Jump to ContentJump to Main Navigation
Universal JurisdictionInternational and Municipal Legal Perspectives$

Luc Reydams

Print publication date: 2004

Print ISBN-13: 9780199274260

Published to Oxford Scholarship Online: January 2010

DOI: 10.1093/acprof:oso/9780199274260.001.0001

Show Summary Details
Page of

PRINTED FROM OXFORD SCHOLARSHIP ONLINE (www.oxfordscholarship.com). (c) Copyright Oxford University Press, 2017. All Rights Reserved. Under the terms of the licence agreement, an individual user may print out a PDF of a single chapter of a monograph in OSO for personal use (for details see http://www.oxfordscholarship.com/page/privacy-policy).date: 22 August 2017

Doctrine

Doctrine

Chapter:
(p.28) 2 Doctrine
Source:
Universal Jurisdiction
Author(s):

Luc Reydams

Publisher:
Oxford University Press
DOI:10.1093/acprof:oso/9780199274260.003.0003

Abstract and Keywords

This chapter presents the principal scholarly views on universal jurisdiction, including drafts, reports, and resolutions of international learned bodies and conferences. The universality principle encompasses three different concepts: (1) the secondary or subsidiary jurisdiction of the custodial State over all serious offences if extradition of the suspect is impracticable; (2) the jurisdiction, whether primary or subsidiary, of the custodial State over international offences only; and (3) the primary right of any State to try international offences without regard to the offender’s whereabouts.

Keywords:   universal jurisdiction, universality principle, international offences, custodial State

This chapter presents the principal scholarly views on universal jurisdiction, including drafts, reports, and resolutions of international learned bodies and conferences. The overview is limited to sources whose primary focus is (universal) jurisdiction, rather than with works that treat it tangentially in the context of other concerns. Scholarly comments on recent cases are considered in Part II below.

It should be kept in mind that teachings of publicists are only a subsidiary means for determining rules of international law.1 As noted by a commentator highly critical of universal jurisdiction, the authority in the international legal order lies with States and not in the opinion of publicists.2

Nonetheless, there are good reasons to begin with a focus on doctrine. Until fairly recently there was little significant State practice on the subject; theory thus provides a longer historical background than practice. Second this chapter is meant to lay the theoretical groundwork for the empirical part of this study, and to anticipate some of the critical issues arising in practice.

Nearly all contemporary authors recognize the existence of a universality principle.3 The issue is therefore not its existence, but its content or scope. Without overlooking the fact that categorization runs the risk of oversimplification and rigidity, this study has identified three doctrinal versions of the universality principle. To capture the crucial distinctions among them, and again at the risk of generalization, the following working notions are proposed: co-operative general universality principle, co-operative limited universality principle, and unilateral limited universality principle. General versus limited refers to the offences subject to universal jurisdiction, and co-operative versus unilateral to the international sphere or context in which universal jurisdiction is exercised. The order in which the different versions are discussed corresponds more or less to the chronological order in which they were developed.

A. THE CO-OPERATIVE GENERAL UNIVERSALITY PRlNCIPLE

The term ‘general’ means that the principle applies to all serious offences, ie conduct punishable by a severe sentence in most legal systems. No explicit distinction is made between international crimes and common domestic (p.29) crimes, but the former are obviously included. ‘Co-operative’ refers to the international sphere or context in which jurisdiction is exercised: the judex loci deprehensionis steps in to avoid an impasse which would otherwise result from the impossibility of extraditing a foreign suspect. The ensuing prosecution can be seen as a form of bilateral co-operation in penal criminal matters.

The origin of the co-operative general universality principle can be traced back to the sixteenth-century Spanish author Covarruvias. The medieval Italian city-states generally recognized the jurisdiction of the criminal courts of both the locus delicti and, at a time when the concept of nationality was unknown, of the place of domicile of the offender.4 In case of vagabundi, persons without a permanent residence, only the courts of the locus delicti were competent. To close a possible loophole, the judex deprehensionis was exceptionally given jurisdiction, which scholars justified by the concept of fictitious domiciled.5

The category of offenders subject to the jurisdiction of the judex deprehensionis was later expanded to include also assassini (murderers), banniti (exiles), and !atrones (thieves or robbers).6 Italian commentators likened assassini and banniti to vagabundi, while they justified universal jurisdiction over theft by the theory of the continued offence: a thief continues his offence wherever he takes the stolen object. Thus, medieval Italian scholarship accepted the competence of the judex loci deprehensionis for a limited category of criminals only.

Covarruvias found it arbitrary to subject only fugitive vagabundi, assassini, banniti, and latrones to the jurisdiction of the place of arrest. Referring to a natural law common to all nations he defended the proposition that the judex deprehensionis had a duty either to punish or extradite all dangerous criminals ‘judex requisitus vel remittere tenetur vel delinquentem ipsum puniré 7 thus originating the famous formula ‘extradite or try’.8

The nineteenth and early twentieth centuries saw a period of intense codification of municipal law in the nation States of continental Europe and in the former Spanish and Portuguese colonies in America. At the international level States concluded what can be called the first ‘international criminal law treaties’, ie multilateral treaties in which they engage themselves to outlaw and repress conduct which they consider to be of international concern.9 In addition, international learned bodies and conferences adopted resolutions, reports, and drafts on criminal jurisdiction.

