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UNIVERSAL JURISDICTION: A TOOL AGAINST IMPUNITY
it is appropriate to speak of a
fourth evolutionary stage
in the 21
th
century
. This
stage might encompass, for example, grave and destructive environmental crimes,
and disclosure of a state’s highly secretive and sensitive documents.
Crimes can be classified as to whether they are subject to universal jurisdiction
according to
customary law
or solely by
international agreement
. Generally piracy,
slave trading, war crimes, genocide and crimes against humanity are all crimes over
which universal jurisdiction can be exercised under customary law. Terrorism and
torture, are generally crimes over which universal jurisdiction can be exercised only
as a matter of international agreement.
2.2.1 Piracy and Slavery
Piracy is widely considered the oldest offence subject to universal jurisdiction.
Since the seventeenth century pirates were considered an enemy of humankind,
a “
hostis humani generis
”. All states could prosecute piratical acts on the high seas
even when neither the pirates nor their victims where nationals of the prosecuting
state and the offence had no specific connection to the prosecuting state.
15
While universal jurisdiction over piracy originally arose under customary law,
states, in the twentieth century, eventually recognized universal jurisdiction under
positive international law.
16
The 1958 Geneva Convention on the Law of the High Seas
includes two provisions, namely Article 18 and Article 19, on universal jurisdiction over
piracy. In 1982, the United Nations Convention on the Law of the Sea (UNCLOS)
reiterated Article 19 of the 1958 Geneva Convention by incorporating an identical text
into its provisions. Article 150 of the UNCLOS provides:
On the high seas, or in any other place outside the jurisdiction of any State,
every State may seize
a pirate ship or aircraft, or a ship or aircraft taken by
piracy and under the control of pirates, and arrest the persons and seize the
property on board. The courts of the State which carried out the seizure may
decide upon the penalties to be imposed, and may also determine the action
to be taken with regard to the ship, aircraft or property, subject to the rights
of thirds parties acting in good faith. [Emphasis added]
This provision clearly establishes universal jurisdiction. In addition, the provision
stipulates that parties to the UNCLOS have the right, but not the obligation, to
assume jurisdiction over piracy. Nonparties to the convention may assert universal
jurisdiction under customary international law.
17
Piracy and slavery have been connected since 1815, when the Declaration of
the Congress of Vienna equated traffic in slavery to piracy. Slave-related practices
are based on the same type of universal condemnation as act of piracy, but the
many conventions discussing slavery did not speak of universal jurisdiction.
18
For
15
Jordan, Jon B.:
op. cit
., p. 10.
16
Bassiouni, M. Cherif: Universal Jurisdiction for International Crimes,
op. cit
., pp. 110-111.
17
Randall, Kenneth C.:
op. cit
., p. 792.
18
Bassiouni, M. Cherif: Universal Jurisdiction for International Crimes
, op. cit.,
p. 112.