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What is universal jurisdiction

IRIN

Universal jurisdiction is the ability of the court of any state to judge or try persons for crimes committed outside its own territory (territorial jurisdiction) not being linked to the state by the nationality of the suspect (active personality jurisdiction) or the victims (passive personality jurisdiction) or by harm to the state’s own national interests (protective jurisdiction).

The principle of universal jurisdiction applies regardless of the nationality of the accused person or the victim. The broadest application of universal jurisdiction would allow States to exercise their jurisdiction over perpetrators of crimes under international law committed abroad even if the suspect is not present in the State where the prosecutor or investigating judges are located. However this second interpretation is still controversial and not widely accepted.

In the case of criminal proceedings (proceedings leading to the punishment for individual perpetrators) this wide interpretation would mean:

  • If a state has universal jurisdiction over a particular crime an organisation or person that has no connection with the state can start criminal proceedings against an alledged perpetrator that has no links with the State.

In practice, unfortunately, domestic (national) authorities are still quite reluctant to apply universal jurisdiction and the legislation of many countries lack even the possibility of applying it.

Universal jurisdiction and Enforced Disappearances

Inter-American Convention

The 1994 Inter-American Convention on the Forced Disappearance of Person establishes that State Parties must take measures to establish their jurisdiction over offences of enforced disappearances when:

  • The enforced disappearance was committed within their jurisdiction
  • The accused is a national of the State Party, and
  • The victim is a national of the State Party and it sees fit to do so


ICC

The preamble of the 1998 Rome Statute recalls “the duty of every State to exercise its criminal jurisdiction over those responsible for international crimes”, including enforced disappearances as widespread and systematic attack directed against any civilian population.

Convention Against Disappearances

The new Convention requires each state party, whenever a person suspected of carrying out enforced disappearances anywhere in the world is found in any territory under its jurisdiction, to submit the case to its competent authorities for the purposes of prosecution, unless the state extradites the suspect to another state or surrenders him or her to an international criminal court.

The Convention Against Disappearances further establishes that a State Party must exercise its jurisdiction over those accused of enforced disappearances when:

  • The offence is committed in any territory under its jurisdiction or on board of a ship of a shop or aircraft registered in that State;
  • The declared (alleged) perpetrator is one of its nationals; and
  • The disappeared person is one of its nationals and the State Party considers it appropriate