CYIL Vol. 4, 2013

UNIVERSAL JURISDICTION UNDER CUSTOMARY INTERNATIONAL LAW … customary international law, i.e. genocide, crimes against humanity and war crimes in international as well as non-international armed conflicts. 9 Sometimes other crimes, such as the crime of torture or piracy, are included in the group of crimes subject to universal jurisdiction under customary international law; but it seems that universal jurisdiction over the crime of torture should be rather dealt with within the framework of the above three categories of crimes under international law or within the framework of the relevant treaty regime. As for piracy, it seems more appropriate not to include it in the category of crimes subject to universal jurisdiction, as defined above, having regard to the “non-state” character of the crime of piracy, its relatively lower gravity (being comparable rather to ordinary robbery) and the fact that this crime covers, by its definition, only acts committed on the high seas or in other places outside the jurisdiction of any state (the traditional universal jurisdiction over piracy stemmed rather from the combination of the absence of a territorial sovereign and the difficulty of establishing one of the traditional bases for alternative forms of jurisdiction, such as the nationality of the alleged offender). 10 It is not clear whether universal jurisdiction can be exercised over the crime of aggression – it seems that this crime, due to its extreme political sensitivity, deserves special treatment, and, as indicated above, it is not usually included within the scope of universal jurisdiction. 11 9 See The Oxford Companion, op. cit. sub 4, p. 556. According to the Resolution on universal criminal jurisdiction with regard to the crime of genocide, crimes against humanity and war crimes, adopted by the Seventeenth Commission of the Institut de Droit International at its session in Kraków in 2005, “[U]niversal jurisdiction may be exercised over international crimes identified by international law as falling within that jurisdiction in matters such as genocide, crimes against humanity, grave breaches of the 1949 Geneva Conventions for the protection of war victims or other serious violations of international humanitarian law committed in international or non-international armed conflict.” (para. 3(a) of the resolution). The resolution on universal jurisdiction, adopted at the XVIIIth Congress of the International Association of Penal Law in Istanbul in 2009 provides (in its chapter I. para. 2) that “… states should establish universal jurisdiction to investigate, prosecute and punish the most serious crimes of concern to the international community as a whole and particularly those defined in the Statute of the International Criminal Court.” 10 The Oxford Companion, op. cit. sub 4, p. 556; Claus Kreß, Universal Jurisdiction over International Crimes and the Institut de Droit International , Journal of International Criminal Justice , 4 (2006), p. 569. 11 See The Oxford Companion, op. cit. sub 4, p. 556. The Draft Code of Crimes against the Peace and Security of Mankind, adopted by the International Law Commission at its forty-eighth session in 1996, makes the crime of aggression subject to the jurisdiction of (at that time only potentially existing) international criminal court or of the national courts of the alleged perpetrator, i.e. to the system different from the regime covering the remaining three categories of crimes under international law. However, for the opposing view, according to which (a) the hazards of domestic prosecutions of the crime of aggression have been overstated (since also genocide, crimes against humanity and war crimes can require a court to adjudicate the lawfulness of state policies and official actions at the highest level), and therefore (b) states could or should exercise universal jurisdiction also over this crime under certain safeguards (partly similar to those suggested below with regard to the exercise of the “customary universal jurisdiction”, partly based on the International Criminal Court’s regime for exercising its jurisdiction over the crime of aggression), see Michael P. Scharf, Universal Jurisdiction and the Crime of Aggression, Harvard International Law Review , Vol. 53 (2012), Issue 2, pp. 386-389. For further discussion of this issue and examples of national legislation see further, for example: Handbook – Ratification and Implementation of the Kampala Amendments to the Rome Statute, Permanent