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UNIVERSAL JURISDICTION: A TOOL AGAINST IMPUNITY
of victim groups in order to include others, such as cultural and political groups, but
unsuccessfully. In addition, there might be other acts than those listed in Article III
that can be committed with a view to destroying one of the protected groups.
37
A necessary element which distinguishes it from all other international crimes
is that of
intent
to destroy a group. The specificity of genocide is not exhausted
solely with regard to the four groups that may become the target of genocide, but its
importance lays mainly on the basis of the particular
mens rea
of the perpetrator, whose
intention must be to destroy in whole or in part anyone of the enumerated groups.
This element renders genocide a specific intent (
dolus specialis
) and differentiates
it from all other international crimes.
38
As a consequence, genocide is regarded as
having a particular seriousness, which is underlined by the fact that its prohibition
has attained the status of a
jus cogens
norm and an
erga omnes
39
obligation and has
been described as the “ultimate crime” or “crime of crimes”.
40
With respect to jurisdiction, especially universal jurisdiction, Article VI of
the Convention does not speak of universal jurisdiction
per se
. Despite this fact,
such jurisdiction over the crime of genocide can still be found under customary
law. Universal jurisdiction over genocide has been recognized under customary law,
for example in the
Eichmann
judgment.
41
In addition, in the
Tadic case
the ICTY’s
Appeals Chamber stated, in connection with genocide, that “universal jurisdiction
[is] nowadays acknowledged in the case of international crimes.”
42
Similarly, the
ICTR held in the case of
Prosecutor v. Ntuyahaga
that universal jurisdiction exists for
the crime of genocide.
43
2.2.5 Torture and Acts of Terrorism
International crimes over which universal jurisdiction can be exercised exclusively
as a matter of international agreement are, for example, torture and terrorism.
The crime of torture is not subject to a uniform definition within the international
community. The treaty governing torture is the Convention Against Torture and Other
Cruel Inhuman or Degrading Treatment or Punishment (Torture Convention).
44
Under the convention, state parties pledge to “ensure that all acts of torture are offenses
under [their] criminal law”,
45
thus providing that any state may exercise jurisdiction
37
Cassese, Antonio:
op. cit
., pp. 110; 113; 119; Cryer, Robert
et al
.:
op. cit.
, p. 208.
38
Bantekas, Ilias:
International Criminal Law
. 4
th
ed. United Kingdom: Hart Publishing, 2010, p. 207.
Cryer, Robert
et al
.:
op. cit.
, p. 203.
39
See sub-chapter 2.3.1. on obligations
erga omnes
.
40
Cassese, Antonio:
op. cit
., p. 110; CRYER, Robert
et al
.:
op. cit.
, pp. 203-204; Bantekas, Ilias:
op. cit.,
p. 203.
41
Attorney General of Israel v. Eichmann
:
op. cit
.
42
Prosecutor v. Tadic,
Case No. IT-94-1-AR72, decision on the Defense Motion for Introductory Appeal
on Jurisdiction, October 2, 1995, para 62.
43
Prosektor v. Ntuyahaga,
Case No, ICTR-90-40-T, Decision on the Prosecutor’s Motion to Withdraw
the Indictment, Mar 18, 1999.
44
Adopted on 10 December, 1984. As of May 2013, the Torture Convention has 153 state parties.
45
ibid
. at Article 4.