Universal Jurisdiction: Concept, Logic, and Reality

Abstract

The debates in the UNGA since 2009 on universal jurisdiction reveal great confusion on its concept, scope and application. True or pure universal jurisdiction is jurisdiction solely based on the universal concern character of the crime in issue. The concept and logic of universal jurisdiction is understandable, as each State has an interest in matters of universal concern. Universal jurisdiction can be a powerful instrument for the international system to protect its interests and to protect human rights and fight against impunity. However, the exercise of universal jurisdiction by one State may infringe the sovereignty and sovereign equality of another State and can be abused, thus destabilizing international relations. These pros and cons and other factors have influenced the international law formation process in such a way that so far only universal jurisdiction over piracy has been accepted in international law. There is no “pure universal concern jurisdiction” over other crimes yet. The evidence of State practice on “universal concern plus presence” jurisdiction is not yet substantial so as to afford the finding of a customary international law rule in its favor. Treaty practice providing for “universal concern plus treaty, presence and intra-regime territoriality or nationality jurisdiction” or “universal concern plus treaty and presence jurisdiction” is limited to the particular treaty regime only. In the light of this state of affairs, the possible application of the Lotus dictum and the presence requirement—especially the weak, procedural view of it—can be of significance and deserves attention. The movement for “pure universal jurisdiction” has been “trending down” since the conspicuous silence on the legitimacy of universal jurisdiction in the Arrest Warrant case decided by the ICJ in 2002. The subsequent downtrend may have been in no small measure due to the cautious Judgment in that case. That Judgment can be said to have, in an ingenious way, helped to inject some calming elements back into international relations. With Belgium and Spain now having abandoned pure universal jurisdiction by narrowing down their statutes, the universal jurisdiction movement appears to be a moving train without its locomotive.

I. The Concept and Logic of Universal Jurisdiction

1. The perceived abuse in recent years in the resort to universal jurisdiction, particularly over African officials, caused the Group of African States to request in February 2009 the inclusion of an additional item on the “Abuse of the principle of universal jurisdiction” in the agenda of the 63d session of the United Nations General Assembly (UNGA). The request was accepted and universal jurisdiction has been a subject of heated discussion in the UNGA since that time. Debates were conducted on this topic in autumn of 2009. The UNGA then asked governments to submit observations and information on state practice. Again debates were held on the topic in the autumn of 2010. Further information has been sought and further work has been scheduled for 2011.¹

2. The comments and statements made by governments show that there is great confusion on the concept, the scope and application of universal jurisdiction. In order for us to properly understand universal jurisdiction, it will be helpful for us recap the understanding of jurisdiction in general. Usually jurisdiction has three dimensions: prescriptive, adjudicative, and enforcement. It is said that national criminal jurisdiction² is normally justified on several grounds: territoriality, nationality, passive personality or protection of national vital interests. Sometimes the effects of an act upon a State are also assimilated to some of these principles. Sometimes a treaty may be considered an independent justification for the assertion of jurisdiction; whether a treaty without incorporating the normal links such as territoriality is a sufficient justification is a controversial question. Each justification for jurisdiction may inform its exercise and thus leads to a different type of jurisdiction. The different justifications enumerated above thus give rise to different types of jurisdiction generally characterized as territorial, nationality, passive personality and protective jurisdiction.

3. Given these considerations and given the fact that there is no internationally codified definition of universal jurisdiction at present, many proposed definitions and commentaries seem to have defined universal jurisdiction by an “absence” of the normal jurisdictional links to the national legal system attempting to exercise jurisdiction. For example, the Institut de droit international (IDI) in its 2005 resolution on universal jurisdiction, paragraph 1, states:

Universal jurisdiction in criminal matters, as an additional ground of jurisdiction, means the competence of a State to prosecute alleged offenders and to punish them if convicted, irrespective of the place of commission of the crime and regardless of any link of active or passive nationality, or other grounds of jurisdiction recognized by international law.³

In the view of the IDI Rapporteur of the project, “It was [the] absence of link between the crime and the prosecuting State that captured the essence of universal jurisdiction.”⁴ Similarly, the AU-EU Expert Report on this topic states:

Universal criminal jurisdiction is the assertion by one state of its jurisdiction over crimes allegedly committed in the territory of another state by nationals of another state against nationals of another state where the crime alleged poses no direct threat to the vital interests of the state asserting jurisdiction. In other words, universal jurisdiction amounts to the claim by a state to prosecute crimes in circumstances where none of the traditional links of territoriality, nationality, passive personality or the protective principle exists at the time of the commission of the alleged offence.⁵

4. Behind the “absence” façade, however, rests the basis for such an assertion of jurisdiction, normally formulated this way: The alleged crime is an attack on the fundamental values of the international community as a whole (i.e., a violation of jus cogens or a species of law that is very close to that genus however described, such as erga omnes obligations), so that the crime is a matter of universal concern, considered as such by the international community as a whole, and that every State in the world has an interest in prosecuting the perpetrator.⁶ Another instrumental reasoning, which may apply with greater force to some situations than in others, is that the exercise of universal jurisdiction is necessary in order to ensure that certain crimes be punished. For example, piracy, normally committed on the high seas, may go unpunished if universal jurisdiction does not exist. As such, these crimes are also of universal concern, perhaps of a slightly different kind. So understood, it would seem better to characterize universal jurisdiction as “universal concern jurisdiction”,⁷ in some contrast to other forms of jurisdiction such as “territoriality jurisdiction”, “nationality jurisdiction” and “national interests protection jurisdiction”. These terms would make immediately apparent the justification behind each assertion of jurisdiction. A definition of universal jurisdiction or universal concern jurisdiction should be the exercise of national jurisdiction, based on universal concern, over crimes that attack the fundamental values of international society.⁸

5. The logic of universal concern jurisdiction is easy to understand. Universal concern as a motivating force for national action was propounded by the International Court of Justice in the celebrated Barcelona Traction case in 1970.⁹ That case was about diplomatic protection, and the Court's celebrated dictum therefore cannot be claimed as direct precedent or immediate support for universal jurisdiction.¹⁰ But that dictum on this point is unmistakably of general applicability and can be considered the elaboration of the ultimate rationale for universal jurisdiction. There the Court said:

33. When a State admits into its territory foreign investments or foreign nationals, whether natural or juristic persons, it is bound to extend to them the protection of the law and assumes obligations concerning the treatment to be afforded them. These obligations, however, are neither absolute nor unqualified. In particular, an essential distinction should be drawn between the obligations of a State towards the international community as a whole, and those arising vis-à-vis another State in the field of diplomatic protection. By their very nature the former are the concern of all States. In view of the importance of the rights involved, all States can be held to have a legal interest in their protection; they are obligations erga omnes.

34. Such obligations derive, for example, in contemporary international law, from the outlawing of acts of aggression, and of genocide, as also from the principles and rules concerning the basic rights of the human person, including protection from slavery and racial discrimination. Some of the corresponding rights of protection have entered into the body of general international law (Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide, Advisory Opinion, I.C.J. Reports 1951, p. 23); others are conferred by international instruments of a universal or quasi-universal character.

6. Intended to implement this idea,¹¹ Article 48 (“Invocation of responsibility by a State other than an injured State”) of the International Law Commission's Articles on State Responsibility, adopted in 2001, states: “1. Any State other than an injured State is entitled to invoke the responsibility of another State in accordance with paragraph 2 if: […] (a) The obligation breached is owed to a group of States including that State, and is established for the protection of a collective interest of the group; or [..] (b) The obligation breached is owed to the international community as a whole.”¹²

7. Thus, as a general proposition, there are certain matters in the world that are of universal concern, and this universal concern is sufficient to justify certain action on the part of States. Applied to our inquiry in this article, this rationale alone, or this rationale plus another factor, potentially would justify a State's exercise of universal jurisdiction. However, universal jurisdiction is not a necessary corollary of universal concern, even when that concern assumes jus cogens proportions.¹³ The sole fact of the violation of a rule that attains the jus cogens status does not give rise to the jurisdiction of the International Court of Justice or another international tribunal, as the Court ruled in Democratic Republic of the Congo v. Rwanda;¹⁴ nor do violations of erga omnes rights or obligations alone, as the Court has also ruled in East Timor.¹⁵ Consent alone founds international jurisdiction or the jurisdiction of international courts and tribunals. Although the justification of the exercise of jurisdiction by a national legal order, our inquiry here, was not in issue in either case, the same conclusion may be drawn that the violation of a norm having jus cogens or erga omnes character does not in itself give rise to universal jurisdiction for the national legal systems. Whether the potential of universal concern in justifying the exercise of national jurisdiction has been realized, or the extent to which it has been, would depend on what crimes would be considered by States generally as crimes of universal concern and whether this universal concern has in fact be also considered by States as sufficient to justify an exercise of such jurisdiction. The answers to these questions will depend on the reality of the international law formation process. This is an issue that needs to be assessed according to the normal sources of law exercise under article 38 of the ICJ Statute. That exercise will be attempted in Part II of this article. For now, let us briefly consider some general issues that may frame such an evaluation and help us to understand what may have factored into that reality.

