TÍTULO DEL ARTÍCULO: UNIVERSAL JURISDICTION: FIGHTING AGAINST IMPUNITY

AUTOR: JUAN ANDRÉS FUENTES VELIZ (*)

RESUMEN: En el presente trabajo, luego de analizar brevemente los orígenes del reconocimiento de los

derechos humanos, se aborda como punto principal el esfuerzo de diversos Estados para juzgar en cortes

locales ciertos delitos, pese a no existir las bases tradicionales que permitan vincular al foro con el delito

cometido.

PALABRAS CLAVES: universal jurisdiction, human rights, justiciable crimes, territory, citizenship,

traditional bases of jurisdiction.

SUMARIO: I) Introduction – II) Traditional bases of Modus Operandis – III) Universal Jurisdiction – IV)

Conclusion.

* Catedrático de la Universidad de San Martín de Porres

Magister en Derecho Internacional por la Université Catholique de Louvain-la-Neuve, Bélgica

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I. INTRODUCTION

The evolution of Human Rights, through history, and its explicit recognition in international

instruments (I mean treaties) by the States,1 accompanied by the erosion of the concept of sovereignty, have

made possible the globalization of the concept of jurisdiction.2 The affirmation of universal jurisdiction like a

valid way to find justice for a certain kind of crimes that for their gravity (seriousness sounds better?) deserve

not only public condemn and disapproval , but they also demand a compromise of all the States for their

prosecution avoiding that way impunity.

In effect, there is a notable evolution, on time, of this current (I mean movement) that looks for

increasing the content of Human Rights. At first, the recognition of political3 and civil4 rights was manifested

in documents such as the Magna Carta (1215) or the Petition of Rights (1628). 5 Therein, they appeared the

first limitations to political power.

A second moment was constituted by the recognition of social rights. The rights to liberty, to free elections of

the government are essential but rights such as education and health are also important. The Constitutions of

Queretaro (1917) and Weimar (1919) are a good example of the recognition of these rights.6

It is possible to point out a third moment in this development of Human Rights. Recently, the

concept of political democracy has evolved through participative democracy where the people as holder of

sovereignty have a right to direct participation in public matters.7 This individual participation of citizens is

manifested through the enjoyment of rights such as that one of free elections, recall of authorities; legislative

initiative and referendum or having equal access to posts in the public sector of their country. But Human

Rights continue to evolve.8

1 In these comments, we use the concept State or country to refer to a community of individuals that counts with its own territory, a certain organization as well as with capacity to interrelate with other subjects of International Law. We do not use the concept nation because this concept involves a community united by objective bows like language, race, culture and bows like sense of property to this community, which in many States does not appear or it appears in more than one case such as a multinational State.

2 We define jurisdiction as the authority of the State to adjudicate individuals within their courts of justice. In other words, it is the power to exercise judicial jurisdiction over an individual.

3 The right to participate in the direction of public matters constitutes example of a political right.4 The equality before law, right to life and right to personal integrity are good examples of civil

rights.5 AYALA CORAO, Carlos. “El Derecho de los Derechos Humanos: La Convergencia entre el

Derecho Constitucional y el Derecho Internacional de los Derechos Humanos”, Report of the Fifth Iberoamerican Congress of Constitutional Law held at México, 1998. Instituto de Investigaciones Jurídicas Serie G: Estudios Doctrinales, Nº 193, 1998, pp. 51-85, also available at http://www.bibliojuridica.org/libros/libro.htm?l=113

6 Id. at 53. 7 Id.8 Peruvian Political Constitution of Peru, Article 3, at http://confinder.richmond.edu/Peru%28eng%29.html

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Likewise, the twentieth century has been witness of the signature of numerous international instruments

regarding Human Rights. Thus, the Universal Declaration of Human Rights, subscribed on December 10,

