Thursday, 30 January 2014

Universal Jurisdiction, Immunities and the Entrenched Culture of Impunity

Spain's National Court recently indicted former Chinese President Jiang Zemin and four other Chinese officials on suspicion of involvement in genocide in Tibet. Apparently arrest warrants are already out against them, which means that these five people from the top brass of CCP face potential arrest if they ever decide to visit Spain to enjoy its sunny beaches or to watch Barcelona play Real Madrid at Camp Nou. Although Spanish authorities might hesitate to execute the arrest warrants, fearing deterioration of Sino-Spanish ties, the very fact that these leaders will think twice before booking their flights to Spain or any other countries with which Spain has extradition treaty is in itself, I think, a major victory for us Tibetans.

So as to familiarize readers with the concept of universal jurisdiction, which was invoked to lodge our genocide case before the Spanish National Court, I have posted below an academic paper on it, which I wrote a few years ago. I hope this provides readers with a rough idea about the scope and limits of universal jurisdiction as an instrument of international justice. Apologies for the legal jargons used (after all it is an academic paper) but I think readers will be able to make sense of the paper despite them.


The doctrine of universality is in shambles. The extension of universal jurisdiction to serious human rights offences such as genocide, crimes against humanity, war crimes and torture has transformed this, once uncomplicated and rarely invoked, jurisdictional principle into a subject of intense political debate and heated scholarly exchanges.[1] The explosion of universal jurisdiction cases before various municipal courts in recent years has, in its wake, exposed several debilitating flaws in the doctrine of universality. The existential crisis afflicting the universality principle has been exacerbated by the World Court’s failure to elaborate upon the substance and scope of universal jurisdiction in the Case Concerning the Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v Belgium). Furthermore, amendments effected by states such as Belgium, Spain and the UK in their previously broad universal jurisdiction laws have pushed this jurisdictional principle to the fringes of international law. These recent events have prompted one analyst to declare that universal jurisdiction “is on its last legs, if not already in its death throes.”[2]

This essay, after a brief discussion of the underlying rationales of universal jurisdiction and its customary international law origins in Section I, will firstly argue that despite the universality principle’s nonconformity with the basic principles of the international law of jurisdiction, it is conceptually permissible under international law. Next in Section II, it will identify weaknesses and uncertainties in the doctrine of universal jurisdiction, which are resulting in excesses in its application and preventing it from becoming a viable instrument of international justice. Section III will consider grants of immunity as a remedy for the abuse of universal jurisdiction and reason that the current immunities regime is extensive enough to address any misgivings sovereign states may have about the universality principle. Finally, the essay will call for an authoritative delimitation of the legal content and scope of universal jurisdiction either by the International Court of Justice (ICJ) or by the UN General Assembly, and conclude by making three key recommendations in this respect.

I. The Universality Principle & The International Law of Jurisdiction

Although there exists no authoritative definition of universal jurisdiction in customary and conventional law,[3] it is generally agreed that universal jurisdiction permits states to assert their prescriptive jurisdiction over a narrow category of universally recognized crimes, irrespective of the nationalities of the perpetrator or the victims, and regardless of where the offence was committed or where its effects were felt.[4] Universal jurisdiction is, therefore, different from other more traditional “heads” of jurisdiction in that it does not require a prescribing state to establish any kind of nexus between its interests and the putative offence it seeks to criminalize.[5] The logic underpinning this extraordinary basis of jurisdiction is twofold. Firstly, certain crimes are, in the words of Justice Robert Jackson, “so calculated, so malignant, and so devastating that civilization cannot tolerate their being ignored because it cannot survive their being repeated.”[6] It is, thus, the egregious nature of these crimes that authorizes every state to take punitive measures against their perpetrators on behalf of the international community in a manner equivalent to the Roman concept of actio popularis.[7]

Secondly, these crimes of universal concern are often carried out in areas over which no state has jurisdiction or in circumstances where states with more credible claims to jurisdiction (premised on territoriality or nationality principles) are either unable or unwilling to prosecute the offenders.[8] It is specifically in such situations when more established doctrines of jurisdiction prove inadequate to bring perpetrators of grave international crimes to account that a state interested in prosecuting them can have legitimate recourse to the universality principle.[9] Simply put, universal jurisdiction is a default legal mechanism contrived to close existing jurisdictional gaps so that the culture of impunity surrounding certain harrowing crimes, which infringe core values shared by all of humanity, could be broken.

