1.

scope and application of universal jurisdiction

https://www.icrc.org/en/document/scope-and-application-principle-
universal-jurisdiction-icrc-statement-united-nations-unga-2017

2. importance of universal jurisdiction

https://academic.oup.com/ejil/article/29/2/427/5057077

Section-A

2016-A NIL

2017/A NIL

2018-a nil

2019-A
Question 8

What problems do you foresee for the international community of states if the US ‘Justice Against
the Sponsors of Terrorism Act’ 2016 becomes a precedent for legislation by other states?
General remarks
This Act is discussed in Chapter 5 of the module guide.
Law cases, reports and other references the examiners would expect you to use
Familiarity with the precise scope of the Act was crucial. Knowledge of current cases in which it is utilised
would also be very relevant.
Common errors
There was a marked lack of precision in many of the answers to this question. Knowledge of JASTA was
sometimes slight and, on occasions, entirely lacking. It was not a question that could be adequately
answered without familiarity with the legislation and a clear understanding of why it is perceived as (at a
minimum) controversial.
A good answer to this question would…
recognise that for most international lawyers, the Justice Against the Sponsors of Terrorism Act (JASTA)
2016 from the USA, is an extraordinary piece of legislation almost without precedent. When it initially
came before President Obama for signature, he exercised his veto, no doubt appreciating the
inconsistency between this Act and accepted international law. This veto was, however, overwhelmingly
overruled by the US Congress.
What is strange about the Act is that it provides that a US federal court can hear a civil case for
compensation against a foreign sovereign state brought by victims of acts of international terrorism. It
provides that a foreign state shall not be immune from the jurisdiction of the courts of the United States in
any case in which money damages are sought against a foreign state for physical injury to person or
property or death occurring in the USA and caused by an act of international terrorism in the USA.
Liability will be for the tortious act or acts of the foreign state, or of any official, employee, or agent of that
foreign state while acting within the scope of his or her office, employment, or agency, regardless of
where the tortious act or acts of the foreign state occurred. Examiners’ reports 2019
11
Claims may be brought by US nationals, although this is qualified by a rule of construction that provides
that a foreign state shall not be subject to the jurisdiction of the US courts merely on the basis of a mere
omission or a tortious act or acts that constitute mere negligence. (In other words, the tortious act must be
more than simple negligence.) Immunity will be denied even where that state had not been designated by
the USA as a sponsor of terrorism. This was an extension of the Foreign Sovereign Immunities Act, 1976,
as amended, which had provided for actions by victims against states designated by the US Department
of State as a state sponsoring terrorism (as of November 2018 these states were Iran, North Korea,
Sudan and Syria).
A first and obvious problem with the Act is that no foreign state will submit to the jurisdiction of the
domestic court of another state. This means that in any such case it is extraordinarily unlikely that a
defendant state will file a defence. Hence, if judgment is given by default, the next difficulty will be
enforcing the payment of awarded damages.
A good answer will consider the effect of JASTA on international law relating to sovereign immunity and
the principle that no state may implead another state before its domestic courts – a principle to be derived
from the fact of sovereign equality, summed up in the Latin maxim par in parem non habet imperium (one
equal cannot exercise authority over another). JASTA was passed with the specific intention that the
victims of 9/11 should be able to seek reparation for harm suffered from the state of Saudi Arabia. Cases
are at present proceeding. Some explanation and discussion of the effect of this legislation upon the
international legal regime will be required as will comment on the difficulty of securing reparation from a
state held liable in another state’s domestic courts.
Allusion to the UK case of Jones v Ministry of Interior (The Kingdom of Saudi Arabia) would provide an
interesting and relevant conclusion.
Poor answers to this question…
lacked a clear understanding of the scope and limitations of the Act.
Student extract
Terrorism has also been the rationale for exception to state immunity. This has been controversial and
legislation has been mainly limited to crimes against humanity in several countries. Specific national
legislation whereby acts of terrorism is an exception to state immunity has been enacted in Canada and
USA.
This exception has not been widely supported and seen as a violation of customary international law. The
US Foreign State Immunities Act (FSIA) was the first legislation to allow for victims and survivors of
terrorist attacks to file civil claims against states designated (by US) as sponsors of terrorism. Although
this was not supported, there was no major outcry.
However the Justice Against the Sponsors of Terrorism Act (JASTA) has extended the scope of the
exception to state immunity. Firstly, it amended the FSIA whereby states not on the designated list of
sponsors of terrorism can be brought up in a civil claim. The FSIA allowed for the state and government
bodies to be included in a claim. Thirdly, JASTA provides for any tortious act, including acts of terrorism
committed anywhere by foreign nationals.
JASTA was invoked for the first time in a case where the US District Court denied a motion by the
Government of Saudi Arabia to dismiss a claim against the Saudi government for damages incurred
during the September 11 terrorist attacks. The challenge with JASTA is getting foreign nationals to 12
local courts for such hearings and enforcement of the judgments. A recent case by the US Court for
similar compensation from Government of Iran was a judgment for $6 billion dollars for the families of the
casualties of the September 11 attacks. However, this ruling was done in absentia of Iranian officials and
it would seem difficult for the USA to obtain the money from Iran, whether from foreign assets or those
held in the USA.
One of the major implications of such a precedent is the reciprocal effect. If other states enact similar
legislation, even personnel carrying out official duties under instruction may become liable.
The main effect however would be to constrain state immunity and thus equality of states. The principle of
equality of states could be affected as it would be the more powerful states to enact and enforce such
legislation, while the less developed states may face the consequences. State immunity itself would be
dealt a forcible blow as the exceptions may continue to expand with the precedent set with terrorism.
Comments on extract
While this extract has imperfections – foreign states may be sued and not ‘brought up’ and it is not any tortious act
but those more serious than ‘simple’ negligence – it nevertheless captured accurately the essence of the Act. The
extract followed a discussion of state immunity and went on to conclude that such rules as are to be found in
JASTA could only be justified if they were to be accepted by the international community. At the least, this answer
merited a strong upper second.

