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III. Conditions for the exercise of universal jurisdiction
As described above, according to the prevailing view, the states are entitled,
under customary international law, to exercise universal jurisdiction over certain
crimes under international law. However, it is not entirely settled what the concrete
conditions and practical limits of the exercise of this jurisdiction are. The discussion
concerning these conditions and limits is mostly focused on the problem of the
exercise of universal jurisdiction
in absentia
, subsidiarity of the exercise of universal
jurisdiction, and the requirement to observe the recognized standards of fair trial
while exercising universal jurisdiction.
12
III.1 Universal jurisdiction in absentia?
The first contentious issue is the question whether the prosecuting state may
exercise universal jurisdiction only when the alleged perpetrator is later – after the
commission of the alleged crime and at the time of the initiation of the exercise
of the jurisdiction – present in or becomes a resident or citizen of the prosecuting
state (so called conditional universal jurisdiction, enacted, for example, in the United
Kingdom
13
or Canada
14
), or whether there does not have to exist any such a link with
the prosecuting state (so called “absolute” or “pure” universal jurisdiction, on which,
in principle, the legislation in, for example, New Zealand
15
or Germany
16
is based).
(For example, in Germany this “absolute universal jurisdiction” is combined with
quite wide prosecutorial discretion concerning the exercise of universal jurisdiction:
a prosecutor is entitled to dismiss the case if the offence took place outside German
territory, if the alleged offender is not or is not expected to be resident in Germany,
if the offence is being prosecuted by an international court or by a state (a) on whose
territory the offence was committed, (b) a citizen of which is either suspected of
the offence, or (c) a citizen of which suffered injury as a result of the offence.
17
The prosecutor is also authorized to dismiss the case after the formal proceedings
have begun if continuing would be seriously detrimental to Germany or to another
important public interest of overriding importance.
18
In addition, in the case of
criminal offences pursuant to the Code of Crimes against International Law, i.e.
crimes subject to “absolute universal jurisdiction”, the discretion over these decisions
is entrusted to the supreme prosecutorial office, the Federal Prosecutor General.
19
Mission of the Principality of Liechtenstein to the United Nations, Global Institute for the Prevention
of Aggression, Liechtenstein Institute on Self-Determination at Princeton University, November 2012.
12
The Oxford Companion,
op. cit.
sub 4, pp. 556-557.
13
International Criminal Court Act (2001), section 68(1).
14
War Crimes and Crimes Against Humanity Act (2000), section 8.
15
International Crimes and International Criminal Court Act (2000), sections 8, 9, 10, 11.
16
Code of Crimes Against International Law (2002), section 1; Strafprozessordnung (Code of Criminal
Procedure), section 153f.
17
Strafprozessordnung (Code of Criminal Procedure), section 153f.
18
Strafprozessordnung (Code of Criminal Procedure), section 153c(3).
19
Gerichtsverfassungsgesetz (LawonConstitution of theCourts), section142a, 120(1)(8); Strafprozessordnung
(Code of Criminal Procedure), section 153c(5). The above provisions were applied for example when the