8. As the term “universal jurisdiction” has been used by various people to indicate various things in varying degrees of density or looseness, it will be helpful to offer some clarifications on the typology of situations that may constitute universal jurisdiction, properly so-called, or resemble it. To make things clear, the following characterizations, in the order of strength of “universalness”, can be used:

1. “Pure universal concern jurisdiction”. This form of jurisdiction would be an assertion of jurisdiction based solely on the universal concern character of the crime, without more. This would be the “pure universal jurisdiction” or “true universal jurisdiction”. If considered legitimate, this form of jurisdiction would entitle, as far as the jurisdictional requirement is concerned, the prosecuting State to the extradition of the suspect from a foreign State, if other conditions are met.¹⁶ Sometimes “universal jurisdiction in absentia” is used to describe this type of jurisdiction but this term can be confused with “trial in absentia” and is not preferred here. Included in this form of jurisdiction are: (1) A State unilaterally asserts pure universal jurisdiction; and (2) Hypothetically a treaty allowing States parties to assert pure universal jurisdiction over nationals of non-parties for crimes occurring on territories of a third party. In the latter situation, the treaty regime as a whole does not have greater authority in relation to a third State than a particular State party to it, and the treaty granting jurisdiction to the parties to the regime does not add anything to our assessment.

2. “Universal concern plus presence jurisdiction”. This is illustrated by a State unilaterally asserts jurisdiction over a non-national who is present in that State for crimes of universal concern that have occurred in a foreign State. This is not universal jurisdiction properly so called, as the presence of suspect may justify this form of jurisdiction as “territorial”, to some extent, or “nationality” when the presence of the suspect is prolonged so as to assimilate it to nationality. When the presence of the suspect is fleeting (such as a weekend visit) or brief (such as a medical visit), such an exercise of jurisdiction gives rises to different characterizations: some call it universal jurisdiction, while others claim that this is jurisdiction with some connection. If the absence of a link between the crime and the prosecuting State is the essence of universal jurisdiction, then a fleeting presence of the suspect in the prosecuting State may not disqualify the assertion of jurisdiction as that of universal jurisdiction. However, to the extent that the law about a State asserting jurisdiction based on brief presence is made clear, notice would have been given to any potential suspect. If he or she still comes to that State, voluntarily making that connection, such an exercise of jurisdiction can be considered “non-universal”, definitely not “pure universal concern jurisdiction”.

3. “Universal concern plus treaty and presence jurisdiction”. This situation is similar to Situation 2, with the added obligation or right from a treaty to assert jurisdiction on that basis. An illustration would be a treaty allowing parties to exercise jurisdiction over a national of a third State, if present in the prosecuting State, for crimes of universal concern that have occurred in a third State.

4. “Universal concern plus treaty, presence and intra-regime territoriality or nationality jurisdiction”. This is similar to and narrower than Situation 3, with the added requirement that the suspect or the crime must be related to a party to the treaty setting up the regime in terms of territoriality, nationality or victim nationality. An illustration of an intra-regime nationality link would be a treaty allowing party A to the treaty to prosecute suspect B, a national of party C to the treaty, who is present in A, for crimes of universal concern that have occurred in State D, a non-party to the treaty. An illustration of an intra-regime territoriality link would be a treaty allowing party A to the treaty to prosecute suspect B, a national of a third State (non-party to the treaty), who is present on the territory of party A, for crimes allegedly took place on the territory of party C to the treaty.

Among these situations, only the first situation is pure or true universal jurisdiction. The second situation moves away from pure and true universal jurisdiction but is closer to it than the other situations. Situations 3 and 4 are not universal jurisdiction in the true sense. The role of universal concern in justifying the exercise of jurisdiction in Situations 2 to 4 is, strictly speaking, redundant. Indeed, if presence triggers a treaty based obligation to exercise jurisdiction, that jurisdiction can be, as described by the Joint Separate Opinion of Judges Higgins, Kooijmans and Buergenthal in Arrest Warrant,¹⁷ “really an obligatory territorial jurisdiction over persons”. If we were to call these situations “universal jurisdiction”, “universal jurisdiction” would be purchased at the price of diluting and cheapening the concept; we would be playing a game of words.

9. Secondly, various factors may inform the international law making process relating to universal jurisdiction, and these result in the reality of the extent of acceptance of it. First of all, universal jurisdiction can be rationalized as a system jurisdiction, for the protection of the interests of the international system including the protection of human rights and the fight against impunity, while employing the national legal systems, faute de mieux, to perform that task because of the lack of a central government in what we often call the “international community”. In a way, the national legal systems can be considered to be in a situation of “dédoublement functionnel”.¹⁸ As a result, States hoping to protect the interests of the international system and to contribute to its maintenance and promotion should have incentives to promote the establishment and the application of the principle of universal jurisdiction. Furthermore, relating to this systemic consideration, universal criminal jurisdiction would seem to be necessary to implement or enforce jus cogens, another important systemic factor. Otherwise, that concept would be toothless. Those States that have recognized the idea of jus cogens probably may also have incentives to be friendly to the idea of universal jurisdiction.

10. On the other hand, the exercise of universal jurisdiction may infringe, or at least detract from, the principle of sovereignty and sovereign equality and is easily subjected to political abuse including discrimination as manifested in selective prosecution, thus destabilizing international relations. Because of this, this form of jurisdiction has been described as “dangerous” by none other than Henry Kissinger.¹⁹ Of course, any exercise of universal jurisdiction will most likely favor the big and powerful States.²⁰ If as claimed by some States and Judge ad hoc van den Wyngaert in Arrest Warrant, the question is “about what international law requires or allows States to do as ‘agents’ of the international community when they are confronted with complaints of victims of” heinous crimes,²¹ one may immediately question whether such agents should be self-appointed by a particular State itself. This concern assumes a greater proportion if the Lotus dictum is allowed to prevail.²² Furthermore, the political nature of universal jurisdiction is on full display when the attempt to exercise universal jurisdiction by States may indeed be tradable, as in the case of Belgium which decided in 2003 to scuttle its strong universal jurisdiction authorization when threatened by the prospect of the NATO Headquarters moving away.²³ Also, the attempt can be shamed away at least to some extent, as, on my view, in the case of Spain which in 2009 dismantled its own strong universal jurisdiction authorization when Judge Garzon began to dig into Spain's old dirty laundry resulting from the Spanish Civil War.²⁴

11. Obviously a regime of universal jurisdiction would present severe challenges to national reconciliation efforts such as those made in post-apartheid South Africa or in some Latin American States. As stated by Kissinger²⁵:

It is an important principle that those who commit war crimes or systematically violate human rights should be held accountable. But the consolidation of law, domestic peace, and representative government in a nation struggling to come to terms with a brutal past has a claim as well. The instinct to punish must be related, as in every constitutional democratic political structure, to a system of checks and balances that includes other elements critical to the survival and expansion of democracy.

12. These factors and others²⁶ not discussed here no doubt have left their imprint in the international law formation process, resulting in the current state of affairs that we will examine in the following pages.

II. The reality of universal jurisdiction in international law

13. Reasonable as the idea of universal jurisdiction sounds, persuasive as its logic appears, one must not forget the teaching that “The life of the law has not been logic: it has been experience”.²⁷ The experience and reality of international relations are such that universal jurisdiction over crimes other than piracy has not been established as a matter of international law.

14. An examination of the status of universal jurisdiction in international law is hampered by a lack of clear statement in the relevant primary official materials and a lack of dispassionate and rigorous analyses of them. Over-exaggerated statements expressing support for universal jurisdiction are often found in the writings of various writers. Closer examination, however, may lead to differing conclusions.²⁸ Since there is no dispute about the lawfulness of universal jurisdiction over piracy under international law, I will not deal with piracy in this article.

II.A. Treaty practice

15. There are numerous treaties dealing with jurisdiction over crimes of universal concern, presenting a formidable task to any conscientious scholars. Literature also abounds regarding how these treaties should be classified and evaluated.²⁹ The task is made more difficulty by the controversy surrounding what constitutes universal jurisdiction, properly so called. I will first recap the current discussion of the treaty practice with some commentary of my own and then attempt to sort through these treaties by giving my typological summary of them.

II.A.i. The current evaluation of treaty practice

16. The first and most eligible modern crime for pure universal jurisdiction is probably genocide. I believe I need not spill any more ink to prove the universal concern character of the crime of genocide. Yet, universal jurisdiction over this crime was expressly debated and rejected twice: first when the UNGA drafted and adopted Resolution 96(I) of 1946 and again when it drafted and adopted the Convention for the Prevention and Punishment of the Crime of Genocide (“Genocide Convention”) of 1948.³⁰ The resultant Article VI of the Convention relies on the traditional territorial jurisdiction and on a yet to be established international court.

