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discretion over cases based on universal jurisdiction) observed by the states exercising
universal jurisdiction, while the concrete form of this legal rule should be a matter of
future gradual “tuning”.
III.3 Human rights standards, privileges and immunities
It is a matter of course that another limitation or condition of the exercise of
universal jurisdiction (as in the case of any other exercise of criminal jurisdiction)
is the need to comply with internationally accepted standards of fair trial. Some
authors even suggest that the human rights standards in the case of the exercise of
(solely) universal jurisdiction should be stricter, namely the same as the human rights
limitations in conducting proceedings before the International Criminal Court (also
because, in such a case, the relevant state does not act in its own interest, but as
a trustee of a fundamental value of the international community – the international
court being an organ which represents the values of the international community
in this regard).
45
According to several voices, part of these human rights standards
should be the application of the
ne bis in idem principle
to the final decisions taken by
a national court on the sole basis of universal jurisdiction.
46
The problem is that the
“crossborder application” of this principle, i.e. the application of this principle on the
international level, is controversial and, according to prevailing view, not recognized
as a customary rule of international law (in addition, this problem is not unique for
the exercise of universal jurisdiction).
47
However, this principle is included in the
international treaties dealing with cooperation in criminal matters,
48
and, according
to some voices, this principle is evolving as a rule of customary international law
with regard to crimes under international law, as a corollary to the exercise of
universal jurisdiction.
49
Also the resolution of the International Association of Penal
Law (which however, as pointed out above, may be in some aspects regarded as
lex
ferenda
) provides (in its Chapter III, para. 3) that “[I]n conformity with the
ne bis
in idem
principle, a state wishing to exercise universal jurisdiction shall respect final
decisions rendered by the domestic court of another State (or international court)
regarding the same acts, unless the underlying proceedings were not conducted
independently, impartially, or in accordance with the norms of due process recognized
by international law.”
45
C. Kreß,
op. cit.
sub 10, pp. 581-2, referring to Articles 55, 67 and 21 para. 3 of the Rome Statute of
the International Criminal Court.
46
C. Kreß,
op. cit.
sub 10, p. 583.
47
An Introduction,
op. cit.
sub 5, p. 81.
48
The 1957 European Convention on Extradition, Art. 9; Convention implementing the Schengen
Agreement of 14 June 1985 between the Governments of the States of the Benelux Economic Union,
the Federal Republic of Germany and the French Republic on the gradual abolition of checks at their
common borders, Art. 54 (“A person whose trial has been finally disposed of in one Contracting Party
may not be prosecuted in another Contracting Party for the same acts provided that, if a penalty has
been imposed, it has been enforced, is actually in the process of being enforced or can no longer be
enforced under the laws of the sentencing Contracting Party.”).
49
An Introduction,
op. cit.
sub 5, p. 81 and 91; The Oxford Companion,
op. cit.
sub 4, p. 304-305.