Given the transnational scope of its purpose, it is expected, even required of universal jurisdiction to not conform to the conventional, nexus-based model of establishing jurisdiction. But this prompts the question: Does international law permit states to institute a jurisdictional ground based on something other than the nexus criterion? The answer to this critical question can be inferred from an often-cited dictum of the Permanent Court in the Lotus case. There the Court famously stated:

“Far from laying down a general prohibition to the effect that States may not extend the application of their laws and the jurisdiction of their courts to persons, property and acts outside their territory, it leaves them in this respect a wide measure of discretion which is only limited in certain cases by prohibitive rules; as regards other cases, every State remains free to adopt the principles which it regards as best and most suitable.”[10]

Put differently, states are free to establish any form of extraterritorial criminal jurisdiction as long as, in doing so, they do not violate any existing prohibitive rule arising from custom or convention. Since customary international law itself grants states the discretion to exercise universal jurisdiction, there is no question of such an exercise of jurisdiction violating a prohibitive norm. Therefore, one could safely say that despite its divergence from the traditional, nexus-based approach to jurisdiction, the principle of universality is neither irreconcilable nor alien to the international law of jurisdiction.

Ironically however, states, at the level of domestic law, are afforded no authority whatsoever to unilaterally substantiate the prescriptive substance and the adjudicative scope of universal jurisdiction.[11] The legal content of universal jurisdiction is, instead, determined in its entirety by customary international law,[12] whose rules are formed when states repetitively conduct themselves in a particular way out of a sense of obligation (opinio juris).[13] Domestically, states are granted only the discretion to decide upon ways to assimilate this jurisdictional norm into their respective judicial systems. They may do so either by instructing their courts to draw directly from international law or by passing parallel domestic legislations incorporating the substantive content of universal jurisdiction from international law.[14] But whatever legal process a state may choose to enable its courts to hear universal jurisdiction cases, the substance of the relevant domestic regulation must remain in complete harmony with the legal content of universal jurisdiction outlined in customary international law.[15] This is important because a national court’s assertion of universal adjudicative jurisdiction based on a statute, which exceeds the applicable customary standards would, in effect, be a violation of international law. Regrettably, as we shall see in Section II, these customary standards are not clearly set out and, thus, open to myriad interpretations.

II. The Expansion of Universal Jurisdiction & Ensuing Controversies

Piracy was the first crime to be subject to universal jurisdiction.[16] Pirates were regarded as “hostis humanis generis” (enemies of all humanity) and, as such, acts of violence and depredation perpetrated by them on the high seas deemed “punishable in the tribunals of all nations”.[17] These seafaring marauders were reviled not only because they indiscriminately targeted nationals and vessels of several states but also because, in doing so, they disrupted maritime commerce and freedom of navigation on the high seas.[18] Given that the perpetrators of piratical acts operated beyond any individual state’s territorial waters- often evading arrest and prosecution, the jurisdiction to prosecute them was awarded to any state that happened to apprehend them.[19] States, since the 1600s, have recognized this special jurisdictional scheme for piracy as a customary norm.[20] And with its codification in Article 19 of the 1958 UN Convention on the High Seas and Article 105 of the 1982 UN Convention on the Law of the Sea, this longstanding customary norm has secured an elevated legal stature in positive international law as well.[21]

Although originally conceived to further the pursuit and punishment of pirates, in recent decades, universal jurisdiction has been extended to a cluster of serious human rights offences such as genocide, crimes against humanity, war crimes, torture and certain acts of terrorism.[22] This marked expansion in the scope of universal jurisdiction has been retrospectively attributed to the judgment of the Nuremberg Tribunal.[23] Given that there existed no historical precedent prior to the Second World War for subjecting human rights offences to the universality principle, the Tribunal justified the application of universal jurisdiction to Nazi crimes by analogizing them with the paradigmatic universal crime of piracy.[24] Since then many other courts have used this analogy to extend the application of universal jurisdiction to various human rights offences.[25] But this over-reliance on the piracy analogy has brought to light two major conceptual anomalies in the doctrine of universality.

The first flaw relates to the severity of offences covered by the universality principle. The standard argument is that the crime of piracy, in terms of degree of violence involved, is similar to any other run of the mill crime like theft, rape or murder; therefore, it cannot be classed alongside crimes such as genocide or crimes against humanity, which necessarily involve violence of far greater magnitude.[26] Kontorovich, for instance, contends that the special jurisdictional treatment of piracy had nothing to do with the heinousness of the offence, as historically piracy was never regarded as a particularly heinous crime.[27] He insists that this being the case, piracy cannot be used as a precedent to justify the extension of universal jurisdiction to modern human rights offences; those who do so uncritically, in his opinion, allow modern universal jurisdiction to be built on a “hollow foundation”.[28]

