CYIL Vol. 4, 2013

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 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 ” 69 [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. international cooperation in criminal matters. 68 3. Filling the Impunity Gap – Appraisal

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.