Looking Back from Nowhere: Is There a Future for Universal Jurisdiction Over International Crimes?
Tilburg Law Review, Vol. 16, pp. 5-29, 2011
25 Pages Posted: 6 Dec 2011 Last revised: 8 Dec 2011
Date Written: December 5, 2011
Universal jurisdiction originated centuries ago in order to prosecute pirates operating on the high seas. Subsequently, its scope was expanded to cover multiple other serious criminal acts, regardless of where they were committed. Belgium and Spain in particular have been active forerunners in commencing prosecutions based on absolute universal jurisdiction – absolute in the sense that the only limiting factor is the gravity of the crime. In the past decade, as a political and legal offset to this exercise of broad extra-territorial jurisdiction, many states, including Belgium and Spain, have begun to narrow the applicability of universal jurisdiction. This has led to the emergence of ‘conditional’ or ‘restrictive’ universal jurisdiction: not only linking its application to the gravity of the crime, but also to the nationality or residency of the accused or of the victims. In this article, the author questions whether we can still genuinely consider that the principle conforms to ‘universal’ jurisdiction if its exercise is limited by conditions other than the gravity of the crime. To provide an answer to this question, the limits and challenges to the concept of universal jurisdiction and methods of its application are analyzed, with reflections on the case law and scholarly discourse. The concluding arguments suggest that while the extension of universal jurisdiction to international crimes through the piracy analogy and the gravity argument have been significant in the development of international criminal law, it is no longer the sole – or the popular – form of jurisdiction. State practice in the exercise of absolute universal jurisdiction has waned, and there is no shared, comprehensive opinio juris on the legal nature of that practice.
Keywords: universal jurisdiction, customary international law, international criminal law, piracy, crimes against humanity, Eichmann case, Arrest Warrant case, Filartiga case, The Princeton Principles on Universal Jurisdiction, International Criminal Court
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