Universal Jurisdiction

The term “universal jurisdiction” refers to the idea that a national court may prosecute individuals for any serious crime against international law — such as crimes against humanity, war crimes, genocide, and torture — based on the principle that such crimes harm the international community or international order itself, which individual States may act to protect.  Generally, universal jurisdiction is invoked when other, traditional bases of criminal jurisdiction do not exist, for example: the defendant is not a national of the State, the defendant did not commit a crime in that State’s territory or against its nationals, or the State’s own national interests are not adversely affected.

The definition and exercise of universal jurisdiction varies around the world.  A national or international court’s authority to prosecute individuals for international crimes committed in other territories will depend on the relevant sources of law and jurisdiction, such as national legislation or an international agreement, which may, for example, require that only individuals within the country’s national territory may be subject to prosecution.

Domestic Laws Incorporating Universal Jurisdiction

A range of States’ national laws provide for some form of universal jurisdiction.  Such domestic legislation empowers national courts to investigate and prosecute persons suspected of crimes potentially amounting to violations of international law regardless of where the crime was committed, the nationality of the suspect, or the nationality of the victim.

Amnesty International reports that, in total, 163 of the 193 UN Member States “can exercise universal jurisdiction over one or more crimes under international law, either as such crimes or as ordinary crimes under national law.” See Amnesty International, Universal Jurisdiction: A Preliminary Survey of Legislation Around the World – 2012 Update (2012), p. 2.  The annex to Amnesty International’s report indexes State definitions of crimes under international law and the circumstances in which States allow the domestic exercise of universal jurisdiction. See id., Annex.   As of September 1, 2012, a total of 147 States have provided universal jurisdiction over one or more crimes under international law.  See id. p. 12.  No fewer than 166 States have defined at least one of the four crimes upon which universal jurisdiction can be exercised – war crimes, crimes against humanity, genocide, and torture – as crimes in their national law.  See id.  Many of these definitions, however, do not always align with the strictest requirements of international law, which may create a gap of impunity. See id.  Furthermore, 91 States have provided for universal jurisdiction over ordinary crimes under national law, which may or may not also constitute violations of international law.  See id.

For example, New Zealand’s International Crimes and International Criminal Court Act of 2000 defines war crimes, crimes against humanity and genocide in accordance with the Geneva Conventions and the Rome Statute, and its Section 8(1)(c) provides that individuals may be prosecuted in New Zealand for these crimes regardless of “(i) the nationality or citizenship of the person accused; (ii) whether or not any act forming part of the offence occurred in New Zealand; or (iii) whether or not the person accused was in New Zealand at the time that the act constituting the offence occurred or at the time a decision was made to charge the person with an offense.”

Canada is another example of a State that provides domestic exercise of universal jurisdiction, in its Crimes Against Humanity and War Crimes Act of 2000.  For genocide, crimes against humanity, or war crimes as defined in the Act, section 9(1) provides that proceedings may commence in any territorial division in Canada for those offences “alleged to have been committed outside Canada for which a person may be prosecuted under this Act […], whether or not the person is in Canada.”

Prominent Cases Involving Universal Jurisdiction

  • the United Kingdom’s consideration of Spain’s request to extradite former Chilean dictator Augusto Pinochet (herehere and here)
  • U.S. prosecution of the former Liberian president’s son, Chuckie Taylor
  • Spanish prosecution of Guatemalan officials in the Guatemalan genocide case
  • Spanish prosecution of El Salvadoran officials for the murder of six Jesuit priests
  • Spanish prosecution of an Argentine naval officer for crimes against humanity during the Dirty War

In particular, Spanish courts have made use of universal jurisdiction to try individuals from around the globe.  Recently, however, the Spanish government restricted its courts’ ability to hear such cases by narrowing the legal basis for exercising universal jurisdiction to those cases not already before another competent jurisdiction and that involve Spanish victims, perpetrators located in Spain, or that affect Spanish interests.  The Center for Justice and Accountability has provided analysis of how the amendment to Spanish law changes human rights litigation in Spain.

Responsibility to Protect

A distinct, but related, evolving concept is that of “Responsibility to Protect, which promotes the idea that the international community has a responsibility to assist a State in fulfilling its primary responsibility of protecting the lives and wellbeing of those within its territory.  The norm suggests that States are obligated to intervene diplomatically and/or militarily to prevent the commission of crimes such as genocide, war crimes, crimes against humanity, and ethnic cleansing.  More information about the emerging norm of Responsibility to Protect can be found at the International Coalition for the Responsibility to Protect.

Additional Resources