In a world of finely partitioned allocations of jurisdiction, there is still amble possibility to avoid prosecution and punishment by moving in territories where the State is unwilling or unable to exercise its powers or simply where
the writ of no State applies. Absent the traditional bases of jurisdiction, i.e. territoriality and nationality, the universality principle allows for the assertion of jurisdiction in circumstances where the crime was not perpetrated by or against a national of the State away from its territory without any impact upon it or the security of the State. It seems that such was the historical reason for the first application of the principle on marauding vagabondi in the late Middle Ages. The rationale behind this stop-gap jurisdiction remains, therefore, deeply pragmatic – in the words of Georges Abi-Saab:
“Universal jurisdiction has been a jurisdiction of last resort, a fail-safe solution called for by urgency and necessity”.
The value-oriented approach, citing a moral repugnance for crimes beyond the ‘ordinary’, seems to have been a glossa added later in order to reinforce the need for further action – and it was in this exceptional spirit that Grotius affirmed that “kings …have the right of demanding punishments not only on account of injuries committed against themselves or their subjects, but also on account of injuries which do not directly affect them but excessively violate the law of nature or of nations in regard of any persons whatsoever”.
The qualification present in this passage gave rise to the pure ‘mandatory’ form of universal jurisdiction, according to which each State assumes jurisdiction and consequently must prosecute all offences generally recognised as of universal concern, regardless of where the offence took place or who the perpetrator or the victims were.
However, this ‘unilateral limited universality principle’ is distinguished from the ‘co-operative limited universality principle’, which confers upon the State the right rather than the obligation (may instead of must) to prosecute; in such a situation Grotius was quite categorical:
“Alterum facere debeat, aut ut ipsa interpellata pro merito puniat nocentem, aut ut eum permittat arbitratio interpellantis.”
It seems that this approach is both closer to the historical antecedents of the concept and surprisingly modern. Most treaties providing for universal jurisdiction today typically define a crime and then oblige all States parties either to investigate and eventually prosecute or, in an expression of civitas maxima, to extradite the suspect to a State willing to do so (aut dedere aut iudicare). Indeed, a survey of 276 conventions, concluded in the two centuries between 1815 and 1999, and comprising 27 categories of crime revealed only a handful of agreements that clearly provide for the ‘pure’ form of universal jurisdiction; in other words, jurisdiction based exclusively on the nature of the crime and carried out by the forum State in the guise of an actio popularis on behalf of the international community in order to safeguard the interests of that same international community by ensuring accountability for the perpetration of certain categories of crimes, both expressly identified in number and particularly grave in character.
In spite of the support seemingly offered to this variety of universal jurisdiction in the Arrest Warrant case by Judges Rosalyn Higgins, Kooijmans and Buergenthal in their joint Separate Opinion, practical examples are few and difficult to come by. Although it failed to address the legal status of the principle of universal jurisdiction (pure or conditional), leaving 11 of the 15 judges to issue different pronouncements on the matter, the Court found the Belgian statute on universal jurisdiction in breach of the traditional rules on the allocation of jurisdiction. President Guillaume, in particular, was categorical that “universal jurisdiction in absentia is unknown to international law” ;
a statement true enough, provided one does consider, as the Spanish Constitutional Court did in the Guatemalan Generals case, that the physical presence of the accused in the territory of the forum State constitutes a mere procedural requirement, a conditio locus deprehensionis, for conducting a criminal trial rather than instigating a criminal investigation. Indeed, summarising the status of the principle in contemporary law, he concluded:
“In other words, international law knows only one true case of universal jurisdiction:
piracy. Further, a number of international conventions provide for the establishment of subsidiary universal jurisdiction for purposes of the trial of certain offenders arrested on national territory and not extradited to a foreign country.” It is quite clear from this onslaught, undoubtedly destined to redress the balance disturbed by a series of prosecutions of current and former, nominal and factual heads of states before domestic courts, that little space is left to the notion of universal jurisdiction available as a matter of customary law to crimenes iure cogens.
