Where words shapes the future of law
Universal Jurisdiction in International Criminal Law
Published On: 13th December, 2024
Authored By: Deepak Sriramadasu
Pmr law college, abstract: .
This article endeavors to explore the fundamental concept of Universal jurisdiction in international criminal law, enabling states to prosecute international crimes regardless of where they are committed or the perpetrator’s nationality. It discusses the role of international covenants, conventions, and international organizations in establishing and enforcing universal jurisdiction. This article also analyzes some case studies and provides insights, challenges, controversies, and implications for global justice.
INTRODUCTION :
Jurisdiction is the scope or domain within which a governing authority has the power and authority to create, interpret, and enforce laws. This includes the territory over which the laws apply and the entities that are subject to those laws.
The term “entities” can encompass both people and states, as well as other legal or political entities that may be subject to a jurisdiction’s laws.
Crime is a culpable act or omission that violates the criminal code, resulting in harm, damage, or threat to the well-being of persons, property, or the collective interests of society, and is punishable under the jurisdiction’s laws and regulations through various measures, including fines, imprisonment, restitution, or rehabilitation. Actus reus and Mens rea are two essential elements that must be proven to establish a crime.
Crime in a state view and crime in an international view can be different :
State-level crime typically refers to offenses that violate the laws of a particular country or jurisdiction. These can range from minor offenses like speeding to major crimes like murder. State-level criminal laws are enforced by local law enforcement agencies and courts.
International crimes are offenses that violate international law and are considered so serious that they can be prosecuted by any state, regardless of where the crime occurred or the nationality of the perpetrator. These crimes often involve widespread or systematic attacks on a civilian population, such as genocide, crimes against humanity, war crimes, or aggression. International criminal courts, like the International Criminal Court (ICC), have jurisdiction over these crimes.
Subjects of International Law
When it comes to matters of international jurisdiction, understanding the subjects of international law is crucial. Traditionally, international law was considered to govern relations between states. However, the scope has expanded to include individuals and other entities. Several landmark principles, conventions, and treaties have clarified the subjects of international law:
Key Developments and Conventions :
1 . Nuremberg Principles (1945) : Established individual criminal responsibility for international crimes, including war crimes, crimes against humanity, and genocide.
2 . Tokyo Tribunal (1946) : Reaffirmed the Nuremberg Principles, holding individuals accountable for international crimes committed during World War II.
3 . Genocide Convention (1948) : Defined genocide as an international crime, imposing obligations on states to prevent and punish.
4. European Convention on Human Rights (1950) : Established a regional human rights framework, emphasizing individual rights and state responsibilities.
5. State sovereignty : The cornerstone of international law, affirming states as primary subjects (Article 2, UN Charter).
6. International organizations : The UN Charter (Article 104) and the Vienna Convention on the Law of Treaties between States and International Organizations (1986) recognize international organizations as subjects.
EXTRADITION :
[1] It is a social need to punish a person who fled for another country/state after committing a crime. The state in which the criminal is taking shelter has to hand over him or extradite him to the state in which he /she committed the crime.
Whether there is an obligation on states to Extradite:
The main function of the state is to maintain law and order and to ensure peace and social security. Similarly, the main function/object of international law is to maintain international peace and security and to promote friendly relations among the members of the international community.
Whether a person may or may not be extradited depends upon the laws and practices of the state. For instance, there are certain States which do not surrender their own nationals whereas others do so. France and Italy may be included in the first category and the United Kingdom and United States of America in the second category. The British and American view is founded on the principle that the state on whose territory a crime has been committed is best able to try the offender because the evidence is more frequently available there and that state has the maximum possible interest in the punishment of the offender and maximum possible means for ascertaining the truth.
In the case [2] Factor v. Laubenheimer (1993) the court held the principles of international law recognize no right to extradition apart from a treaty while a government may, if agreeable to its own constitution and laws, voluntarily exercise the power to surrender a fugitive from justice to the country from which he fled…the legal right to demand his extradition and the correlative duty to surrender him to the demanding state exist only when created by treaty.