2020-A

3. How, if at all, could and should international law remedy the problem of a lack of
enforcement?

2021-a

5. Explain the meaning and significance of “universal jurisdiction” in international law.

Section-B

2016-b/nil

2017-B/NI

2018-b
Question 7
Discuss the exercise of extra-territorial jurisdiction in international law.
General remarks
This was another question on a contemporary and topical subject. Again, it received
explicit discussion in the Pre-exam update.
Law cases, reports and other references the examiners would expect you to use
Answers to this question should have demonstrated familiarity with Chapter 5 (and
especially Section 5.3) of the module guide and the Essential reading prescribed.
Common errors
Common errors were made by candidates who seemed unfamiliar with the Preexam
updates.
A good answer to this question would…
recognise that what was required here is an outline of the law relating to extraterritorial
jurisdiction and a discussion of the problems inherent in the claim/exercise
of such jurisdiction. It would probably begin with the least controversial exercise of
extra-territorial jurisdiction, which is nationality based, where a state may prosecute
its nationals for crimes committed abroad – even if the acts committed are not
interpreted as criminal in the state where the actions took place.

More interesting (and controversial) and thus worthy of discussion, is the extension
of protective jurisdiction to include jurisdiction over acts committed extra-territorially,
which have a claimed adverse ‘effect’ upon the state claiming jurisdiction. Examples
relevant to a discussion would be so-called anti-trust legislation in the USA and
attempts to claim jurisdiction over extra-territorial actions that defeat a trade
embargo imposed by the claiming state (in fact, almost always the USA). The trade
embargo against Cuba is an obvious example. (Since the examination, the Trump
10
administration’s attempt to prevent other states from fulfilling contractual obligations
within Iran has become another obvious example.)
Similarly, so-called passive personality jurisdiction requires explanation and critique,
as of course does the concept of ‘universal jurisdiction. The best answers will
identify the controversial issues arising from each claimed exercise of extraterritorial
jurisdiction, will explain the dilemmas and controversies, and draw
conclusions, which will probably include an observation that the more powerful a
state, the greater is its claim likely to be to extra-territorial jurisdiction. Most recently,
the Justice Against the Sponsors of Terrorism US legislation should receive
attention (referred to in the 2018 Pre-exam update).
Poor answers to this question…
wrote an essay about jurisdiction without confining the discussion to extraterritorial
jurisdiction.
In this essay we will discuss and try to understand the concept of
extraterritorial jurisdiction in which we are supposed to deliberate
circumstances and situations under which state can exercise its
authority over its subjects beyond its borders.

