Term Paper on "Universal Criminal Jurisdiction"

Term Paper 14 pages (4633 words) Sources: 10

[EXCERPT] . . . .

Universal Criminal Jurisdiction

When a state has no legitimate interest in the criminal actions of third-state actors, it would seem reasonable to suggest that it does not have the requisite jurisdictional powers needed to prosecute such offender. Indeed, the swashbuckling images of secret operatives with a 'license to kill' are entertaining but have little basis in reality today. In fact, neither international law nor state practice currently recognises 'true' universal criminal jurisdiction (that is, where there is no connection between the state exercising jurisdiction and the accused, the victim, or the crime) as a valid basis of state criminal jurisdiction with few exceptions such as in the case of piracy on the open seas; however, given the other recognised heads of jurisdiction, some observers suggest that there is really no need for international law to permit any form of universal jurisdiction. This paper provides a review of the relevant peer-reviewed and scholarly literature concerning universal criminal jurisdiction to determine the facts regarding these issues, followed by a summary of the research and salient findings in the conclusion.

Review and Discussion

According to Black's Law Dictionary (1990), the term 'jurisdiction' is 'a power introduced by the public good, on account of the necessity of dispensing justice." The term means 'the power of the court to decide a matter in controversy and presupposes the existence of a duly constituted court with control over the subject matter and the parties.' In his recent essay, 'Universal Jurisdiction and the Pirate: Time for an Old Couple to Part,' Goodwin (2006) advises, 'If a state wishes to prosecute someone, it must have jurisdiction over the person. The state's relation to the actor or activity regulated often provides the basis of this jurisdiction. The most common and uncontroversial form of jurisdiction to prosecute is territorial jurisdiction.' Territorial jurisdiction provides a state with the power needed to prescribe, adjudicate, and enforce its laws concerning those actors, activities, and things that are found within its sovereign territory with some rare exceptions. For instance, the United Kingdom would have territorial jurisdiction over any actors that commit the crime of murder within the borders of the UK. As Goodwin points out, 'Not only would it make no sense for another country to prosecute the murderer for the murder, but it also may lead to international tension.'

Not surprisingly, establishing universal criminal jurisdiction is not truly viable under many existing international agreements. For example, in his book, War Crimes Law Comes of Age: Essays, Meron (1998) notes that the Geneva Convention state stipulates a number of obligations that concern fundamental humanitarian values in various degrees, many of which do not lend themselves to establishing universal criminal jurisdiction because third states will have no interest in such breaches and will generally not have the requisite evidence to prosecute offenders. Likewise, the Fourth Hague Convention of 1907 served to codify the fundamental laws of war on land and provided the basis for post-World War II war crimes prosecutions; however, this aspect of the Convention only applies to international wars. Similarly, the other basic tenet of the penal laws of war, the Geneva conventions' and Protocol I's grave breaches provisions, involves international wars only. In this regard, Reisman and Meron (1994) report that, 'Violations of Common Article 3 of the Geneva conventions, which concerns internal wars, do not constitute grave breaches giving rise to universal criminal jurisdiction.'

There are some other vagaries involved in the international law governing universal criminal jurisdiction that makes its establishment even more problematic. For instance, Meron emphasizes that, 'In situations not clearly regulated by treaties, difficulties could arise between the custodial state and the state of nationality of the offender when the latter, in good faith, asserts its readiness to prosecute and requests the former to desist from prosecution and to deliver the person to it.' Furthermore, the potential for two such states to exercise their respective jurisdictional powers must be subject to the non-bis in idem principle. According to Black's, this term literally means, 'not twice for the same'; in other words, 'A man shall not be twice tried for the same crime. This maxim of the civil law expresses the same principle as the familiar rule that a man shall not be twice 'put in jeopardy' for the same offense.' Based on states' demonstrated historical paucity of interest in adjudicating individual who have committed international offenses in internal conflicts, the potential for two states competing for the exercise of criminal jurisdiction is considered unlikely; however, it should be pointed out that the 'grave breaches' provisions of the Geneva Conventions are not precise in establishing the priority of such competing jurisdictions. Moreover, as Meron advises, 'The Conventions do not require the state ready to prosecute (the custodial state) to extradite the offender to a state party requesting extradition as an alternative to proceeding with the prosecution.'

The provisions of Geneva Additional Protocol I failed to make these points clear in terms of establishing the criminal system of repression of violations of international humanitarian law. In this regard, the Protocol employs terms such as 'grave breaches,' 'breaches,' 'violations' and 'serious violations" of the "Conventions or of this Protocol.' As a result, those individuals who violate the provisions of the Geneva Additional Protocol I and whose offenses are not defined as grave breaches may experience consequences comparable to those resulting from violations other than grave breaches of the Geneva Conventions and may, in any event, be prosecuted as war crimes by third states.

The historical evolution of these agreements provides some insight into the precedential aspects of current approaches and future trends as well. In this regard, Sands (2003) reports that, "In 1948, the United Nations General Assembly promulgated the first of several instruments which the International Court of Justice in the Hague has recently characterized as reflecting an "extension of jurisdiction," namely the 1948 Convention on the Prevention and Punishment of the Crime of Genocide. Article I of the 1948 Convention confirmed that genocide was "a crime under international law" which the parties undertook to prevent and punish.' The fourth 1949 Geneva Convention established protections for noncombatants during periods of war; likewise, a convention promulgated in 1973 declared that apartheid was a crime against humanity and a 1979 convention criminalised the taking of hostages.

Other developments towards establishing a de facto universal criminal jurisdiction took place in 1984 when another convention required signatories to take effective measures to prevent acts of torture in any territory under their respective jurisdictions. According to Sands, 'These instruments did not merely criminalise the acts which they addressed. They committed their parties to take judicial measures to prevent and to punish these crimes. And they did so in broadly similar ways.' For instance, Article VI of the 1948 Genocide Convention states: 'Persons charged with genocide or any of the other acts enumerated in [the Convention] shall be tried by a competent tribunal of the State in the territory of which the act was committed, or by such international penal tribunal as may have jurisdiction with respect to those Contracting Parties which shall have accepted its jurisdiction.'

This provision represents the first true initiative intended to establish a commitment to prevent impunity reflected in the obligation to prosecute before national criminal courts (although it is limited to such acts as occurred in the territory of the state), but without expressly limiting the right to states to exercise a more extensive jurisdiction. The 1949 Geneva Convention on the protection of civilians went a step further. It too commits parties to enact 'any legislation necessary to provide effective penal sanctions for committing, or ordering to be committed... grave breaches of the... Convention'; however, it then goes on to establish a further obligation, a positive obligation on parties to: '... search for persons alleged to have committed, or to have ordered to be committed, such grave breaches, and shall bring such persons, regardless of their nationality, before its own courts. It may also, if it prefers, and in accordance with the provisions of its own legislation, hand such persons over for trial to another [party] concerned, provided such [party] has made out a prima facie case.'

The fundamental difference between the 1948 Genocide Convention and the 1949 Geneva Convention is that the latter contains no geographical constraints; the responsibility to prosecute such criminals is not restricted to acts that take place within the territory of the state that is required to prosecute. Therefore, if an individuals commits a grave violation of the 1949 Convention (e.g., the wilful killing or torture of a civilian -- in the United Kingdom and is then determined to be located in France by the relevant authorities, he or she must be 'searched for' and brought before the French courts or be turned to another concerned party, for example the UK. According to Sands, 'The commitment to root out impunity is extended to what has come to be known as 'universal criminal jurisdiction': the right of states to exercise national jurisdiction over a criminal act… READ MORE

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