Universal criminal jurisdiction : a contemporary and prospective approach

Abstract

This thesis focuses on universal criminal jurisdiction and its present utilization with a view to the future. A cursory look at the debate on universal jurisdiction reveals confusion on its definition, scope, and application. This is partly due to an incorrect understanding of universal jurisdiction and its three facets: prescription, adjudication, and enforcement. An analysis on customary and conventional universal jurisdiction, together with cases such as the Arrest Warrant, affirms that the confusion surrounding the prescription of universal jurisdiction can be rectified by a universal and uniform definition of universal jurisdiction. This will allow national legislation and adjudication to treat this principle homogenously so as to foster the principle of legal certainty, the notion of the accused’s presence, subsidiarity, and the limitation of in absentia trials. Since universal jurisdiction challenges the doctrine of non-intervention into the affairs of another State, it is important to delineate the crimes attracting the exercise of universal jurisdiction. An inquiry into the crimes over which universal jurisdiction is exercised reveals that such crimes usually occur in areas outside the territory of any State or are so heinous that the whole international community has an interest in prosecuting them, especially when other States are unable or unwilling to prosecute. The fact that such trials involve extraterritorial crimes that are committed by aliens necessitates police and judicial cooperation in the enforcement of the law, which could be greatly aided by an international investigative unit. This thesis then looks to the future by advocating that universal jurisdiction should apply to natural and juridical persons alike. Ultimately, the task of defending universal jurisdiction is a worthwhile exercise because it is an important legal tool in the fight against impunity, in the responsibility to protect, and in the promotion of justice.