Universal Jurisdiction

Adv. Irit Kohn

Bar-Ilan University; Vice President of the International Association of Jewish

Lawyers and Jurists and former Director of the International Department of the
Israel Ministry of Justice

Universal jurisdiction is the power of a country to legislate, implement, judge,

and punish a person for crimes committed outside that countrys borders,
whether these crimes were against its own citizens or not. It is applied
inrelation to war crimes, crimes against humanity, and genocide. Around these
crimes there exists an international consensus anyone who commits them
must be punished.

The nature of these crimes is derived from historical processes, for example,
the Nuremberg trials. The convention which laid down the basic principles
according to which the Nazi war criminals were tried ruled that anyone
accused of crimes against peace or crimes against humanity carried out during
the Second World War would be prosecuted before an international military
court in Nuremberg administered jointly by the signatories to the convention
(the U.S., USSR, England, and France). Likewise, it was decided that
these
criminals
could also be tried in the countries which founded the said court.
The convention was authorized by nineteen other countries and in 1946
the UN General Assembly adopted its principles unanimously. Accordingly,
it was decided that crimes against peace, war crimes, and crimes
against
humanity
are crimes in every country. On this basis, each and every country
is authorized to try those accused of committing them. As a result, Nazi war
criminals were tried in a number of countries.

A further example is the laws of war which were expanded in 1949 by

four
Geneva
These
conventions
dictated
what
is was
permitted
violations
definition
against
and crime
the
forbidden
of
applied
it,Conventions.
the
and
was
prohibitions.
the
during
in
notwar.
criminals
committed
the
They
ItNuremberg
was
are
define
innot
decided
that
what
itstrials
country,
citizens.
that
constitutes
and
it the
ismade
The
the
crime
violations
description
responsibility
them
subject
not
and
of
serious
of
to
each
these
severe
directed
universal
and
violations
everyjurisdiction.
country
expanded
to find
the the
definition
violators
of and
warbring
crimes
them
overtoand
trial,
above
eventhe
45
if

These examples were selected from many possibilities and

presented to that universal jurisdiction existed before the
demonstrate
1990s,
wave ofwhen
trialsa began in various countries. This wave has
continued
to this published in 2001 it was stated that for ten
day. In an article
years,
or unprecedented
even
less, an
movement has taken place which has
transferred
international politics to legal processes. This movement advanced
at a rapid
pace,
without public discussion, largely as a result of the
strong
desire (who
of
its supporters
will be mentioned later) to bring to justice
violators
of and criminals who had committed crimes of the types
human rights
outlined
above. Theoretically this is a worthy aim, although, as it is
implemented,
there are many obstacles. It is important to emphasize that
although, as was
demonstrated
in the examples above, conventions defining
such
authority
existed
for many years, it was never before used on a scale
similar
to today.
that
witnessed
The case which began the recent wave was that of Augusto
Pinochet
of a warrant arrived in the UK from a Spanish judge
Chile. In 1998
requesting
Pinochets arrest and extradition to Spain to be tried for crimes
against
Spanish citizens in Chile. Those lawyers who supported universal
jurisdiction
saw in the arrest of Pinochet for a sixteen-month period a
turning
point in
the upholding
of justice. However, critics of the events expressed
concern
the use ofatthe principles of universal jurisdiction as a mechanism
for resolving
political
conflicts. Pinochet was perceived by the European
Left
a right- anti-democrat, since he had led a revolt against
wingasextremist
the
elected
leader.
Others, amongst them leaders of the Democratic Party in
Chile,
had Salvador Allende as a revolutionary Marxist
perceived
who dictatorship
led
aideologue
Cuban-style
using Cuban weapons, and therefore
welcomed
his removal. They changed their attitude after the junta began to
use
harsh
means,
much more so even than was to be expected in the
emergency
situation in which Chile found itself at the time. Critics
pointed
out that
disagreement
with the reign of Allende did not justify the crimes
afterpost-Franco
Indeed,
immunity
crimes.
the
of
request
hisCritics
in
removal.
and
the
forallowed
Pinochets
year
continue
Spain.
However,
2000
his
The
to
trial
arrest,
the
universal
government
point
in
Chilean
should
that
outcountry,
jurisdiction
that
have
Supreme
which
the
take
where
Spanish
followed
should
into
Court
he
account
had
revoked
judge,
not
thebethe
committed
allowed
dictate
Pinochets
committed
when
history
Franco
46 writing
the
regime
to political
his
history of Chile.

