Universal criminal jurisdiction and state practice in international law

Universal Criminal Jurisdiction

When a state has no legitimate interest in the criminal actions of third-state actors, it would seem reasonable to suggest that it does not have the requisite jurisdictional powers needed to prosecute such offender. Indeed, the swashbuckling images of secret operatives with a 'license to kill' are entertaining but have little basis in reality today. In fact, neither international law nor state practice currently recognises 'true' universal criminal jurisdiction (that is, where there is no connection between the state exercising jurisdiction and the accused, the victim, or the crime) as a valid basis of state criminal jurisdiction with few exceptions such as in the case of piracy on the open seas; however, given the other recognised heads of jurisdiction, some observers suggest that there is really no need for international law to permit any form of universal jurisdiction. This paper provides a review of the relevant peer-reviewed and scholarly literature concerning universal criminal jurisdiction to determine the facts regarding these issues, followed by a summary of the research and salient findings in the conclusion.

Review and Discussion

According to Black's Law Dictionary (1990), the term 'jurisdiction' is 'a power introduced by the public good, on account of the necessity of dispensing justice." The term means 'the power of the court to decide a matter in controversy and presupposes the existence of a duly constituted court with control over the subject matter and the parties.' In his recent essay, 'Universal Jurisdiction and the Pirate: Time for an Old Couple to Part,' Goodwin (2006) advises, 'If a state wishes to prosecute someone, it must have jurisdiction over the person. The state's relation to the actor or activity regulated often provides the basis of this jurisdiction. The most common and uncontroversial form of jurisdiction to prosecute is territorial jurisdiction.' Territorial jurisdiction provides a state with the power needed to prescribe, adjudicate, and enforce its laws concerning those actors, activities, and things that are found within its sovereign territory with some rare exceptions. For instance, the United Kingdom would have territorial jurisdiction over any actors that commit the crime of murder within the borders of the UK. As Goodwin points out, 'Not only would it make no sense for another country to prosecute the murderer for the murder, but it also may lead to international tension.'

Not surprisingly, establishing universal criminal jurisdiction is not truly viable under many existing international agreements. For example, in his book, War Crimes Law Comes of Age: Essays, Meron (1998) notes that the Geneva Convention state stipulates a number of obligations that concern fundamental humanitarian values in various degrees, many of which do not lend themselves to establishing universal criminal jurisdiction because third states will have no interest in such breaches and will generally not have the requisite evidence to prosecute offenders. Likewise, the Fourth Hague Convention of 1907 served to codify the fundamental laws of war on land and provided the basis for post-World War II war crimes prosecutions; however, this aspect of the Convention only applies to international wars. Similarly, the other basic tenet of the penal laws of war, the Geneva conventions' and Protocol I's grave breaches provisions, involves international wars only. In this regard, Reisman and Meron (1994) report that, 'Violations of Common Article 3 of the Geneva conventions, which concerns internal wars, do not constitute grave breaches giving rise to universal criminal jurisdiction.'

There are some other vagaries involved in the international law governing universal criminal jurisdiction that makes its establishment even more problematic. For instance, Meron emphasizes that, 'In situations not clearly regulated by treaties, difficulties could arise between the custodial state and the state of nationality of the offender when the latter, in good faith, asserts its readiness to prosecute and requests the former to desist from prosecution and to deliver the person to it.' Furthermore, the potential for two such states to exercise their respective jurisdictional powers must be subject to the non-bis in idem principle. According to Black's, this term literally means, 'not twice for the same'; in other words, 'A man shall not be twice tried for the same crime. This maxim of the civil law expresses the same principle as the familiar rule that a man shall not be twice 'put in jeopardy' for the same offense.' Based on states' demonstrated historical paucity of interest in adjudicating individual who have committed international offenses in internal conflicts, the potential for two states competing for the exercise of criminal jurisdiction is considered unlikely; however, it should be pointed out that the 'grave breaches' provisions of the Geneva Conventions are not precise in establishing the priority of such competing jurisdictions. Moreover, as Meron advises, 'The Conventions do not require the state ready to prosecute (the custodial state) to extradite the offender to a state party requesting extradition as an alternative to proceeding with the prosecution.'