The monopoly over authority by a state on its own territory is clear-cut

and fundamental to the state system, but states can sometimes exert
their authority beyond their borders according to several jurisdictional
principles. Together these principles are called as extraterritorial
jurisdiction.

First is the nationality jurisdiction that allows the government of a

country to prosecute one of its citizens or corporations for violating its
law, even though the criminal act may have taken place in another
country or in an international space. This is exemplified by case of Joyce
v DPP, Joyce was involved in propaganda against British government
but he was not citizen but applied for passport so HOL held that Joyce
had allegiance to British crown and thus was executed on nationality
principle. It is often argued that allegiance of an national lays with its
state, wherever he may be and in return state is bound to render
diplomatic support to its nationals.

Second is passive personality, which involves a criminal act against a

state’s citizen while abroad. The assumption behind this principle is
that the state’s own legal personality is affected indirectly, or passively,
when one of its citizens is the target of an illegal act. In the much-
studied SS Lotus case, the PCIJ ruled that Turkey had jurisdiction to try a
French officer for allowing his ship to collide with a Turkish ship on the
high seas, killing some of the crew. The PCIJ reflected on passive
personality, in consideration of the Turkish loss of life, but stopped
short of applying this form of jurisdiction. The modern age of terrorism
and the human rights movement, however, have breathed new life in
the relevance of the passive personality principle. With extensive global
patterns of travel on the part of millions of people, any country’s
citizens could randomly or deliberately become the victims of terrorist
attack anywhere or political repression in many countries. Traditionally
it has been opposed by the common law countries such as UK.
Nevertheless even in common law jurisdictions there have been rare
occasions where the principle has formed at least an alternative basis
for the assertion of jurisdiction. One such instance was exemplified by
(United States v Yunis) where a Lebanese national was prosecuted in
the USA for his alleged part in the hijacking of a Jordanian aircraft in the
Middle East. The only connection between the USA and the airliner was
that there were a number of US citizens on board the hijacked aircraft.
It was accepted by the court that the passive personality principle did
provide an appropriate basis for jurisdiction

The third principle involve protective jurisdiction. When security threats

arise outside a country, the perpetrators, whether they are citizens of
the threatened country or foreigners, may find themselves sought
under the protective principle. Such acts, not necessarily confined to
political matters, include spying, plots to overthrow the government,
forging currency, immigration and economic offences. The growth in
international terrorism and drug smuggling has made the courts of
Western democratic countries less hostile to the reception of the
protective principle of jurisdiction. Even the courts of the common law
countries, which have traditionally rejected the protective principle,
have been compelled to have a change of heart. This change was seen
in UK (Liangsiriprasert v Government of USA case) in which Thai
national was extradited by Privy Council which showed that the
protective principle was relevant to the recognition that the common
law had to adapt to the new reality of crime being no longer largely
local in origin and effect.

The fourth principles of extraterritorial jurisdiction involve the effects

doctrine which can be considered as extension of protective
jurisdiction. Some legal writers collapse the two principles effect and
protective principles together, but that is not the choice here. Both
involve wrongful acts that begin outside a country but, nonetheless,
impact that country in some way. The effects principle applies to non-
security issues such as environmental damage that begins in one
country but affects another as happened in the Trail Smelter case
between Canada and the United States, when the territory of the
United States was harmed environmentally by a smelting process in
Canada. States often legislate to empower themselves to have
jurisdiction over matters emanating out some effect on their territory,
but to implement this state needs to have enough power, therefore
United States as super power often seen using such jurisdiction. There
are two major aspects to such jurisdiction as claimed by the USA, both
intended to further its economic and political interests, first is anti-trust
legislation. The USA has enacted legislation under which foreign
companies that also operate, or have business interests, in the USA
may receive heavy penalties for business activities taking place wholly
outside US territory. Such penalties could become payable even though
the actions of the offending company not only took place outside of the
USA but were actually quite lawful in the state where they did take
place. The second aspect to such extra-territorial claims to jurisdiction
is situations where the USA has sought to enforce a trading embargo
against states of which it does not accept. Prominent example of this is
Fidel Castro’s Cuba. In 1996 Congress passed the Cuban Liberty and
Solidarity Act , purpose of this Act was to help the Cuban people ‘to
restore its freedom. Application of the Effects doctrine concerned with
extraterritorial jurisdiction were also seen during US sanctions of Iran
recently when it unilaterally withdrew from Joint Comprehensive Plan
of Action (JCPOA) here US attempted not only to boycott trade with
another Iran but also makes financial threats against Iran and foreign
companies that fail to comply with the announced boycott. US sponsor
act which was overruled by congress is also example of US exercise of
its power in extra-territorial jurisdiction according to which US courts
can hear a case in a situation where victim is prey of state terrorism by
state sponsored declared state against US national. Effect doctrine
seems problematic in many ways and states mostly EU countries fails to
accept legitimacy of any such principles as effect doctrine on various
occasions demonstrate “might is right” breaching sovereign principles
for which international greatly emphasize.

