ADVISORY SERVICE ON INTERNATIONAL HUMANITARIAN LAW ______

Universal over war

Based on the notion that certain crimes are so grave that they affect the international community as a whole, the principle of universal jurisdiction, which entitles a State to prosecute offenders even in the absence of any link between the committed and the prosecuting state, is one means of facilitating and securing the repression of such crimes. The rationale of universal jurisdiction is to avoid impunity and to prevent those who committed serious crimes from finding a safe haven in third countries. Indeed, universal jurisdiction enables all states to fulfill their duty to prosecute and punish the perpetrators of war crimes. In order to make this principle effective, States are required to establish universal jurisdiction for war crimes in their national legislation.

State jurisdiction committed and the nationality of the Universal jurisdiction over war perpetrator or the victim. It is held to crimes Jurisdiction includes the power to make apply to a range of offences the law (legislative jurisdiction), to interpret repression of which by all States is The basis for the assertion of universal or apply law (adjudicative jurisdiction) justified, or required, as a matter of jurisdiction over war crimes is found in and to take action to enforce law international public policy due to the both treaty law and in customary (enforcement jurisdiction). While the gravity of the crimes, and the . assertion of enforcement jurisdiction is importance of their repression in the generally limited to national territory, eyes of the international community. Treaty law international law recognizes that in certain circumstances a State may A distinction can be made between the The treaty basis for the assertion of legislate for, or adjudicate on, events offences that States are obliged to universal jurisdiction was first introduced occurring outside its territory investigate in application of universal by the four of (extraterritorial jurisdiction). jurisdiction (mandatory universal 1949 for the protection of war victims in jurisdiction) and those with respect to relation to those violations of the generally recognises a which they may choose to do so Conventions defined as grave breaches. number of principles allowing for the (permissive universal jurisdiction). exercise of such extraterritorial Universal jurisdiction may be provided Under the relevant article of each jurisdiction. These include acts: for by a rule of customary or treaty- Convention (Arts 49, 50, 129 and 146, · committed by persons having the based international law. In cases where respectively), States are required to nationality of the State (nationality it is established by treaty, it is generally search for alleged offenders “regardless or active personality principle); mandatory. of their nationality,” and either bring · committed against nationals of the them before their own courts or hand State (passive personality The exercise of universal jurisdiction them over for trial by another State principle;) or may either take the form of the Party which has made out a prima facie · affecting the security of the State enactment of national law (legislative case. While the Conventions do not (the protective principle). universal jurisdiction) or the expressly state that jurisdiction is to be investigation and trial of alleged asserted regardless of the place of the While these principles require some offenders (adjudicative universal offence, they have generally been form of link between the act committed jurisdiction). The former is far more interpreted as providing for mandatory and the State asserting jurisdiction, common in State practice and is universal jurisdiction. Reflected through universal jurisdiction, a further basis for generally a necessary basis for the formula aut dedere aut judicare, asserting extraterritorial jurisdiction, investigation and trial. It is however States have no choice but to prosecute requires no such link. feasible, at least in principle, for a court or to extradite those who have allegedly to base its jurisdiction directly on committed grave breaches. This Universal jurisdiction international law and to exercise obligation imposes an active duty on the adjudicative universal jurisdiction States, since they have to ensure that Universal jurisdiction refers to the without any reference to national the person who has committed grave assertion of jurisdiction over offences legislation. breaches be arrested and prosecuted. regardless of the place where they were For this purpose, and given that to another State may not be Legislative methods should be subject to universal an option, States must in any event jurisdiction. have in place criminal legislation States have adopted a range of · It is important to make clear that enabling them to try alleged offenders, methods to provide for universal jurisdiction extends to all persons regardless of their nationality or the jurisdiction under their national law. directly or indirectly responsible for place of the offence. committing the offences Constitutional provisions are of central concerned,3 whatever their Additional Protocol I of 1977 to the importance in determining the status of nationality and regardless of Geneva Conventions of 1949 extends international customary or treaty law in whether the offence was committed the principle of universal jurisdiction to the domestic legal system. It is within the State's territory or abroad. grave breaches relating to the conduct conceivable that courts might rely · The conditions for opening