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Calls to end conflicts today are often accompanied by demands to hold perpetrators of the crimes accountable. Among the many legal mechanisms which may be used to eliminate impunity for perpetrators of crimes, universal jurisdiction – the international legal principle which allows any state to exercise jurisdiction over persons accused of the gravest international crimes – is one such mechanism.
An Ideal Solution to Impunity
The concept of universal jurisdiction first emerged after the end of World War II. Faced with the need to hold Nazi and Japanese military leaders accountable, a new legal principle was utilized to ensure those responsible for the gravest international crimes would be prosecuted now and in the future. The Nuremberg and Tokyo trials were the first to apply a form of universal jurisdiction as foreign judges from the four Allied powers became the ones deciding cases that involved the Japanese and German leaders appearing before these tribunals.
The concept has since been refined. As opposed to international criminal tribunals, universal jurisdiction refers to states’ obligation to prosecute those responsible for the gravest international crimes, regardless of whether the accused is a national of the state in question, the victim is a national of the state, or if the crime in question occurred on the state’s territory. These crimes include piracy, war crimes, crimes against humanity, torture, genocide, and many others. Universal jurisdiction is a principle of customary international law – and is imposed on all states – but variants of it are also enshrined in specific treaties. For instance, the Geneva Conventions obliged state parties to the treaties to prosecute perpetrators of war crimes in their courts, or to transfer perpetrators in their territory to other states willing to prosecute them. Therefore, states are obliged to either use universal jurisdiction in their own states, or to allow universal jurisdiction to be used by other states. Similarly, the Convention against Torture imposes on states an obligation to prosecute or extradite those accused of torture – thus mandating that states use universal jurisdiction.
The main advantage of universal jurisdiction, as opposed to other international criminal tribunals also holding serious perpetrators accountable, is that it tries to make a world where all crimes against individuals are punished reality. No matter whether the state is a party to the Rome Statute establishing the International Criminal Court, whether the Security Council is willing to set up an international tribunal, or whether the state of perpetrators is willing to prosecute those accused of crimes – justice would, in theory, be obtained.
The Application of Universal Jurisdiction
In practice, universal jurisdiction has rarely been applied. While 163 states have given themselves the ability to exercise universal jurisdiction over serious international crimes, few of these states have made use of this ability. Several different shortcomings of the concept of universal jurisdiction explain the difficulty of using this concept to fight impunity.
The practical application of universal jurisdiction by states differs from the ideal initially envisioned. This is due to its lack of precise definition. Several states have indeed adopted statutes implementing universal jurisdiction – leaving it up to them to decide what universal jurisdiction should mean in their state, in opposition to the spirit of the international legal concept. Additional criteria required for the implementation of universal jurisdiction are indeed inscribed in statutes. Coupled with the overload of cases domestic judicial systems face, this makes universal jurisdiction quite difficult to apply in practice. For instance, federal law in the United States only authorizes U.S. courts to exercise universal jurisdiction for war crimes and genocide when the accused is on U.S. territory – not for crimes against humanity, or if the perpetrator is anywhere else in the world. Similarly, the ability of courts to exercise universal jurisdiction is mainly granted by the Alien Tort Statute – which applies only to civil and not criminal proceedings.
Universal jurisdiction has still been used in some notable cases. For instance, former Chilean authoritarian leader Augusto Pinochet was prosecuted in Spanish courts over crimes committed in Chile and Argentina. When Pinochet went to London in 1998, the Spanish judge overseeing the case issued an arrest warrant against him – which was served by the London police. Spain, Belgium, France and Switzerland then requested his extradition. Pinochet contested his extradition, arguing that as a former head of state, he enjoyed immunity for acts committed while in office. The House of Lords then issued a decision stating that this immunity did not apply to the gravest crimes – in this case, torture and crimes against humanity – and, subsequently, that the Convention against Torture imposed an obligation on the United Kingdom to deny such claims of immunity and allow prosecution to move forward. Then, Pinochet was extradited to Spain. A “dual” application of universal jurisdiction can be seen here, by Spain in the initial prosecution, and by the United Kingdom in transferring Pinochet to another state willing to prosecute him. This case, therefore, illustrates how universal jurisdiction may be practically applied.
International politics may still influence the practical application of universal jurisdiction. Serving arrest warrants or even setting trials into motion fully depends on the political will of states. Universal jurisdiction seems to only be applied if the perpetrator in question is not a national of a state with which the prosecuting state is allied or has close interests. The example of Austria illustrates this well. In 1999, Austria allowed Izzat Ibrahim al-Duri, an aide to Saddam Hussein accused of directing killings of Kurds in 1988 and of torturing other Iraqis, to flee back to Iraq after he received treatment in Vienna – despite a Vienna councilman filing a criminal complaint against him. Universal jurisdiction, then, appears to be applied selectively.
An Evolving Situation
Some recent evolutions might lead us to rethink the difficulty of applying universal jurisdiction. Universal jurisdiction has indeed experienced a revival with the war in Ukraine. The last bout of popularity of universal jurisdiction, notably in Europe, was triggered by an array of cases focused on atrocities committed during the Syrian civil war. Decisions for these cases are still pending and being handed down to this day. For instance, in 2021, a German court handed down a sentence of four and a half years in prison against a member of the Syrian intelligence services for complicity to crimes against humanity. The current bout of popularity of universal jurisdiction seems even more significant. Many more countries have indeed decided to make use of this principle – Germany, Sweden, Latvia, Estonia, France, the United States and the United Kingdom, among many others. Currently, these states mostly invoke universal jurisdiction to investigate crimes committed in Ukraine.
What is new, then, in this wave of application of universal jurisdiction? These new prosecutions do not seem to tackle the problem of the selective application of universal jurisdiction. The fact that these prosecutions occur against Russian soldiers, “enemies” of Western countries, only seems to confirm it.
However, some changes in this wave of application of universal jurisdiction can still be seen. The fact that universal jurisdiction has experienced a revival after the war in Ukraine seems to have pushed some courts to expand their vision of universal jurisdiction in cases currently being decided. A good example of this could be France. A 2023 decision by the highest court, the Cour de Cassation, has leniently interpreted the restrictions which domestic statutes imposed on the exercise of universal jurisdiction. Indeed, the criminal code stated that crimes against humanity and war crimes could only be prosecuted using universal jurisdiction if the perpetrator habitually resided in France, and if the crime being prosecuted was equivalently criminalized in the state where the crime was committed. In this decision, the Court stated that the habitual residence criteria only required some link between France and the perpetrator; and, more importantly, that the equivalency criteria did not require crimes to be criminalized in exactly the same way. An adequate equivalency would, for example, be that a crime defined as a war crime in the French criminal code would only need to be defined as a “simple” crime in the other country. A criminalization of murder constituting a war crime in the French criminal code would be considered equivalent to a criminalization of murder in that state’s criminal code.
These changes, exemplifying a trend towards the expansion of universal jurisdiction, could foreshadow a future easier application of universal jurisdiction – and possibly a less selective application of universal jurisdiction, if states have the political will to make the ideal of universal jurisdiction reality. In any case, the recent evolution of universal jurisdiction shows a renewed interest from courts in applying universal jurisdiction – a trend that might be promising for the application of universal jurisdiction to other conflicts in the future.