(p.30) At its Munich Session of 1883, the prestigious Institute of International Law adopted a resolution that strongly influenced the codification process. Inspired by provisions in the Austrian penal codes of 180310 and 1852,11 the Institute resolved:

Article 10. Every Christian State (or recognizing the legal principles of Christian States), which has custody over an offender may try and punish him when, notwithstanding prima facie evidence of a serious crime and culpability, the locus delicti cannot be determined, or when the extradition of the culprit, even to his home State, is not granted (n’est pas admise) or is considered dangerous.

In this case, the court will apply the most favourable law to the accused taking into account the probable place of the crime, the nationality of the accused, and the law of the forum State.12

The Institute clearly considered the competence of the judex deprehensionis as complementary and subsidiary to the jurisdiction of the territorial State (spelled out in article 1 of the Resolution) and the State of nationality of the offender (spelled out in article 7). Only when extradition is impossible, eg the territorial State is ‘not civilized’ or is ‘in state of revolution’,13 may prosecution take place in the custodial State. The subsidiary competence applies to all extraditable offences, ie offences of a certain gravity that are punishable in both the territorial and custodial States.

The opinions of members of the Institute differed regarding the justification of what was dubbed the ‘universality principle’. Von Bar relied on the natural law ideas of universal justice and solidarity among nations as propagated by the founders of modern international law.14 Brusa, by contrast, grounded the competence of the judex loci deprehensionis on the territoriality principle, (p.31) arguing that the right to punish follows from the right of every State to defend its public order. ‘The culpable act travels with the offender’ (l’action coupable voyage avec le delinquent), and the mere presence of an unpunished criminal threatens the domestic moral and legal order, and justifies a ‘territorial jurisdiction’.15 Brusa thus provided universal jurisdiction with a positivist basis: it is the expression of a State’s internal sovereignty.16

By the late nineteenth and early twentieth centuries many a municipal criminal code had incorporated the universality principle as proposed by the Institute, namely universal jurisdiction over all extraditable offences if extradition of the foreign suspect is impossible for reasons unrelated to the offence.17

One of the earliest and most comprehensive studies of the principles of jurisdiction that crystallized in the codification processes is Donnedieu de Vabres’ classic Les principes modernes du droit pénal international (1928). In order to reconcile society’s interest in efficient repression of criminality and the individual’s fundamental rights, the author advocated a strict jurisdictional hierarchy for all crimes: (1) judex loci delicti, (2) judex loci domicilii (the place where the offender resided when he committed the crime), and (3) judex loci deprehensionis.

Donnedieu de Vabres’ hierarchy allows the judex loci deprehensionis to intervene only when the foreign offender cannot be extradited to a more competent State, for whatever reason. Universal jurisdiction is thus an ultimum sub-siduum, but should be exercised generally and consistently (de façon générale et constante).18

A State, which in these circumstances prosecutes a foreigner, does not revendicate a sovereign right of its own […]. It does not act to defend its own interests. It steps in, in default of any other State, to prevent in the interest of humanity an outrageous impunity (Il intervient, à défaut i de tout autre Etat, pour éviter, dans un intérêt humain, une impunité scandaleuse). Therefore, its intervention has a very subsidiary-character and cannot take place unless the State has physical custody over the offender.19

The exercise of universal jurisdiction is, just like the practice of extradition, the negation of the right of asylum (L’exercise de la compétence universelle est, au même titre que la pratique de l’extradition le négation du droit d’asile).20

(p.32) A similar view on universal jurisdiction is expressed in authoritative international resolutions and drafts of that period: the resolution of the 1927 Warsaw Conference for the Unification of Penal Law,21 the resolution of the 1932 Hague International Congress of Comparative Law,22 and the 1935 Draft Convention on Jurisdiction with Respect to Crime by Harvard Research in International Law.23

Concurrently, two scholars introduced a distinction that foreshadowed the current academic distinction between the principles of universality and representation.24 The first was Travers, author of the magnum opus, Le droit pénal international (1920), whose volume I is entirely devoted to jurisdiction. Starting from the notion that penal law is ‘a right of social defence proper to a group’ (un droit de défense sociale propre à un groupement),25 Travers rejected the ‘theory of universality’:

The basis of this system is the existence of a moral and juridical solidarity among States. Because of this solidarity, an offence should no longer be considered a violation of the positive laws of a specific country, but as compromising the conditions necessary to the existence, or at least [to] the prosperity, of society. Hence the consequence that the right to punish does not belong to a particular country but to all nations whose positive laws criminalize the conduct.