17. Those who claim to have found the existence of universal jurisdiction usually seize upon, as their evidence, the various “extradite or prosecute” provisions in a large number of treaties and assert that these embody the existence of universal jurisdiction. This claim is not supported by a close examination of the treaty practice: although the universal concern character of the crimes dealt with may have motivated the conclusion of these treaties (a point few would disagree with), the exercise of jurisdiction may be justified on other grounds. “Extradite or prosecute” is a means of exercising jurisdiction; it is not jurisdiction itself.³¹ The ways and means of exercising jurisdiction should not be conflated with jurisdiction itself. The “extradite or prosecute” obligation may apply jurisdiction that has been justified on any basis, whether territoriality, nationality, national vital interests or even universal concern. Thus the adoption of this means of exercise of jurisdiction does not necessarily lead to the finding of a particular kind or basis of jurisdiction itself, but of all the possible kinds utilized.

18. The pivotal point is to identify which kind of jurisdiction that the means (“extradite or prosecute”) is utilized to implement. Such an effort reveals no treaty expressly using the “extradite or prosecute” to implement pure universal jurisdiction, and thus no express treaty practice support for the idea of pure universal jurisdiction. Having chided the majority for not addressing the issue of jurisdiction and upon an examination of several important treaties, Judges Higgins, Kooijmans and Buergenthal concluded in their Joint Separate Opinion in Arrest Warrant³²:

41. The parties to these treaties agreed both to grounds of jurisdiction and as to the obligation to take the measures necessary to establish such jurisdiction. The specified grounds relied on links of nationality of the offender, or the ship or aircraft concerned, or of the victim. See, for example, Article 4 (l), Hague Convention; Article 3 (l), Tokyo Convention; Article 5, Hostages Convention; Article 5, Torture Convention. These may properly be described as treaty-based broad extraterritorial jurisdiction. But in addition to these were the parallel provisions whereby a State party in whose jurisdiction the alleged perpetrator of such offences is found shall prosecute him or extradite him. By the loose use of language the latter has come to be referred to as “universal jurisdiction”, though this is really an obligatory territorial jurisdiction over persons, albeit in relation to acts committed elsewhere.

19. Whether the situation where a suspect's presence alone in the prosecuting State that refuses to extradite him or her, whose disputed acts had no link to that State, justifies the exercise of jurisdiction is merely what was described by Judge Higgins et al., or in fact universal jurisdiction or a conditional form of universal jurisdiction appears to be unsettled. This “mere presence” subsequent to the alleged crime situation is apparently what was contemplated in the provisions of on the repression of “grave breaches” of the Geneva Conventions of 1949 (Articles 49(I)³³; 50 (II); 129 (III); 146 (IV); 85 (AP(I)). The ICRC in various statements apparently considered this regime to be one of universal jurisdiction.³⁴ The ICRC Study on the status of the customary international humanitarian law also seems to believe so.³⁵ Expressed in another context³⁶ or in other ways,³⁷ some governments also seem to treat this situation as “universal jurisdiction”.

20. This view apparently also receives the endorsement of the IDI. During the debate on the universal jurisdiction project, the IDI Rapporteur put emphasis on the lack of a link between the crime and the prosecuting State as the criterion for finding universal jurisdiction.³⁸ Such “mere presence” was apparently not considered to furnish such a link. The final text of the 2005 IDI resolution in paragraph 2 states:

Universal jurisdiction is primarily based on customary international law. It can also be established under a multilateral treaty in the relations between the contracting parties, in particular by virtue of clauses which provide that a State party in the territory of which an alleged offender is found shall either extradite or try that person.³⁹

The second sentence was adopted despite the objections of some members including Higgins and Abi-Saab.⁴⁰

21. Furthermore, some treaties require that the alleged crimes have significant links to some parties to a particular treaty such as territoriality or nationality, these links to the regime as a whole definitely disqualify the “mere presence” situation as an exercise of truly universal jurisdiction. This would be “universal concern plus treaty, presence and intra-regime territoriality or nationality jurisdiction” as highlighted above. Such a situation is a quintessential intra-regime cooperative affair, in the sense that at least one party to the regime can legitimately exercise jurisdiction based on a traditional criterion, and the prosecuting State party is simply performing the function of that other party in its stead, for whatever reason (such as its inability or unwillingness to do so). The regime in essence allows the parties to share their traditional jurisdictional powers, or permits one party to exercise the jurisdictional authority of another party. The Geneva Conventions use broadly worded language (“regardless of their nationality”) to describe the “extradite or prosecute” obligation, but the application of those Conventions may—though this is not clear—require that the alleged crime was committed on the territory of one of the parties to the Conventions, thus requiring a first level connection (such as nationality, territoriality, victim nationality, or vital interests) with at least one party to the applicable Convention. In any event, subsequently treaties such as the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment of 1984 make it clearer that the “mere presence” of a suspect in the territory of one of the parties is of a secondary nature; the crime or the suspect must have a first level link such as territoriality or nationality with one of the parties to the Convention for the suspect to be subject to some kind of process. This is at least one plausible reading of article 5 of the Convention against Torture. That article reads:

Article 5

1. Each State Party shall take such measures as may be necessary to establish its jurisdiction over the offences referred to in article 4 in the following cases:

   • When the offences are committed in any territory under its jurisdiction or on board a ship or aircraft registered in that State;

   • When the alleged offender is a national of that State;

   • When the victim is a national of that State if that State considers it appropriate.

2. Each State Party shall likewise take such measures as may be necessary to establish its jurisdiction over such offences in cases where the alleged offender is present in any territory under its jurisdiction and it does not extradite him pursuant to article 8 to any of the States mentioned in paragraph 1 of this article.

3. This Convention does not exclude any criminal jurisdiction exercised in accordance with internal law.

Paragraph 1 of this article provides for the obligation to establish jurisdiction based on territoriality, nationality or victim nationality. Paragraph 2 provides for the obligation to prosecute if the suspect is not extradited to “any of the States mentioned in paragraph 1 of this article”. One reading of this provision would be that for paragraph 2 to apply, paragraph 1 must have been potentially applicable but the requested State is not willing to extradite the suspect; that is to say, the suspect or the suspected crime must have first level links to a State party (“any State mentioned in paragraph 1”, which deals with States parties only)—territoriality, nationality or victim nationality—to establish that potential applicability. So read, article 5(2) does not deal with matters outside the province of the regime.

22. A further and clearer illustration of this regime is the Rome Statute of the International Criminal Court, which in article 12 provides for the ICC—which can be considered a cooperative of the States Parties—to take jurisdiction based on territoriality links between the crime and a State party or nationality link between the suspect and a State party.

23. One may argue that there can be an alternative and broader reading of article 49 of Geneva Convention (I) and the corresponding articles in the other Geneva Conventions as well as article 5(2) of the Convention against Torture. This alternative reading would not require first level links between the suspect or the suspected crime and a State party for the “extradite or prosecute” obligation to be triggered. Indeed, article 49 of Geneva Convention (I) is so broadly written that it may be susceptible of the alternative reading. Further, one can imagine a reading of article 5(2) of the Convention against Torture this way: that paragraph 2 is triggered whenever a suspect is not extradited to any State party, irrespective of the reasons for that. Under this reading, whether or not paragraph 1 is potentially applicable is immaterial, although if it is not applicable, it will be because the suspect is a national of a third State accused of a crime occurring on the territory of a third State against a national of a third State and is not extradited to any State party. However, this reading would seem to render part of the language of article 5(2) redundant or unnaturally formulated. If such an alternative reading is accepted, this situation would be the “universal concern plus treaty and presence jurisdiction” as highlighted above.

24. Other examples of this situation include article 4(2) of the 1970 Hague Convention for the Suppression of Unlawful Seizure of Aircraft⁴¹ and article V of the Apartheid Convention.⁴² Both can be read as authorizing the exercise of jurisdiction over a suspect, a national of a third State, who is present in the prosecuting State party to the applicable Convention for crimes that have occurred in a third State. We cannot be certain that this reading is correct; there does not appear to be any record of these provisions being applied this way either administrative or judicially.

25. However, even this “universal concern plus treaty and presence jurisdiction” is not true or pure universal jurisdiction, as a treaty permission or obligation to exercise jurisdiction and the presence of the suspect are required. Only when a treaty claims to give the parties thereto jurisdiction over crimes and suspects having no link with any of the parties to the treaty, one would see pure universal jurisdiction. For example, if the 1970 Hague Convention would authorize jurisdiction over a national of a third party to the Convention who is not yet present in the prosecuting State party to the Convention for crimes occurring in a third State, that would present a “pure universal concern jurisdiction” scenario. However, no such treaty is readily found, although I have not done exhaustive research on this. The Judges in the Arrest Warrant case (especially those who issued opinions on the issue of universal jurisdiction) and the various scholars who have done thorough research on universal jurisdiction have not reported one either.