criminal of hostilities. It also qualifies all grave directly on such provisions or on proceedings, or for justifying a breaches as war crimes (Art. 85). international law to exercise universal refusal to do so, must be set forth in jurisdiction where permitted or required. a clear and precise manner. Other instruments relevant to However, because the relevant However, such conditioning factors international humanitarian law, such as provisions of international law are not should be aimed at increasing the Convention of 1954 for the self-executing, it is preferable to specify effectiveness and predictability of protection of cultural property in the in national law the jurisdiction applicable universal jurisdiction and should not event of armed conflict, and its Second to war crimes.2 States should therefore unnecessarily restrict the possibility Protocol, provide for a similar ensure that there exists a specific of prosecuting suspected offenders. obligation, requiring States Parties to ground for exercising the jurisdiction, a · Given that the jurisdiction of States repress serious violations of these clear definition of the crime and its may be concurrent, the exercise of instruments on the basis of the principle constitutive elements, and proper jurisdiction by any one State may of universal jurisdiction. The Convention sanctions. be subject to certain conditions, against of 1984 has been such as respecting the principle of interpreted as creating an obligation on A number of States with a (code-based) ne bis in idem (no legal action can States to exercise universal jurisdiction civil-law system provide for universal be instituted twice for the same where necessary to repress the jurisdiction within their ordinary and/or cause of action) and taking into commission of that crime. The 2006 military penal code. This code may account penalties already imposed International Convention for the define the jurisdictional and material abroad, previous exercise of Protection of All Persons from Enforced scope of the offence in the same jurisdiction by another State or by Disappearance requires States to take section. More frequently however, the an international tribunal, and the measures in order to exercise universal provisions on universal jurisdiction are defendant’s presence – even jurisdiction over the offence of enforced included in the general section of the temporary – in the territory of the disappearance, when the alleged code and refer to substantive offences prosecuting State. offender is present in their territory and defined elsewhere in the same they do not extradite him. instrument. Universal jurisdiction may Other issues also be laid down in criminal procedural Customary international law law or in a law on the organization of the The prosecution and trial of offences courts. Some States have granted their occurring abroad causes particular While the relevant treaty law provisions courts universal jurisdiction with regard problems in relation to the gathering of are restricted to grave breaches, to certain offences by means of a evidence, respect for the defendant's universal jurisdiction in customary special stand-alone law. , and identification and protection international law may be regarded as of witnesses and victims. Indeed, the extending to all violations of the laws In countries without code-based access of victims to justice must be and customs of war which constitute systems – generally those with a ensured to the greatest extent possible. war crimes. This would include certain common-law system – it is the usual serious violations of applicable law, in practice to provide for universal Appropriate procedures for prosecutions particular Article 3 common to the jurisdiction in primary legislation defining and trials under universal jurisdiction Geneva Conventions and Additional both the jurisdictional and material must address these issues by means of Protocol II of 1977, committed in non- scope of the offence. suitable provisions to facilitate international armed conflict. investigations as well as the gathering, evaluation and preservation of In contrast with treaty law, there do not Legislative issues evidence. In this respect, arrangements appear to be any grounds for concluding for international judicial cooperation and that customary international law Whatever the method adopted, a assistance are essential and may in requires States to exercise jurisdiction. number of issues need to be addressed some cases require reinforcing.4 It is Indeed, Rule 157 of the ICRC in providing for universal jurisdiction in also essential that judges and lawyers Customary International Humanitarian 1 national law: are properly trained for pleading and Law Study enounces that states have adjudicating trials of this nature. the right to vest universal jurisdiction in · In order to prevent impunity, all war their national courts over war crimes. crimes, whether committed in connection with international or 3 non-international armed conflict, For more information on the individual criminal responsibility, please refer to the Advisory Service Fact sheet entitled 2 For more information on methods of “ and failure to act”. 4 incorporating universal jurisdiction into For more information on international national legislation please refer to the judicial cooperation, please refer to the Advisory Service Fact sheet entitled Advisory Service Fact sheet entitled 1 See http://www.icrc.org/customary- “Methods of incorporating punishment into “Cooperation with extradition and judicial ihl/eng/docs/home. criminal law”. assistance in criminal matters” 03/2014