The provisions of Geneva Additional Protocol I failed to make these points clear in terms of establishing the criminal system of repression of violations of international humanitarian law. In this regard, the Protocol employs terms such as 'grave breaches,' 'breaches,' 'violations' and 'serious violations" of the "Conventions or of this Protocol.' As a result, those individuals who violate the provisions of the Geneva Additional Protocol I and whose offenses are not defined as grave breaches may experience consequences comparable to those resulting from violations other than grave breaches of the Geneva Conventions and may, in any event, be prosecuted as war crimes by third states.

The historical evolution of these agreements provides some insight into the precedential aspects of current approaches and future trends as well. In this regard, Sands (2003) reports that, "In 1948, the United Nations General Assembly promulgated the first of several instruments which the International Court of Justice in the Hague has recently characterized as reflecting an "extension of jurisdiction," namely the 1948 Convention on the Prevention and Punishment of the Crime of Genocide. Article I of the 1948 Convention confirmed that genocide was "a crime under international law" which the parties undertook to prevent and punish.' The fourth 1949 Geneva Convention established protections for noncombatants during periods of war; likewise, a convention promulgated in 1973 declared that apartheid was a crime against humanity and a 1979 convention criminalised the taking of hostages.

Other developments towards establishing a de facto universal criminal jurisdiction took place in 1984 when another convention required signatories to take effective measures to prevent acts of torture in any territory under their respective jurisdictions. According to Sands, 'These instruments did not merely criminalise the acts which they addressed. They committed their parties to take judicial measures to prevent and to punish these crimes. And they did so in broadly similar ways.' For instance, Article VI of the 1948 Genocide Convention states: 'Persons charged with genocide or any of the other acts enumerated in [the Convention] shall be tried by a competent tribunal of the State in the territory of which the act was committed, or by such international penal tribunal as may have jurisdiction with respect to those Contracting Parties which shall have accepted its jurisdiction.'

This provision represents the first true initiative intended to establish a commitment to prevent impunity reflected in the obligation to prosecute before national criminal courts (although it is limited to such acts as occurred in the territory of the state), but without expressly limiting the right to states to exercise a more extensive jurisdiction. The 1949 Geneva Convention on the protection of civilians went a step further. It too commits parties to enact 'any legislation necessary to provide effective penal sanctions for committing, or ordering to be committed... grave breaches of the... Convention'; however, it then goes on to establish a further obligation, a positive obligation on parties to: '... search for persons alleged to have committed, or to have ordered to be committed, such grave breaches, and shall bring such persons, regardless of their nationality, before its own courts. It may also, if it prefers, and in accordance with the provisions of its own legislation, hand such persons over for trial to another [party] concerned, provided such [party] has made out a prima facie case.'

The fundamental difference between the 1948 Genocide Convention and the 1949 Geneva Convention is that the latter contains no geographical constraints; the responsibility to prosecute such criminals is not restricted to acts that take place within the territory of the state that is required to prosecute. Therefore, if an individuals commits a grave violation of the 1949 Convention (e.g., the wilful killing or torture of a civilian -- in the United Kingdom and is then determined to be located in France by the relevant authorities, he or she must be 'searched for' and brought before the French courts or be turned to another concerned party, for example the UK. According to Sands, 'The commitment to root out impunity is extended to what has come to be known as 'universal criminal jurisdiction': the right of states to exercise national jurisdiction over a criminal act irrespective of where it occurred. This is not a new development -- international law had long recognised universal jurisdiction for piracy and slavery, for example -- but it marks an extension of the principle, in a modified form, into a new subject area' (emphasis added).

In fact, Goodwin (2006) points out that, 'For hundreds of years, the world has allowed any nation-state to exercise universal jurisdiction over high seas piracy. This has been recently codified by the United Nations in the Convention on the Law of the Seas (UNCLOS). It has been almost universally assumed that allowing states to do this was legitimate.' In the post-September 11, 2001 climate, this initiative in particular has been singled out by some contemporary analysts as being a step in the right direction in helping to prosecute the international war on terrorism. For example, Shulman (2006) reports that, "The characterization of certain actors as pirates and certain terrorist acts as piracy presents a couple of intriguing possibilities for punishing or preventing future acts of terrorism. If a vessel has no state protection, international law offers no protection other than the dictates of universal human rights.' Paradoxically, though, despite its aggressive military approach elsewhere in its war on terrorism, the United States is not a party to the UNCLOS; moreover, it has consistently urged other countries to refrain from signing off on the measure because the political leadership felt the initiative did not sufficiently protect U.S. interests.