26. The phrasing of some treaty provisions may give rise to the impression or the argument that the treaty somehow impliedly recognizes universal jurisdiction. For example, the Second Protocol to the Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict (1999),⁴³ in article 16(2)(a), states that the Protocol “does not preclude […] the exercise of jurisdiction under national and international law that may be applicable, or affect the exercise of jurisdiction under customary international law”. The ICRC experts on customary international humanitarian law were of the view that

The Second Protocol to the Hague Convention for the Protection of Cultural Property states that it does not affect “the exercise of jurisdiction under customary international law”, which was intended by delegates at the negotiation of the Protocol to refer to the right of States to vest universal jurisdiction in their national courts for war crimes.⁴⁴

The experts did not present evidence from drafting history.

27. It is better not to read this provision this way; it is better to read it as a provision preventing an a contrario interpretation of article 16 that it prohibits other forms of exercises of jurisdiction not spelled out in the article. It would be a jump to read it as supporting a particular form of exercise such as universal jurisdiction. Such a meaning would have required affirmative support in the text of the treaty itself. This better interpretation is supported by the similar interpretation generally given to article 5(3) of the Convention against Torture.⁴⁵

II.A.ii. Summary of treaty practice

28. The messy treaty practice and scholarly treatment do not afford much confidence in us when we attempt to distill any rules of customary international law from it. The universal concern character of the crimes under consideration may have motivated the conclusion of a substantial number of treaties, but whatever we would like to say about these treaties, it will be advisable for us to remember that a treaty right or obligation is only applicable to the parties thereto and is subject to a variety of conditions specific to the treaty.⁴⁶ Nevertheless, data do show that there is no instance of “pure universal concern jurisdiction” being authorized in any treaty. Some treaties authorize or can be interpreted as authorizing “universal concern plus treaty and presence jurisdiction”. Even more treaties authorize “universal concern plus treaty, presence and intra-regime territoriality or nationality jurisdiction”. But neither of the latter two types can be properly called “universal jurisdiction”.

II.B. Customary international law

29. Turning to the customary international law status of universal jurisdiction, one is of course reminded of the requirements as stated in article 38(1)(b) of the ICJ Statute for the finding of such a rule: customary international law is evidenced by a general State practice accepted as law (i.e., opinio juris).

30. In this regard, one is struck by the lack of evidence of clear exercise of “pure universal concern” jurisdiction and the seemingly broad support for “universal jurisdiction”, loosely described, as evidenced in the various declarations and statements. If the latter were to be taken at face value, there appears to be opinio juris for the concept of “universal jurisdiction”, loosely used, over genocide, crimes against humanity and serious war crimes. For example, as early as in 1971, a General Assembly resolution was broadly worded so as to be consistent with the idea of universal jurisdiction. There, the GA “affirms that refusal by States to cooperation in the arrest, extradition, trial and punishment of persons guilty of war crimes and crimes against humanity is contrary to the purposes and principles of the Charter of the United Nations and to generally recognized norms of international law”.⁴⁷ Many Western States have made statements supporting the concept of universal jurisdiction.⁴⁸ The African Union stated, in a memorandum annexed to the request for the inclusion of universal jurisdiction in the agenda of the 63^rd session of the UNGA, that “The principle of universal jurisdiction is well established in international law”, that “The African Union respects this principle, which is enshrined in article 4(h) of the Constitutive Act”, but that it was concerned about the uncertain scope and application of the principle and the abuse of it.⁴⁹ The American Law Institute, a national institute of legal experts, found that universal jurisdiction existed under customary international law over several crimes as early as 1986.⁵⁰ The IDI, a world academy of international law experts, also gave its support to the concept or principle of universal jurisdiction in 2005.⁵¹

31. In any event, data on State conduct asserting universal jurisdiction do not reveal sufficient evidence establishing true universal jurisdiction, other than in cases of piracy. This is more or less the conclusion of the Western judges including Judge Higgins, Kooijmans, Buergenthal, and President Guillaume in Arrest Warrant (2002). The Joint Separate Opinion by Higgins, Kooijmans and Buergenthal in Arrest Warrant endorsed⁵² the opinion of the authors of Oppenheim's International Law (9^th ed., 1996, 998), that:

While no general rule of positive international law can as yet be asserted which gives rise to states the right to punish foreign nationals for crimes against humanity in the same way as they are, for instance, entitled to punish acts of piracy, there are clear indications pointing to the gradual evolution of a significant principle of international law to that effect.

Subsequent development has not strengthened the status of universal jurisdiction; rather, it has weakened it, as discussed below, especially in paragraph 34. In a sense, the fortune of universal jurisdiction peaked in 2002 when Arrest Warrant was decided.

32. Although some States such as the United Kingdom⁵³ have asserted universal jurisdiction over war crimes in their military law or regulations in the form of manuals, this assertion does not appear to have attracted general following among States, or have extended to other crimes or to other prosecuting contexts. Indeed, the United Kingdom's military manual even has difficulty persuading its own legislature to implement that idea by statute,⁵⁴ and a “clever” solution was found to implement the Rome Statute. The ICRC Study seems to have a broader view of the exercise of “universal jurisdiction” over war crimes.⁵⁵ A critical analysis of the data presented may not bear out its assessment.

33. The German legislations including the Code of Crimes Against Humanity Law in a complicated way have been considered by one commentator to allow for the possibility of pure universal jurisdiction,⁵⁶ with various conditions. This possibility remains a possibility even now, as no such prosecution has been made.

34. The limited support from national legislation for true universal jurisdiction has recently been further diminished. In 2003 and 2009 respectively, Belgium⁵⁷ and Spain,⁵⁸ the only two States, as commonly believed, that once had clear statutes asserting pure universal jurisdiction and have in fact attempted to exercise that jurisdiction (Germany is not because of the ambiguities in its legislations and its record of non-exercise), have now modified their statutes to condition the exercise of jurisdiction on various links with the forum State.

35. The limited cases from the Western States mostly shows the attempt to exercise or actual exercise of universal jurisdiction as been described as showing the courts had “largely been cautious so far as reliance on universal jurisdiction is concerned”.⁵⁹ Alternatively, this situation has been described in 2010 by Reydams⁶⁰ as follows:

All in all some two dozen individuals have been tried by courts in Austria, Canada, Germany, Denmark, Belgium, the United Kingdom, the Netherlands, Finland, France, Spain, and Switzerland for “war crimes” committed abroad. Without exception the defendants had taken up permanent residence in the forum state – as refugee, exile, fugitive, or immigrant – and resisted being ‘sent back to the countries in which their abominable deeds were done’. In most cases the other states concerned acquiesced in or even supported prosecution. Not to overlook also is the fact that the majority of these cases concerned atrocities committed in the former Yugoslavia and in Rwanda; the prosecutor of the ad hoc international criminal tribunals for these countries and the UN Security Council had encouraged all states to search for and try suspects on their territory (cf. the obligations under the Geneva Conventions). Finally, extradition often was impossible, if not legally then practically.

In addition, the rare examples of express assertion of universal jurisdiction from Israel (Eichmann⁶¹) and United States (Demjanjuk,⁶² recognizing Israel's universal jurisdiction as a basis for extradition) have their value reduced by the special circumstances surrounding these prosecutions of perpetrators from the Nazi era and further by Israel's threats against the use of universal jurisdiction against its own officials and the claim of the United States that other States “should not even think about”⁶³ prosecuting its nationals.

36. Finally, it should be noted that no African State has ever exercised universal jurisdiction.⁶⁴

37. But the IDI seems to believe that universal jurisdiction exists under customary international law but it finds it to be conditional on the “presence” of the suspect, as described below.⁶⁵ One may find the IDI Resolution extraordinary, as it was passed in 2005 against the background of the Arrest Warrant Judgment arresting the over-enthusiasm for universal jurisdiction⁶⁶ and Belgium, the captain of universal jurisdiction, abandoning ship by modifying pure universal jurisdiction out of its statute in 2003.⁶⁷ That is to say, the trend in favor of pure universal jurisdiction, if at all, was reversing. In any event, the IDI Resolution did not arrest the reversing trend so far, and in 2009 Spain did what Belgium did in 2003.⁶⁸

38. It will be better for us to analyze these cases one by one, but the conscientious judges and scholars have done so and given conflicting assessments of the record. This alone reflects the uncertain state of universal jurisdiction in international law.