The final extraterritorial principle is universal jurisdiction. This

jurisdiction covers international crimes so heinous that the
perpetrators are considered humani generi hostis, or the enemy of all
humankind as in the case of pirates. This was seen in Eichman case
where Israeli courts declared crimes committed by Eichmann (a foreign
national) were considered crimes known to international law and hence
jurisdiction was exercised and Eichman was prosecuted.
2019-B

Question 6
Explain the role of extra-territorial jurisdiction in international law.
General remarks
This was a question whose specificity should have enabled a cogent and succinct response.
Law cases, reports and other references the examiners would expect you to use
Familiarity with Chapter 5 of the module guide and the relevant reading was required to answer this
question.
Common errors
The most common error was for candidates to ignore the fact that the question was concerned with extra-
territorial jurisdiction and instead to spend much, if not all, of the answer on jurisdiction generally.
A good answer to this question would…
observe that extra-territorial jurisdiction remains one of the most controversial of topics in international
law. It could be observed that whereas territorial, nationality and protective jurisdiction are exercised by all
states, and all are based on a clear and close connection between the state and either the person or the
act giving rise to jurisdiction, other bases for international jurisdiction are not as reflective of the Examiners’
reports 2019
7
principle of sovereign equality. Rather, they require for their exercise a degree of power from the state
claiming such jurisdiction. Some states have asserted a right to extend the principle of protective
jurisdiction – intended to enable states to protect themselves from extra-territorial acts regarded as
harmful to their security – by enacting legislation designed to provide them with jurisdiction over any
matters that produce an effect in their territory. Obviously, for such legislation to be meaningful, the
relevant states must possess substantial international power and/or benefit from substantial international
cooperation. Hence, it is not surprising that the USA has been the main proponent of such an approach.
The clearest contemporary example of the controversial nature of extra-territorial concerns the USA’s
attempts not only to enforce a trading embargo against states of which it disapproves but to insist, at the
risk of substantial penalty, that other states join the trading embargo. Having unilaterally withdrawn from
the international agreement made with Iran, which suspended trade embargoes against that state in
return for concessions concerning Iran’s nuclear programme, the USA not only re-imposed its own trading
embargo but is insisting that no other state should do likewise. An earlier example that is also relevant
was US attempts to insist that other states join its boycott of trade with Cuba.
Poor answers to this question…
wrote essays on the concept of jurisdiction.

2020-b
4. Explain and discuss the limit and scope of “head of state immunity” from international
jurisdiction.

Each State determines for itself who is to fulfill the office of head of
state and what are the exact powers attached to it. Both the nature of
office – elective or hereditary – and the scope of the function differ
vastly from state to state. The office entails largely symbolic functions
when in the hands of European royalty or the German or Italian
president; while in France or the US it entailsreal substantive power.
Head of state immunity only applies to heads of state in office. Upon
abdication a former head of state can only rely on the rule of functional
immunity as applicable to all (former) foreign state officials. They are
no longer shielded from foreign jurisdiction by any personal immunity,
unless of course they are sent on special diplomatic missions by their
home state. The consideration that heads of state lose all immunity
when they leave office is obviously not incompatible with the operation
of the rule of functional immunity.

