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UNIVERSAL JURISDICTION: A TOOL AGAINST IMPUNITY
or for any other purpose of civilian population of or in occupied territory,
murder or ill-treatment of prisoners of war or persons on the seas, killing of
hostages, plunder of public or private property, wanton destruction of cities,
towns or villages, or devastation not justified by military necessity.
27
Leaders, organizers and others who participate in the execution of a scheme
that might evolve into war crimes are responsible and thus can be held accountable
without freeing themselves from the responsibility (see further sub-chapter 2.4 on
immunities).
28
An important and well known case worth mentioning here which relied on
universal jurisdiction for the prosecution of war crimes is the
Eichmann case
. Adolph
Eichmann, a chief of the Gestapo’s Jewish Section, was prosecuted by the district
court of Jerusalem for, among other things, war crimes. The district court concluded
that the universality principle allowed Israel to define and punish Eichmann’s crimes
under Israeli law by claiming that: “the jurisdiction to try crimes under international
law is
universal
”
29
[emphasis added].
2.2.3 Crimes against Humanity
Like war crimes, crimes against humanity constitute
jus cogens
international
crime and thus carry the obligation to prosecute or extradite. It allows states to rely
on universality for prosecution, punishment, and extradition. However, it is not until
recently that the legal prohibition on crimes against humanity has emerged and the
precise contours of the crime clarified.
30
Article 6(c) of the London Charter defined
crimes against humanity as:
…murder, extermination, enslavement, deportation and other inhumane
acts committed against any civilian population, before or during the war,
or prosecutions on political, racial or religious ground in execution of or in
connection with any crime within the jurisdiction of the Tribunal, whether
or not in violation of the law of the country where perpetrated.
Article 5 of the statute of the International Criminal Tribunal for the former
Yugoslavia (ICTY) adds imprisonment, torture and rape to the definition of crimes
against humanity. A similar form of definition is in Article 3 of the International
Criminal Tribunal for Rwanda (ICTR) and Article 7 of the statute of the International
Criminal Court (ICC), which adds enforced disappearance and apartheid to the list
and specifies that the crimes in question must have been committed as a part of
widespread
or
systematic attack
.
31
27
Article 6(b) of the London Charter.
28
Article 6 and 7 of the London Charter.
29
Attorney General of Israel v. Eichmann
. International Law Report Vol. 36, 1962, p. 26.
30
Initially the law of crimes against humanity was created to fill certain gaps in the law of war crimes. See
Cryer, Robert
et al
.:
op. cit
., p. 230.
31
Many of these acts can constitute both war crimes and crimes against humanity. However, what
distinguishes these crimes is the fact that war crimes do need to take place during an armed conflict.