It is true that municipal courts have often likened piracy to robbery on land.[29] But one must acknowledge that heinousness is a subjective term open to multiple interpretations. Whilst the effects of common crimes like theft or robbery are often limited only to the territory of state where they take place, piracy as a crime has repercussions that transcend national boundaries. It can be argued that it is this international dimension of piracy, which makes it an offence of egregious nature. That said, one must concede that pragmatic considerations are more potent in case of piracy than normative ones, as the likelihood of culprits evading justice is very high.[30]

The second flaw arises from the definition of the crime of piracy. Conventionally, piracy is defined as an illegal act “of violence, detention or any act of depredation, committed for private ends by the crew or the passengers of a private ship or a private aircraft.”[31] Even centuries before the codification of this definition the crime of piracy, though not authoritatively defined,[32] was widely understood to be an offence of private nature. This can be inferred from the deliberate exclusion of privateering, which was essentially a state-sponsored act of piracy, from the operative definition(s).[33] A brief overview of the history of naval warfare suggests that privateering, unlike piracy, was not only tolerated by maritime states but also frequently encouraged especially when it was directed against their enemies.[34] The insistence on the private nature of this crime, therefore, put beyond the remit of the universality principle all those acts of brigandage on the high seas, which were carried out with direct approval from states. Thus, what this heavily constricted definition of piracy did was render unimaginable not only the possibility of any interstate conflict but also the prospect of politically motivated assertions of universal jurisdiction over this crime.[35] This is probably the reason why universal jurisdiction over piracy has remained uncontroversial for centuries.

In contrast, grave human rights offences like genocide and crimes against humanity are mostly carried out by agents of state. Since these are exclusively official acts, the extension of universal jurisdiction to them is deemed to be incompatible with the historical application of this jurisdictional principle to the private crime of piracy.[36] It is also claimed that such an expansion of the universality principle undermines sovereign prerogatives of states and significantly raises the spectre of interstate conflicts, which the piracy laws from antiquity purposely sought to avoid.[37] Therefore, Nuremberg, which established the precedent for applying the universality principle to hitherto off-limits deleterious acts of state agents, is often criticized for creating ex post facto laws.[38] Nuremberg’s legacy has been further tarnished by accusations of it being a form of victor’s justice.[39] Nevertheless, the General Assembly’s affirmation of legal principles employed by the International Military Tribunal (IMT) and their codification by the International Law Commission (ILC) in the immediate aftermath of its judgment have ameliorated these precedential problems to an extent.[40]

Besides these fallacies emanating from the overuse of the piracy analogy, universal jurisdiction, in its modern rendition, is alleged to suffer from a much more debilitating foundational weakness.[41] A closer analysis of Nuremberg reveals that there was no mention of universal jurisdiction in the Charter of the Nuremberg Tribunal and very little or no explicit reference to it in the final judgment.[42] The legal foundation of the IMT’s jurisdiction has, thus, become a matter of speculation as the Tribunal, in its judgment, has only stated that:

“The Signatory Powers created this Tribunal, defined the law it was to administer, and made regulations for the proper conduct of the Trial. In doing so, they have done together what any one of them might have done singly; for it is not to be doubted that any nation has the right to set up special courts to administer law.”[43]

Some commentators, including the then UN Secretary General,[44] have inferred the universality principle from the use of the phrase “any nation” in the aforementioned clause,[45] whereas others have maintained that the Tribunal’s jurisdiction was based on Germany’s sovereign legislative prerogatives which were collectively assumed by the victorious Allies after its unconditional surrender.[46] These conflicting interpretations of the nature of jurisdiction exercised by the IMT have added more fuel to the ongoing debate over the legitimacy of modern universal jurisdiction.

Moreover, these foundational uncertainties have inspired a plethora of views as to the legal scope of universal jurisdiction. Some conservative jurists and analysts have maintained that universal jurisdiction can only be asserted vis-à-vis piracy.[47] Others have claimed that apart from piracy and slave trading, genocide, crimes against humanity, war crimes and torture may also be subjected to universal jurisdiction.[48] Although most of these crimes are regarded as non-derogatory, peremptory norms of international law (jus cogens), and their prevention and punishment acknowledged as obligations erga omnes i.e. obligations owed by all states towards the international community as a whole,[49] multilateral conventions recognizing them as international crimes do not unequivocally provide for universal jurisdiction. For instance, the four Geneva Conventions of 1949 and its Additional Protocol I, the Apartheid Convention of 1973, drugs and terrorism-related conventions of the 1970s and 1980s, and the Torture Convention of 1984 only obligate states parties to either prosecute or extradite (aut dedere aut judicare) suspected offenders, if captured on their territory. These extraterritorial jurisdictional arrangements are firstly limited only to states parties, and secondly contingent upon the presence of alleged offenders in the territory of a particular state party. In other words, it does not provide for what has been perplexingly referred to as “pure universal jurisdiction”, “absolute universal jurisdiction”, “universal jurisdiction unbounded”, or “universal jurisdiction in absentia”.