The principle of head of state immunity originally developed from the

idea of state sovereign immunity, as the state and its ruler used to be
deemed one and the same because of this s.14(1)(a) of State Immunity
Act 1978 states that immunity granted to a foreign state include a) the
sovereign or other state of states in public capacity b)government of
that state and c)any department of government of that state, but the
act does not grant immunity to any organization which is not part of
the government machinery. Head-of-state immunity has sought to
achieve the goals of both sovereign and diplomatic immunity by (1)
recognizing an appropriate degree of respect for foreign leaders as a
symbol of their state's sovereign independence; and (2) ensuring that
they are not inhibited in performing their diplomatic functions.
Recent state practice has drawn a sharp distinction between former
heads of state and current heads of state. Pinochet case plays crucial
role in deciding the scope of the head of state immunity. This case is
regarding the arrest of former Chilean dictator Augusto Pinochet by
British authorities, on an international arrest warrant issued by Spain
The abrogation of immunity for the private acts of former heads of
state, including international crimes in any context, is in harmony with
the twin purposes of the head of state immunity doctrine: respecting
state sovereign equality and promoting diplomatic functions. Because
crimes against humanity, torture, and other international crimes are
outside the scope of what can be considered a state's official public
functions, seeking accountability for these acts does not infringe on a
state's sovereignty, or at least not so much as to outweigh the benefits
of stronger human rights enforcement. Serving heads of state benefit
from absolute immunity from the exercise of the jurisdiction of a
foreign domestic court.219 This was
reaffirmed in Ex parte Pinochet (No. 3)

The immunity of a former head of state differs in that it

may be seen as moving from a status immunity (ratione personae) to
a functional immunity (ratione materiae), so that immunity will only
exist for official acts done while in office. The definition of official acts is
somewhat unclear, but it is suggested that this would exclude acts done
in clear violation of international law. It may be concluded at the least
from the judgment in Ex parte Pinochet (No. 3) that the existence of the
offence in question as a crime under international law by convention
will, when coupled in some way by a universal or extraterritorial
mechanism of enforcement, operate to exclude a plea of immunity
ratione materiae at least in so far as states parties to the relevant treaty
are concerned.

State practice also presents a number of examples that suggest that the
doctrine of immunity for current heads of state is still alive and well,
even with respect to the most serious international crimes. In March,
2001, France's highest court, the Cour de Cassation, held that Libyan
head of state Muammar el-Qaddafi was entitled to immunity in a suit
alleging that Qaddafi was responsible for bombing a French DC-10
aircraft Furthermore, even though some international agreements have
called for stripping away head-of-state immunity, and although some
countries have considered taking jurisdiction over foreign leaders, it is
significant that no nation has yet gone so far as to actually pass
judgment against a sitting head of state.

Article 27 of the Rome Statute is one of the latest provisions on the

inapplicability of immunity based on official capacity before
international criminal tribunals article 27 (1) provision only affected
functional immunity so that if a person commits a crime in his/her
official capacity, the act is not attributable to the state but to the
individual and the individual can be prosecuted for it. Therefore, the
international tribunals discussed above only tried former leaders, after
the expiry of their personal immunity. However, article 27 (2) of the
Rome Statute for the first time, goes beyond this and targets personal
immunity thereby subjecting to the jurisdiction of the ICC sitting heads
of state and government and other state officials who would otherwise
be protected from prosecution by personal immunity.

It is clear that serving heads of state, and other governmental officials,

may be rendered susceptible to the jurisdiction of international
tribunals, depending, of course, upon the terms of the constitutions of
such tribunals. The provisions of, for example, the Versailles Treaty,
1919; the Statutes of the Yugoslav and Rwanda International Criminal
Tribunals ; the Rome Statute of the International Criminal Court, 1998
and the Statute for the Special Court for Sierra Leone all expressly state
that individual criminal responsibility will exist irrespective of any
official status, including that of head of state. This was
reaffirmed by the Special Court for Sierra Leone in its decision
concerning the claim for immunity made by Charles Taylor.
Furthermore the ICC issued arrest warrants of for the Sudhanese
President al-Bashir where Sudhant was not party to ICC statute but
disregard of Chad Malawi who despite of order by ICC failed to arrest
Al-Bashir so ICC referred these two states to the UNSC.

When a head of State acts in his/her official capacity as an organ of

State his/her acts or omissions are attributable to the State itself and
therefore any breach of international law committed by a head of State
is considered as a breach of the international obligations of that State
for which the State may be held accountable (see Chapter 10). The
special position of a head of State in international law is recognised by
the SIA and the FSIA. Under both Acts, a head of State enjoys the same
immunity as the State itself.

