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II. The definition of universal jurisdiction
Universal jurisdiction is a concept contained in customary international law,
which is the fact that makes its concrete definition, including limitations of its exercise
etc., less clear and precise. According to the prevailing view, universal jurisdiction
may be generally described as a jurisdiction over specific crimes regardless of the
place of commission of the crime, the nationality of the alleged perpetrator and the
nationality of the victim, and regardless of any other connecting link between the
crime and the prosecuting state (i.e., in addition to the lack of territorial, as well
as active and passive personal jurisdiction, the crime poses no direct threat to the
vital interests of the state asserting universal jurisdiction).
5
The theoretical concept
of universal jurisdiction is based on a fiction that the crimes subject to universal
jurisdiction are directed against the most fundamental interests of the international
community as a whole, and that the states exercising this jurisdiction act as agents or
trustees on behalf of the international community.
6
From the practical point of view,
universal jurisdiction could be justified by the fact that the state of the commission of
these crimes or the state of the nationality of the alleged perpetrators is often unable
or unwilling to prosecute the offenders, since the government that has the duty to
prosecute is, as a general rule, itself responsible for the crime or has made a political
decision to shelter the perpetrators.
7
The question of which crimes are subject to universal jurisdiction under
international law is not yet settled definitely (which is well illustrated by the
opinions of states summarized in the 2010 UN Secretary-General’s Report “The
Scope and Application of the Principle of Universal Jurisdiction”, prepared for
the purpose of discussion on this item in the 6th Committee of the UN General
Assembly).
8
However, it seems to be generally acknowledged in the doctrine that
universal jurisdiction covers all crimes under international law, as they are defined in
5
See Robert Cryer, Hakan Friman, Darryl Robinson and Elisabeth Wilmshurst,
An Introduction to
International Criminal Law and Procedure
, Cambridge University Press, 2nd edition, 2010, pp. 51-52;
The AU-EU Expert Report on the Principle of Universal Jurisdiction, contained in document 8672/1/09
REV 1 (Brussels, 16 April 2009), p. 7, para. 8; The Oxford Companion,
op. cit.
sub 4, p. 555.
6
The Oxford Companion,
op. cit.
sub 4, p. 556. See also the fourth preambular paragraph of the Rome
Statute of the International Criminal Court, in which its States Parties came to the conclusion and
solemnly declared that “the most serious crimes of concern to the international community as a whole
must not go unpunished and that their effective prosecution must be ensured by taking measures at the
national level and by enhancing international cooperation”.
7
William Schabas,
Unimaginable Atrocities
, Oxford University Press, 2012, pp. 44-45. See also Luc
Reydams,
op. cit.
sub 3, p. 343 (“Gross violations of human rights (and humanitarian law) typically
are crimes of state: by its agents, in its name, and often against its own citizens. Alleged offenders may
range from a mere bureaucrat or foot soldier to the commander-in-chief.”).
8
See the document “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). For an overview of the debate on this item in the 6th Committee of the UN General
Assembly, see Petr Válek, The Activities of the Sixth Committee During the 66th Session of the UN
General Assembly: Business As Usual?, Czech Yearbook of Public and Private International Law, 2012,
Vol. 3, pp. 309-312.