Consequently, proponents of “pure” universal jurisdiction have turned to customary international law for validation. But the difficulty here is that particulars of a customary norm like universal jurisdiction are generally quite difficult, if not impossible, to ascertain because of variations in state practice and opinio juris, which render it a fuzzy concept. This difficulty is further exacerbated by national courts’ infrequent resort to universality in their judicial decisions, which has resulted in a dearth of case law and contributed to the under-theorization of universal jurisdiction.[50] Moreover, there does not, as yet, exist a treaty or a conventional source that positively affirms the legitimacy of “pure” universal jurisdiction, and spells out its potential scope and mode of application with requisite clarity. Furthermore, whilst the advocates of “absolute” universal jurisdiction have often cited the Lotus dictum to defend its validity under international law,[51] the use of this diktat, whose continued relevance is itself a matter of much scholarly debate,[52] has done little to disperse all the conceptual ambiguities surrounding the exercise of “unbounded” universality.

Notwithstanding these lingering uncertainties in the legal content of universal jurisdiction, states like Belgium and Spain, in the recent past, endowed their municipal courts with far-reaching adjudicative powers under their respective universal jurisdiction laws. The 1993 Belgian universal jurisdiction law, which was broadened in 1999, and Article 23.4 of the 1985 Spanish Judicial Power Organization Act enabled municipal courts in these two states to hear cases from any part of the world, which came under the purview of these statutes, even without the presence of suspects in their territory. This broad conception of universal jurisdiction resulted in an explosion of lawsuits in the early 2000s against various foreign leaders in Belgium and Spain, which, critics allege, not only created an unprecedented judicial chaos but also adversely affected peaceful international relations. Moreover, the dangers of politically motivated invocations of universal jurisdiction became increasingly apparent as claims and counter-claims began to be initiated against rival leaders like, for instance, Ariel Sharon and Yasser Arafat.[53]

Nevertheless, in the wake of intense diplomatic pressure from other states, Belgium and Spain were forced to make sweeping changes to their universal jurisdiction laws.[54] In 2011, responding to complaints from the Israeli government regarding the issue of arrest warrant in the UK against the Israeli opposition leader Tzipi Livni,[55] Britain also reformed its law to considerably narrow the scope of universal jurisdiction.[56] Regrettably, these legislative amendments have thrown the proverbial baby out with the bathwater as they have introduced a wholesale prohibition on lawsuits based on “absolute” universal jurisdiction in order to prevent, what would have been, occasional instances of abuse and exploitation.

III. Grants of Immunity as a Remedy for Abuse of Universal Jurisdiction

As Cassese has noted, at the heart of the ensuing debate about the viability of universal jurisdiction is “the tension between the need to safeguard major prerogatives of sovereign states and the demands of emerging universal values which may undermine those prerogatives.”[57] This tension, however, may be resolved to some extent if prosecuting states allow pleas of official immunity, where appropriate, to curtail the excesses of universal jurisdiction. The immunities regime, as it stands in the aftermath of Arrest Warrant, appears robust enough to thwart any unwarranted infringements of sovereignty caused by a municipal court’s assertion of universal jurisdiction.

Immunities can be of two types: substantive and procedural (or jurisdictional). However, as a substantive defence in relation to jus cogens crimes, immunities of heads of state and other high-ranking officials have been abolished since Nuremberg.[58] The elimination of substantive immunity means that a suspect cannot invoke his official position to exempt himself from criminal responsibility.[59] The ICJ, in Arrest Warrant, has restated this well-established position in following terms:

“Immunity from criminal jurisdiction and individual criminal responsibility are quite separate concepts. While jurisdictional immunity is procedural in nature, criminal responsibility is a question of substantive law. Jurisdictional immunity may well bar prosecution for a certain period or for certain offences; it cannot exonerate the person to whom it applies from all criminal responsibility.”[60]

Thus, whilst substantive immunity is completely barred, senior state officials can still have recourse to procedural immunity under customary international law when charged by foreign courts for violations of peremptory norms of international law.[61] Procedural immunity is allowed because “it does not contradict a prohibition contained in a jus cogens norm but merely diverts any breach of it to a different method of settlement. Arguably then, there is no substantive content in the procedural plea of State immunity upon which a jus cogens mandate can bite.”[62] Therefore, as the House of Lords in Pinochet, the Spanish Audienco Nacional in Castro and the French Cour de cassation in Qaddafi have ruled, serving heads of state (and other high-ranking officials) enjoy immunity ratione personae even when indicted for committing jus cogens crimes.[63] This immunity is absolute in that it covers acts performed in both official and private capacities both before and during their time in office.[64] An incumbent head of state is afforded this absolute immunity to facilitate effective performance of his official functions, which is crucial for the smooth conduct of international relations of the state that he represents.[65] The ICJ has used this functional analysis in Arrest Warrant to extend immunity ratione personae to ministers of foreign affairs as well.[66] This has created grounds for extension of this procedural immunity to other government ministers such defence ministers and ministers of trade and commerce whose official duties involve frequent foreign trips.[67]

