Universal jurisdiction for core international crimes

Crimes against humanity, genocide and war crimes may in principle be tried by the normal criminal courts of any country under the principle of universal jurisdiction. This principle has long been part of international law. When prosecuting on this basis, the courts of one country act in the general interest of all (law-abiding) states. Some countries‘ legal systems make it relatively easy to bring such prosecutions; others make it difficult unless their own nationals are involved.

The Pinochet case

Universal jurisdiction hit the headlines in October 1998 when the former Chilean dictator Augusto Pinochet was arrested in London on the basis of a Spanish warrant. This intervention by foreign courts led to Pinochet facing charges in his home country.

International law also applies in the national courts

Universal jurisdiction should be seen as another pillar of international criminal law, complementing international and mixed special courts and the International Criminal Court. It can be effective especially in those cases that are not within the competence of these international courts, and thus can bridge gaps in the penal prosecution of core international crimes.

The roots of the universality principle lie in the prosecution of crimes that were not directed against a single state, but whose prosecution was however in the interest of all states. According to humanist international law, the person responsible for such deeds was a hostis humani generis, an enemy of mankind, someone who potentially injured the rights of all people and/or natural or Godgiven law. The principle of universal jurisdiction was however applied first and foremost to crimes that had no straightforward link to any state territory, i.e. cases in which territorial jurisdiction was disputed. Offences to which the principle was applied included piracy and, at certain times, slavery, to name but two.

One well-known example for the codification of universal jurisdiction is the Alien Tort Claims Act, which has been part of US law since 1789. Pursuant to this Act, all American courts (district courts) may exercise original jurisdiction in civil actions brought by foreigners who have suffered personal injury in violation of international law or a treaty to which the United States is a party. The Alien Tort Claims Act has repeatedly been used to bring claims in America against the perpetrators of serious human rights violations abroad. Victims of torture have since 1991 also been able to bring claims under the Torture Victim Protection Act.

In principle, international conventions and the general principles of international law empower all national courts to instigate proceedings to deal with serious violations of human rights law regardless of the nationality of the perpetrator and victim. Proceedings have been conducted on this basis in numerous countries in recent years. There are just a few examples on page 52.

The national rules on the instigation of such prosecutions against foreign nationals vary widely. The decisions of the national courts before which such proceedings are sought thus also vary considerably. Many of the complaints that are laid are dismissed, in part because national and international provisions are still interpreted in a variety of ways by the judges. The Statute of the International Criminal Court has brought greater clarity to the nature of the crimes punishable under international law. The principle of complementarity enshrined in the Statute, under which the ICC’s jurisdiction is complementary to that of the national courts, has also had the beneficial knock-on effect that a number of states, including Germany, have incorporated clearer definitions of the international crimes into their national law. If this leads to a more uniform application of the universality principle around the world, universal jurisdiction for these crimes could also remain an important element for ending impunity.

Some Examples for Universal Jurisdiction

Spain · Proceedings against the former Chilean dictator Augusto Pinochet; members of the Argentine military dictatorship; members of the Guatemalan military dictatorship; members of the Honduran military forces

France · Proceedings against members of the Chilean dictatorship; members of the Argentine military dictatorship; the Libyan President Muammar Gaddafi; defendants from Rwanda

Great Britain · Proceedings against the former Chilean dictator Augusto Pinochet; an Afghan warlord

Senegal · Proceedings against the former dictator of Chad, Hissein Habre

Belgium · Proceedings against the former Israeli army chief Ariel Sharon; the Cuban head of state Fidel Castro; militia leaders and politicians from the Congo; defendants from Rwanda

Germany · Proceedings against defendants from the former Yugoslavia

Netherlands · Proceedings against the former dictator of Suriname, Desi Bouterse

USA · Proceedings against the son of former Liberian president Taylor, Charles “Chuckie” Taylor, Jr., charged for torture

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