Formulated so broadly, this theory has to be rejected. It goes against the nature of the penal law and against the very conception of State. Every State has, in principle, no other mission than to defend its own interests. Because its sovereignty is limited, it cannot act on behalf of all humanity; it only represents the Society of nations parte in qua. The nature of the State determines the scope of its criminal law. The goal of criminal law is to protect the group and only the group. Its origin, its basis are in contradiction with the idea itself of universality. Moreover, this idea can only be justified by the notion of natural laws (droits naturels) or by morality. But the existence of natural laws, which is postulated and cannot be proven, is contradicted by the facts. […]

(p.33)

Morality is only universal if one considers peoples with an identical degree of civilization and at the same time. […] Penal law and morality may correspond but they are clearly distinct.26

Nonetheless, Travers accepted the subsidiary jurisdiction of the judex loci deprehensionis (the future representation principle) because the presence of an unpunished wrongdoer harms the interests of the State of refuge, in a double way:

The example of an offender peacefully enjoying the benefits of his misdeed encourages criminality and the possibility of an offender taking refuge in a State with the certainty that its penal law will not be applied would attract riffraff if to hospitable countries, necessarily impacting their social order…. Extradition and expulsion are inadequate remedies for this double danger because the first is not always feasible and the latter does not produce a sufficiently moralizing effect.27

The second author was Mikliszanski, who further articulated the theoretical distinction between ‘the subsidiary penal law’ (le droit pénal subsidiaire) and ‘The system of universality of the right to punish’ (le système de l’universalité du droit de punir):

The subsidiary penal law is the penal law of a State, which in a given case, takes the place of the penal law of another State, which in principle has priority, but for whatever reason, cannot be applied. Priority is given to the territorial or national law, but from the moment that neither can be applied, a third law, namely from the place where the accused has been found, is applicable.

The idea is simple. An offence should never remain unpunished; the possibility to cross borders should not shield the common criminal from punishment. He has to be aware that wherever he goes he will be held responsible. It is thus the duty of the custodial State to supply an inadequacy of the territorial State and the State of nationality of the offender, which by hypothesis cannot act. To defeat the eventual calculations of the offender, that is the master idea of the subsidiary penalization.

What then is the principle of universality of the right to punish? it is the principle according to which every penal norm, far from being limited to a certain territory, is eminently international (interétatique), or rather supranational (supraétatique). In the administration of justice, the nationality of the perpetrator or the victim and the place of commission are irrelevant….

Extension of the validity of the penal norm to all countries and individuals is the basic idea behind the universalist repressive system.

… While the subsidiary penal law places itself at the purely practical level prevent offenders from fleeing justice the universal ist theory, in contrast, places itself at the (p.34) philosophical level, at the level of the very nature of the penal norm: stripping the latter of the statist-territorial character (caractère étalieo-territorial) which has been wrongly attributed to it, and retaining only its true and unique value which is to be fundamentally and uniquely human. It follows that jurisdiction based on the universal principle is not subsidiary at all, does not supply an inadequacy of another more competent jurisdiction to avoid impunity, but is an independent and primary right.28

Unlike Travers. Mikliszanski accepted the universalist theory, at least for the then emerging category of delicia juris gentium:

For the repression of those crimes, it is not about to assign to the State a simple auxiliary role, an international courtesy. It really is about giving to the penal norm a universally valid expression of human justice, doing away with every consideration of a statist and national order (supprimer… toute considération d’ordre étatique et nationale) to rally exclusively behind the idea of combating the offence. Thus, the competence attributed to the judex deprehensionis in respect of delicta juris gentium cannot have a simple subsidiary or facultative character. This competence must be primary and obligatory, so that it is exercised in the name of the whole international community. Indeed, in the system of universal repression, and here it differs from the system of subsidiary penal law, the criminal judges of the entire world all represent the same and only justice (tous ils représentent la même et seule justice). It follows that the judex deprenhensionis, although he applies his own law, does not act solely for his own State, but also for all the other States. This is one of the most interesting practical aspects of the universality theory: the perpetration of the offence triggers the equal competence of all criminal courts, but only the judge of the place of arrest may actually exercise jurisdiction (la perpétration de l’acte punissable entraîne la compétence égale de toutes les lois qui le prévoient, mais l’exercise n ‘en est donné qu’à une seule, à savoir à celle qui est en vigueur au lieu où le délinquant a été saisi).29

After World War II the content of international criminal law as an academic discipline widened. The Nuremberg judgment30 and Principles31 recognized that individuals may be criminally responsible under international law, causing a shift from the study of (municipal) rules of jurisdiction to the study of substantive rules of international criminal law. The distinction between common crimes and international crimes found final acceptance.

In a world without a standing international criminal court, universal jurisdiction became a distinctive feature of the new category of crimes. As a result, common crimes were no longer subject to the ‘universal’jurisdiction of the (p.35) custodial State, but to its ‘representation’ jurisdiction. A switch of labels occurred: the universality principle, as it was known before World War II, became the representation principle32 or ‘vicarious administration of justice’,33 although in some publications the ‘Old’ universality principle occasionally surfaced.34

Whichever the label, scholars have subsequently defended the idea that a State may exercise jurisdiction over serious common crimes committed abroad when extradition of the foreign offender is not possible for reasons unrelated to the offence. Justifications for the exceptional competence of the judex loci deprehensionis are sought in natural law (the existence of a criminal law common to all nations), in positivism (universal jurisdiction is a mere expression of a State’s internal sovereignty), and in pragmatism (closing any possible jurisdictional loophole).

B. THK CO-OPERATIVE LIMITED UNIVERSALITY PRINCIPLE

The co-operative limited universality principle differs from the one just discussed in that it only applies to international offences. Common yet serious domestic offences are thus excluded. Its origin dates from the writings of two of the founders of modern international law, Grotius and de Vattel. Both men developed and codified legal rules that bound the sovereign States of Europe, then just emerging from medieval society, in their relations with one another. Though often cited by legal scholars and practitioners as ‘evidence’ in support of universal jurisdiction, their views on the subject are limited to a few paragraphs in general works on international law.

