiation of an investigation in Darfur, Sudan). In all other cases, referred by the prosecutor or state party, certain territorial or nationality preconditions must be met prior to the court exercising its jurisdiction. These preconditions establish the jurisdiction of the court as extraterritorial, not universal.

Cases

One of the most famous cases invoking the principle of universal jurisdiction was the Adolf Eichmann case—although it remains debatable whether this case was predicated on pure universal jurisdiction. To date, the number of universal jurisdiction cases remains limited, but the numbers are growing. Currently, the Canadian government is prosecuting a Rwandan national, Desire Munyaneza, for crimes committed during the 1994 Rwandan genocide. Switzerland and France have also prosecuted individuals for crimes committed during the Rwanda genocide, while Denmark, Germany, and the Netherlands have prosecuted individuals for crimes committed during the Yugoslavia conflict.

One of the most prominent cases of universal jurisdiction is Belgium’s use of its universal jurisdiction law to prosecute four Rwandan citizens for war crimes committed in the Butare region of Rwanda. Over an eight-week period in the spring of 2001, a Belgian national court sat in judgment over Alphonse Higaniro, Vincent Ntezimana, Sister Gertrude (Consolata Mukangano), and Sister Maria Kisito (Julienne Mukabutera) for crimes committed during the Rwanda genocide. None of the accused were Belgian citizens, none of the victims were Belgian citizens, and none of the crimes were committed on Belgian territory. This truly was a case of universal, not simply extraterritorial, jurisdiction.

Bibliography:

Bassiouni, M. Cherif. “The History of Universal Jurisdiction and Its Place in International Law.” In Universal Jurisdiction, edited by Stephan Macedo, 39–63. Philadelphia: University of Pennsylvania Press, 2006.
Brown, Bartram S. “The Evolving Concept of Universal Jurisdiction.” New England Law Review 35, n0.2 (2001): 383–397.
Joyner, Christopher C. International Law in the 21st Century: Rules for Global Governance. Lanham, Md.: Rowman and Littlefield, 2005.
Kamminga, Menno T. “Lessons Learned from the Exercise of Universal Jurisdiction in Respect of Gross Human Rights Offenses.” Human Rights Quarterly 23, no. 4 (2001): 940–974.
Macedo, Stephen, ed. Universal Jurisdiction: National Courts and the Prosecution of Serious Crimes under International Law. Philadelphia: University of Pennsylvania Press, 2004.
O’Keefe, Roger O. “Universal Jurisdiction: Clarifying the Basic Concept.” Journal of International Criminal Justice 2, no. 3 (2004): 735–760.
Orentlicher, Diane F. “The Future of Universal Jurisdiction in the New Architecture of Transnational Justice.” In Universal Jurisdiction, edited by Stephen Macedo, 214–239. Philadelphia: University of Pennsylvania Press: 2006.
Randall, Kenneth C. “Universal Jurisdiction Under International Law.” Texas Law Review 66 (1988): 785–841.
Reydams, Luc. “Belgium’s First Application of Universal Jurisdiction: The Butare Four Case.” Journal of International Criminal Justice 1, no. 2 (2003): 428–436.
Universal Jurisdiction: International and Municipal Legal Perspectives. New York: Oxford University Press, 2003.
Roht-Arriaza, Naomi. “Universal Jurisdiction: Steps Forward, Steps Back.” Leiden Journal of International Law 17 (2004): 375–389.
Sadat, Leila Nadya. “Redefining Universal Jurisdiction.” New England Law Review 35, no. 2 (2001): 241–261.
Sriram, Chandra Lekha. Globalizing Justice for Mass Atrocities. New York: Routledge, 2005.

Jurisdiction

This principle provides every state with jurisdiction over a limited category of offenses generally recognized as of universal concern, regardless of the situs of the offense and the nationalities of the offender and offended. While the other jurisdictional bases demand direct connections between the prosecuting state and the offense, the universality principle assumes that every state has an interest in exercising jurisdiction to combat egregious offenses that states universally have condemned.

Cases

Bibliography:

Bassiouni, M. Cherif. “The History of Universal Jurisdiction and Its Place in International Law.” In Universal Jurisdiction, edited by Stephan Macedo, 39–63. Philadelphia: University of Pennsylvania Press, 2006.
Brown, Bartram S. “The Evolving Concept of Universal Jurisdiction.” New England Law Review 35, n0.2 (2001): 383–397.
Joyner, Christopher C. International Law in the 21st Century: Rules for Global Governance. Lanham, Md.: Rowman and Littlefield, 2005.
Kamminga, Menno T. “Lessons Learned from the Exercise of Universal Jurisdiction in Respect of Gross Human Rights Offenses.” Human Rights Quarterly 23, no. 4 (2001): 940–974.
Macedo, Stephen, ed. Universal Jurisdiction: National Courts and the Prosecution of Serious Crimes under International Law. Philadelphia: University of Pennsylvania Press, 2004.
O’Keefe, Roger O. “Universal Jurisdiction: Clarifying the Basic Concept.” Journal of International Criminal Justice 2, no. 3 (2004): 735–760.
Orentlicher, Diane F. “The Future of Universal Jurisdiction in the New Architecture of Transnational Justice.” In Universal Jurisdiction, edited by Stephen Macedo, 214–239. Philadelphia: University of Pennsylvania Press: 2006.
Randall, Kenneth C. “Universal Jurisdiction Under International Law.” Texas Law Review 66 (1988): 785–841.
Reydams, Luc. “Belgium’s First Application of Universal Jurisdiction: The Butare Four Case.” Journal of International Criminal Justice 1, no. 2 (2003): 428–436.
Universal Jurisdiction: International and Municipal Legal Perspectives. New York: Oxford University Press, 2003.
Roht-Arriaza, Naomi. “Universal Jurisdiction: Steps Forward, Steps Back.” Leiden Journal of International Law 17 (2004): 375–389.
Sadat, Leila Nadya. “Redefining Universal Jurisdiction.” New England Law Review 35, no. 2 (2001): 241–261.
Sriram, Chandra Lekha. Globalizing Justice for Mass Atrocities. New York: Routledge, 2005.

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