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UNIVERSAL JURISDICTION: A TOOL AGAINST IMPUNITY
Lastly, the principle of
double jeopardy
or
non bis in idem
stipulates that no
one shall be tried or punished more than once for the same offence. No court may
institute proceedings against a person for a crime that has already been the subject of
criminal proceeding in the state, another state or international court, for which the
person has already been convicted or acquitted. This general criminal law principle
is inherent in the concept of universal jurisdiction and is applicable in the context of
international cooperation in criminal matters.
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3. Filling the Impunity Gap – Appraisal
Universal jurisdiction is a functional principle based on the need to remedy.
For example, the Israeli court that convicted Adolph Eichmann of crimes against
humanity withheld the
functional need
for universal jurisdiction. It stated that: “the
abhorrent crimes defined in this Law are crimes not under Israeli law alone. Their
crimes, which offended the whole of mankind and shocked the conscience of nations,
are grave offences against the law of nations itself (“
delicta juris gentium
”). Therefore,
far from international law negating or limiting the jurisdiction of countries with
respect to such crimes, international law is, in the absence of an International Court,
in need of
the judicial and legislative organs of every country to give effect to its
criminal interdictions and to bring criminals to trial.
The jurisdiction to try crimes
under international law is universal
”
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[emphasis added].
As an
action popularis
, universal jurisdiction may be exercised by a state without
any jurisdictional connection or linkage between the place where the crime was
committed, the perpetrator’s or victim’s nationality, and the enforcing state.
70
Thus the basis is solely the nature of the offence in question, and the purpose is
ensuring accountability for the perpetrators and to prevent impunity. Accordingly,
international cooperation is needed in order to bring perpetrators of serious crimes
to justice. When a state exercises universal jurisdiction it does so on behalf of the
whole international community; it thus places the overall interest of the international
community above its own.
Lastly, in order to fully end impunity against heinous offences, the content
of these crimes must be clearly defined and agreed upon by states. Without such
definitions the coordinated fight against heinous crimes would lead nowhere. The
challenge for the international legal system is thus to create a regime that allows
states to exercise universal jurisdiction over heinous offences, without interfering
with the sovereign entitlements of other states. States must apply the same law which
is common to all.
68
Cryer, Robert
et al
.:
op. cit
., pp. 80, 90-91; Cassese, Antonio:
op. cit.,
pp. 315-317.
69
Attorney General of Israel v. Eichmann: op. cit.,
para 12.
70
Bassiouni, M. Cherif: Universal Jurisidiction for International Crimes,
op. cit
., p. 88, 96.