1948 by the General Assembly of the United Nations Organization, constitutes fundamental pillar in the way

for codification of these rights and their innovation.9

From an historical-juridical point of view, this instrument is relevant because it was the first one

putting the individual and his rights at first level on the international scene.10 Until that date (at that moment),

this was only a matter of domestic law. What concentrated international attention were the situation of

foreigners and the eventual diplomatic protection of citizens by their own States when their rights were

violated. 11

The 1948 Declaration implies the end of mediation of the sovereign State regarding the international

relationships (maybe international affairs sounds better?) of human beings. Instead of pragmatic, no bounded

declarations; regional and universal conventions were signed. These conventions established the duty of the

States to respect the rights recognized far beyond their written recognition as erga omnes obligations, and

according to some doctrine, as ius cogens.12

Hence, they appeared treaties such as the International Convention on the Elimination of All Forms

of Racial Discrimination;13 the International Pact on Civil and Political Rights, 14 and the Convention against

Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, on the international arena.

As a demonstration of this continuous growth of Human Rights, the peruvian Constitution states that the enumeration of rights established in this text does not exclude any others guaranteed by the Constitution; those of an analogous nature or based on the dignity of man, and the principles of the sovereignty of the people (…).  

9 RUDA SANTOLARIA, Juan José. “Algunas Consideraciones a propósito del Cincuentenario de la Declaración Universal de los Derechos Humanos”. At NOVAK, Fabián y RUDA, Juan José. Declaración Universal de los Derechos Humanos 50 Años, Lima, 1999, p. 90 quoting ORAA, Jaime y GOMEZ ISA, Felipe. La Declaración Universal de los Derechos Humanos. Un breve Comentario en su 50 Aniversario. According to Oráa and Gómez Isa, the belgian representative for the signature of the Universal Declaration of Human Rights, mentioned that there was an innovation on Human Rights starting article 22 of the declaration.

10 Id. at 90-91.11 Id. 12 Id. at 91-92 quoting ARNOLD, Rainer. “La Declaración Universal de Derechos Humanos y su

Importancia para el Desarrollo de la Cultura del Derecho”, at La Declaración Universal de los Derechos Humanos en su 50 Aniversario.

13 This Convention was adopted and signed by the general Assembly at New York, United States on December 21, 1965.

14 This pact was adopted by the General Assembly an opened to its signature on December 16, 1966.

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On the regional level, the Convention for the Protection of Human Rights and Fundamental Freedoms (1950);

the American Convention on Human Rights15 (1969) and the African Charter of Human Rights and People's

Rights (1981) confirm the development reached by Human Rights.

This movement came soon accompanied of an erosion of the same concept of sovereignty after the

horror provoked by the crimes committed during the pre-war and World War II. This would lead to the

express recognition of Human Rights by the member countries of the international community. 16

In such context, arises the United Nations Organization (UN), 17 main actor in the construction of a

vigorous International Law which gave a space to Human Rights. 18 Specifically, its constituent instrument,

the Charter of the United Nations,19 did not define the Human Rights’ concept,20 but their promotion and

defense were fixed as main objectives of the organization.21

García Sayan states that although the Charter prohibits to take part in subjects that are “essentially of

the internal jurisdiction of the States;” the systematic and logical interpretation of this rule is that matters like

Human Rights and peace, that correspond to two of the three purposes of UN, no way can be understood like

subjects “that are essentially of the internal jurisdiction” whichever is the interpretation employed. No longer

can a State try to exempt to fulfill its commitments acquired nor the organization (UN) can evade its

responsibility to require all the States the compliance and respect of Human Rights. Do it would imply to

denaturalize the adhesion to the basic principles of the international order.

15 The American Convention on Human Rights was subscribed on November 22, 1969 at San José, Costa Rica.16

? AYALA CORAO, supra n. 5, at 53.17 Unlike the Society of Nations, multilateral organization created after World War I of poor

performance. The UN, created after the victory of the allies in War World II, is a main actor in the international scene. Its success is based, among other factors, in the participation of the United States, world-wide power that along with other many States declined to be a member of the Society, which had reduced UN legitimacy.

