The principle of universal jurisdiction refers to the ability of a State to investigate or prosecute persons for crimes committed outside that State’s territory and which are not connected to the State in a way that would ordinarily establish the State’s jurisdiction over the crime or person (i.e. territoriality, the nationality of the suspect or victim, or harm to a direct interest of the prosecuting State).

Universal jurisdiction is an exceptional basis for jurisdiction. Under this principle, crimes infringing upon the interests of all States (such as piracy) or offending certain fundamental principles (such as human rights principles which have attained the status of jus cogens) may be prosecuted by any State, despite the absence of the normal bases for jurisdiction.

This principle was the theme of the recent ‘Humanitarian Law Perspectives’ Seminar Series presented by Australian Red Cross and Mallesons Stephen Jaques. The HLP Seminar Series is designed to update the Australian legal community on current developments in international humanitarian and criminal law. Dean of Sydney Law School, Professor Gillian Triggs, and current Justice of the International Court of Justice, Sir Kenneth Keith, spoke about the challenges of exercising universal jurisdiction at national and international levels.

Starting from the principle enunciated by the 1945 Nuremburg Tribunal that “crimes against international law are committed by men, not abstract entities,” Professor Triggs focused on the key issues of jurisdiction and immunity from prosecution. The issue of immunity, she explained, is only relevant once jurisdiction to prosecute has been established, and even when it applies, should not allow an individual to abrogate responsibilityfor the commission of heinous crimes.

Through case studies, Professor Triggs provided insight into contrasting experiences of various national courts in exercising universal jurisdiction. A notable example was that of the Pinochet No 3 Case, in which the UK House of Lords found that the former Chilean dictator Augusto Pinochet could not claim head of state immunity for committing acts of torture, as torture could not be said to be an official act of the State.

By contrast, a US District Court last year granted the Israeli Defence Minister and Deputy Prime Minister, Ehud Barak, immunity from prosecution for alleged war crimes as a serving minister.

Sir Kenneth then surveyed numerous issues involved in exercising universal jurisdiction at the international level, also through case studies such as the Arrest Warrant Case. In that case, brought by the Democratic Republic of the Congo against Belgium, the majority of the Court held that while there was no established practice of universal jurisdiction, its exercise was not prohibited under customary international law, and did exist in absentia with respect to piracy.

Some of the issues Sir Kenneth raised included: the extent to which pursuing justice by exercising jurisdiction may in fact work against underlying peace processes; the imperative for national and international judicial bodies to prioritise procedural fairness and natural justice; the relationship of universal jurisdiction to the concept of “the responsibility to protect;’ and the influence of international State practice on domestic courts’ exercise of universal jurisdiction.

Sir Kenneth also highlighted that while the creation of the International Criminal Court in 2002 reduced the perceived need to create laws establishing universal jurisdiction, universal jurisdiction is exercised by States and not by international courts, tribunals or organisations.

The ICC’s authority is founded in the provisions of the Rome Statute of the ICC, and although its purview sometimes resembles the universal jurisdiction asserted by States, the Court itself cannot exercise universal jurisdiction.

Both speakers emphasised that universal jurisdiction has remained controversial for essentially the same reasons since its inception. However, what has changed in recent years is the apparent willingness of the international community to tackle the challenges involved in exercising universal jurisdiction with the aim of ending impunity for heinous crimes.

THE FACTS: 

Sir Kenneth Keith is a judge on the International Court of Justice inThe Hague. He spoke at an event held by the Red Cross last week about universaljurisdiction and impunity from international crimes. The seminar, called'Nowhere to Hide', also featured Professor Gillian Triggs, Dean of the Facultyof Law and Professor in Law at University of Sydney, who looked at challengesfacing domestic courts in exercising universal jurisdiction.