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Explain and Comment upon the proposition that universal jurisdiction is the best way of pursuing

International Criminal Justice.

Name: LILIAN MARION WANGARI GITHINJI

Student ID number: user12577546

Module name: International Criminal Law

Module code: UEL-LA-7010-33518

Date: 23rd October, 2022

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TABLE OF CONTENTS

1. Abstract page 3

2. Introduction

The definition of universal jurisdiction under International Criminal Law page 3

3. Literature Review

a) The history of the concept of universal jurisdiction under

International Criminal Law page 4

b) Initial arguments against the notion of universal jurisdiction page 5

c) Legal instruments regulating the concept of Universal Jurisdiction page 7

4. Conclusion page 9

5. Bibliography page 10

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Abstract

The concept and application of universal jurisdiction principle is enshrined in the core of

International Criminal law. However, this concept has not always been welcome in the

international county. Initially some states did not acknowledge universal jurisdiction as a means

of ensuring international criminal justice.

This paper delves into the definition of the term „universal jurisdiction‟ as well as a detailed

historical background of this concept. It shall further describe the various statutory provisions

that embody the concept of „universal jurisdiction‟ and finally in conclusion, the paper illustrates

the importance of universal jurisdiction in the enforcement and advancement of international

criminal law and its jurisprudence.

The definition of universal jurisdiction under International Criminal Law

The exact definition of the term „universal jurisdiction‟ under criminal law was once thought of

as permitting a state to deem given conduct an offence against its law, „regardless of any nexus

the state may have with the offence, the offender, or the victim.‟1

The concept of universal jurisdiction permits States to claim jurisdiction over a suspected

offence “based solely on the nature of the crime, without regard to where the crime was

1
Chadwick, Mark. Piracy and the Origins of Universal Jurisdiction : On Stranger Tides?, BRILL, 2019.

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committed, the nationality of the alleged or convicted perpetrator, the nationality of the victim,

or any other connection to the prosecuting State”.2

It thus follows that Universal Jurisdiction principle of criminal law observes that in the event of

serious universally recognized criminal offences such as war crimes, crimes against humanity,

torture and quite recently, acts of aggression, a member state of the international community is

obligated prosecute the perpetrators without regard to the territorial jurisdiction of the crime or

the nationality of the people affected. This system ensures global accountability for the heinous

criminal acts that have been observed in the history of criminal law.

a) The history of the concept of universal jurisdiction under International Criminal

Law

The use of universal jurisdiction to combat international crimes commenced during the First

World War. There was an abuse of the soldiers and civilians on an unprecedented scale which

ranged from brutal occupations, genocide, large-scale deportations and so on. In the face of these

offences, the allied powers being Britain, France, Russia and the United States of America

formed a Commission on the Responsibility of the Authors of the War and on Enforcement of

Penalties. This commission was to enquire as to the culpability of the perpetrators of these

crimes, being the Central Power consisting of Germany, Bulgaria, the Ottoman Empire and

Austro-Hungary. The commission was also established to consider penalizing the said

perpetrators especially those with authority to command the said actions.

The notion of holding individuals responsible for crimes of war was highly debated on. The

United States of America opposed it claiming that it would greatly compromise state sovereignty

2
Chadwick, Mark. Piracy and the Origins of Universal Jurisdiction : On Stranger Tides?, BRILL, 2019.p.7

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by holding heads of states and state officials liable for the collective misdeeds of their nationals.

The lack of substantive law to support this emerging concept was another cause for objection.

Other states argued that such prosecution would only lengthen the war and destabilize the

countries that were trying to consolidate their authority. Disagreements on other issues such as

venue and procedures for the prosecution also arose.

The commission however presented its report to the Paris Peace Conference in 1919

recommending that war crimes should be prosecuted before an international high tribunal

composed of allied and associated powers, or by national tribunals.

This report brought to light the concept of law of humanity which established that there were

crimes against humanity which in addition to the known war crimes, should be punishable.

b) Initial arguments against the notion of universal jurisdiction

The United States of America had reservations as to the establishment of the international high

tribunal stating that such a criminal tribunal was unprecedented and lacking in practice or

procedure. Further, it raised the argument that nations could not engage in prosecution of crimes

committed against people of a different nation. Third, the United States of America argued that a

court of law lacked jurisdiction to prosecute the violation of laws of humanity on the basis of

morality rather than legal breach. Finally, it raised the argument that the prosecution of a head of

state outside their national jurisdiction was a violation of the privilege of sovereignty.

However, this position was revised after the 1919 Treaty of Versailles that ended the war. The

said treaty determined that an international tribunal comprising representatives from USA, Great

Britain, Italy, France and Japan would try Germany for war crimes. The main charge against

German Emperor, Kaiser was stated as follows:

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„„a supreme offense against international morality and the sanctity of treaties‟‟

The tribunal‟s objective was stated as follows:

„„…guided by the highest motives of international policy, with a view to vindicating the

solemn obligations of international undertakings and the validity of international morality.‟‟

Germany was ordered to extradite all persons accused of violating the laws and customs of war

despite their government rank, designation or employment. The territorial jurisdiction covered

acts against nationals of more than one allied or associated power.3 Domestic military tribunals

prosecuted perpetrators of lesser public influence.4

However, in 1918 Kaiser fled to Netherlands where he sought political asylum. Netherlands

refused to extradite him by invoke in the double criminality rule and his status as a political

asylum seeker. He thus died in 1941 never having stood trial. to kidnap the Kaiser was thwarted,

and he died in 1941.