18 GARCIA SAYAN, Diego. Vidas Paralelas: Región Andina, Desafíos y Respuestas, Lima, 1998, p. 64.

19 Also known as the San Francisco Charter because it was subscribed in that city on June 26, 1945.20 This is not the only case in which the San Francisco Charter does not define concepts alluded in its

text. The UN Charter lacks an explicit principle of non-intervention; however, the UN General Assembly has adopted a negative attitude to interventions. For example, the Declaration on the Inadmissibility of Intervention in the Domestic Affairs of States and the Protection of their Independence and Sovereignty (Resolution 2131, 1965).

21 GARCIA SAYAN, supra n. 18, at 64-65.

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Thus, the sovereignty concept erodes with the UN Charter, 22 ending with “times of absolute

sovereignty”;23 accepting limits to domestic law that are going to derive from international commitments, and

from universal principles accepted by the States.24 Paradoxically, by sovereign decision, the States committed

themselves to the observance of Human Rights, resigning that way to the unrestricted use of power within

their own territory.25

Indeed, in Human Rights issues the States relinquished long time ago to privative legislation and adjudication.

Because of their relevance, these rights exceed borders without obstacles for their protection and defense.

Proof of it, is that today the individuals- as subjects of International Law- 26 have an expeditious way to raise

claims against their own States for violation of their fundamental27 rights.28

II. TRADITIONAL BASES OF JURISDICTION

The classic bases for the affirmation of jurisdiction by a State Court are: territory and citizenship.

Doctrine and States, subjects of International Law, have taken and adopted as valid a third basis that will be

called principle of main interest of the State,29 which is going to be explained afterwards.

2.1 Territory

The States have certain restrictions for the application of its criminal laws. In that sense, a crime

committed within the boundaries, territory, of the State will give it power to exercise judicial jurisdiction over

an individual. Taking into account this basis, State tribunals can prosecute all perpetrators of crimes

committed therein.30 22 Chapter XIV incorporated an institution really important for the development of International

Law: the International Criminal Court.23 GARCIA SAYAN, supra n. 18, at 66.24 AYALA CORAO, supra n. 5, at 53.25 GARCIA SAYAN, supra n. 18, at 66.

26 Human beings are recognized today as subjects of International Law but with limited capacity. 27 The expression “fundamental rights” is used to refer to all human rights explicitly recognized in

the constitution of a certain country.Peruvian Constitution, supra n. 8. Wrongly, in our concept, the peruvian Constitution titles Chapter I “Fundamental Rights of the Individual” stating a limited number of rights. Chapter II is named “Social and Economic Rights” and Chapter III “Concerning Political Rights and Duties” ¿Isn’t fundamental the right of due process? We hope this is only a mistake of legislative technique.

28 On the regional level, initiatives such as the creation of the Inter-American Court of Human Rights (San Jose, Costa Rica) or the European Court of Human Rights (Strasbourg, France) are a good example of the preoccupation of the States to guard for the respect and promotion of these rights.

29 Other authors define this principle as real principle or principle of security.30 This basis of jurisdiction does not raise questions 15) France v. Turkey (The Lotus Case), 1927

P.C.I.J. (Ser. A) No. 9, 23.Territorial jurisdiction has been extended in geographic scope to include ships flying the national flag and aircraft registered in the state, although, strictly speaking, the jurisdiction is extraterritorial.

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This basis of jurisdiction presents numerous practical advantages such as “the territorial State is the

one where victims, witnesses, written and material evidence and the suspect usually are located, and it will

have a presumed State interest in prosecuting the crime.”31

2.2 Citizenship

Also the State can assert its jurisdiction to prosecute the commission of a crime based on

citizenship.32 Therefore, whether the accused or the victim is citizen of a certain country, then its tribunals will

exercise jurisdiction.33 Except that the individual’s relationship to the State is so attenuated as to make the

exercise of such jurisdiction unreasonable.34

2.3 Main interests of the State

Domestic legislation in most States permit courts to “exercise jurisdiction over conduct by persons

abroad which harms the national - particularly the security - interests of the forum State35 in violation of its

own national criminal law.”36 Thus, a State shall have jurisdiction to punish crimes committed beyond their

borders when these crimes attempt against a State's essential security interests.37