Whilst immunity ratione personae is absolute, it is limited to the duration for which state officials hold their posts. Once they cease to serve in their posts, they only retain immunity ratione materiae (functional immunity), which protects them from prosecution for their official acts but not for those acts committed in private capacity before and during their time in office.[68] Notably, jus cogens crimes like genocide, crimes against humanity and torture are not categorized as official acts of states,[69] which means that former heads of state and government ministers may be tried by municipal courts of foreign states for such crimes irrespective of whether they were committed before or during their tenures.[70] The hierarchically inferior normative stature of immunity ratione materiae compared to jus cogens crimes makes the exercise of (universal) jurisdiction by municipal courts possible,[71] albeit only after the culprit is relieved from his official position.

As can be seen, the immunities regime, unlike the one governing universal jurisdiction, is relatively unambiguous and straightforward. In its current form, it sufficiently caters to the fears of sovereign states regarding abuses and excesses of universal jurisdiction whilst also implicitly facilitating the pursuit of international accountability. Thus, it would be imprudent to further strengthen this already comprehensive set of immunities enjoyed by senior state officials on the pretext of preventing abuse of universal jurisdiction. Doing so will only tilt the balance too far in favour of states and lead to grants of blanket immunity to both former and incumbent state officials. Consequently, the victims of serious human rights offences will be denied the only available legal avenue for obtaining redress and remedy for heinous crimes perpetrated against them. This will not only completely undermine the international community’s fight against impunity but also reduce the universality principle to a rhetorical device of little practical significance. Ergo, as both grants of immunity and the universality principle serve purposes that are equally valued by the international community, it would be a mistake to reinforce one to a point where the other becomes completely meaningless.

Besides, excesses in the exercise of universal jurisdiction have occurred not because of inherent weaknesses in the immunities regime but because of conceptual ambiguities pervading the doctrine of universality. Therefore, the only way to positively curb these abuses is by some form of authoritative delimitation of its scope and clarification of its substance either by the ICJ or by the General Assembly. The World Court squandered an excellent opportunity in Arrest Warrant to elaborate upon the legal principles governing the application of universal jurisdiction. Legal analysts were hoping that the ICJ would avail itself of the opportunity presented by Certain Criminal Proceedings in France[72] to shed more light on the character and limits of universal jurisdiction, but that case was later withdrawn by the Applicant State. In light of these facts, it would be ideal if the General Assembly took upon itself the task of clarifying the substantive content of universal jurisdiction. Since 2009, the Sixth Committee of the General Assembly has been actively collating information regarding domestic legal rules and judicial practices pertaining to universal jurisdiction in various UN member states.[73] In 2011, the Assembly, through resolution 65/33, also established a working group of the Sixth Committee to undertake thorough discussions on the scope and application of universal jurisdiction.[74] These efforts will undoubtedly facilitate the harmonization of divergent practices in the member states, and may even enable the Assembly to produce, if not a full-fledged treaty, a set of consensual guidelines for the equitable application of universal jurisdiction.


A legal norm as crucial as the universality principle cannot be accurately elucidated by references to permissive and prohibitive norms external to this jurisdictional concept. Therefore, in order for universal jurisdiction to become a more practical tool of international justice, it is imperative that its substantive core is positively defined. Much of the ensuing controversy will automatically dissipate if either the ICJ or the General Assembly undertakes this important task. Until then, the present author believes that, abuses and excesses in the exercise of universal jurisdiction can be significantly curtailed if certain guidelines along following lines are incorporated within municipal judicial systems:

·    To prevent judicial chaos and politically motivated invocations of universal jurisdiction, a municipal court should only entertain those cases, which have been approved by the designated prosecutor.

·     A prosecuting state should only be allowed to assert universal jurisdiction over an extraterritorial conduct if states possessing primary jurisdiction based on territoriality or nationality principles are unable or unwilling to prosecute the offender. In other words, universal jurisdiction should only be used as a subsidiary basis of jurisdiction.

·    Whilst preliminary investigations should be allowed even in the absence of the suspect in the territory of the prosecuting state, trials in absentia should be allowed only in those cases in which there are overwhelming prima facie evidence against suspected individuals.