2021-B-NIL

Resit

2016

5. ‘Traditionally a State was immune from the jurisdiction of the courts of another
State.’ What is the position in the contemporary international world?
2017
2017
7. Is ‘universal jurisdiction’ of any relevance in the contemporary world?

In this essay we are required to understand the concept of the universal

jurisdiction, we will critically analyze it and will apprise whether it is any
importance in contemporary international legal system.

According universality principle, each and every state has jurisdiction to

try particular offences. The basis for this is that the crimes involved are
regarded as particularly offensive tothe international community as a
whole. The reasoning behind this principle is that some crimes are so
universally repugnant that their perpetrators are considered as hostis
humani generis, i.e. enemies of all mankind. A Resolution of 17th
Commission on Universal Criminal Jurisdiction with Regard to the Crime
of Genocide, Crimes against Humanity and War Crimes (2005) of the
Institute of International Law states in point 1 that universal jurisdiction
in criminal matters means ‘the competence of a State to prosecute
alleged offenders and to punish them if convicted, irrespective of the
place of commission of the crime and regardless of any link of active or
passive nationality, or other grounds of jurisdiction recognized by
international law’.

Historically, the roots of universal jurisdiction lays in jurisdiction of

every state over pirates as pirates were considered as hosti humani
gener, but in modern times universal jurisdiction has little to do with
piracy and cover subjects way beyond piracy, this was seen in case of
(AG of Israel v Eichman) where a man who was not citizen of Israel was
unlawfully abducted from Argentina was prosecuted by Israeli courts on
the basis that crimes committed by Eitchmann were known crimes by
international law and hence universal jurisdiction can apply.
Furthermore, in modern times many states have opted to enact many
provisions of universal jurisdiction as part of their domestic law.
According to one such estimation by amnesty international there are
120 states that have enacted different laws incorporating provisions of
universal jurisdiction in their domestic legal system. For instance UK has
enacted Torture convention and Genocide convention as part of their
own municipal law. In Eichmann case Israeli court used similar
argument and declared international crimes as part of their own
domestic legal system. Due to this we have seen various states have
incorporated international crimes to oblige with international
conventions and hence solidified the enforcement of international law
jurisdiction over war crimes, genocide, illegal torture, crimes against
humanity and offences of terrorism.

War crimes, crimes against peace and crimes against humanity are
some of the authoritative subjects of universal jurisdiction. War crimes
are now accepted by most authorities as subject to universal
jurisdiction While there is little doubt about the legality and principles
of the war crimes decisions emerging after the Second World War, a
great deal of controversy arose over suggestions of war crimes.
Prominent examples include war crimes committed by US during
veitnam war or war crimes by Pakistan during Bangladesh liberation
war.

Article 6 of the Charter of the International Military Tribunal of

1945 referred to crimes against peace, violations of the law and
customs of war and crimes against humanity as offences within the
jurisdiction of the Tribunal for which there was to be individual
responsibility. This article can now be regarded as part of international
law. Nuremberg practice demonstrates that crimes against peace
consist of the commission by the authorities of a state of acts of
aggression. In theory this is not controversial, but in practice serious
problems are likely to arise within the framework of universal
jurisdiction.However, whether this category can be expanded to include
support for international terrorism is open to deliberations.

Crimes against humanity clearly cover genocide

and related activities. They differ from war crimes in applying beyond
the context of an international armed conflict, but cover essentially the
same substantive offences.110 The UN Secretary-General’s Report on
the Establishment of an International Tribunal for the Former
Yugoslavia noted in the commentary to article 5 of what became the
Statute of the Tribunal that ‘crimes against humanity are aimed at any
civilian population and are prohibited regardless of whether they are
committed in an armed conflict, international or internal in character’
and that ‘crimes against humanity refer to inhumane acts of a very
serious nature, such as wilful killing, torture or rape, committed as part
of a widespread or systematic attack against any civilian population on
national, political, ethnic, racial or religous grounds’.