In the three previous cases, there is some type of "tangible" connection between the suspect of the

crime and the adjudicating State. Nevertheless, in the following lines we will analyze the fact that:

31 AMNESTY INTERNATIONAL, Universal Jurisdiction - The Duty of States to Enact and Enforce Legislation at http://web.amnesty.org/web/web.nsf/pages/legal_memorandum quoting Ian Brownlie, Principles of Public International Law 313 (Oxford: Oxford University Press. 1998).

32 We assume the citizenship criteria as the juridical and political nexus between the State and its citizen, without taking into account the age as basis to enjoy this citizenship.

33 In the United States, the Fourteenth Amendment of the Constitution says: “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States (…).”

A citizen of this country is subject to the U.S. jurisdiction even though he resides abroad. Therefore, citizenship constitutes basis for the exercise of jurisdiction by the United States.

34 In order to evaluate whether diplomatic protection can be granted to an individual with double or multiple citizenship, States commonly use the criterion of effective relationship of the person, asking for protection, with the country.

Why do not apply this same criterion to decide whether to bring an accused to domestic courts? 35 Here we are referring to issues like national defense, protection of the population against its safety,

guarantee the respect of Human Rights.36 AMNESTY INTERNATIONAL, supra n. 31 quoting Malcolm S. Shaw, International Law 468-

469 (Cambridge: Cambridge University Press 1997) 37 Examples of these crimes are counterfeiting currency or stamps; immigration offenses; national

security offenses, etc.

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(…) national courts can investigate and prosecute a person suspected of committing a crime

anywhere in the world regardless of the nationality of the accused or the victim or the absence of any

links to the State where the court is located.38

III. UNIVERSAL JURISDICTION

3.1 Definition

Simple inefficiency of the Judiciary, corruption of the system or lack of political willingness could

lead to impunity of crime.

In order to end with impunity, International Law has foreseen the application of universal jurisdiction

for the punishment of certain crimes.

An offense subject to universal jurisdiction is one that (is investigated and) prosecuted by all States, with

independence of the place of commission of the crime, the citizenship of the victim and/or the suspect 39 or the

injury of any main interest of the State.

Inasmuch as the general admission, the offence is contrary to the interests of the international

community, 40 it is treated as a delict jure gentium”41 and all States are authorized, obliged to apprehend and

punish the persons responsible of these crimes.42 These crimes violate International Law, and it is a duty of

every state to uphold that law.43

38 AMNESTY INTERNATIONAL. Universal Jurisdiction: Questions and Answers, at http://web.amnesty.org/library/index/engIOR530202001

39 ASHISH CHUGH SYMBIOSIS LAW COLLEGE. Expanding the Universal Jurisdiction in International Law, at http://www.legalserviceindia.com/articles/jurisdiction.htm

40 We refer here to interests such as peace and human rights.41 ASHISH CHUGH SYMBIOSIS LAW COLLEGE, supra n. 39. 42 DEL BUONO, Vincent M. “Dr. Kissinger or How I learn to Love Universal Jurisdiction”, John

Wendell Holmes Memorial Lecture, held at Toronto, March 5, 2002, at http://gl.yorku.ca:8008/holmes.nsf/0/a4537bbd3745759e85256b6700654838/$FILE/HolmesLectureMarch52002.pdf

43 INTERNATIONAL COUNCIL ON HUMAN RIGHTS. Hard Cases: Bringing Human Rights Violators to Justice Abroad, A Guide to Universal Jurisdiction, Versoix, 1999, p. 15, also available at http://www.ichrp.org/

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But there is no consensus yet whether to apply domestic law of the State that claims to exercise

universal jurisdiction over the suspect of committing certain crimes (no matter what is the accused’

nationality) or to apply the suspect’s country law by foreign courts, not familiarized with this legislation.