In his classic De Jure Belli ac Pacis Libri Tres (1625),35 Grotius argued that ordinarily crimes ‘should be left to the States themselves and their rulers, to be punished or condoned at their discretion’.36 However, ‘kings… have the right of demanding punishments not only on account of injuries committed against themselves or their subjects, but also on account of injuries which do not directly affect them but excessively violate the law of nature or of nations in regard of any persons whatsoever’.37

(p.36) To assure chastisement of a fugitive offender against the law of nature or of nations, Grotius advocated the following practical solution:

Since as a matter of fact States are not accustomed to permit other States to cross their borders with an armed force for the purpose of exacting punishment, and since such a course is inexpedient, it follows that the State in which he who has been found guilty (For the judicial investigation should precede the surrender; it is not fitting ‘to give up those who have not been tried’, says Plutarch, Romulus [vii = 21 C](original note).) dwells ought to do one of two things. When appealed to it should either punish the guilty person as he deserves, or it should entrust him to the discretion of the party making the appeal.38

It is noteworthy that the asylum State has an obligation to extradite or punish, and that this obligation does not arise until another State has made an appeal and the individual has been found guilty by the asylum State’s courts.

De Vattel followed the lines of Grotius in his work Le droit des gens ou les principes de la loi naturelle appliqués à la conduite et aux affaires des Nations et des Souverains (1758)39 As a rule, only the territorial State is competent ‘[f] or, nature does not give to men or to nations any right to inflict punishment, except for their own defence and safety…; whence it follows that we cannot punish any but those by whom we have been injured’.40 However:

[We] ought to except from this rule those villains, who, by the nature and habitual frequency of their crimes, violate all public security, and declare themselves the enemies of the human race (ennemis du Genre-humain). Poisoners, assassins, and incendiaries by profession may be exterminated wherever they are seized; for they attack and injure all nations, by trampling underfoot the foundations of their common safety. Thus, pirates are sent to the gibbet by the first into whose hands they fall. If the sovereign of the country where the crimes of that nature have been committed, reclaims the perpetrators of them, in order to bring them to punishment, they ought to be surrendered to him, as being the person who is principally interested in punishing them in an exemplary manner.41

These views are elementary, but Grotius and de Vattel clearly coupled universal jurisdiction and extradition. When an appeal has been made, the custodial State should co-operate either by extraditing the suspect or by prosecuting him before its own courts. The accent is therefore more on the negative obligation (p.37) not to shield a fugitive from prosecution by granting asylum42 than on a positive right to exercise universal jurisdiction. The right is primarily a corollary of the obligation.

The rights and obligations thus created are bilatéral between the custodial State and the State(s) directly linked to the offence. Grottus’ and de Vattel’s policy proposals do not sanction a third country’s right to punish an offender. As in the writings of Covarruvias, aut dedere aut judicare stands for the duty of the judex loci deprehensionis either to extradite or to punish.

The universality principle thus envisaged is endorsed by a number of international resolutions. At its Cambridge session in 1931, the Institute of International Law adopted a new resolution on criminal jurisdiction. The relevant provision reads:

Article 5. Every State has the right to punish acts committed abroad by a foreigner who is found on its territory, provided these acts violate general interests protected by international law (such as piracy, trade in negroes, trade in white women, propagation of contagious diseases, attacks on international communication means and destruction of undersea cables, counterfeiting of currency and securities, etc.), if extradition of the accused is not requested or if the territorial State or the State of nationality of the offender do not accept an extradition offer.43

A similar provision was adopted by the International Congress of Comparative Law in 1932.44 In these texts the link between extradition and universal jurisdiction is present, but has been attenuated.

Aut dedere aut judicare subsequently developed into an independent or primary right of the custodial State to prosecute delicia juris gentium. The disconnection of extradition and universal jurisdiction can be found in the (p.38) writings of Mikliszanski,45 Feller,46 and Oehler, author of one of the most comprehensive and analytical post-World War Il studies on criminal jurisdiction.47 According to Oehler, the universality principle (Weltrechtspflegeprinzip) provides for an independent right of the judex loci deprehensionis to prosecute offences that ‘pose an equal threat to all nations’.48 The only required link with the forum State is the voluntary presence of the offender.49

Under this system, the perpetrator of an international offence knows that wherever he decides to go or to hide, he may be put on trial.50 This could in theory, result in ‘forum shopping’, but the choices of a fugitive offender are usually severely limited by geographical constraints and visa regulations. Moreover, the intent of the person fleeing is generally to avoid any trial, not to choose the most favourable forum.

Admittedly, the co-operative character of universal jurisdiction exercised without considering extradition to a more competent State is hardly in evidence. As stated in the introduction to this chapter, categorization and labelling are inherently somewhat arbitrary, leading to results that may not be fully satisfactory. ‘Co-operative’, however, was chosen to contrast with ‘unilateral’ in the third version of the universality principle, winch is discussed next.

