CYIL Vol. 4, 2013

UNIVERSAL JURISDICTION: A TOOL AGAINST IMPUNITY

2. Clarifying Universal Jurisdiction 2.1 General meaning

Jurisdiction generally describes a states’ authority to make its laws applicable to certain actors, events or things. International law recognizes five types of criminal jurisdiction, namely; territorial jurisdiction (based on the location of where the alleged crime was committed); 4 nationality jurisdiction (based on the offender being a national of the state); 5 passive personality jurisdiction (based on the nationality of the victim); 6 protective jurisdiction (when an extraterritorial act threatens the security of a state); 7 and universal jurisdiction , the main subject of this article. The term “universal jurisdiction” has been defined as follows: […] universal criminal jurisdiction is the assertion by one state of its jurisdiction over crimes allegedly committed in the territory of another state by nationals of another state against nationals of another state where the crime alleged poses no direct threat to the vital interests of the state asserting jurisdiction. In other words, universal jurisdiction amounts to the claim by a state to prosecute crimes in circumstances where none of the traditional links of territoriality, nationality, passive personality or the protective principle exists at the time of the commission of the alleged offence. 8 [Emphasis added] This definition stipulates that unlike other bases of jurisdiction in international law, universal jurisdiction requires no territorial or national nexus to the alleged act or actor over which a state legitimately may claim legal authority. Instead it is based entirely on the commission of certain crimes recognized by all states as being heinous offences. Thus, the principle of universal jurisdiction provides for every nation to exercise jurisdiction over crimes that states have universally condemned, irrespective of where the offence took place, or of the nationalities of the offender, or the victims. 9 Therefore, any national court that is willing and able to prosecute can exercise universal jurisdiction and thereby deter acts recognized as heinous under international law. When states exercise universal jurisdiction, in accordance with internationally 4 See, for example, Dixon, Martin: Textbook on International Law . 6 th ed. Oxford: Oxford University Press, 2007, pp. 146-147. Shaw, Malcolm N.: International Law. 6 th ed. Cambridge: Cambridge University Press, 2008, pp. 652-658. 5 See, for example, Dixon, Martin: op. cit ., p. 147. Shaw, Malcolm N.: op. cit ., pp. 659-664. 6 See. for example, Dixon, Martin: op. cit ., pp. 152-153. Shaw, Malcolm N.: op. cit ., pp. 664-666. 7 See, for example, Dixon, Martin: op. cit ., pp. 149-150. Shaw, Malcolm N.: op. cit ., pp. 666-668. 8 A.U.-E.U. Expert Report on the Principle of Universal Jurisdiction, issued 16 April 2009, 8672/1/09, REV1, available at: http://ec.europa.eu/development/icenter/repository/troika_ua_ue_rapport_competence _universelle_EN.pdf, Annex, para.8. Accessed on 16 June 2013 [hereafter A.U.-E.U. Expert Report]. 9 Jordan, Jon B.: Universal Jurisdiction in a Dangerous Word: A Weapon for All Nations against International Crime. Michigan State University-DCL Journal of International Law , Vol. 9 (1), 2000, p. 3; Colangelo, Anthony J.: The Legal Limits of Universal Jurisdiction. Virginia Journal of International Law , Vol. 47, 2006-2007, pp. 150-151.