Reducing, to the maximum, the risk of errors by legal operators while adjudicating on grounds of a foreign

legislation and guaranteeing a due process for the accused, make us to choose the application, on trial, of

domestic legislation of the State that invokes the principle of universal jurisdiction.

3.2 Justiciable (Prosecutable) Crimes

The principle of universal jurisdiction is reserved for actions of extraordinary immorality,44 this kind

of crimes are qualified today by the doctrine as international crimes.45 In the beginning of the nineteenth

century, North American jurisprudence recognized this universal jurisdiction principle, to such crimes as

piracy46 and slaves’ trade.47 Then, its scope has been extended to war crimes,48 crimes against humanity49and

44 ZUPPI, Alberto Luis. Jurisdicción Extraterritorial y la Corte Penal Internacional, Buenos Aires, 2001, disponible en http://www.abogarte.com.ar/zuppicpi3.htm

45 For purposes of the writing of this paper: war crimes, crimes against humanity, genocide crimes, piracy and slaves’ trade will be encompassed under the definition of international crimes. 46 Geneva Convention on the High Seas, April 29, 1958, Article 15, at http://www.un.org/law/ilc/texts/hseafra.htmPiracy consists of any of the following acts:1) Any illegal acts 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, and directed: a) On the high seas, against another ship or aircraft, or against persons or property on board such ship or aircraft; b) Against a ship, aircraft, persons or property in a place outside the jurisdiction of any State;2) Any act of voluntary participation in the operation of a ship or of an aircraft with knowledge of facts making it a pirate ship or aircraft; 3) Any act of inciting or of intentionally facilitating an act described in sub-paragraph 1 or sub-paragraph 2 of this article.

47 United States v. Klintock (1820), quoted at DEL BOUNO, supra n. 42. This was an indictment in the Circuit Court of Virginia, against Ralph Klintock, a U.S citizen. Klintock was charged of piracy committed on the high seas, on April 1818 on a danish vessel called “Norberg.” He was found guilty generally.

48 The Statute of Rome of the International Criminal Court, October 9, 1998, Article 8.2, at http://www.un.org/law/icc/statute/romefra.htm; For the purpose of this Statute, "war crimes" means: Grave breaches of the Geneva Conventions of August 12, 1949; Other serious violations of the laws and customs applicable in international armed conflict, within the established framework of international law; serious violations of article 3 common to the four Geneva Conventions of August 12, 1949. 

49 Id. Article 7.1. For the purpose of this Statute, "crime against humanity" means any of the following acts when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack:

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genocide crimes.50 Since the wake of the September 11th terrorist attack, aggravated by the tragedy of March

11th, there are those who propose to extend the universal jurisdiction against the perpetrators of international

terrorism.

3.3 Application

The principle of universal jurisdiction can be applied basically by virtue of three criterions, as we

will analyze:

3.3.1 By virtue of special tribunals.- To ensure that the perpetrators of international crimes committed during

World War II were prosecuted for these atrocities, Allies created special tribunals. Thus, International

Tribunals of Nuremberg51 and Tokyo were created, respectively.

a) Murder; b) Extermination; c) Enslavement; d) Deportation or forcible transfer of population; e) Imprisonment or other severe deprivation of physical liberty in violation of fundamental rules of International Law; f) Torture; g) Rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or any other form of sexual violence of comparable gravity; h) Persecution against any identifiable group or collectivity on political, racial, national, ethnic, cultural, religious, gender as defined in paragraph 3, or other grounds that are universally recognized as impermissible under international law, in connection with any act referred to in this paragraph or any crime within the jurisdiction of the Court; i) Enforced disappearance of persons; j)  The crime of apartheid; k) Other inhumane acts of a similar character intentionally causing great suffering, or serious injury to body or to mental or physical health.

We recall the test to know whether a crime can be considered as a crime against humanity consists on defining if there is a widespread or systematic attack directed against the civil population.