C. THE UNILATERAL LIMITED UNIVERSALITY PRINCIPLE

The unilateral limited universality principle no longer requires any link with the forum State. The only criterion is the international legal character of the offence. Jurisdiction is truly ‘universal because any State may unilaterally launch an investigation, even in absentia, Extradition of the suspect is perfectly acceptable to secure personal jurisdiction for trial.

This seems to be the view taken by KC Randall in his leading article Universal Jurisdiction Under International Law (1988).51 The universality principle ‘provides every State with jurisdiction over a limited category of offences generally recognized as of universal concern, regardless of the situs of the offence and the nationality of the offender and the offended’52 Once an offence rises to the level (p.39) of an international crime it is ipso facto subject to universal jurisdiction,53 which is no longer the negation of the right to grant asylum but the positive right of any State to prosecute the offender without regard to his whereabouts.

Randall introduces the erga omnes 54 and jus cogens 55 concepts in his discussion on individual criminal responsibility under international law and universal jurisdiction:

Violations of obligations erga omnes and jus cogens norms offend all States, whether committed by State actors or individuals. Indeed domestic jurisdiction over those violations may draw support from the Barcelona Traction case dictum, which, although not without ambiguity, may support a type of actio popularis, enabling any State to vindicate rights common to all. If that dictum supports judicial remedies against State offenders, it logically supports judicial remedies against individual offenders, thus complementing the universality principle. In this way. the erga omnes and jus cogens doctrines may buttress the universal jurisdiction of all States.56

The use of the Barcelona Traction dictum as authority for universal jurisdiction has been criticized by Higgins:57

It is spoken of as if it provides guidance for the contemporary application of the principle of universality of jurisdiction—as if the Court was affirming universal jurisdiction in respect of each of these offences. Of course, the Court was doing nothing of that kind. Its dictum was made in the context not of asserting jurisdiction but of an examination of the law relating to diplomatic protection …

(p.40) Further the nationality-of-claims rule concerns diplomatic representation in civil claims. This is true of the stated exception to the rule, where obligations are owed erga omnes. The universality principle, by contrast, is concerned with the application of criminal jurisdiction.58

The passage in Barcelona Traction should be read against a (much criticized) dictum of the Court some years earlier in the South West Africa cases, according to which locus standi is not constituted by the fact that all States have an interest in humanitarian matters.59 Barcelona Traction arguably overrules South West Africa on this point but, as Higgins points out, standing in the context of diplomatic protection and State responsibility is quite a different matter from standing to punish an individual.

Under the system proposed by Randall there is no basis for the offender to predict where he will be tried. Prosecution takes complete precedence over the place of trial in this policy-oriented approach. Donnedieu de Vabres and Oehler both categorically reject the exercise of universal jurisdiction through extradition; the former because it tramples on the fundamental rights of the individual,60 the latter because the forum State abuses a right, interferes in the domestic affairs of the States who are otherwise competent, and acts like a ‘world policeman’ at the risk of unhinging international criminal law as a whole.61

The unilateral limited universality principle also raises the question of compatibility with the International Criminal Court.62 As first conceived, this notion of the universality principle was a substitute for a non-existing international criminal court, an idealistic solution to the incomplete structure of the international legal order.63 Now that the ICC is established, it would seem illogical to hold on to it and attribute similar, if not broader, powers to a single State than to a treaty-based court.

Only one resolution by an international learned body seems to endorse so broad a right.64 Article 8 of the 1993 draft Resolution on the Extraterritorial (p.41) Jurisdiction of States by the Institute of International Law provides:

  1. 1. Under the principle of universality, jurisdiction may be exercised in order to protect certain interests of the international community as a whole.

  2. 2. Jurisdiction under the principle of universality extends to persons regardless of their nationality and the place where they committed their acts.

  3. 3. The principle of universality shall apply to offences as defined under conventional and customary international law, such as piracy, the hijacking of aircraft, terrorism, and the trade of narcotics.

  4. 4. Jurisdiction under the previous paragraph may be exercised irrespective of signature or ratification of any international convention by the State of the nationality of the accused.65

As in the Institute’s previous resolution of 1931.66 universal jurisdiction is limited to delicta juris gentium. On the other hand, no longer present are the conditions that (1) the accused is found on the forum States territory, that (2) his extradition is not requested, or that (3) the territorial State or the State of nationality of the accused do not accept an extradition offer. New tempering provisions couched in terms of ‘reasonableness’ and ‘non-interference’ are instead introduced in article 4:

  1. 1. Extraterritorial jurisdiction, whatever the specific title under which it is claimed, shall be exercised reasonably, while balancing the interests of the States concerned.

  2. 2. Nothing in this Resolution is to be construed as an entitlement for one State to interfere with the internal affairs of other Stales.

The Restatement (Third) of the foreign Relations Law of the United States as promulgated by the American Law Institute in 198767 clearly influenced the Institute of International Law in its preparation of the above quoted draft Resolution. Sections 404 and 423 of the Restatement recognize that international law permits any State to apply its laws to punish ‘certain offenses recognized by the community of nations as of universal concern’, without making any reference to the whereabouts of the accused. Section 403(1), however, prohibits the exercise of extraterritorial jurisdiction ‘when the exercise of such jurisdiction is unreasonable’.

