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UNIVERSAL JURISDICTION: A TOOL AGAINST IMPUNITY
2. Clarifying Universal Jurisdiction
2.1 General meaning
Jurisdiction generally describes a states’ authority to make its laws applicable to
certain actors, events or things. International law recognizes five types of criminal
jurisdiction, namely;
territorial jurisdiction
(based on the location of where the
alleged crime was committed);
4
nationality jurisdiction
(based on the offender being
a national of the state);
5
passive personality jurisdiction
(based on the nationality
of the victim);
6
protective jurisdiction
(when an extraterritorial act threatens the
security of a state);
7
and
universal jurisdiction
, the main subject of this article. The
term “universal jurisdiction” has been defined as follows:
[…] universal criminal jurisdiction is the assertion by one state of its
jurisdiction over crimes allegedly committed in the territory of another state
by nationals of another state against nationals of another state where the
crime alleged poses no direct threat to the vital interests of the state asserting
jurisdiction. In other words, universal jurisdiction amounts to the claim by
a state to prosecute crimes in circumstances where
none of the traditional
links of territoriality, nationality, passive personality or the protective
principle exists at the time of the commission of the alleged offence.
8
[Emphasis added]
This definition stipulates that unlike other bases of jurisdiction in international
law, universal jurisdiction requires no territorial or national nexus to the alleged act
or actor over which a state legitimately may claim legal authority. Instead it is based
entirely on the commission of certain crimes recognized by all states as being heinous
offences. Thus, the principle of universal jurisdiction provides for every nation to
exercise jurisdiction over crimes that states have universally condemned, irrespective
of where the offence took place, or of the nationalities of the offender, or the victims.
9
Therefore, any national court that is
willing and able to prosecute
can exercise
universal jurisdiction and thereby deter acts recognized as heinous under international
law. When states exercise universal jurisdiction, in accordance with internationally
4
See, for example, Dixon, Martin:
Textbook on International Law
. 6
th
ed. Oxford: Oxford University
Press, 2007, pp. 146-147. Shaw, Malcolm N.:
International Law.
6
th
ed. Cambridge: Cambridge
University Press, 2008, pp. 652-658.
5
See, for example, Dixon, Martin:
op. cit
., p. 147. Shaw, Malcolm N.:
op. cit
., pp. 659-664.
6
See. for example, Dixon, Martin:
op. cit
., pp. 152-153. Shaw, Malcolm N.:
op. cit
., pp. 664-666.
7
See, for example, Dixon, Martin:
op. cit
., pp. 149-150. Shaw, Malcolm N.:
op. cit
., pp. 666-668.
8
A.U.-E.U. Expert Report on the Principle of Universal Jurisdiction, issued 16 April 2009, 8672/1/09,
REV1, available at:
http://ec.europa.eu/development/icenter/repository/troika_ua_ue_rapport_competence_universelle_EN.pdf, Annex, para.8. Accessed on 16 June 2013 [hereafter A.U.-E.U. Expert Report].
9
Jordan, Jon B.: Universal Jurisdiction in a Dangerous Word: A Weapon for All Nations against
International Crime.
Michigan State University-DCL Journal of International Law
, Vol. 9 (1), 2000,
p. 3; Colangelo, Anthony J.: The Legal Limits of Universal Jurisdiction.
Virginia Journal of International
Law
, Vol. 47, 2006-2007, pp. 150-151.