50 Convention on the Prevention and Punishment of the Crime of Genocide, December 9, 1948, Article II, at http://www.hrweb.org/legal/genocide.htmlIn the present Convention, genocide means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such: a) Killing members of the group; b) Causing serious bodily or mental harm to members of the group; c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; d) Imposing measures intended to prevent births within the group; e) Forcibly transferring children of the group to another group.

51 KISSINGER, Henry. The Pitfalls of Universal Jurisdiction: Risking Judicial Tyranny. Foreign Affairs, Volume 80, Nº 4, July-August 2001, also available at http://www.foreignaffairs.org/20010701faessay4996/henry-a-kissinger/the-pitfalls-of-universal-jurisdiction.htmlThe Nuremberg trials were held in the german city of Nuremberg from 1945 to 1949 at the Nuremberg Palace of Justice. This city was chosen because had the only court large enough to host the event that had not been destroyed by the allied bombing.

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Those were the immediate antecedents for the creation of later courts which had total faculties for the

persecution and sanction of these crimes.52 The International Criminal Court for the former-Yugoslavia53 as

well as the one for Rwanda, 54 this time with the UN endorsement, looked for ending impunity in specific

areas punished by demential violence. These special tribunals, applicators of the universal jurisdiction

principle, have their corollary at the International Criminal Court (ICC),55 at The Hague. Even strong critics of

universal jurisdiction principle, recognize that efforts as the one of Nuremberg are valid as applicators of this

principle.56

3.3.2 By virtue of international treaties.- The treaties subscribed between countries and the obligations

created, to the light of these instruments, is sufficient element for the exercise of universal jurisdiction by a

State, without requiring domestic legislation on this subject.57. This is due that its legal framework

incorporates automatically ratifying treaties into domestic legislation or the customary International Law, or

both. 58

For instance, the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or

Punishment59 places a binding obligation on the ratifying States to exercise universal jurisdiction over

individual suspected of torture or to extradite them to a country that will. Also, the Inter-American

Convention on Forced Disappearance of Persons requires Organization of American States members that have

52 AMNESTY INTERNATIONAL, supra n. 37. “ The Charter of the Nuremberg and Tokyo Tribunals, the Statutes of the International Criminal Tribunals for the former Yugoslavia and Rwanda and the Rome Statute of the International Criminal Court all confirm that courts can exercise jurisdiction over the crimes (as grave crimes under international law) regardless of the official capacity of the accused at the time of the crime or later, be it a head of state, head or member of government, member of parliament or other elected or governmental capacity. States should, therefore, ensure that national immunities and immunities for people visiting their country, regardless of their status, should not extend to these crimes.”

53 The International Criminal Tribunal for the former Yugoslavia was created by Resolution Nº 827 of the UN Council on May 25, 1993.

54 The International Criminal Tribunal for Rwanda is a court created by the UN for the prosecution of international crimes committed in Rwanda during April 1994.

55 The Statute of Rome, that establishes the International Criminal Court, is a clear manifestation of the universal jurisdiction principle. Its main end has been the establishment of the said court to adjudicate cases of suspects of the commission of crimes against the interest of the international community.

56 KISSINGER, supra n. 51. He says that these efforts never had the intention this class of courts would be permanent though. There is an obvious mention to the International Criminal Court.

57 AMNESTY INTERNATIONAL, supra n. 37. 58 Id.59 Id. Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment,

December 10, 1984, Article 5.2, at http://www.hrweb.org/legal/cat.htmlEach State Party shall likewise take such measures as may be necessary to establish its jurisdiction over such offences in cases where the alleged offender is present in any territory under its jurisdiction and it does not extradite him pursuant to article 8 to any of the States mentioned in Paragraph 1 of this article.

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ratified the convention to exercise universal jurisdiction over suspects of ''disappearances'' or to extradite

suspects.60

Unfortunately, not all treaties regulate universal jurisdiction principle, as we will see in point 3.4.