Neither text excludes a priori the possibility of exercising universal jurisdiction over a suspect who is not present. Moreover both recognize that the (p.42) question whether the forum State is acting within the perimeters of reasonableness and non-interference, even when a suspect is present, can only be determined on a case-by-case basis, taking into consideration all the facts.

With these provisions and remarks the discussion has come to full circle: an exercise of jurisdiction by any State other than the territorial State violates prima facie the non-interference principle;68 the forum State must therefore be prepared to show that its proceedings are nevertheless justified under some principle of jurisdiction; the universality principle allows, in theory, any State to punish ‘universal offenses’;69 in practice, every form of extraterritorial jurisdiction must be exercised reasonably and without interfering with the internal affairs of other States.

SUMMARY

This chapter has provided a brief overview of the theories for universal jurisdiction. The universality principle encompasses three different concepts: (1) the secondary or subsidiary jurisdiction of the custodial State over all serious offences if extradition of the suspect is impracticable; (2) the jurisdiction, whether primary or subsidiary, of the custodial State over international offences only; (3) the primary right of any State to try international offences, without regard to the offender’s whereabouts. Clearly, these versions overlap to some extent. The first and the third versions include the second because the greater includes the lesser. As it represents the common ground, only the co-operative limited universality principle seems to qualify at this point as a ‘signpost’.70 An evolution in the course of time can be seen from the first version of the universality principle, through the second, and towards the third. Illustrative of this evolution are the three resolutions by the Institute of International Law, respectively adopted in 1887, 1931, and 1993. All three versions co-exist in current doctrine. The co-operative limited universality principle, however, is now better known as the representation principle, especially in the Germanic legal culture.

Notes:

(1) Cf article 38 ICJ Statute.

(2) This is one of the main themes of AP Rubin, Ethics and Authority in International Law (1998).

(3) A rare exception is Rubin, ibid.

(4) G Guillaume, ‘La competence universelle, formes anciennes et nouvelles’ in Melanges offerts a Georges Levasseur: Droit penal, droit européen (1992) 23, 24.

(5) J Kohler, Internationales Straf recht (1917) 37.

(6) G Solna, Das Wehrechtsprinzip im internationalen Straf recht (1925) 13; Guillaume (n 4 above) 25.

(7) D Covarruvias, Practicorum quaestionum chapter 11, no 7 (cited in Guillaume, Ibid, 27). Remittere being a synonym for dedere, Guillaume points out that the paternity of the maxim aut dedere auf judicare (extradite or try) comes to Covarruvias and not to Grotius as the common opinion holds.

(8) Later versions of this adage substitute punire (to punish) with judicare (to adjudicate) or with persequi (to prosecute) and remitere (send back) with dedere (hand over).

(9) See ch 3 s A below.

(10) The relevant provisions of the 1803 penal code are reprinted in F Meili, Lehrbuch des internationalen Strafrechts und Strafprozebrechts (1910) 64–5.

(11) The relevant provisions of the 1852 penal code read: ‘Art. 39. Again, if a foreigner has committed abroad an offence other than those indicated in the preceding paragraph, he shall always be arrested upon entering the country; arrangement shall be made forthwith for his extra-dition to the State where the offence was committed.

Art. 40. Should the foreign State refuse to receive him, the foreign offender will generally be prosecuted in accordance with the provisions of the present penal code. If, however, more lenient treatment is prescribed by the criminal law of the place where he committed the act, he shall be treated according to this more lenient law. Expulsion shall also be included in the penal sentence in addition to the infliction of the usual penalty’: translation from Harvard Research in International Law, ‘Jurisdiction with Respect to Crime’ (1935) 29 Am J lnt’l L 435, 574–5.

(12) The resolution is reprinted in French in (1883–5) 7 Annuaire de I’Institut de Droit International 148. The officiai comment on article 10 by von Bar and Brusa is quoted in M Travers, Le droit pénal international et sa mise en oeuvre en temps de paix et en temps de guerre. Tome L Principes. Règles générales de compétence des lois répressives (1920) 130.

(13) The report of von Bar and Brusa cites these examples. In the first case the offender could not be extradited without exposing him to ‘barbaric’ justice, whereas extradition in the second case would be ‘dangerous’ (Travers, Ibid, 130).

(14) A Mercier, ‘Le conflit des lois pénales en matière de compétence’ [1931] Annuaire de l’Institut de Droit international, I, 87, 134.

(15) Ibid 134.

(16) On the distinction between internal and external sovereignty, see B Simma (ed) Kommentar zur Charta der vereinten Nationen (1991) 39–48.

(17) For a compilation of these code provisions, see Meili (n 10 above) 184–95; Solna (n 6 above) 29–43; Mercier (n 14 above) 574–6; H Donnedieu de Vabres, Les principes modernes dudroit pénal international (1928) 153–60.

(18) Ibid 169.

(19) Ibid 135. Donnedieu de Vabres further stresses that a suspect must be voluntarily present in the forum State: ‘It is out of the question that he be tried in absentia or that his extradition is requested’ (Ibid 160).

(20) Ibid 137.

(21) Reprinted in French in Harvard Research in International Law (n 11 above) 641–2. In addition to universal jurisdiction over certain international offences (article 6), the resolution provides in article 7 that all offences committed abroad by a foreigner may be punished if the foreign individual is present, if extradition has not been requested or could not been granted, and if the minister of justice orders the prosecution.