In addition to a variety of academic initiatives on universal jurisdiction, already in the 1996 Draft Code of Crimes Against the Peace and Security of Mankind, the International Law Commission suggested that genocide, crimes against humanity, crimes against the United Nations and associated personnel and war crimes be subject to universal jurisdiction. The 1998 Rome Statute to the International Criminal Court did not affect the possible universal jurisdiction applicable on genocide, crimes against humanity, war crimes and aggression, the offences falling within its ambit – although the total lack of any reference to universal jurisdiction may well have an impact upon the priority of national courts under the principle of complementarity under article 17 of the ICC Statute. The International Law Association Committee on International Human Rights Law and Practice in its study on Universal Jurisdiction affirmed the existence of a permissive customary universal jurisdiction for the crimes of genocide, crimes against humanity and war crimes, as defined in articles 6-8 of the ICC Statute, as well as the crime of torture, as defined in the UN Convention against Torture. It was particularly careful, on the other hand, to note that such universal jurisdiction becomes mandatory for States parties to the Geneva Conventions and the UN Convention against Torture in cases of grave breaches thereof. As to the Institut de droit international, it adopted during its 2005 Krakow session a resolution on Universal criminal jurisdiction with regard to the crime of genocide, crimes against humanity and war crimes, thus clearly indicating its preference on the scope of the principle.
It follows that there exists a distinction between treaty-based universal jurisdiction, which is almost always mandatory, whereas it seems that the customary form of universal jurisdiction is always permissive. The typical example of such permissive customary universal jurisdiction, even when contractually codified, remains the archetypal crimen iure gentium, piracy.
same time as the freedom of the high seas became the primary rule of the law of the sea – the rising power of the flag State at an open sea clearly necessitated a universal deterrent against those who could potentially upset the balance of interests thus achieved. The first domestic statutes captured the spirit of an international crime, later to acquire constitutional status in the US Constitution. The universal jurisdiction rule was already considered of long standing when it made its first appearance in international instruments and was finally codified late in the 20th century in article 19 of the 1958 Geneva Convention on the High Seas, to be repeated almost verbatim in article 105 of the Law of the Sea Convention.
Although there are credible doubts nowadays as to whether the justification for universal jurisdiction in cases of piracy remains valid, piracy continues to be today a serious problem in the waters of western Africa and especially South-East Asia – with the ensuing need to reinforce international commitments and increase regional cooperation Indeed the International Maritime Organization (IMO) adopted in November 2001 a Code of Practice for the Investigation of the Crimes of Piracy and Armed Robbery Against Ships as well as Measures to prevent the registration of phantom ships.
Universal jurisdiction, however, attaches only to the strict definition of piracy contained in article 101 of the LOS Convention: an attack by the crew or passengers of a ship and directed towards another ship in the high seas for private ends. Consequently, acts of violence involving only one ship, such as the seizure of the Italian liner Achille Lauro in 1985 or the uprising aboard the Portuguese ship Santa Maria in 1961 do not amount to piracy iure gentium. The general category of offences against the safety of shipping, including the seizure of ships and acts of violence against persons on board or damage to the ship, its cargo or equipment in a manner endangering safe navigation are dealt with in the IMO 1988 Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation (the SUA Convention), which does not provide for universal jurisdiction.
Interestingly enough and contrary to popular belief, neither slavery and slave related practices nor drug trafficking are covered by universal jurisdiction under the Law of the Sea Convention – or indeed under other instruments: neither the 1926 International Slavery Convention nor the Supplementary Convention on the Abolition of Slavery, the Slave Trade and institutions and practices similar to slavery contain similar provisions. Article 110 of the LOS Convention, repeating article 22 of the 1958 High Seas Convention, provides for a right of visit and search when a ship is reasonably suspected of being engaged in the slave trade. Once a slave is found taking refuge aboard ship (presumably after he has shed his chains), he becomes ipso facto free; as to the perpetrators of the crime, they have to be reported to the flag State, which has nonetheless the obligation to “take effective measures to prevent and punish the transport of slaves in ships flying its flag and to prevent the unlawful use of its flag for that purpose”.
It has to be noted, however, that the ius cogens nature of the offence separately and as part of crimes against humanity is well documented in a number of international instruments since the 1841 London Treaty for the Suppression of the African Slave Trade and the 1890 Brussels General Act for the Suppression of the Slave Trade and Importation into Africa of firearms, ammunition and spirituous liquors, which could be seen as containing a modicum of universal jurisdiction; presumably in response to the Declaration of the Congress of Vienna in 1815, which equated slave trafficking (rather than slavery tout court) to piracy. The illicit trafficking of drugs is subject only to an obligation for the States to cooperate with a view to suppress it. The Law of the Sea Convention does not create any jurisdictional powers other than suggesting to the flag State to seek the cooperation of other States, when it has “reasonable grounds for believing that a ship flying its flag is engaged in illicit traffic in narcotic drugs or psychotropic substances”. The suggestion was indeed implemented and institutionalised in the 1988 Vienna Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances, which creates a framework for such cooperation; and it has also given rise to a number of ‘rider agreements’ and their more trendy offshoots in the terrorism context.