39. This state of affairs appears to be susceptible of several interpretations. First of all, the lack of actual exercise of pure universal jurisdiction may be considered to be evidence showing that the nice-sounding support for the concept is really political, rather than evidencing opinio juris.

40. The support of the African Union as stated in its 2009 memorandum for this concept is further weakened by its expressed reliance on article 4(h) of its Constitutive Act,⁶⁹ which, the African Union statement claims, “enshrine[s]”⁷⁰ the principle of universal jurisdiction. That article recognizes “the right of the Union to intervene in a Member State pursuant to a decision of the Assembly in respect of grave circumstances, namely: war crimes, genocide and crimes against humanity”. This article in fact enshrines an intra-regime collective political action mechanism: it grants the right to the Union to take action in relevant situations, not to any individual State to take action; the action authorized is political collective enforcement action, not judicial enforcement action. It does not say anything about the Union's right to exercise universal jurisdiction, much less that of an individual State to exercise universal jurisdiction. These factors may not have received attention when the statement of the African Union States was formulated.

41. The exchange of views by States so far after the inclusion of universal jurisdiction on the agenda of the UNGA does not strengthen the status of universal jurisdiction. The number of States that have submitted statements to the UNGA is not substantial, only 44 in total, about 25% of the membership of the UN.⁷¹ Nor has this exchange clarified much, as broad and loose language seems to continue to prevail. If anything, this exercise seems to lessen the meager support for the concept. Several States have noted that “the scope and application of universal jurisdiction remained very much a matter of political and legal debate”.⁷² Some States such as Thailand⁷³ have made clear statements arguing against universal jurisdiction over crimes other than piracy and/or slavery. Even the African Union which clearly expressed support for the “principle” of universal jurisdiction in 2009 seemed to have retreated in 2010 from its earlier position. The statement made on behalf the African Group of States before the 6^th Committee in October 2010 said:

There was as yet no generally accepted definition of universal jurisdiction and no agreement on which crimes, other than piracy and slavery, it should cover or on the conditions under which it would apply. If few States had responded with information about their practice on universal jurisdiction, it was because the principle hardly existed in most domestic jurisdictions.⁷⁴

Furthermore, rather than reiterating that the Constitutive Act of the African Union “enshrined” the principle of universal jurisdiction, the statement now said that “the Constitutive Act of the African Union accorded the Union the power to intervene in the affairs of its member States in situations of genocide, war crimes and crimes against humanity”.⁷⁵

42. Secondly, the thin record of actual exercise is evidence that there is no positive rule of customary international law yet in favor of pure universal jurisdiction other than that over piracy.⁷⁶ Indeed, there is not even sufficient evidence to prove a customary international law rule permitting the exercise of “universal concern plus presence” jurisdiction.

43. Finally, another interpretation, as put forward in the Joint Separate Opinion of Judge Higgins et al. in Arrest Warrant, is that this only shows that States have not “[legislated] to the full scope of the jurisdiction allowed by international law” and that:

[W]hile none of the national case law to which [the Judges] have referred happens to be based on the exercise of a universal jurisdiction properly so called, there is equally nothing in this case law which evidences an opinio juris on the illegality of such a jurisdiction. In short, national legislation and case law – that is, State practice – is neutral as to exercise of universal jurisdiction.⁷⁷

III. Possible application of the Lotus dictum

44. Concluding thus, the Joint Separate Opinion by Judge Higgins et al. in Arrest Warrant argued in essence that the matter then turns on not whether the exercise of true or pure universal jurisdiction is supported by positive international law, but whether such an exercise is precluded by any prohibitive rule, in application of the Lotus dictum which militates in favor of state freedom. Finding no such prohibitive rule, these Judges concluded that a State may exercise pure universal jurisdiction (or “universal jurisdiction in absentia”).⁷⁸

45. President Guillaume, on the other hand, directly challenged the very dictum itself, at least in its application to the area of criminal jurisdiction. He said in his Separate Opinion in Arrest Warrant:⁷⁹

14. This argument is hardly persuasive. Indeed the Permanent Court itself, having laid down the general principle cited by Belgium, then asked itself “whether the foregoing considerations really apply as regards criminal jurisdiction”. It held that either this might be the case, or alternatively, that: “the exclusively territorial character of law relating to this domain constitutes a principle which, except as otherwise expressly provided, would, ipso facto, prevent States from extending the criminal jurisdiction of their courts beyond their frontiers”. In the particular case before it, the Permanent Court took the view that it was unnecessary to decide the point. Given that the case involved the collision of a French vessel with a Turkish vessel, the Court confined itself to noting that the effects of the offence in question had made themselves felt on Turkish territory, and that consequently a criminal prosecution might “be justified from the point of view of this so-called territorial principle”.

15. The absence of a decision by the Permanent Court on the point was understandable in 1927, given the sparse treaty law at that time. The situation is different today, it seems to me—totally different. The adoption of the United Nations Charter proclaiming the sovereign equality of States, and the appearance on the international scene of new States, born of decolonization, have strengthened the territorial principle. International criminal law has itself undergone considerable development and constitutes today an impressive legal corpus. It recognizes in many situations the possibility, or indeed the obligation, for a State other than that on whose territory the offence was committed to confer jurisdiction on its courts to prosecute the authors of certain crimes where they are present on its territory. International criminal courts have been created. But at no time has it been envisaged that jurisdiction should be conferred upon the courts of every State in the world to prosecute such crimes, whoever their authors and victims and irrespective of the place where the offender is to be found. To do this would, moreover, risk creating total judicial chaos. It would also be to encourage the arbitrary for the benefit of the powerful, purportedly acting as agent for an ill-defined “international community”. Contrary to what is advocated by certain publicists, such a development would represent not an advance in the law but a step backward.

46. There is much force in President Guillaume's view. The Lotus dictum was indeed unnecessary in that case and its vitality results from the uncritical recitation to and following of it.

47. To some extent, the debate seems to be about which default rule is the proper one. When the decision was adopted by the Permanent Court of International Justice, States still adhered to the old rule of a right to use of force to settle international disputes. It was probably natural that State freedom was considered paramount and therefore given priority. That apparently was the default rule behind the application of the Lotus dictum. In any event, developments since the date of the decision in 1927 militate against following it anymore. Since the first renunciation of the use of force as an instrument of national policy in the Kellogg-Briand Pact of Paris of 1928 and the restatement of this position in Article 2(4) of the UN Charter, State freedom is now subordinated to the territorial integrity and political independence of States. This is now the grand default rule for the entire international legal system. In the words of President Guillaume, these new developments have strengthened the territorial principle. The Lotus dictum therefore can be considered outdated at least as far as criminal jurisdiction is concerned. This is also the view of some IDI members⁸⁰ expressed during its deliberations leading to the adoption of the 2005 Resolution on the topic. Indeed, in some areas States have positively by treaty reversed the holding of the PCIJ in Lotus regarding criminal jurisdiction.⁸¹

48. Rejecting the Lotus dictum in this context, China expressly states in its statement submitted to the UNGA in 2010 on universal jurisdiction:

Jurisdiction is an important element of State sovereignty. Under the principle of sovereign equality of States, the establishment and exercise of [jurisdiction] by one State may not impair the sovereignty of other States. Therefore the establishment of a State's [jurisdiction] should have as a prerequisite the existence of valid and adequate connections between that country and the cases involved, and should be limited to a reasonable scope.⁸²

49. One cannot but await further development on this point with great interest. Before the Lotus dictum is defeated in this area, conceivably the States may prevent its application by making objections to universal jurisdiction, because the basis for the application of the Lotus dictum, according to the Joint Separate Opinion in Arrest Warrant, is the fact that there is nothing that evinces an opinio juris on the illegality of universal jurisdiction. A State's silent non-support alone for universal jurisdiction will not necessarily prevent it from being applied to the nationals of that State, as the effect of the application of the Lotus dictum is such that it may permit a State's exercise of jurisdiction not authorized, but not prohibited either, by international law. This means that making clear objections has its benefits, while “diplomatic” ambiguity or silence may have its perils as far as the application of the Lotus dictum is concerned.

IV. Possible limitations on the exercise of universal jurisdiction if permitted

50. From the above analysis, we can see that universal jurisdiction may be a positive tool in the efforts to vindicate the fundamental values of the international community, to promote and protect human rights and to fight impunity. Its negative side is that the exercise of universal jurisdiction is at least in tension with the principle of sovereignty and sovereign equality and is easily subjected to political abuse including discrimination as manifeseted in selective prosecution, thus destabilizing international relations.⁸³ If one were to assume, arguendo, that this doctrine or principle could be used for whatever reason and to attempt to reap the benefits of the tool while reducing its side effects, one can imagine that the exercise of universal jurisdiction may be placed under a variety of conditions or whether such conditions should be made part of the “definition” of universal jurisdiction, such as (1) limiting that exercise to the most heinous crimes such as, in addition to piracy, slavery, genocide, crimes against humanity and serious war crimes; (2) giving priority to the territorial State, (3) applying the clean-hands doctrine;⁸⁴ (4) requiring a decision of the highest State authority to trigger the exercise; (5) respecting applicable immunities of officials and States; (6) possible approval of an international screening mechanism; and (7) the presence of the suspect. These are not discussed herein, except that I will make some comments on the presence requirement or condition.