In some other situations, a special type of jurisdiction known as 'flag-state' jurisdiction (i.e., a quasi-territorial form of jurisdiction) has been recognized. In this regard, the flag-state principle of jurisdiction maintains that a ship represents an extension of the territory of its flag state; in other words, 'the ship is to be treated as a floating island belonging to the flag state.' Notwithstanding the fact that this 'special' type of jurisdiction has no basis in the law, this author suggests that it can prove helpful in some situations where a state perceives its interests to be paramount and the threat represented by the potential criminals sufficient to warrant its exercise. As Goodwin emphasizes, 'This is a legal fiction, but it has good uses. Problems can arise though as to who has jurisdiction over the ship when it is in the territorial waters of a state other than its flag state. (82) Almost all governments recognize this as a legitimate form of jurisdiction as evidenced by its inclusion in the United Nations Convention on the Law of the Sea (UNCLOS).'

Based on customary international law, states are allowed to establish jurisdiction based on factors other than those involving territoriality. For example, according to Goodwin, 'The "nationality" principle allows a state to exercise jurisdiction over its citizens for their conduct abroad. One of the reasons for this is that nationality is an essential link to statehood. Another is that if a person willingly chooses to remain a national of a state while traveling abroad and reaps the benefits of that citizenship, he should also remain subject to the jurisdiction of the state of which he is a citizen.' This type of jurisdiction, though, has been most commonly found in the practice of "private law" with regard to wills, divorces and so forth; however, jurisdiction that is founded on principles of nationality represents a traditional exception to the exclusivity of territorial jurisdiction. This is not surprising since 'tension is possible if the state with territorial jurisdiction and the state with nationality jurisdiction are not the same and both are seeking to assert jurisdiction over an individual; however, there has been little tension in practice.'

Although the principle of nationality provides people's state of citizenship with the fundamental right to exercise jurisdiction over them, Goodwin suggests that the passive personality principle likewise assigns a state the requisite authority to exercise jurisdiction in the event of its citizens is the victim of crime in a foreign state. According to this author, 'In general, scholars and governments have not viewed this form of jurisdiction as favorably as they have the nationality form of jurisdiction despite the link of citizenship. France used this principle when it sought to punish Pinochet for the forced disappearance of French nationals living in Chile.'

Yet another type of jurisdiction that can be extended universally is the so-called 'effects' principle. In this regard, Goodwin advises, 'A state can exercise jurisdiction over a foreign national who takes action in a foreign state if that action affects the state seeking to assert jurisdiction. This is most commonly seen and least controversial in the criminal practice where a shot from one country is aimed at and lands in another country, which will then seek jurisdiction over the shooter.' Therefore, while the criminal action occurred in a foreign state by foreign nationals, the state that experienced the harmful effects of the act is allowed to exercise jurisdiction based on the effects principle. In addition, there is an extension of the effects principle into a specialized category known as the 'protective principle' which allows a state to exercise jurisdiction over foreign nationals who commit acts in a foreign territory (or outside the territory of any state) when those acts will affect a state's interests. According to Goodwin, "This has been the most controversial of the traditional bases of jurisdiction.'

The foregoing types of jurisdiction all share some mutual concepts of a state desiring to establish jurisdiction between itself the criminal actor. The other recognized basis of establishing jurisdiction is the so-called 'universality" principle,' or simply 'universal jurisdiction.' In this regard, Goodwin reports that, 'Universal jurisdiction allows for the exercise of jurisdiction over certain actors or activities wherever they occur without regard to nationality or territoriality. Traditionally, the concept of universal jurisdiction has been limited to piracy.' In fact, any state has the fundamental right to seize any pirate ship and subject those on board to its legal regime when such actions take place on the high seas or even any place outside of the territory of any state; therefore, if a citizen of the United Kingdom aboard a ship bearing a flag of the United Kingdom piratically attacks another ship bearing the UK flag and carrying citizens and goods of the UK in the middle of the Pacific Ocean, any state is allowed to capture the pirate ship and subject the pirate to the capturing state's laws. It can do this despite the fact that only the United Kingdom has any relation to the actors, activities, and items involved which is an example of universal jurisdiction when it applied to piracy.