decided to abandon judgments from the recent past in order

promoteof national restoration which undoubtedly
ato process
strengthened
democracy. If Spanish
so, the question begs to be asked, why was Chile not
allowed
to do the same? The same question could also be applied to
South
ShouldAfrica.
courts outside South Africa that are trying people who had
committed
crimes in South Africa consider the process of national
rebuilding?
Today
similar
process
cana be witnessed in the International Criminal
Court
(ICC)
in the case
of Uganda.
It is necessary to remember that there has been no appropriate
public
discussion of universal judicial authority and there exist no clear
rules
to
how itasshould
be applied. Rather, the jurisdiction is applied in
every country
according
to internal laws. Courts established by the Security
Council
the
ICC
wereor molded
specifically within the framework of a
convention
defined, withwhich
the participation of the signatory countries, the
offenses
be
tried and to
procedures
for gathering evidence and defense. In the
applications
of international law in individual states, the internal laws of a
country
are known by everyone and it is possible that they
not
clearly
do
comply standards, thus hindering the activation of the
withnot
international
jurisdiction.
Likewise, there is no unanimity in the definition of crimes between
the
varioussince the trial takes place in accordance with the
countries,
internal
laws ofThere are no certainties about the defense
each country.
provided toOn
thethe one hand, the statutes of time limitation,
defendant.
which
the timedefine
periods within which certain crimes must be tried, differ
from
stateOn the other hand, in cases of the offenses
to state.
discussed
here,
it is limitation applies. Within the legal system of
accepted that
no time
the variousthere is a lack of judges and prosecutors expert in
countries
international
law, a problem which is likely to cause inappropriate
interpretation
during
the judicial process.
A further factor which is especially problematic is the political
exploitation
of
universal
jurisdiction.
When
prosecution
is
initiated
byactions
a state
to the
neutral
the
for
from
Belgium.
negative
actions
Belgian
the
matter
and
From
passing
in
its
attempt
motives.
in
the
political
any
then
Sabra
ofway,
to
on,
There
aput
echelons
and
letters
more-encompassing
there
onShatila
isthe
trial
no
is
describing
free
ademand
former
realistic
camps
fromIsraeli
that
Belgiums
in
corruption.
concern
Lebanon.
law
the
prime
state
on
ofpast
One
political
universal
minister
This
initiating
not
related
exploitation
the
example
Ariel
complaint
jurisdiction
in
the
trial
Sharon
Congo
be
ofresulted
this
in is

47

In the past of many countries there are

deeds perhaps
which make them subject to
could
international
jurisdiction, such as Belgiums past
actions
in Yet Belgium attempted to put
the
Congo.
on
trial former Israeli prime minister Ariel
Sharon
for actions during the First Lebanon War.
Given
the large Muslim community in Belgium,
whose
electoral power today is significant, it is
clear
that
factors
other than the desire to see justice
done
were influential in Belgiums conduct in
this matter.

arrived at the Israel Ministry of Justice. This particular case

demonstrates
in
the past ofthat
many countries there are deeds which could
perhaps
make to international jurisdiction, yet these countries
them subject
are
deemed
worthy
to function as representatives of the international
community
will try suchwhich
crimes. Adding to this the large Muslim community
in
Belgium,
whose
electoral power today is significant, it is clear that factors
other
than to see justice done were influential in the conduct of the
the desire
process
in Belgium. There is no doubt that the readiness of a country to
arrest
try
will beand
influenced
by the relations of the country with the country
in
the which
crimes were committed, as well as the military and
economic
strength
of
the country
in question. It is interesting to note that Margaret
Thatcher
sharply criticized the arrest of Pinochet since he helped
Britain
during
Falklands
War. the
A complaint was brought in Spain against the Israeli Chief of
Staff
andofaIDF generals, together with the Minister of Defense
number
incumbent
at the time,
Shehadeh,
Today
themselves
many
which
in
for
countries
an
theembarrassing
led
targeted
toare
thecareful
killing
deaths
situation
to
of
inlimit
2002
a number
oftheir
of
a complaint
Hamas
universal
of innocents.
commander
being
lawsInso as
Salah
2009
highest
not
brought
judicial
48 toSpain's
find
court
system.
in their
finally
The dropped
final word
theonmatter.
this subject has yet to be heard.