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PETRA BAUMRUK
CYIL 4 ȍ2013Ȏ
Therefore universal jurisdiction derives from the fact that the core crimes of
international criminal law stem from norms of
jus cogens
that give rise to obligations
erga omnes
.
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Some commentators presume that any act violating a peremptory norm
which is
jus cogens
will
ipso facto
be the subject of universal jurisdiction, and moreover,
that the exercise of universal jurisdiction thus becomes
erga omnes.
In this way, the
two doctrines may support universal jurisdiction of all states and thus become a part
in the fight against impunity.
2.4 Limitation on the exercise of universal jurisdiction
There are a few limitations whichmay hamper the exercise of universal jurisdiction
for international crimes. All of these impediments could be debated in great length,
but that is beyond the scope of this article and thus will only be addressed briefly.
Firstly, when a state is willing and able to exercise universal jurisdiction, it must
apply faithfully to international law
(the law common to everybody) against the
universal crime. To be more precise, the state must apply the legal definition of the
crime in question that is accepted by the international community. If the state does
not use international agreed upon definitions (or interpretations), the state claiming
universal jurisdiction, could interfere with the sovereignty of other states. If a state
expands the definition of a certain crime in order to claim jurisdiction for activities
committed by non-nationals abroad it can also interfere with individual rights, often
coupled with the doctrine of legality (
nullum crimen sine lege, nulla poena sine lege
).
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Second, in recent decades the question of
immunities accorded to high-ranking
officials
in the case of international crimes has produced much controversy. Serving
head of state or other high-ranking state officials enjoy personal immunity (
ratione
personae
), which is considered to be absolute, so even when accused of international
crimes he is inviolable and immune from prosecution due to personal immunities.
When he leaves office, the immunity is removed with regard to conduct performed
in their private capacity. In contrast, former high-ranking state officials always enjoy
functional immunity (
ratione materiae
) with respect to official acts, even when they
leave office.
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Nevertheless, some commentators argue that no immunity of any kind
may be raised in response to allegations of heinous crimes.
Some crimes have been “cancelled” by many states that have passed legislation
granting
amnesty
for war crimes or crimes against humanity. The idea behind
amnesties is that in the aftermath of periods of deep rift, such as those following, for
example, armed conflict, it is the best way to “heal” by forgetting past misdeeds.
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Human rights: International Crimes: Jus Cogens and Obligation Erga Omnes.
Law & Contemporary
Problems
, Vol. 59 (4), 1996, p. 63, 65.
64
ibid.
65
Colangelo, Anthony J.:
op. cit
., pp. 901-903, 909.
66
Baumruk, Petra: International Law on Immunities Accorded to High-ranking State Officials. In
Šturma, Pavel
et. al.
(eds.):
Czech Yearbook of Public & Private International Law
. Vol. 3, Prague, 2012,
pp. 177-179; Bantekas, Ilias:
op. cit
., p. 128-131.
67
Cassese, Antonio:
op. cit.,
p. 309-310; Colangelo, Anthony J.:
op. cit
., p. 918-919.