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UNIVERSAL JURISDICTION: A TOOL AGAINST IMPUNITY
distinct from universal jurisdiction. The establishment of jurisdiction, universal or
otherwise, is logically a prior step: a state must first vest its courts with competence
to try given criminal conduct. It is only once such competence has been established
that the question of whether to prosecute or extradite arises.
60
In sum, a state party
to one of the treaties in question is not only bound to empower its criminal justice
system to exercise universal jurisdiction but is further bound actually to exercise that
jurisdiction by means of either considering prosecution or extradition. In addition,
according to Bassiouni, international crimes that rise to the level of
jus cogens
constitute legal obligations. This, in his opinion, stipulates that the legal obligations,
which stem from grave breaches, include, among others, the duty to prosecute or
extradite. Thus a state that simply does not wish to prosecute or extradite suspected
offenders, can and often does ignore its non-derogable,
jus cogens
duty of
aut dedere
aut judicare
, resulting in granting the accused individuals impunity for their crimes.
2.3.2 Jus Cogens and obligation Erga Omnes
Universal jurisdiction is often described as being in close relation with the
doctrines of
jus cogens
and obligation
erga omnes.
All three doctrines, universal
jurisdiction,
jus cogens
and obligations
erga omnes,
involve compelling principles of
law creating rights or obligations for every state. More importantly,
erga omnes
and
jus cogens
, may give support to the view that nonparties to some of the hijacking,
terrorism, apartheid or torture conventions have the jurisdictional right to prosecute
for those offences.
Obligations
erga omnes
are literally obligations “flowing to all”. As indicated by
dictum in the
Barcelona Traction
case:
An essential distinction should be drawn between the obligations of a State
towards the international community as a whole, and those arising vis-á-vis
another State… By their very nature the former are the concern of all states.
In view of the importance of the rights involved, all States can be held to
have a legal interest in their protection; they are obligations
erga omnes
.
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The
jus cogens
concept refers to peremptory principles or norms from which
no derogation is allowed. Traditionally, international law has distinguished the
erga
omnes
obligation and
jus cogens
doctrines (which address state responsibility), from
the universality principle (which addresses violations of individual responsibility).
However, these doctrines may support the right of all states to exercise universal
jurisdiction over offenders.
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It has even been argued with respect to some or all of
the above mentioned crimes that universal jurisdiction is mandatory as customary
law, often adducing arguments of
jus cogens
and obligations
erga omnes
in support.
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60
A.U.-E.U. Expert Report:
op. cit
., para. 11.
61
Barcelona Traction, Light & Power Co. (Belgium v. Spain
), International Court of Justice, judgment of
Feb. 5 1970, page 32, para. 33.
62
Randall, Kenneth C.:
op. cit.,
p. 830.
63
Bassiouni, M. Cherif: Accountability for International Crimes and Serious Violations of Fundamental