The Principle of Universal Jurisdiction
The principle of universal jurisdiction can be defined as a legal principle that requires or allow States to file criminal proceedings regarding certain crimes irrespective of perpetrators’ or victims’ nationality or the location of the crime (Randall [1988] Texas L. R.). The rationale behind the universal jurisdiction is based on the notion that ‘certain crimes are so harmful to international interests that states are obliged to bring proceedings against the perpetrator, regardless of the location of the crime and the nationality of the perpetrator or the victim’ (Robinson, Princeton University Press). Therefore, national courts can prosecute individuals for serious crimes against humanity, genocide, war crimes, and torture, in violation of international law. National courts are capable of exercising universal jurisdiction when the State adopt legislation that recognises these crimes and authorise their prosecution (United States v. Smith).
The principle of universal jurisdiction is only invoked by the courts whenever other traditional bases of the criminal jurisdiction are lacking in a given case (Langer [2015] J. Int. Crim. Just.). The principle, therefore, serves to seal a hole in the criminal jurisdiction. It makes it possible for states to prosecute individuals who are not their citizens but who have committed any crime covered by the principle. Such crimes include, but not limited to; genocide, any crime against humanity, crimes of war, and torture (Langer [2015] J. Int. Crim. Just.). This principle may be invoked during the following instances. When the interests of the prosecuting State are not adversely affected by the crime committed.
The principle makes it hard for v offenrsde to escape justice. It is, therefore, a principle that injects a sense of sanity in the global system (s) of justice. Destruction of various ecosystems is a threat to the existence of life in the universe. There is a need to curb this trend. One of the best steps that may be taken to ensure that this trend does not continue unabated is to make ecocide a crime under international law. That will make it possible for states to invoke the principle of universal jurisdiction when prosecuting individuals who commit ecocide but are not their citizens. That will make it hard for people to harm the ecosystems and fail to meet the consequences of their bad choices(Langer [2015] J. Int. Crim. Just.). It will also make people think twice before proceeding to engage in activities that may occasion ecocide. Other crimes that may be covered under the principle are serious cybercrimes, human trafficking, and drug trafficking.
Most national laws provide various forms of universal jurisdiction, empowering national courts to investigate persons suspected of serious crimes and prosecute them for violation of international law regardless of where those crimes were committed or the nationality of victims or suspects. UN Member States can ‘exercise universal jurisdiction over one or more crimes under international law, either as such crimes or as ordinary crimes under national law’ (Amnesty International [2012] UN Report). One aspect of the principle of universal jurisdiction is the compatibility of the International Criminal Court Statute with the domestic constitutional provisions to the ‘immunity of Heads of State and Amnesty Laws’ (Amnesty International [2012] UN Report). Most States have implemented the principle of universal jurisdiction as well as the complementarity in a concrete and systematic manner using the domestic national legislation, bolstered by the aut dedere aut judicare principle.
Based on customary international law, universal jurisdiction doctrine has been narrowed both in practice and theory to mitigate the controversy through the implementation of complementarity. It is not clear to explain the overall concept of universal jurisdiction based on sovereignty and interstate comity. Describing universal jurisdiction as ‘conscience of humanity’ (international community) or as the part of the broader shift recognising rival concept of the international is more reasonable (Dorsett and McVeigh [2012] London Review of International Law). The doctrine explained on grounds that specific international crimes are considered heinous since they ‘shock the conscience of humanity’ and those who commit them are hostis humani generis. The approach justify the idea that any State may exercise universal jurisdiction over these acts and prosecute individuals involved (Robinson, Princeton University Press).
However, it should be understood that recognition of universal jurisdiction by any State as a principle may not be sufficient to implement it as an operative legal norm. There are three fundamental steps required to successfully implement the universal jurisdiction and get the principle working. They include ‘the existence of a specific ground for universal jurisdiction, a sufficiently clear definition of the offence and its constitutive elements, and national means of enforcement allowing the national judiciary to exercise their jurisdiction over these crimes’ (Amnesty International [2012] UN Report). Therefore, if one of these steps is not implemented, the principle of universal jurisdiction will not work. It will remain a pious wish. In practice, even though various attempts to identify the concrete meaning and content behind the concept of universal jurisdiction have been made via several meetings of experts, the gap between its implementation and existence remains wide (Cassese, Oxford University Press).