EXTRADITION CONDITIONS AND RESTRICTIONS :
- Conditions for Extradition
1. Dual Criminality : The offense must be punishable in both the Requesting State and the Requested State.
2. Extradition Treaty : A valid extradition treaty must exist between the two states.
3. Prima Facie Evidence : Sufficient evidence must establish a strong suspicion of guilt.
4. Rule of Specialty : The extradited person can only be tried for the specified offense.
- Restrictions on Extradition
1. Political Offenses : Extradition is generally refused for offenses of a political nature.
2. Military Offenses : Extradition may be refused for military offenses not punishable under ordinary law.
3. Religious Crimes: Extradition may be refused if the offense is primarily of a religious nature.
4. Capital Punishment : Extradition may be refused if the Requesting State imposes the death penalty.
5. Human Rights Concerns : Extradition may be refused if the person would face torture, cruel treatment, or unfair trial.
- Treaty Formalities
1. Treaty Ratification : The extradition treaty must be ratified by both states.
2. Diplomatic Channel : Extradition requests must be made through diplomatic channels.
3. Documentation Requirements : Specific documentation, such as warrants and evidence, must be provided.
INTERNATIONAL CRIMINAL COURT (ICC):
The International Criminal Court (ICC) [3] , established by the 1998 Rome Statute, is a permanent judicial body that investigates, prosecutes, and tries individuals accused of genocide, war crimes, crimes against humanity, and aggression. Beginning operations on July 1, 2002, after 60 countries ratified the agreement, the ICC serves as a court of last resort, complementing national courts when they fail to act. Headquartered in The Hague, Netherlands, the ICC has jurisdiction over offenses committed after July 1, 2002, in ratifying states or by their nationals, and relies on international cooperation for arrests, transfers, and sentence enforcement.
The Role of the International Criminal Court (ICC) in Upholding Universal Jurisdiction:
The International Criminal Court (ICC) stands as a sentinel of accountability, championing universal jurisdiction to prosecute genocide, war crimes, crimes against humanity, and aggression. Born from the 1998 Rome Statute, the ICC bridges gaps in national jurisdictions, ensuring perpetrators face justice regardless of power or geography.
ICC’s Jurisdictional Pillars :
1. Genocide : Protecting vulnerable groups from destruction
2. Crimes Against Humanity : Punishing systematic attacks on civilians
3. War Crimes: Enforcing humanitarian law in conflict
4. Aggression: Detering state-sponsored violence
Landmark Cases [4] :
1. Thomas Lubanga Dyilo Case : Lubanga was convicted in 2012 of war crimes for conscripting child soldiers in the Democratic Republic of Congo.
2. Charles Taylor Case : Taylor, the former President of Liberia, was convicted in 2012 of war crimes and crimes against humanity for supporting Sierra Leonean rebels.
3. Germain Katanga Case: Katanga, a Congolese militia leader, was convicted in 2014 of war crimes for attacking civilians in the Democratic Republic of Congo.
4. Bosco Ntaganda Case: Ntaganda, a Congolese rebel leader, was convicted in 2019 of war crimes and crimes against humanity committed in the Democratic Republic of Congo.
5. Ahmad Al Faqi Al Mahdi Case : Al Mahdi was convicted in 2016 of war crimes for destroying historical and religious monuments in Timbuktu, Mali.
THE SCOPE OF THE UNIVERSAL JURISDICTION:
Every sovereign state possesses its own distinct substantive laws and procedural frameworks to prosecute offenders who commit crimes against its nationals, thereby maintaining domestic law and order within its territorial jurisdiction. However, when crimes are committed by foreign nationals, the applicable laws and regulations differ significantly from one state to another.
In instances where the perpetrator resides within the territorial jurisdiction where the offense was committed, local laws are applicable, and offenders are subsequently held accountable through the judicial process.