51. It seems that there is broad support for the point that there is no customary international law rule allowing the exercise of universal jurisdiction without the presence of the suspect.⁸⁵ There is insufficient support for the view that the presence of the suspect would legitimize the exercise of “universal jurisdiction”, absent support from a treaty. Furthermore, there is disagreement on the temporal point at which the presence requirement is triggered, if the exercise of universal jurisdiction is permitted for some reason. It seems that for Judges Higgins et al. in the Arrest Warrant case who still would rely on the Lotus dictum, this finding about the role of presence in itself does not show that the presence of the suspect is thereby required for the exercise of universal jurisdiction; for a State to exercise universal jurisdiction, there need be only no prohibitive rule against it. The existence of such a presence requirement in the various treaty provisions on extradite or prosecute—in their view, “Definitionally, this envisages presence on the territory”—is no ground for reaching an a contrario conclusion so that the presence is required.⁸⁶ For these judges, “If it is said that a person must be within the jurisdiction at the time of the trial itself, that may be a prudent guarantee for the right of fair trial but has little to do with bases of jurisdiction recognized under international law”.⁸⁷ One cannot but note that this view, reducing the presence requirement to the mere procedural requirement of a prudent guarantee for a fair trial, is far reaching and extraordinary against the trend in international criminal law shunning trials in absentia. Indeed, this trend may evince a certain attitude about or view of the world we live in, rather than a mere quest for a fairer trial. The far reaching effect of the procedural view of the presence requirement will be greater still—perhaps exponentially so—when it is coupled with the application of the Lotus dictum, which the Joint Separate Opinion in Arrest Warrant argued for, because both are biased in favor of the freedom of the prosecuting State.⁸⁸

52. According to the IDI and others, the trigger point appears earlier. The IDI Resolution, in paragraph 3(b), states:

Apart from acts of investigation and requests for extradition, the exercise of universal jurisdiction requires the presence of the alleged offender in the territory of the prosecuting State or on board a vessel flying its flag or an aircraft which is registered under its laws, or other lawful forms of control over the alleged offender.

According to the Rapporteur, this paragraph

rejected the theory of absolute universal jurisdiction, insisting on the presence of the alleged perpetrator on the territory of the prosecuting State. However, it did allow any State to undertake acts of investigation which per se did not harm the individual, unlike the issue of an arrest warrant. Likewise, States should be free to request extradition, although there was no obligation for the requested State to comply with such request.⁸⁹

While this approach is reasonable to some extent, there are still three major problems. The first is this: if the requested State is where the suspect holds an official position, it will probably not comply with an extradition request without a tough decision; if this requested State is one different from the suspect's home State (when the suspect/official travels outside), different considerations may be entertained and the request for extradition may well be complied with.

53. The second is that existing judicial assistance or extradition treaties may indeed mandate extradition because under at least some of these treaties the requested State may be required to surrender a suspect if the requesting State has made out a prima facie case in terms of jurisdiction and evidence and pure universal jurisdiction may be considered sufficient to satisfy that jurisdictional requirement. How to reconcile the IDI Rapporteur's view that the requested State is under no obligation (resulting from the universal jurisdiction law itself) to comply with such a request and the requested State's obligation to comply under other species of law becomes a most important question. In other words, should there be, in the context of universal jurisdiction, an exception from the general obligation arising from other species of law to comply with requests?

54. Thirdly, in some countries the initiation of an investigation may result in compulsory judicial processes other than arrest and extradition. This lesser form of compulsory judicial processes can still present serious problems. However, arguing for conditioning the starting of an investigation on the presence of the suspect may be too much and will likely be rejected by many States. Perhaps a compromise position can be to condition the issuance of any compulsory judicial process on the presence of the suspect on the territory of the prosecuting State.

55. This discussion should raise a red flag to any cautious government that the relationship between the possible exercise of universal jurisdiction and all the judicial and police assistance treaties and the implications of the presence requirement on this relationship are a subject calling out for urgent examination. It may wish to attempt to modify these treaties to ensure a relaxed presence requirement will not present a problem for its conduct of international relations.

V. Concluding remarks

56. True or pure universal jurisdiction is jurisdiction solely based on the universal concern character of the crime in issue. The concept and logic of universal jurisdiction is understandable, as each State has an interest in matters of universal concern. Universal jurisdiction can be a powerful instrument for the international system to protect its interests and to protect human rights and fight against impunity. However, the exercise of universal jurisdiction by one State may infringe the sovereignty and sovereign equality of another State and can be abused, thus destabilizing international relations.

57. These pros and cons and others not discussed here have influenced the international law formation process in such a way that so far only universal jurisdiction over piracy has been accepted in international law. There is insufficient support to show that “pure universal concern jurisdiction” exists in international law over other crimes yet. The evidence of State practice on “universal concern plus presence” jurisdiction is not yet substantial so as to afford the finding of a customary international law rule in its favor. Treaty practice providing for “universal concern plus treaty, presence and intra-regime territoriality or nationality jurisdiction” or “universal concern plus treaty and presence jurisdiction” is limited to the particular treaty regime only. In the light of this state of affairs, the possible application of the Lotus dictum and the presence requirement—especially the weak, procedural view of it—can be of significance and deserves attention.

58. The movement for “pure universal jurisdiction” has been “trending down” since the conspicuous silence of the ICJ on the legitimacy of that jurisdiction in the Arrest Warrant case in 2002, when the Joint Separate Opinion of Judges Higgins et al. found some evolutionary trend toward universal jurisdiction.⁹⁰ The subsequent downtrend may have been in no small measure due to the cautious Judgment in that case. That Judgment can be said to have, in an ingenious way, helped to inject some calming elements back into international relations.⁹¹ With Belgium and Spain now having abandoned pure universal jurisdiction by narrowing down their statutes, the universal jurisdiction movement appears to be a moving train without its locomotive.

1

For the Request and the Explanatory memorandum, see A/63/237 (3 February 2009) and annex (“African Union memo”). For summaries of development and documentation, see UN 6^th Committee websites, http://www.un.org/en/ga/sixth/64/UnivJur.shtml; http://www.un.org/en/ga/sixth/65/ScopeAppUniJuri.shtml.

2

This articles deals only with universal criminal jurisdiction.

3

Institut de droit international (IDI), Resolution on universal criminal jurisdiction with regard to the crime of genocide, crimes against humanity and war crimes, adopted in Krakow, 2005 (http://www.idi-iil.org/idiF/resolutionsF/2005_kra_03_fr.pdf), para.1 (hereinafter, “IDI Resolution”).

4

Christian Tomuschat, Rapporteur of the IDI Commission on Universal Criminal Jurisdiction, as quoted in IDI, 71(II) Annuaire de l'Institut de droit international (2006), 257; see also ibid., 261.

5

AU-EU Expert Report (http://ec.europa.eu/development/icenter/repository/troika_ua_ue_rapport_competence_universelle_EN.pdf), para.8.

6

See generally ALI, Restatement of the Law, Third, Foreign Relations Law of the United States (ALI, Restatement Third), § 404 and the associated comments and notes; IDI Resolution, n.3 above; and the IDI deliberations, IDI, 71(II) Annuaire, n.4 above, 199-284; International Association of Penal Law (AIDP), XVIIII Congress in 2009, Resolution on Universal Jurisdiction (http://www.penal.org/?page=mainaidp&id_rubrique=24&id_article=95).

7

See ALI, Restatement Third, § 404 (“A state has jurisdiction to define and prescribe punishment for certain offenses 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, even where none of the bases of jurisdiction indicated § 402 is present”).

8

See ALI, ibid.

9

Case concerning the Barcelona Traction, Light and Power Company, Limited, Second Phase, Judgment, ICJ Reports 1970, 3.

10

See Rosalyn Higgins, Problems and Process: International Law and We Use it (1994), 57-58.

11

ILC Draft Articles on State Responsibility, art. 48, commentary, para.(8), in ILC Report 2001, A/56/10, 321.

12

ILC Report 2001, ibid., 56.

13

See Paolo Picone, The Distinction between Jus Cogens and Obligations Erga Omnes, in Enzo Cannizzaro (ed), The Law of Treaties beyond the Vienna Convention (2011), 411, 421-422; but see generally Alexander Orakhelashvili, Peremptory Norms in International Law (2006).

14

Armed Activities on the Territory of the Congo (New Application: 2002) (Democratic Republic of the Congo v. Rwanda), ICJ Reports 2006, 31, para.64.