Based on comparative law perspective, States tends to implement the doctrine of universal jurisdiction in either an extensive or narrow manner (Cassese, Oxford University Press). The narrow way of implementing the principle of universality allows the individual accused of committing international crimes to be prosecuted in the International Criminal Court only when he/she is available for trial, and the extensive way includes the likelihood of initiating proceedings in the absence of the accused person (trial in abstentia) (Democratic Republic of Congo v. Belgium). However, in practice, this significantly affects how the principle of universal jurisdiction is implemented by States. The international law sources typically apply the narrow concept, although the decision to refer the extensive concept tends to be a national choice (Art. 7 of the Geneva Conventions of 1949 and Additional Protocol 1; Arts. 2.1 & 2.2 of the UNTAET). However, although some States like Spain and Belgium have made significant efforts to provide concrete effect to the overall principle of universality by amending the national penal code, the most part of the doctrine remain unimplemented and theoretical rather than practical.
In some cases, international conventions impose obligations for national courts to investigate, prosecute and punish individuals accused of committing international crimes such as the Geneva Convictions through the concept of grave breaches of International Humanitarian Law (IHL). Although the conventions clearly articulate the obligation and impose it on the contracting States under a duty to act (Obligation of result), it leaves the decision on the means to enforce it on the sole discretion of the States (Art. 49, GC I; Art. 50, GC II; Art. 129, GC II; Art. 146, GC IV). Enforcing the obligation may be difficult for the States, given that most national systems are responsible for fulfilling the twofold duty of both investigating/searching for criminals involved and bringing them before the ICC for trial. The doctrine of universal jurisdiction inclusion in the international conventions, which provides that no reservations can be made, implies that respective States has an obligation and duty to enforce the principle, but it does not provide guarantee that effective prosecution, trial and punishment will take place, primarily because domestic national legal and criminal system apply diverse evidence and procedural rules (Henckaerts and Doswald-Beck, Cambridge University Press).
Customary international law are other good sources for States to recognise the doctrine of universal jurisdiction when prosecuting international crimes (Henckaerts and Doswald-Beck, Cambridge University Press). However, customary international law provides for the doctrine itself, but does not necessarily consist of precise guidelines or directives for the implementation or enforcement of universal jurisdiction. Failure to provide directives on the concepts to be applied when implementing the principle of universal jurisdiction results in a weaker practical normative constraints on States. Although based on the theoretical perspective no value distinction should be made between conventional and customary provisions, there is a difference in the degree of precision in normative perspective between the two (Philippe [2006] Int. Rev. Red Cross). Customary international law can be considered as a general duty or obligation which was given concrete effects by the convention through the definition of more concrete, precise obligation. It can also be seen as an extrapolation of the rules provided by the convention that are broadly accepted and even non-party States consent to be bound by the principle of universal jurisdiction as equal to the general rule of obligations (Philippe [2006] Int. Rev. Red Cross). Indeed, this is the case for the States which refuses to be Member to various instrument of political reasons, but consents the substance articulated by the principle of universal jurisdiction. As a result, the combined rules under the custom law do not offer significant support for the implementation of the doctrine of universal jurisdiction and complementarity nor provide them with precise directives or a ready-made course of action.
States can accept universal jurisdiction as a voluntary commitment within their legal and municipal framework, with aims of punishing criminal activities which no general international obligation exist. Therefore, the doctrine of universal jurisdiction derives from the national or domestic commitment to the international community by the State. It does place the State to certain conventions. The recognition of universal jurisdiction in this manner creates an asymmetrical obligation for various States, especially those States not party to the International Criminal Court Statute.