Universal Jurisdiction

Universal jurisdiction is a part of the ongoing process of the globalization of criminal justice through the establishment of a set of commonly determined values requiring protection of certain [Page 1706]fundamental human rights and their subsequent internalization and enforcement by states. It is a doctrine based on the rationale that certain crimes are of such an egregious nature that states are entitled—and even obliged—to bring proceedings against the perpetrator, regardless of where the crime was committed and regardless of the nationality of the perpetrator or the victim.

The theory that certain kinds of crimes could be prosecuted by any court, independent of where they were committed, is rooted in writings by the Dutch jurist Grotius and other scholars dating back to the early 1600s. Initially it was intended to cover piracy in the high seas, as a crime jure gentium; a couple of centuries later, it came to cover slavery and the slave trade. Although there is no generally agreed-on definition and no international convention on this subject, universal jurisdiction denotes the ability of the judicial organs of a given state to prosecute a person for having committed a crime of international concern independent of a link with that state, be it territorial or otherwise. Domestic criminal prosecutions on such a broad basis, however, are perceived as something that could eventually disturb friendly international relations among states. After all, jurisdiction in the criminal field remains one of the cornerstones of a state's exercise of its sovereign rights over a given territory and people. That is why enforcing universal criminal jurisdiction in such broad terms, as described earlier, is generally looked at with skepticism. Hence, a link with the prosecuting state needs to be established, and considerations of sovereignty require at least the presence of the suspect within the territory of the prosecuting state.

The Restatement (Third) of the Foreign Relations Law of the United States (§ 404) defines universal jurisdiction as follows: “A state has jurisdiction to define and prescribe punishment for certain offences recognized by the community of nations as of universal concern, such as piracy, slave trade, attacks on or hijacking of aircraft, genocide, war crimes, and perhaps certain acts of terrorism.” Admittedly, the jurisdiction to enforce what has been prescribed is presumed, although prescription and enforcement jurisdiction do not necessarily and always go hand in hand. Although there is neither general agreement nor an exact list of crimes falling under universal jurisdiction, for our purposes the list provided under the 2001 Princeton Principles will be used. According to these principles, the following crimes fall under universal jurisdiction: piracy, slavery, war crimes, crimes against peace, crimes against humanity, genocide, and torture.