15

East Timor (Portugal v. Australia), ICJ Reports 1995, 102, para.29.

16

Cf. AIDP, n.6 above, para.II(2); but see IDI 2005 Resolution, n.3 above, para.3(b).

17

Arrest Warrant, Joint Separate Opinion of Judges Higgins, Kooijmans and Buergenthal, ICJ Reports 2002, 74-75, para.41.

18

A term from Georges Scelle. See Antonio Cassese, Remarks on Scelle's Theory of “Role Splitting” (dédoublement fonctionnel) in International Law, 1 EJIL (1990), 210.

19

Henry Kissinger, The Pitfalls of Universal Jurisdiction, Foreign Affairs (July-August 2001).

20

As pointed out by Shahabuddeen, in IDI Annuaire, n.4 above, 228.

21

Arrest Warrant, diss. op., ICJ Reports 2002, 141, para.5.

22

See Part III below, paras.44-49.

23

5 August 2003 Act on Grave Breaches of International Humanitarian Law. As reported by none other than the person who did the threatening, Donald Rumsfeld, Known and Unknown: A Memoir (2011), 596-598. Rumsfeld reported a “frank and full exchange” with Mr. Andre Flabaut, Belgium's minister of defense, in which Rumsfeld made clear that NATO could move its headquarters again as it did from France when the host became hostile and that the American support for the building of a new NATO headquarters “would evaporate instantly absent a prompt shift in the Belgium government's position”. Ibid., 598. Rumsfeld seemed to relish this: “The difference in style between a Chicago-born American and member of the European diplomatic corps was on full display in that conversation. From his demeanor I could tell he fully understood my point. Within two months of that conversation, the Belgian government repealed their law.” Ibid., 598.

24

See Jaclyn Belczyk, Spain parliament passes law limiting reach of universal jurisdiction statute, 16 Oct 2009, http://jurist.law.pitt.edu/paperchase/2009/10/spain-parliament-passes-law-limiting.php; Daniel Woolls, Baltasar Garzon, Spanish Super Judge, Suspended Over Alleged Abuse, AP News (05/14/10), http://www.huffingtonpost.com/2010/05/14/baltasar-garzon-spanish-s_n_576872.html; Scott Horton, The Poet, the Judge, and the Falangists, http://harpers.org/archive/2010/04/hbc-90006895.

25

Kissinger, n.19 above.

26

See generally Luc Reydams, The Rise and Fall of Universal Jurisdiction, Leuven Centre for Global Governance Studies, Working Paper No. 37 (http://ghum.kuleuven.be/ggs/publications/working_papers/new_series/wp31-40/wp37.pdf, January 2010) (“Leuven Working Paper”); papers by George Fletcher, Louise Arbour, Antonio Cassese and Georges Abi-Saab, in 1 J Intl Criminal Justice (2003), 580–602.

27

O.W. Holmes, The Common Law (1886), 1.

28

See generally Luc Reydams, Leuven Working Paper, n.26 above; id., Universal Jurisdiction: International and Municipal Legal Perspectives (2003); William Schabas, Foreword, ibid.; Zdzislaw Galicki, ILC Special Rapporteur, Fourth report on the obligation to extradite or prosecute (aut dedere aut judicare), A/CN.4/648 (31 May 2011), http://daccess-dds-ny.un.org/doc/UNDOC/GEN/N11/358/84/PDF/N1135884.pdf. For an optimistic assessment of the status of universal jurisdiction in international law, see V.D. Degan and Vesna Baric Punda, Universal Jurisdiction: An Option or a Legal Obligation for States, 13 International Law Review of Wuhan University (2010), 66-92.

29

See ILC Special Rapporteur, ibid.; Reydams, ibid.

30

See William Schabas, Genocide in International Law: The Crime of Crimes (2d edn 2009), 49-116, 411-416.

31

For another formulation of this difference see AU-EU Expert Report, n.5 above, para.11.

32

Joint Separate Opinion, n.17 above, 74-75, para.41.

33

That article states in relevant part:

The High Contracting Parties undertake to enact any legislation necessary to provide effective penal sanctions for persons committing, or ordering to be committed, any of the grave breaches of the present Convention defined in the following Article.

  Each High Contracting Party shall be under the obligation to search for persons alleged to have committed, or to have ordered to be committed, such grave breaches, and shall bring such persons, regardless of their nationality, before its own courts. It may also, if it prefers, and in accordance with the provisions of its own legislation, hand such persons over for trial to another High Contracting Party concerned, provided such High Contracting Party has made out a prima facie case.

The term “search for” can be properly interpreted as “search for persons said to be present on its territory”. See Jean S. Pictet's commentary, Convention (I) for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field. Geneva, 12 August 1949 (1952), 365-366 (http://www.icrc.org/ihl.nsf/COM/365-570060?OpenDocument).

34

Statement by the ICRC representative in the 6^th Committee, A/C.6/65/SR.12 (15 Oct. 2010)), 6, para.42; ICRC Official Statement, 27-08-2003, on the “First Meeting of Experts of States Parties to the Biological and Toxin Weapons Convention, Geneva, 18 – 29 August 2003”, http://www.icrc.org/web/eng/siteeng0.nsf/htmlall/5qkdpf (“It should be recalled that States are already required to exercise universal jurisdiction in respect of ‘grave breaches’ to the 1949 Geneva Conventions and their Additional Protocol I of 1977, which refer to acts committed in situations of armed conflict against protected persons such as wilful killing, torture or inhuman treatment including biological experiments, and making the civilian population or individual civilians the object of attack. Use of biological weapons amounting to such ‘grave breaches’ would thus require the assertion of universal jurisdiction.”).

35

See Jean-Marie Henckaerts & Louise Doswald-Beck (eds), 1 Customary International Humanitarian Law (“ICRC Study”), Rule 157 and the associated support in vol. 2.

36

See views of governments as characterized in E/CN.4/1983/63, paras.22 & 23, on the proposed Convention against Torture.

37

See general the views of the UK government, as quoted in Ian Brownlie, Principles of Public International Law (7^th ed., 2008), 305-306.

38

IDI Annuaire, n.4 above, 257; 261 (Rapporteur).

39

IDI Resolution, n.3 above.

40

IDI, 71(II) Annuaire, n.4 above, 209-210 (Abi-Saab); 257 (Higgins).

41

See Joint Separate Opinion, ICJ Reports 2002, 73, para.35; President Guillaume, Separate Opinion, ibid., 38, para.7. There President Guillaume emphasized the obligation to establish jurisdiction so that “the obligation to prosecute was no longer conditional on the existence of jurisdiction on, but rather jurisdiction itself had to be established in order to make prosecution possible”, and he seemed to call this “compulsory, albeit subsidiary, universal jurisdiction”. He took as the forerunner Article 4(2) of the Hague Convention for the Suppression of Unlawful Seizure of Aircraft of 1970. One may agree with this emphasis if the obligation to establish jurisdiction cannot be considered a logical extension of, or as included in, the term “extradite or prosecute”. To prosecute implies the existence of the wherewithal to do so, i.e., the establishment of jurisdiction. In any event, a general promise to take effective measures to repress crimes would have included such an obligation. This is the understanding of the broadly worded Article 49, especially paragraph 1, of the Geneva Convention (I) of 1949 and the corresponding articles in the other Geneva Conventions. Furthermore, Article 4(2) of the Hague Convention for the Suppression of Unlawful Seizure of Aircraft of 1970 expressly requires the presence of the suspect on the territory of the Contracting State, while Article 49 of the Geneva Convention has been construed as requiring the same. That is to say, potentially the 1970 Hague Convention may not be the first on the requirement to establish jurisdiction.

42

Apartheid Convention, art. V, which states: “Persons charged with the acts enumerated in article II of the present Convention may be tried by a competent tribunal of any State Party to the Convention which may acquire jurisdiction over the person of the accused or by an international penal tribunal having jurisdiction with respect to those States Parties which shall have accepted its jurisdiction.” “Acquire jurisdiction over the person of the accused” is not clear, but in my view apparently means his or her presence. This Convention is quite special both in terms of the circumstances of adoption and the political climate prevailing then. See comment by John Dugard, http://untreaty.un.org/cod/avl/pdf/ha/cspca/cspca_e.pdf, 2 (“The Apartheid Convention allows State parties to prosecute non-nationals for a crime committed in the territory of a non-State party where the accused is physically within the jurisdiction of a State party (arts. 4 and 5). […] No one was prosecuted for the crime of apartheid while apartheid lasted in South Africa. And no one has since been prosecuted for the crime.”). But cf. Reydams, Leuven Working Paper, n.26 above, 18, who seemed to characterize the Apartheid Convention, art. V, as granting universal jurisdiction.