[1] Steiner, ‘Three Cheers for Universal Jurisdiction- Or Is It Only Two?’, 5 Theoretical Inquiries in Law (2004) 199, at 200.
[2] Cassese, ‘Is the bell Tolling for Universality? A Plea for a sensible Notion of Universal Jurisdiction’, 1 Journal of International Criminal Justice (2003) 589, at 589.

[3] Case Concerning the Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v Belgium), International Court of Justice, 14 February 2002, available online at, diss. op. Van den Wyngaert, at § 44; also see Trinh, Bannister & O’Brien, ‘The Principle of Universal Jurisdiction’, Humanitarian Law Perspectives, available online at, at 6.
[4] See, e.g. Restatement (Third) of the Foreign Relations Law of the United States, 1987, § 404(a); Princeton Principles on Universal Jurisdiction, available online at, Principle 1(1); Amnesty International, ‘Universal Jurisdiction: The duty of states to enact and enforce legislation’, available online at, at 1.
[5] See, e.g. Reydams, Universal jurisdiction: International and Municipal Legal Perspectives (Oxford, New York: Oxford University Press, 2003), at 5; Meron, ‘International criminalization of Internal Atrocities’, 89 American Journal of International Law (1995) 554, at 568; Ascensio, ‘Are Spanish Courts Backing Down on Universality? The Supreme Court’s Decision in Guatemalan Generals’, 1 Journal of International Criminal Justice (2003) 690, at 699; O’Keefe, ‘Universal Jurisdiction: Clarifying the Basic Concept’, 2 Journal of International Criminal Justice (2004) 735, at 745.
[6] Justice Jackson, ‘Opening Statement before the International Military Tribunal’, 21 November 1945, available online at
[7] Attorney-General of Israel v Eichmann, 36 International Law Reports (1962, Sup. Ct Israel) 277, at 304; also see Demjanjuk v Petrovsky, 776 F.2d (6th Cir. 1985) 571, at 582-83; Bassiouni, ‘Universal Jurisdiction for International Crimes: Historical Perspectives and Contemporary Practice’, 42 Virginia Journal of International Law (2001-02) 81, at 88; also see Schachter, International law in Theory and Practice (Dordrecht: Martinus Nijhoff Publishers, 1991), at 209.
[8] Cassese, supra note 2, at 593.
[9] See, e.g. Decision of the Spanish Supreme Court concerning the Guatemala Genocide Case, Decision No. 327/2003 (25 February 2003) available online at; Broomhall, ‘Towards the Development of an Effective System of Universal Jurisdiction for Crimes under International Law’, 35 New England Law Review (2001) 399, at 402; Ryngaert, ‘Applying the Rome Statutes Complementarity Principle: Drawing Lessons from the Prosecution of Core Crimes by States Acting under the Universality Principle’, 19 Criminal Law Forum (2008) 153.
[10] The S.S. Lotus (France v Turkey), 1928 PCIJ Series A, No. 10, available online at, at 19.
[11] Colangelo, ‘The Legal Limits of Universal Jurisdiction’, 47 Virginia Journal of International Law (2005) 1, at 13.
[12] Ibid.
[13] See Article 38 (1)(b) of the Statute of the International Court of Justice (ICJ) available online at; also see Continental Shelf Case (Libyan Arab Jamahiriya v. Malta), International Court of Justice, Judgement, 3 June 1985, ICJ Reports 1985, at 29-30.
[14] Supra note 11, at 14.
[15] Ibid., at 14-15.
[16] Jordan, ‘Universal Jurisdiction in a Dangerous World: A Weapon for all Nations against International Crime’, 9 MSU-DCL Journal of International Law (2000) 1, at 10; Randall, ‘Universal Jurisdiction Under International Law’, 66 Texas Law Review, (1987-88) 785, at 791; Sponsler, ‘The Universality Principle of Jurisdiction and the Threatened Trials of American Airmen’, 15 Loyola Law Review (1968-69) 43, at 44.
[17] See, e.g. United States v Smith, 18 U.S. (1820) 153 at 156; United States v Brig Malek Adhel, 43 U.S. (2 How.) (1844) 210, at 232; Lotus, diss. op. Finlay, at 51, diss. op. Moore, at 70; Tel-Oren v. Libyan Arab Republic, 726 F.2d (D.C. Cir. 1984) 774, at 781.
[18] Randall, supra note15, at 792-95.
[19] Kraytman, ‘Universal Jurisdiction- Historical Roots and Modern Implications’, 2 BSIS Journal of International Studies, (2005) 94, at 98.
[20] Bassiouni, supra note 7, at 109-10.