Nevertheless, in today’s globalized era, technological advancements facilitate the perpetration of crimes across national borders, enabling offenders to evade prosecution. To address this challenge, the principle of universal jurisdiction assumes paramount importance.
Universal jurisdiction empowers states to prosecute individuals for egregious crimes, irrespective of the locale where the offense was committed or the perpetrator’s nationality. This principle is pivotal in ensuring accountability for grave crimes that transcend national borders and inflict harm upon humanity at large, including genocide, crimes against humanity, war crimes, and torture.
The application of universal jurisdiction ensures that perpetrators are brought to justice, irrespective of their position, influence, or affiliations, thereby upholding the principles of global justice and human dignity.”
Legal methods and issues :
States employ various legislative strategies to incorporate universal jurisdiction into their domestic laws, enabling the prosecution of international crimes.
Legislative Methods
1 . Constitutional Embedment: Incorporating universal jurisdiction into national constitutions provides a robust foundation.
2. Penal Code Integration: Civil-law systems often embed universal jurisdiction within ordinary and military penal codes.
3. Primary Legislation: Common-law systems rely on dedicated laws defining jurisdictional and material scope.
4. Stand-alone legislation: Special laws grant universal jurisdiction for specific crimes.
Key Legislative Considerations
5. Comprehensive Coverage: Ensure all war crimes fall under universal jurisdiction, regardless of conflict type.
6. Unambiguous Jurisdiction: Clearly define jurisdiction over individuals, regardless of nationality or location.
7. Prosecution Conditions: Establish transparent conditions for initiating criminal proceedings.
8. Coordinating Concurrent Jurisdiction: Respect principles like ne bis in idem and consider prior penalties or international tribunal actions.
Effective Implementation:
1. Clear Definitions: Precisely define crimes and constitutive elements.
2. Adequate Sanctions: Ensure proportionate penalties for convicted individuals. 3. Judicial Capacity: Ensure courts possess the necessary expertise and resources.
4. International Cooperation: Foster collaboration among states to prevent impunity.
Challenges and Controversies in Universal Jurisdiction :
Universal jurisdiction, a powerful tool for prosecuting international crimes, faces complex challenges and controversies that hinder its effectiveness.
Key Challenges:
1. Jurisdictional Maze: Conflicting laws and overlapping jurisdictions create uncertainty.
2. Evidence Abyss: Gathering evidence from foreign countries proves daunting.
3. Witness Vulnerability: Ensuring witness safety and cooperation remains a concern.
4. Resource Deficit: Prosecuting international crimes demands significant financial and human resources.
5. Political Interference: Universal jurisdiction cases often face political pressure.
Contentious Issues :
1. Sovereignty Showdown: States resist universal jurisdiction, citing sovereignty concerns.
2. Selective Justice: Critics argue that universal jurisdiction is applied inconsistently.
3. Official Immunity: Debate surrounds whether state officials should be exempt from prosecution.
4. Double Jeopardy Dilemma: Concerns arise regarding conflicting verdicts and double prosecution.
Resolving the Controversies:
1. International Collaboration: Enhanced cooperation among states eases evidence sharing.
2. Legislative Clarity: Well-defined laws and procedures reduce controversy.
3. Judicial Independence: Ensuring impartial justice is crucial.
4. Transparency: Open communication and transparent proceedings foster trust.
The Way Forward:
1. Harmonizing Laws: Standardizing universal jurisdiction laws promotes consistency.
2. Capacity Building: Strengthening judicial capacity ensures effective prosecution.
3. International Support: Encouraging global cooperation bolsters universal jurisdiction’s impact.
CONCLUSION :
Universal jurisdiction is a powerful tool that helps bring justice to victims of serious crimes, no matter where they were committed. Despite its challenges, it remains crucial for holding perpetrators accountable and protecting human rights. To make it work effectively, countries must cooperate, laws must be clear, and judges must be independent. By working together, we can create a world where crimes are punished, victims get justice, and human dignity is respected. Universal jurisdiction is not just a legal idea, but a way to ensure fairness and justice for all.
