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PETRA BAUMRUK
CYIL 4 ȍ2013Ȏ
recognized standards of due process, they not only protect their own interests and
values, but also the
interests common to the international community
.
Universal jurisdiction is said to derogate from the ordinary rules of criminal
jurisdiction requiring a territorial or personal link with the crime, the perpetrator
or the victim, but the rationale behind it is broader. It is based on the notion that
certain crimes are so harmful to international interests that states are entitled – and
even obliged – to bring proceedings against the perpetrator, regardless of the location
of the crime and the nationality of the perpetrator or the victim. In other words,
it is a jurisdiction that depends solely on the
nature of the offence
.
10
As a result,
states exercising universal jurisdiction act as a surrogate for the whole international
community, carrying out an
“actio popularis”,
11
against persons who are
“hostis humani
generis”
(that the perpetrators are considered enemies of all mankind).
12
The types of crimes falling under universal jurisdiction are acts so heinous that
all states have an interest and the
authority
to arrest and prosecute the perpetrator.
13
Additionally, international tribunals and courts currently have jurisdiction over only
a limited number of cases, according to their statutes. Therefore, universal jurisdiction
has become a necessary and important element in preventing, or at least reducing,
impunity for core international crimes.
2.2 Crimes Subject to Universal Jurisdiction
An important factor in the fight against impunity is finding an
internationally
accepted definition
of the content of crimes subject to universal jurisdiction.
Nevertheless, with respect to certain crimes a holistic and objective definition might
be impossible to find (such as for acts of terrorism), thus leading to the gradual
acknowledgment and usage of universal jurisdiction. Defining heinous crimes under
international law is important because an act cannot constitute a crime fit for any
jurisdiction, let alone universal jurisdiction, unless an appropriate definition has been
accepted.
14
For that reason a brief survey of some of the main features and content of
core international crimes will follow.
In recent decades the category of serious crimes subject to universal jurisdiction
has expanded considerably, and one might divide them into three evolutionary stages:
(a) universal jurisdiction over piracy and slavery (beginning in the sixteenth century);
(b) war crimes and crimes against humanity (following the Second World War);
and (c) genocide, terrorist acts (such as hijacking), torture and other human rights
violations (in the postwar decades). In addition, according to the author, the list of
crimes is expanding due to possibly new emerging international threats, and thus
10
Dixon, Martin:
op. cit.,
p. 147.
11
An
action popularis
is the exercise of universal jurisdiction, where a state
acts on behalf of the
international community
because it has an interest in the preservation of world order as a member of
that community. See Bassiouni, M. Cherif: Universal Jurisdiction for International Crimes
, op. cit
., 88.
12
Bassiouni, M. Cherif: Universal Jurisdiction for International Crimes
, op. cit
., p. 96.
13
Mazzochi, Sarah:
op. cit
., p. 98; Jordan, Jon B.:
op. cit
., p. 5.
14
Maazochi, Sarah:
op. cit
., p. 101.