The recognition of universal jurisdiction by the state as a principle is not

sufficient to make it an operative legal norm. There are basically three
necessary steps to get the principle of universal jurisdiction working:
the existence of a specific ground for universal jurisdiction, a sufficiently
clear definition of the offence and its constitutive elements, and
national means of enforcement allowing the national judiciary to
exercise their jurisdiction over these crimes. If one of these steps is
lacking, then the principle will most probably just remain a pious wish.
Principle of universality in either a narrow or an extensive manner. The
narrow concept enables a person accused of international crimes to be
prosecuted only if he or she is available for trial, whereas the broader
concept includes the possibility of initiating proceedings in the absence
of the person sought or accused (trial in abstentia).

The fact that a particular activity may be seen as an international crime

does not of itself establish universal jurisdiction and state practice does
not appear to havemoved beyond war crimes, crimes against peace and
crimes against humanity in terms of permitting the exercise of such
jurisdiction. In particular, referencesmade to, for example, apartheid,
mercenaries and environmental offences in the 1991 Draft but omitted
in the Draft Code adopted in 1996 must be taken as de lege ferenda.

Before the 1990s, universal jurisdiction did not receive much doctrinal
attention. Some conventions, anti-terrorism conventions in particular,
provided for universal jurisdiction on the basis of an aut dedere aut
judicare obligation.133 Some States also provided in their criminal
codes for unilateral, although usually uncontroversial, universal
jurisdiction over sexual offenses,134 immigration offenses,135
corruption,136 offenses involving nuclear energy, explosions, or
radiation,137 traffic in human beings,138 distribution of narcotics,139
distribution of pornography,140 counterfeiting,141 or subsidy
fraud.142 Only in the late twentieth century did universal
jurisdiction gain international ascendancy, when “bystander” States
started prosecuting the perpetrators of such crimes as war crimes,
genocide, crimes against humanity, and torture, committed in far-flung
places.143 Because the machinery of the State is often used in the
commission of these crimes, international conflict over
universal jurisdiction appeared bound to arise.

Despite its inherent difficulties, the principle of universal jurisdiction remains widely
accepted by states owing to the specific nature of international crimes. No state can
officially uphold these crimes and the absence of punishment for them! This truly
universal consideration is one of the main strengths of the principle. This being said,
however, difficulties arise when it comes to its concrete implementation. Its precise
meaning is to some extent vague, and its real legal implications continue to be
discussed. Can it be deemed equivalent to a general principle of law entailing simply an
‘obligation to provide means’ that must be fulfilled? Or does it also include some
operational guidelines to be followed by the international community as a whole? Have
not general references to this principle outside the legal sphere – especially through the
media or by its inclusion in politics – weakened its effectiveness? Asking these
questions shows how necessary it is to situate this principle within a more legal
framework in order to determine its normative value. In seeking to identify the origin of
universal jurisdiction, three possible sources can be considered: international
agreements, international customary law and national law. International conventions
sometimes impose an obligation to prosecute and punish those who have committed
international crimes.40 This is the case in the Geneva Conventions through the notion
of grave breaches of international humanitarian law.41 The obligation is clearly stated in
the conventions and

imposes on the contracting state a duty to act (obligation of result), but leaves the state
to determine the means to enforce it. This can create some difficulties, as each national
system is responsible for fulfilling this twofold obligation of both searching for the
criminals concerned and bringing them to trial. The inclusion of universal jurisdiction in
international conventions – provided that no reservations can be made – implies that the
state has the duty and responsibility to enforce it but offers no guarantee that effective
trials and punishments will indeed take place, since national legal systems apply
different procedural and evidence rules. Customary international law can also be a
source for the recognition of universal jurisdiction when it comes to international
crimes.42 However, it just provides for the principle itself and does not necessarily
contain precise directives or guidelines for the implementation of universal jurisdiction.
This leads to a weaker practical normative constraint for the state, even though
theoretically no value distinction should be made between customary and conventional
provisions; between the two, there is only a difference of degree of precision in
normative terms.