(22) Reprinted in French in Harvard Research in International Law (n 11 above) 644–5. Besides universal jurisdiction over ‘serious offences directed against general interests of humanity’, article 4 of the resolution provides the right for every State to punish acts committed abroad by a foreigner, even against a foreigner, if these acts constitute a criminal offence under the penal law of the offender, if the suspect is present on the territory and cannot be extradited, and if there is a complaint by the victim or an official denunciation by the foreign authority, as well as an initiative by the national authority.

(23) Reprinted in Harvard Research in International Law (n 11 above) 439–42. Other than universal jurisdiction over piracy (article 9), the resolution provides in article 10(a) (‘Universality: other crimes’) for universal jurisdiction with respect to any crime, ‘if the act or omission which constitutes the crime is also an offence by the law of the place where it was committed, if surrender of the alien for prosecution has been offered to such other State or States and the offer remains unaccepted, and if prosecution is not barred by lapse of time under the law of the place where the crime was committed’.

(24) See ch 1 s F above.

(25) Travers (n 12 above) 11.

(26) Ibid 75–6.

(27) Ibid 106. Travers did not justify jurisdiction based on the idea that an offender who enters a foreign country accepts its laws, for two reasons. First, it would require making a distinction between offenders who voluntarily entered the forum deprehensionis and those who are present independently from their own will. Second, penal laws are applied because of considerations proper to the Slate whereby the will or consent of the individual does not have to be taken into consideration.

(28) K Mikliszanski, ‘Le système de l’universalité du droit de punir et le droit pénal subsidiaire’ [1936] Revue de science criminelle et de droit pénal comparé 331–3.

(29) Ibid 338–9.

(30) Trial of the Major War Criminals before the International Military Tribunal sitting at Nuremberg (Germany), judgment of 1 October 1946.

(31) Principles of International Law Recognized in the Charter of the Nuremberg Tribunal and in the Judgment of the Tribunal, adopted by the ILC at its second session, in 1950, and submitted to the General Assembly as a part of the Commission s report covering the work ofthat session. The report, which also contains commentaries on the principles, appears in [1950] Ybk Int’I L Commision, vol II, 374.

(32) Eg D Ochler, internationales Straf recht. Geltungsbereich des Strafrechts. Internationales Rechtshilferecht. Recht der Gemeinschaften, Völkerstrafrecht (2nd edn, 1983) ch 13; SZ Feller, ‘jurisdiction over Offenses with a Foreign Element’ in MC Bassiouni and VP Nanda (eds) A Treatise on International Criminal Law, II (1973) 5, 34–7.

(33) Eg J Meyer, ‘The Vicarious Administration of Justice: An Overlooked Basis of Jurisdiction’ (1990) 31 Harvard Int’I LJ 108.

(34) Eg Consultative Assembly of the Council of Europe, ‘Report on the Settlement of Conflicts in Criminal Matters’ (1965) Doc. 1873, Explanatory Memorandum by Mr de Grailly, para 34.

(35) Translated by FW Kelsey, The Law of War and Peace (1925).

(36) Ibid book II, chapter XXI, §111, 1.

(37) Ibid book II, chapter XX, §XL, 1.

(38) Translated by FW Kelsey, The Law of War and Peace (1925), book II, chapter XXI, $IV, 1. The original Latin version of the last sentence reads ‘Alterum faceré deheat. ant ut ipsa inter-pellala pro mérito puniat nocentem, aut ut eum permittat arbitrario inferpellantis’.

(39) Translated by J Chitty, The Law of Nations or Principles of Natural Law Applied to the Conduct and Affairs of Nations and Sovereigns (1839).

(40) Ibid book I, chapter XIX, para 232: ‘If an exiled or banished man has been driven from his country for any crime, it does not belong to the nation in which he has taken refuge to punish him for the fault committed in a foreign country. For, nature does not give to men or to nations any right to inflict punishment, except for their own defence and safety (§169); whence it follows that we cannot punish any but those by whom we have been injured.’

(41) Ibid book 1, chapter XIX. para 233.

(42) Cf Donnedieu de Vabres (n 17 above) 137: ‘The exercise of universal jurisdiction is, just like the practice of extradition, the negation of the right of asylum.’

(43) The resolution is reprinted in French in [1931] Annuaire de l’institut de Droit International, II, 235.

(44) The resolution is reprinted in French in Harvard Research in International Law (n 11 above) 644. Article 4 provides: ‘Every State has the right to punish acts committed abroad by a foreigner, even against a foreigner, provided these acts constitute a criminal offence under the penal law of the offender, if the suspect is present of the territory and if he cannot be extradited. The exercise of this right must be limited to the prosecution of serious offences directed against general interests of humanity, namely:

  1. (A.) Piracy

  2. (B.) Slave trade

  3. (C.) Trade in women and children.

  4. (D.) Trade in controlled substances

  5. (D.) Trade in obscene publications

  6. (E.) Counterfeiting of currencies, securities and bonds

  7. (F.) Propagation of contagious diseases

  8. (H.) Attacks on international communication means, canals, and undersea cables

  9. (I.) Other offences subject of international conventions

For all other offences, the exercise of this right must be conditional upon the request of the injured person or the denunciation of the foreign authority, and upon the initiative of the national authority.’