[21] The 1958 UN Convention on the High Seas, available online at; The 1982 UN Convention on the Law of the Sea, available online at
[22] See, e.g. Eichmaan, supra note 6; Filartiga v Pena-Irala 630 F.2d (2d Cir. 1980) 876, at 890; Prosecutor v. Furundzila, Case No. IT-95-17, Judgment, 10 December 1998; ex parte Pinochet Ugarte (No. 3), 2 All E.R. 97 (H.L. 1999); W.A. Schabas, ‘National Courts Finally Begin to Prosecute Genocide, the “Crime of Crimes’, 1 Journal of International Criminal Justice (2003) 39, at 58; Oberlandersgericht Dusseldorf, 26 September 1997; Princeton Principles on Universal Jurisdiction, supra note 4, Principle 2(1); Restatement (Third), supra note 4.
[23] Demjanjuk v Petrovsky, supra note 6, at 582.
[24] Morris, ‘Universal Jurisdiction in a Divided World: Conference Remarks’, 35 New England Law Review (2000) 337, at 345.
[25] See, e.g. Eichmann, supra note 6; Filartiga v Pena-Irala and Prosecutor v. Furundzila, supra note 20.
[26] Kraytman, supra note 18, at 103.
[27] Kontorovich, ‘The Piracy Analogy: Modern Universal Jurisdiction’s Hollow Foundation’, 45 Harvard International Law Journal (2004) 183, at 186; also see Goldwin, ‘Universal Jurisdiction and the Pirate: Time for an Old Couple to Part,’ 19 Vanderbilt Journal of Transnational Law (2003) 973, at 995.
[28] Ibid.
[29] See, e.g. United States v Smith, 18 U.S. (1820) 153.
[30] Broomhall, supra note 7, at 402.
[31] The 1958 UN Convention on the High Seas, available online at, Article 15; The 1982 UN Convention on the Law of the Sea, available online at, Article 101.
[32] Harvard Research in International Law, ‘Draft Convention and Comment on Piracy’, 26 American Journal of International law (suppl. 1932) 739, at 769.
[33] Kontorovich, supra note 25, at 28-35.
[34] Kraytman, supra note 18, at 105.
[35] Ibid.
[36] Ibid., at 106.
[37] Morris, supra note 22, at 340; also see Kissenger, ‘The Pitfalls of Universal Jurisdiction’, Foreign Affairs (July/August 2001) available online at
[38] Lippman, ‘Nuremberg: Forty-Five Years Later’, 7 Connecticut Journal of International Law (1991) 1, at 44; MacPherson, ‘Building an International Criminal Court for the 21st Century’, 13 Connecticut Journal of International Law (1998) 1, at 9.
[39] McCormack and Simpson, (eds.), The Law of War Crimes, National and International Approaches, (The Hague: Kluwer Law International, (1997), at 5.
[40] Cassese, ‘Affirmation of the Principles of International Law recognized by the Charter of the Nurnberg Tribunal’, available online at
[41]Kraytman, supra note 18, at 106.
[42] Ibid; Osofsky, ‘Domesticating International Criminal Law: Bringing Human Rights Violators to Justice’, 107 Yale Law Journal (1997) 191, at 195.
[43] International Military Tribunal (Nuremberg), Judgment and Sentences’, 41 American Journal of International Law (1947) 172, at 216.
[44] Secretary-General of the United Nations, The Charter and Judgment of the Nurnberg Tribunal 80, U.N. Doc. A/CN.4/5, U.N. Sales No. 1949v.7 (1949).
[45] Carnegie, ‘Jurisdiction over Violations of the Laws and Customs of War’, 39 British Yearbook of International Law (1963) 402, at 415.
[46] Bassiouni, supra note 5, at 91; Morris, supra note 22, at 344.
[47] Arrest Warrant, supra note 1, sep. op. of Guillaume, at § 12; Kontorovich, supra note 25, at 186.
[48] Arrest Warrant, supra note 1, jt. sep. op. of Higgins, Kooijmans and Buergenthal, at § 61, dis. op. of Van den Wyangaert, at § 59; Princeton Principles on Universal Jurisdiction, supra note 2, Principle 2(1).
[49] Case Concerning the Barcelona Traction, Light and Power Company (Belgium v Spain), International Court of Justice, Judgment, 5 February 1970, available online at, § 33-34.
[50] See, e.g. Simmons, ‘The “Undertheorization” of Universal Jurisdiction: Implications for Legitimacy on Trials of War Criminals by National Courts’, 21 Berkeley Journal of International law (2003) 111, at 13-14; Sadat, ‘Symposium: Universal Jurisdiction: Myths, Realities, and Prospects: Redefining Universal Jurisdiction’, 35 New England Law Review (2001) 241, at 244; Bassiouni, supra note 5, at 83.
[51] Arrest Warrant, supra note 1, jt. sep. op. of Higgins, Kooijmans and Buergenthal, at § 49-50 , dis. op. of Van den Wyangaert, at § 48-51.
