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UNIVERSAL JURISDICTION: A TOOL AGAINST IMPUNITY
for example, includes a prohibition on “methods or means of warfare which are
intended or may be expected to cause widespread, long-term, and severe damage
to the natural environment” [emphasis added]. Nonetheless, the geographic spread
of some harm caused to the environment might encourage impunity, as it may be
quite unclear and difficult to identify who should be responsible for prosecutions.
Most recently there has been speculation on whether disclosure and revelation
of highly classified state documents that endanger the security of nations might
constitute core international crimes. Examples of this could be the matters regarding
WikiLeaks 51 and Edward Snowden,52 which have received worldwide attention.
Could these acts of illegal disclosure of highly confidential information, that might
endanger and undermine national security and perhaps jeopardize lives of people
around the world, be categorized as amounting to an act of terrorism? Or should it
constitute a new, completely separate category of international crimes, like the crime
of “intensive hacking attacks” that endanger national security or “ espionage and
treason”?53 This is a very sensitive matter and finding a common solution on how the
international community should respond to these instances might be rather difficult
due to its highly political nature.
The international community must act fast in a cooperative manner in order to
address these newly emerging acts in a coherent and unambiguous way, because they
might threaten the lives of many around the world and could even have disastrous
consequences. A set of definitions of acts falling under the crime in question and
guiding rules need to be clarified (for example, what would classify as an “intensive
hacking attack”?), as well as identifying the perpetrator (for example, with respect
to serious transboundary environmental cases where this might prove extremely
difficult). These factors need to be clarified in order to enable prosecution on the
basis of universal jurisdiction for the purpose of ending or at least reducing impunity.
2.3 Does Universal Jurisdiction imply a duty to punish the crimes concerned?
Traditionally the principle of universal jurisdiction requires no action by states;
it only allows them the option of prosecuting certain crimes. Nevertheless, one
might assert that with respect to heinous offences and grave breaches of multilateral
treaties (as described in chapter 2.2) the exercise of universal jurisdiction is permitted
and indeed also obligatory. 54 It has been noted, that when multilateral treaties
51 WikiLeaks became internationally well known in 2010 when it began to publish U.S. military and
diplomatic documents. See, for example, in theNewYorkTimes:
world/08leak.html?_r=0, accessed 23 June 2013.
52 See, for example, in the Guardian: -
nsa-whistleblower-surveillance, accessed 23 June 2013.
53 See, for example, Reuters: -
idUSBRE95N0LR20130624, accessed 24 June 2013.
54 Akehurst, Michael: Jurisdiction in International Law. British Year Book of International Law, Vol. 46,
1972-1973, p. 160.