Unfortunately, piracy remains on the increase in some regions of the world such as off of the coast of Somalia, and existing measures appear to be insufficient to address this growing problem without some additional means of prosecuting and incarcerating the criminals involved. To this end, some observers have recommended the creation of an international criminal court, a legacy in large part of the trials at Nuremburg. In this regard, Teitel (2000) reports that, 'In the fifty years since Nuremberg, while there is often talk about the desirability of such a tribunal, heightened during wartime, it has rarely culminated in trials, although, as we come to the century's end, momentum has been building for the establishment of a permanent international criminal court.' Two of the major constraints to the establishment of an international criminal court are the principles of state sovereignty and criminal jurisdiction. In this regard, Aksar (2004) reports that, "This is because the concept of sovereignty and criminal jurisdiction are interrelated, and States do not want to surrender their exclusive jurisdiction in criminal matters to any other State or international institutions (international tribunal or court) being regarded as a major, inevitable element of State sovereignty.' Nevertheless, the increasing internationalisation of events in recent years has created a new environment in which the sovereignty of States can profoundly affect the rights of other states. For instance, in her essay, 'Tort Au Canadien: A Proposal for Canadian Tort Legislation on Gross Violations of International Human Rights and Humanitarian Law,' Davidson (2005) recommends establishing some universal criminal jurisdiction in the form of provincial tort legislation as 'one of a panoply of mechanisms in place to punish and deter violations of international humanitarian and human rights law.'

In his text, Akehurst's Modern Introduction to International Law, Malanczuk (1997) suggests that one viable approach to providing an avenue by which the international community can establish universal criminal jurisdiction when the situation calls for it is the creation of a permanent international criminal court. According to this author, a permanent international criminal court 'would overcome the problems arising from the time and efforts required to create ad hoc tribunals on a case-by-case basis, as for Yugoslavia and Rwanda. It would also dispense with the inevitable selective application of justice under the ad hoc method by only addressing certain conflicts and not others.'

Moreover, the creation of a permanent international criminal court on a treaty basis would clearly and firmly establish the proper legal basis of the court under international law, as distinct from the constitution of ad hoc tribunals by Security Council resolutions; however, Malanczuk also emphasizes that the downside to such an approach is the fact that the court will only be able to operate with respect to states which decide to join the convention. In this regard, Malanczuk concludes, 'To what extent a universal consensus on its statute can be achieved, in view of the conservative force of the doctrine of state sovereignty, has to be awaited.'

In the meantime, Shulman suggests that UNCLOS should be supported by additional states - especially the United States - because it provides another viable framework in which universal criminal jurisdiction can be established in the post-9/11 climate. The signatories to the UN's Proliferation Security Initiative (PSI) are committed to the following interdiction principles designed to create a more coordinated and effective approach to impede and stop international transport of weapons of mass destruction (WMD), their delivery systems, and related materials flowing to and from states and non-state actors of proliferation concern in ways that are congruent with national legal authorities and relevant international law and frameworks, including the UN Security Council. The membership of the PSI call on all states concerned with this threat to international peace and security to join in likewise committing to the following initiatives:

1. Undertake effective measures, either alone or in concert with other states, for interdicting the transfer or transport of WMD, their delivery systems, and related materials to and from states and non-state actors of proliferation concern. "States or non-state actors of proliferation concern" generally refers to those countries or entities that the PSI participants involved establish should be subject to interdiction activities because they are engaged in proliferation through:

a) Efforts to develop or acquire chemical, biological, or nuclear weapons and associated delivery systems or b) Transfers (either selling, receiving, or facilitating) of WMD, their delivery systems, or related materials.