Understanding Universal Jurisdiction in International Law

Universal Jurisdiction (UJ) in International Law

UJ has become the preferred technique by those seeking to prevent impunity for international crimes. While there is no doubt that it is a useful and, at times, necessary technique, it also has negative aspects. The exercise of UJ is generally reserved for the most serious international crimes, such as war crimes, crimes against humanity, and genocide; and other crimes such as terrorism because there is a treaty that specifically defines that terrorism falls under the means of UJ. UJ must be used carefully so it doesn’t create any negative consequences. If a country includes in its criminal and civil codes the fact that they want to apply UJ they established to themselves the obligation to try people for international crimes by implementing national or international law regardless of where those crimes were committed and their nationalities or any other connection to the state exercising its jurisdiction.

Countries Implementing Universal Jurisdiction

• South Africa
• Senegal
• Argentina
• Chile
• Sweden
• Canada
• France
• England
• The Netherlands

Obstacles to Universal Jurisdiction

• Economic, diplomatic, and political pressure
• Immunities, amnesty, statute of limitations
• UJ vs. UJ
• UJ vs. ICC

Elements of Universal Jurisdiction

Certain international crimes, national and/or international criminal law, right or obligation, regardless of where those crimes were committed, the nationality of the alleged perpetrator and the victims, or any other connection to the State exercising the jurisdiction. ICL and ius cogens. Customary international law consists of rules that come from 'a general practice accepted as law' and exist independent of treaty law.

Legal Sources

1. The term 'jus cogens' refers to certain fundamental, overriding principles of international law, from which no derogation is ever permitted (e.g., piracy, war crimes, drug trafficking).
2. International treaties - There exist international conventions dealing with criminal provisions which provide for the application of universal jurisdiction on behalf of the international community or the protection of humanity as a whole (e.g., genocide).

Right/Obligation

It depends on the crime and especially the source of law allowing its application (customary law/jus cogens/international convention). Not to confuse with: ICJ, ICC, and ad hoc tribunals, Absolute universal jurisdiction, Limited universal jurisdiction. Only if the case represents a direct interest. After approval of the general prosecutor or the government. Secret investigations until presence of the accused in the country is confirmed.

Aut Dedere Aut Judicare

Refers to the legal obligation of states under PIL to prosecute persons who commit serious international crimes where no other state has requested extradition. The obligation arises regardless of the extraterritorial nature of the crime and regardless of the fact that the perpetrator and victim may be of alien nationality. Circumstantial element.

Period

1. Piracy
2. Slave trade, Slavery
3. War Crimes, Genocide, Crimes against humanity, Crime of aggression
4. Crimes included in new international conventions: Torture, Enforced disappearances, Acts of terrorism, Apartheid, Crimes against diplomats, Drug Trafficking