Germany protested the extradition of its nationals and proposed carrying out domestic trials at

the German Supreme Court in Leipzig. These trials were delayed and there were numerous

acquittals or low sentences. The allies protested but never furthered their sanctions against

Germany since were held).5

There have been numerous cases of the application of the concept of universal jurisdiction in the

early 2000s however this principle has been criticized by some states. The main objection raised

against the principle of universal jurisdiction is that some states conceive the principle to be

3
Art.229 Treaty of Versailles, 1919
4
Art.228 Treaty of Versailles, 1919
5
Beth Van Schaack and Ron Slye, A Concise History of International Criminal Law (2007),

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politically motivated, thus forcing states into submitted jurisdiction. This objection is raised as

universal jurisdiction is perceived to interfere with the element of sovereignty and the principle

of non-intervention.6

c) Legal instruments regulating the principle of universal jurisdiction

International Criminal Law is regulated by treaties and statutes. These require enforcement by

national governments which duty involves setting legislation to criminalize international crimes,

prosecution of perpetrators of international crimes, extradition of persons accused of such crimes

to states seeking to prosecute them for the said crimes and assistance in the investigation process

involving such crimes. International Criminal law has established universal law in most of its

statutes and treaties to ensure prosecution of persons who commit international crimes.7 Some of

the earliest provisions that have enacted the principle of universal law are known as the

Nuremberg principles that were formulated after the establishment of the Nuremburg tribunal.

The Princeton Principles on Universal Jurisdiction or The Nuremburg principles have been

appreciated as principles that is well established in international law. These principles further

state that a wide range of individual crimes are subject to the principle of universal jurisdiction.8

Principle 1 states that crimes against international law are committed by men and not abstract

entities. International law provisions can only be enforced by the punishment of individuals who

commit such crimes. Principle 2 states that criminal liability exists under international criminal

law even when the domestic law does not punish the said international crime. 9 This principle

ensures that individuals have international duties that transcend their national obligations

6
Chadwick, Mark. Piracy and the Origins of Universal Jurisdiction : On Stranger Tides?, BRILL, 2019.p.16
7
Bassiouni, M. Cherif. Introduction to International Criminal Law, BRILL, 2012.
8
Hawkins, Darren. “Universal jurisdiction for human rights: from legal principle to limited reality”
9
article 6 (c) of the Nürnberg Charter

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imposed by their nation. This principle has proven essential to the progress of international

criminal law enforcement in cases where domestic law has fallen short in the prosecution of

international crime. Principle 3 denies the immunity of perpetrators who are heads of state or

government officials. Such immunity is denied in cases of criminal liability under international

law. Therefore, state authorities can no longer hide behind their status to avoid prosecution from

crimes under international law, for which they are liable. Principle 4 states that a person acting

under their government or superior‟s orders cannot be relieved of responsibility for international

crimes, provided they had a moral choice. Principle 5 provides for the right to fair trial which is

enshrined in the national laws of most member states. Principle 6 defines the categories of

international crime, that is crimes against peace, war crimes and cries against humanity. Finally,

principle 7 states that the complicity in the crimes set out in principle 6 is a crime under

international law.

These principles influenced the statutes of some international criminal tribunals. An example of

this is the principle of individual responsibility which is found in article 7(1) of the ICTY

Statute, article 6 of the ICTR Statute and article 25 of the ICC Statute.

The right to fair trial is found in articles 21 ICTY Statute, 20 ICTR Statute, and 67 ICC Statute.

Principle 3 as mentioned above is well stated in articles 7 (2) ICTY Statute, 6 (2) ICTR Statute

and 27 ICC Statute.

Principle 4 is set out in articles 7 (4) of the ICTY Statute and 6 (4) of the ICTR Statute. The ICC

Statute, however, contains a significantly different formulation from Principle IV. Although

article 33 (2) excludes that a superior order may be relied upon for genocide and crimes against

humanity, for war crimes, it provides that superior orders shall not relieve a person of criminal

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responsibility unless (a) the person was under a legal obligation to obey orders of the

Government or a superior; (b) the person did not know that the order was unlawful; and (c) the

order was not manifestly unlawful.

Principle 7 is set out in Article 7 (1) and article 6 (1) of the ICTR Statute.

Conclusion

The Nuremberg and Tokyo tribunals thus set a clear precedent for universal jurisdiction. This

advanced the preference for international efforts as opposed to national efforts in the pursuit for

international criminal justice.

There are concerns whether universal jurisdiction may be abused for political reasons, or

otherwise. However, the same are not well substantiated.

Universal jurisdiction is at a greater advantage in enforcing international criminal law since it is

well regulated by resourceful statutory bodies with proper enforcement machinery such as the

Security Council under the United Nations Organization.

It is also more efficient to conduct trials involving serious crimes I an international court to avoid

situations of bias or impartiality as seen herein in the afore-mentioned trials in the Supreme

Court of Germany. Where prosecution by the states is unlikely or impossible, universal

jurisdiction has been known to ensure international justice.10

10
Macedo, Stephen (Editor). “Universal Jurisdiction: National Courts and the Prosecution of Serious Crimes under
International Law

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BIBLOGRAPHY

1. Bassiouni, M C, Introduction to International Criminal Law (BRILL 2012)

2. Chadwick M, Piracy and the Origins of Universal Jurisdiction: On Stranger Tides?

(BRILL 2019)

3. Hawkins D, „Universal jurisdiction for human rights: from legal principle to limited

reality‟ 9 (2003) 347-365 Global Governance

4. Macedo S Ed, Universal Jurisdiction: National Courts and the Prosecution of Serious

Crimes under International Law (University of Pennsylvania Press 2004)

5. Schaack B V and Slye R, A Concise History of International Criminal Law (2007)

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