43

http://portal.unesco.org/en/ev.php-URL_ID=15207&URL_DO=DO_TOPIC&URL_SECTION=201.html

44

ICRC Study, n.35 above, vol.1, 605, & n.198.

45

See Joint Separate Opinion, n.198 above, paras.34, 38.

46

See Statement of China (Chinese original at: http://www.un.org/en/ga/sixth/65/ScopeAppUniJuri_StatesComments/China.pdf; English translation by the UN at: http://www.un.org/en/ga/sixth/65/ScopeAppUniJuri_StatesComments/China_E.pdf), Observations, para.6.

47

UNGA Res 2840 (1971).

48

For further info, see AU-EU Expert Report, n.5 above; ICRC Study, n.35 above.

49

A/63/237, annex (Explanatory memorandum), para.1. The States of the Non-aligned Movement seemed to hold a more ambiguous attitude. See A/C.6/64/SR.12 (25 November 2009), paras.20-21; A/C.6/65/SR.10 (13 October 2010), paras.55-56.

50

ALI, Restatement of the Law, Third, the Foreign Relations of the United States, §404 and the comments and notes thereto. The text is reproduced in n.7 above.

51

IDI Resolution, n.3 above.

52

Joint Separate Opinion, n.17 above, para.52.

53

British Manual of Military Law, III (1956), para.637, as quoted in Rosalyn Higgins, Problems and Process (1994), 59-60; see discussion of id., 56-61; Ian Brownlie, Principles of Public International Law (7^th ed., 2008), 305-306; UK Ministry of Defence, The Manual of the Law of Armed Conflict (2004), para.16.30.

54

See Ian Brownlie, Principles of Public International Law (7^th edn, 2008), 305-306; Rosalyn Higgins, Problems and Process (1994), 59-61.

55

See ICRC Study, n.35 above, Rule 157 and the associated materials.

56

See the description and analysis of this law in Luc Reydams, Universal Jurisdiction (2003), 141–147.

57

5 August 2003 Act on Grave Breaches of International Humanitarian Law (Belgium). See Luc Reydams, Belgium Reneges on Universality: 5 August 2003 Act on Grave Breaches of International Humanitarian Law, 1 J Intl Criminal Justice (2003), 679-689.

58

Ley Orgánica 1/2009, de 3 de noviembre complementaria de la Ley de reforma de la legislación procesal para la implantación de la nueva Oficina judicial, por la que se modifica la Ley Orgánica 6/1985, de 1 de julio, del Poder Judicial (http://noticias.juridicas.com/base_datos/Admin/lo1-2009.html) (Spain). The essence of this new law, as stated by the representative of Spain in the UNGA, A/C.6/65/SR.11 (13 Oct. 2010), 4, para.21, is: “judges could only prosecute perpetrators of serious crimes committed anywhere in the world when no other international or third-country court had initiated proceedings against them and when they were present in Spanish territory or when the victim was a Spanish national”.

59

See the analysis in the Joint Separate Opinion, n.17 above, para.21.

60

Luc Reydams, Leuven Working Paper, n.26 above, 22 (internal footnotes omitted). See also the description of State judicial practice in: The Scope and application of the principle of universal jurisdiction: Report of the Secretary-General prepared on the basis of comments and observations of Governments, A/65/181 (29 July 2010), http://daccess-dds-ny.un.org/doc/UNDOC/GEN/N10/467/52/PDF/N1046752.pdf?OpenElement), paras. 55-65; 94-107.

61

AG of Israel v. Eichmann, 36 ILR 5 (District Court of Jerusalem, 1961), and 277 (Supreme Court of Israel, 1962).

62

In re Demjanjuk, 603 F.Supp. 1468 (ND Ohio), affirmed, 776 F.2d 571 (6^th Cir. 1985), cert. denied, 457 US 1016 (1986).

63

Reydams, Leuven Working Paper, n.26 above, 22.

64

AU-EU Expert Report, n.5 above, paras.19, 26, 40.

65

IDI Resolution, n.3 above.

66

After the Congo reformulated its claims, the ICJ did not rule in Arrest Warrant on the lawfulness of universal jurisdiction; rather, it held that it was unable to find any customary international law exception to the immunity from national jurisdiction and the inviolability that an incumbent foreign minister enjoys, even where that foreign minister is accused of having committed war crimes or crimes against humanity. On the effect of Arrest Warrant, see Alain Pellet, Shaping the Future of International Law: The Role of the World Court in Law-making, in: Mahnoush H. Arsanjani et al. (eds), Looking to the Future: Essays on International Law in Honor of W. Michael Reisman (2011), 1065, 1080 (“the ICJ's Judgment in Arrest Warrant Case shows that the Court can also slow down and maybe go as far as durably jeopardizing highly desirable evolutions in the law in force”); Antonio Cassese, n.26 above, 1 J Int'l Criminal Justice, 589–595. On immunities (not discussed in this paper), see, e.g., the reports of the ILC Special Rapporteur Roman Anatolevich Kolodkin and other materials, available at: http://untreaty.un.org/ilc/guide/4_2.htm.

67

See n.57 above.

68

See n.58 above.

69

Text accompany n.49 above.

70

African Union memo, n.1 above, para.1.

71

The statements are available on line here: http://www.un.org/en/ga/sixth/65/ScopeAppUniJuri.shtml. For a summary by these statements, see The Scope and application of the principle of universal jurisdiction: Report of the Secretary-General prepared on the basis of comments and observations of Governments, A/65/181 (29 July 2010), http://daccess-dds-ny.un.org/doc/UNDOC/GEN/N10/467/52/PDF/N1046752.pdf?OpenElement. China submitted a statement in 2010 (Statement of China, n.46 above). See also ZHU Lijiang, Chinese Practice in Public International Law: 2009, 9 Chinese JIL (2010), 607, 647, para.75.

72

See, e.g., statement of Malaysia, A/C.6/65/SR.12 (15 Oct. 2010), 5, para.26.

73

See, e.g., statement of Thailand, A/C.6/65/SR.11 (13 Oct. 2010), 3, para.12 (“With the exception of piracy, there was no general consensus among States as to which crimes were subject to universal jurisdiction under customary international law.”); Sudan, A/C.6/65/SR.12 (15 Oct. 2010), 4, para.20; statement of China, n.46 above.

74

A/C.6/65/SR.10 (13 October 2010) (http://daccess-ods.un.org/access.nsf/Get?Open&DS=A/C.6/65/SR.10&Lang=E), para.60.

75

Ibid., para. 61.

76

See Statement of China, n.46 above, Observations, paras.4-5.

77

Joint Separate Opinion, n.17 above, para.45. The UK explanation is found in Rosalyn Higgins, Problems and Process (1994), 59-61.

78

See Joint Separate Opinion, n.17 above, paras.49-54, etc.

79

President Guillaume, Separate Opinion in Arrest Warrant, ICJ Reports 2002, 35, 43. For further criticisms of the Lotus dictum, see Judge Simma, Declaration, in Accordance with International Law of the Unilateral Declaration of Independence in Respect of Kosovo (Request for Advisory Opinion), ICJ Reports 2010, http://www.icj-cij.org/docket/files/141/15993.pdf; Sienho Yee, Notes on the International Court of Justice (Part 4): The Kosovo Advisory Opinion, 9 Chinese JIL (2010), 763, paras. 22-26.

80

See IDI, 71(II) Annuaire, n.4 above, 245 (The Rapporteur); 258 (Frowein).

81

E.g., 1952 Brussels Convention for the Unification of Certain Rules Relating to Penal Jurisdiction in Matters of Collision or other Incidents of Navigation, art. 1; UNCLOS, art. 97.

82

Statement of China, n.46 above, Observations, para.1, English translation by the UN. This UN translation mistakenly translates “guanxiaquan” into “sovereignty”. “Jurisdiction” is used here instead.

83

See Henry Kissinger, n.19 above.

84

See Sienho Yee, The Tu Quoque Argument as a Defence to International Crimes, Prosecution, or Punishment, 3 Chinese JIL (2004), 87-133.

85

See statement of Israel, A/C.6/65/SR.12 (15 Oct. 2010), 3, para.9 (“many States agreed that the accused should be present in the territory of the forum State”).

86

Joint Separate Opinion, n.17 above, in particular, para.57 (emphasis in the original).

87

Joint Separate Opinion, n.17 above, para.56.

88

This has the danger of leading to the maximum freedom of the prosecuting State, a sort of “Lotus-maximum”, see Sienho Yee, n.79 above, 9 Chinese JIL (2010), 763, para.26.

89

IDI Annuaire, n.4 above, 208 (the Rapporteur introducing the draft resolution).

90

Joint Separate Opinion, n.17 above, paras.45-52.

91

For a stronger assessment of the influence of the Arrest Warrant Judgment, see Alain Pellet, n.66 above.