[52] Higgins, Problems and Process: International Law and How We Use It (Oxford, New York: Oxford University Press, 1994), at 77; Harris, Cases and Materials on International Law (6th edn, London: Sweet and Maxwell Limited, 2004), at 278 (quoting Brierly).
[53]‘Massacre survivors seek trial of Sharon in Belgium, The Guardian, 19 June 2001, available online at; ‘Israeli victims charge Arafat with terrorism’, The Guardian, 23 November 2001, available online at
[54]‘Belgium: Universal Jurisdiction Law Repealed’, Human Rights Watch, 2 August 2003, available online at; ‘Spanish Congress Enacts Bill Restricting Spain’s Universal Jurisdiction Law’, The Centre for Justice & Accountability, available online at
[55] ‘British court issued Gaza arrest warrant for former Israeli minister Tzipi Livni’, The Guardian, 14 December 2009, available online at
[56] ‘The United Kingdom Changes its Universal Jurisdiction Law’, NGO Monitor, 21 September 2011, available online at
[57] Cassese, ‘When May Senior State Officials Be tried for International Crimes? Some Comments on the Congo v Belgium Case’, 13 European Journal of International Law (2002) 853, at 854.
[58] The Charter of the International Military Tribunal, available online at, Article 7.
[59] See, e.g., The Rome Statute of the International Criminal Court (ICC), Article 27; The Statute of the International Criminal Tribunal for the Former Yugoslavia (ICTY), Article 7(2); The Statute of the International Criminal Tribunal for Rwanda (ICTR), Article 6(2).
[60] Arrest Warrant, supra note 1, Judgment, at § 60.
[61] Bassiouni, supra note 5, at 84.
[62] Jones v Ministry of Interior of the Kingdom of Saudi Arabia, House of Lords, Judgment of 14 June 2006 UKHL 26, § 44.
[63] R v Bow Street Metropolitan Stipendiary Magistrate ex p Pinochet (No.3) 2 WLR 827 (1999), at 152 (Lord Hope), 179 (Lord Millet); ‘Spain Rules It has No Jurisdiction to Try Castro’, Agence-France Presse, 8 March 1999, Doc. 1999 WL 2560095; Cour de Cessation-Chambre criminelle, Arret no. 1414 du 13 mars 2001, available online at
[64] Certain Questions Concerning Mutual Assistance in Criminal Matter (Djibouti v France), International Court of Justice, Judgment, 4 June 2008, available online at, §170; Affaire Gaddafi, France (Cassation Criminelle, 13 March 2001), 125 International Law Reports 456; Mugabe Case, England (Magistrates’ Court, 14 January 2004), reported in Warbrick (2004), at 770.
[65] Cassese, supra note 56, at 855.
[66] Arrest Warrant, supra note 1, Judgment, at § 53-54.
[67] See Re General Shaul Mofaz, England (Magistrate’s Court, 12 February 2004), reported in Warbrick (2004) 771; Re Bo Xilai, England (Magistrate’s Court, 8 November 2005), 128 International Law Reports 713.
[68] Shaw, International Law (6th edn, Cambridge: Cambridge University Press, 2008), at 738.
[69] Bianchi, ‘Denying State Immunity to Violators of human Rights’, 46 Austrian Journal of Public and International Law (1994) 194, at 205; Reimann, ‘A Human Rights Exception to Sovereign Immunity: Some Thoughts on Prinz v Federal Republic of Germany’, 16 Michigan Journal of International Law (1995) 403, at 421-423; Orakhelashvili, ‘State Immunity and International Public Order’, 43 German Yearbook of International Law (2002) 227, at 237.
[70] Arrest Warrant, supra note 1, Judgment, § 61; Pinochet (No.3), supra note 61, at 113, 116 (Lords Browne-Wilkinson and Hutton); R v Bow Street Metropolitan Stipendiary Magistrate ex p Pinochet (No.1) [1998] 4 All ER 897, at 939-40, 945-46 (Lords Nicholls and Steyn).
[71] Bianchi, supra note 67, at 265; Reimann, supra note 67, at 421-23; Orakhelashvili, ‘State Immunity and Hierarchy of Norms: Why the House of Lords Got it Wrong’, 18 European Journal of International Law (2007) 955, at 964.
[72] See Certain Criminal Proceedings in France (Republic of the Congo v France), available online at
[73] For summaries of development and documentation, see relevant UN 6th Committee webpages, available online at;
[74] UN General Assembly Resolution 65/33, 10 January 2011, available online at

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