(45) Mikliszanski Mikliszanksi (n 28 above) 338–9 defended for the category of delicia juris gentium a ‘system of universality of the right to punish’ in which ‘the perpetration of the offence triggers the equal competence of all criminal courts, but only the judge of the place of arrest may actually exercise jurisdiction’.

(46) Feller (n 32 above) 32–3.

(47) Ochler Oehler (n 32 above) ch 14.

(48) Eg Ibid 541.

(49) Cf C Lombois, ‘De la compassion territoriale’ [1995] Revue de science criminelle et de droit pénal compare 399, 403: ‘the judge exercising [universal jurisdiction) can only be the judex deprehensionis. This is implied in the writings of all publicists. Without this condition, the system would become even more unrealistic than it is (and it is already quite unrealistic).’

(50) Cf the Latin adage ubi te invenero, ibi te judicabo (‘where I find you, there I will put you on trial’).

(51) 66 Texas LR 785.

(52) Ibid 788, quoting O Schachter, International Law in Theory and Practice (1985) 262.

(53) Ibid 788, citing L Henkin, R Pugh, O Schachler, and H Smit. International Law (1987) 823. For a dliferent view, see R Higgins, Problems and Process; International Law and How We Use It (1994) 62.

(54) The concept of erga omnes first appeared in a dictum in Barcelona Traction, Light and Power Company Ltd ICJ Reports 1970, 3, paras 33 and 34: ‘[A]n essential difference should be drawn between the obligations of a State towards the international community as a whole, and those arising vis-a-vis another State in the field of diplomatic protection. By their very nature the former are the concern of all States. In view of the importance of the rights involved, all States can be held to have a legal interest in their protection; they are obligations erga omnes. Such obligations derive, for example, in contemporary international law, from the outlawing of acts of aggression, and of genocide, as also from the principles and rules concerning the basic rights of the human person, including protection from slavery and racial discrimination. Some of the corresponding rights of protection have entered into the body of general international law (Reservations to the Convention on Genocide, Advisory Opinion: ICJ Reports 195l 23); others are conferred by international instruments of a universal or quasi-universal character. On the concept of obligations erga omnes. see A De Hoogh, Obligations erga omnes and international crimes; A theoretical inquiry into the implementation and enforcement of the international responsibility of states (1996); M Ragazi, The Concept of international Obligations Erga Omnes (1997).

(55) Jus cogens is a peremptory norm of general international law, which article 53 of Vienna Convention on the Law of Treaties defines as la norm accepted and recognized by the international community of States as a whole as ‘a norm from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character’. On the concept of jus cogens, see FA Mann, ‘The Doctrine of Jus Cogens in International Law’ in FA MannFurther Studies in International Law (1990) 84.

(56) Randall (n 51 above) 831.

(57) Higgins (n 53 above) 57; even more critical is AP Rubin, ‘Actio Popularis, Jus Cogens and Offenses Erga Omnes’ New England LR (2001) 265, 277 8.

(58) See ch 1 s B above.

(59) South West Africa, ICJ Reports 1966, 6, para 50: ‘Humanitarian considerations may constitute the inspirational basis for rules of law…Such considerations do not, however, in themselves amount to rules of law. All States are interested—have an interest in such matters. But the existence of an “interest” does not of itself entail that this interest is specifically juridical in character’.

(60) H Donnedieu de Vabres ‘Les Leçons de l’histoire et le progrès de droit pénal international’ [July September 1951] Revue de Science Criminelle et de Droit Pénal Comparé 1, 5.

(61) D Oehler, ‘Auslieferungsuchen, Einlieferung und der Geltungsbereich des Strafrechts’ in Festschrift der Rechtswissenschaftlichen Fakultät zur 600-Jahr-Feier der Universität zu Köln (1988)489, 497–500.

(62) On this issue see, although somewhat outdated, B Graefrath, ‘Universal Criminal Jurisdiction and an international Criminal Court’ (1990) 1 Eur J Int’l L 67. See also the conclusions of this book.

(63) This is understood in most (early) writings on the subject; some are explicit, eg S Glaser, Infraction internationale: Ses éléments constitutifs et ses aspects juridiques (1957) 31: ‘International crimes are subject to the system of universal repression or universal jurisdiction. as long as there is no international criminal court’ (emphasis added).

(64) But see, recently, the Princeton University Program in Law and Public Affairs. The Princeton Principles on Universal Jurisdiction (2001), Principle 1(3): ‘A state may rely on universal jurisdiction as a basis for seeking the extradition of a person accused or convicted of committing a serious crime under international law as specified in Principle 2(I) provided that it has established a prima facie case of the person’s guilt and that the person sought to be extradited will be tried or the punishment carried out in accordance with international norms and standards on the protection of human rights in the context of criminal proceedings.’

(65) Reprinted in (1993) 65 Ybk Institute int’l L II, 174.

(66) See s B above.

(67) American Law Institute, Restatement of (he Law (Third), The Foreign Relations Law of the United States (1987).

(68) See ch 1 s F above.

(69) Term used by the American Law Institute in § 423 of the Restatement (Third) of the Lbreign Relations Law of the United States (n 67 above).

(70) Cf the discussion in ch 1 s F above.