The Authority of Universal Jurisdiction

Abstract

Whether justified in terms of domestic statute, international treaty or customary international law, the positivist account of universal jurisdiction rests on rickety and potentially ruinous foundations. Common recourse to its ancient underpinnings in the crime of piracy demonstrates that, at best, the foundations of universal jurisdiction are in need of modernization. The following article discusses four schools of thought about the legitimate aims and interested communities that universal jurisdiction is intended to serve. The discussion could be seen as tracing the evolution of the principle of universal jurisdiction, from its traditional basis in state sovereignty (serving domestic interests) to inter-state comity (serving the interests of the community of states) to the idea of the conscience of humanity (serving the interests of the international community as a whole), before proposing the idea of universal jurisdiction as a human right of access to justice (serving the interests of victims). The discussion takes place against the backdrop of a survey of completed universal jurisdiction trials that have taken place since the Eichmann trial in 1961. The aim is to understand the source of a domestic court's legitimate authority to exercise universal jurisdiction and thereby reposition discussion of universal jurisdiction, a step away from traditional grand narratives to a position more in line with contemporary theory and practice.

A new criminal jurisdiction to combat cross-border money laundering

“…Territorial jurisdiction in dealing with a crime played a very important role, especially to determine where the crime was committed. The term “jurisdiction” encompasses several definitions and possible meanings (Dodson, 2008; Hirst, 2003; Beale, 1923; Hovell, 2018). Malanczuk (1997) points out that at times jurisdiction simply refers to territory, whereas at other times refers to the power exercised by a state over persons, properties or events (Blakesley and Stigall, 2007; Colangelo, 2007).…”

The trial’s the thing: Performance and legitimacy in international criminal trials

“…The performing of the trial in the name of the international community is a kind of ‘social magic’: it helps bring it into being as a legitimate political concept (Bourdieu, 1987: 840). As Devika Hovell (2018: 20) suggests, the development of the language of international community arguably comes at a time where any implied connection between the protection of the populace and state sovereignty is coming unstuck: as such, international community becomes a means ‘to explain the development of international legal principles to regulate the relationship between a state and individuals within its jurisdiction.’ The ICC and the international community are therefore not only mutually dependent but also to some degree mutually constitutive. This was expressed by the outgoing secretary general Kofi Annan (2001: n.p.)…”

Jurisdiction Over War Crimes

“…This is the rule established by the State practice as a norm of customary international law with respect to war crimes committed in both international and non-international armed conflicts. (Hovell, D., 2018) (Kluven, T., 2017). It is worth to remember what Professor Theodor Meron, the world's most important author on issues of international humanitarian law said already in 1998 about the universal jurisdiction: "There is, of course, a synergistic relationship among the statutes of the international criminal tribunals, the jurisprudence of the Hague Tribunal, the growth of customary law, its acceptance by states, and their readiness to prosecute offenders under the principle of universality of jurisdiction".…”