REFERENCES :
1.(No date b) ICRC statement — Universal Jurisdiction . Available at: https://www.un.org/en/ga/sixth/71/pdfs/statements/universal_jurisdiction/icrc.pdf (Accessed: 08 October 2024).
2. shiva kumar muddam (no date) ‘International Dominion MSK’, in .
[1] Public International Law – Public International Law Introduction meaning: It is a body of rules and (no date) Studocu . Available at: https://www.studocu.com/in/document/national-university-of-advanced-legal-studies/law/public-international-law/30594299 (Accessed: 07 October 2024).
[2] Factor v. Laubenheimerl, 290 U.S. 276 (1933) (no date) Justia Law . Available at: https://supreme.justia.com/cases/federal/us/290/276/ (Accessed: 07 October 2024).
[3] International Criminal Court (2024) Encyclopædia Britannica . Available at: https://www.britannica.com/topic/International-Criminal-Court (Accessed: 07 October 2024).
[4] Cases: International Criminal Court (no date) cases | International Criminal Court . Available at: https://www.icc-cpi.int/cases (Accessed: 07 October 2024).
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Table of Contents
IMAGES
COMMENTS
It follows from the case law of the Court of Justice of the European Union that habitual residence is a functional and protean concept, varying according to the context and purpose of the rule, and is assessed by an analysis based on a bundle of indicators, i.e. the factual circumstances specific to the case (CJEU, December 22, 2010, Case C-497 ...
the Eichmann case in 1961,13 the Demanjuk case in 1985,14 and more recently the Pinochet case in 199915 and the Butare Four case in 2001,16 emphasizing that universal jurisdiction could lead to the trial of perpetrators of international crimes. International law empowered and in certain cases mandated states to
Dec 16, 2024 · The Universal Jurisdiction Annual Review is a unique compilation of universal jurisdiction cases, capturing significant developments around the world every year. read more This series is an analysis of the law & practice of 11 countries relating to their investigation and prosecution of international crimes based on the principle of universal ...
Dec 16, 2012 · There is generally no agreed doctrinal definition of universal jurisdiction in customary and conventional international law. However, this does not preclude any definition, which embodies the essence of the concept as the ability to exercise jurisdiction irrespective of territoriality or nationality. Therefore, the concept of universal jurisdiction applies to a situation where “the nature of ...
The reports draw attention to the fact that the universal jurisdiction framework varies from one country to another, which makes it complex for practitioners to build cases. Requirements to exercise universal jurisdiction will change depending on various aspects, such as the nature of the crime or the nexus with the state exercising jurisdiction.
under international law based on active or passive personality jurisdiction where the relevant case has also had an impact on the practice of universal jurisdiction. While every attempt was made to ensure accuracy, information may be subject to change without notice. This report has been researched and written by Valérie Paulet, Project
Universal Jurisdiction for International Crimes – A Case Study Rahim Hesenov Published online: 16 December 2012 # The Author(s) 2012. This article is published with open access at Springerlink.com Abstract There is generally no agreed doctrinal definition of universal jurisdiction in customary and conventional international law.
The only case of full universal jurisdiction to receive a full trial in Spain was the case of retired Argentine Captain Adolfo Scilingo. Scilingo, had been an Argentine Naval Officer during the so ...
Jul 9, 2023 · Constitutional Embedment: Incorporating universal jurisdiction into national constitutions provides a robust foundation. 2. Penal Code Integration: Civil-law systems often embed universal jurisdiction within ordinary and military penal codes. 3. Primary Legislation: Common-law systems rely on dedicated laws defining jurisdictional and material ...
If universal jurisdiction really does subsist under Belgium law, its bearing is far more restricted (given that in the current state of international law, universal jurisdiction in absentia can no longer be exercised) and with an extensive system for filtering the charges (provided that the system set up at the time of the previous amendment of ...