Customary international law can be viewed in two ways. It can be seen as a general
obligation to which conventions later give concrete effect through more precise
obligations. It can also be seen as an extrapolation of conventional rules so widely
accepted that non-party states consent to be bound by the principle as equivalent to a
general rule. With regard to universal jurisdiction, this could be the situation of states
which refuse to become party to a specific instrument for political reasons, but accept
the substance of that principle. Combined rules of international customary law do
provide support for the implementation of both universal jurisdiction and the

principle of complementarity, but will not provide the state with precise guidelines or a
ready-made course of action. Universal jurisdiction can also be accepted by states as a
voluntary commitment, within their municipal framework, to punish some crimes for
which no general international obligation to do so exist. Universal jurisdiction then
derives from a national commitment to the international community by one state that is,
for instance, not party to certain conventions. To recognize universal jurisdiction in this
way can create an asymmetrical obligation for some states. This could be the case of
states not party to the ICC Statute, although under no international obligation to do so.
Analysis of the sources of universal jurisdiction would thus appear to show that the
principle is not self-sufficient enough to be implemented. It needs both general
recognition and measures of implementation, or at least clear obligations to identify the
duties of states. In this regard, it would be more accurate to consider that the principle
of universal jurisdiction should be completed by legal norms giving precise grounds and
designating the conditions or the exact nature of the obligations. This would give rise to
multiple grounds for universal jurisdiction, or ‘universal jurisdictions’. Each one would be
a means in itself. This splitting of the principle of universal jurisdiction is necessary to
create clearer state obligations. It is not in itself revolutionary to say this, but it could
explain why the principle frequently remains so disappointing in practice. However, if
international law were to make progress in formulating a concrete definition of those
obligations, the discretionary power consubstantial with state sovereignty would still
leave an incompressible margin of appreciation when it comes to final implementation of
the provisions. Another aspect often left out of the analysis of universal jurisdiction is its
twofold belonging, to both international law and municipal law. Universal obligation
entails a first duty for the state to organize – and if need be, to amend – its own legal
system to make the exercise of universal jurisdiction possible by national courts. It must
not be forgotten that universal jurisdiction is quite abnormal for national criminal courts,
and that it could be difficult for judges to implement it without precise municipal
provisions framing or organizing that empowerment. This aspect of universal jurisdiction
can in fact impair the whole system or its efficiency if national legislation, most often
statutory provisions, is not adopted. Universal jurisdiction can become – and sometimes
is – a fake principle owing to a total or partial lack of enactment. It can even be
problematic when the national constitutional text conflicts with universal jurisdiction
obligations, as it could for instance with regard to immunities or the right to grant
pardon; these are often included in a general manner and sometimes left to the
discretion of the heads of state or government, although there should normally be
exceptions where international crimes are concerned. Quite often, however, the clash
between international and constitutional obligations does not take place because of the
limited overlap of their respective scope. This does not mean that conflict between them
cannot exist!

Universal jurisdiction can be based on treaties which define international crimes

and contain specific provisions in respect of the international jurisdiction of
contracting States. A contracting State exercises its jurisdiction on the basis of the
terms of the treaty rather on any generally accepted principle of customary
international law. Examples of such international treaties are: the 1970 Hague
Convention for the Suppression of Unlawful Seizure of Aircraft,59 the 1984 UN
Convention against Torture and other Cruel, Inhuman or Degrading Treatment or
Punishment,60 the 1948 UN Convention on the Prevention and Punishment of the
Crime of Genocide,61 the 1948 Geneva Conventions,62 the 1988
Rome Convention for the Suppression of Unlawful Acts against the Safety of
Maritime
Navigation63 and the 1999 UN Convention for the Suppression of the Financing of
Terrorism.

State may exercise universal jurisdiction solely on the basis of

customary international law depends on the relationship between its
municipal law and international law. However, the issue of whether a
municipal court, provided that it is allowed under domestic law to do
so, can rely on universal jurisdiction based on international customary
law raises many controversies. For example jus cogens nature of crimes
to justify the assertion of jurisdiction seems unconvincing. ICJ did not
consider that the prohibition of torture, being a rule of jus cogens,
trumped rules of customary law, this was seen in Congo v Rawnda.
Secondly, It cannot be said that a customary rule has emerged
conferring on municipal courts universal jurisdiction over the core
international crimes as this has not been evidenced by State practice.
Lastly, It is unclear what limitations, if any, international law imposes on
municipal courts in theexercise of universal jurisdiction.

2018
6. Is the concept of ‘universal jurisdiction’ of any
contemporary significance in international law?
2019

7. Why is the role of extra-territorial jurisdiction in international law controversial?

2020

3. Is the concept of “universal jurisdiction” of any contemporary significance, given

the creation of the International Criminal Court?