3.3.3 By virtue of domestic law.- The universal jurisdiction principle is applied also based on domestic law.

Namely, a State exercises jurisdiction over individual suspected of committing international crimes after

incorporating this principle into its legal framework, lacking the typical criteria of connection between the

crime and the victim and/or the suspect.

Belgium is the most important case of formalization and codification of the universal jurisdiction

principle, by virtue of its legislation of 1993, 1999 and 2003.61 Obviously, this kind of application is the most

controversial. How it is possible that a State takes for granted such power, who granted Belgium the privilege

of being universal judge? - say the critics.

3.4 Challenges

Undoubtedly, universal jurisdiction principle has been developed a lot but still there are areas in

which needs to be perfect. As an achievement, it can be mentioned the consensus obtained about the crimes

subjected to universal jurisdiction

Likewise, for crimes such as torture and grave breaches of the Geneva Conventions, “the relevant

treaties say clearly that offenders who are found within the territory of a State must be prosecuted or

extradited to face prosecution elsewhere.”62 However, with regards to other crimes, “there is no specific treaty

or the relevant treaty does not state clearly whether a State can or should prosecute an offender found in its

60 AMNESTY INTERNATIONAL, supra n. 37. Inter-American Convention on Forced Disappearance of Persons, June 9, 1994, Article IV, at http://www.oas.org/juridico/english/Treaties/a-60.html The acts constituting the forced disappearance of persons shall be considered offenses in every State Party. Consequently, each State Party shall take measures to establish its jurisdiction over such cases in the following instances:a. When the forced disappearance of persons or any act constituting such offense was committed within its jurisdiction;b. When the accused is a national of that State;c .When the victim is a national of that State and that State sees fit to do so. Every State Party shall, moreover, take the necessary measures to establish its jurisdiction over the crime described in this Convention when the alleged criminal is within its territory and it does not proceed to extradite him.This Convention does not authorize any State Party to undertake, in the territory of another State Party, the exercise of jurisdiction or the performance of functions that are placed within the exclusive purview of the authorities of that other Party by its domestic law.

61 KING IRANI, Laurie. On Learning Lessons: Belgium’s Universal Jurisdiction Law Under Threat, at http://indictsharon.net/ In this interesting article, King points out that unfortunately due to political pressure, on June 23 2003, the Belgian government gut progressive universal jurisdiction legislation.

62 INTERNATIONAL COUNCIL ON HUMAN RIGHTS, supra n. 43, at 50.

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territory when the crime was committed elsewhere.”63 For example, the Convention on the Prevention and

Punishment of the Crime of Genocide does not have any provision about universal jurisdiction.64 In those

cases, the grounds to exercise the universal jurisdiction principle rest on customary international law. 65 To

harmonize the text of treaties regarding the application of this principle is an incomplete task.

Universal jurisdiction principle arises to punish those who have been responsible of unimaginable atrocities

that deeply shock the conscience of humanity. However, even these individuals deserve a fair trial. To commit

abuses by jurisdictional organs (i.e. judges and public prosecutors) against these individuals while

adjudicating with such greatest powers is always a latent risk.

In that sense, a task to be done is to avoid the establishment of a tyranny by the executors of this principle of

universal jurisdiction.66 Here, it is imperative to ensure that when exercising jurisdiction, due process is fully

respected.67 Only that way the final verdict against the accused will be valid.  

3.5 Criticisms

One of the strongest criticisms made to universal jurisdiction is that violates the principle of

sovereignty. Sovereign States should have total control over what happens in their territories.68 “If they

choose to pool, devolve or abrogate part of this sovereignty, that is one thing- but it is quite a different thing

for a third party State to do that to them.”69

The answer to this criticism is simple, sovereignty is no absolute anymore as we have seen before. 70

Sovereignty has eroded in favor of globalization of the principle of jurisdiction.

Aspects before reserved exclusively to the sovereign have passed to universal domain; now competence

invoked by a foreign jurisdiction will be clearly explained in a tied, connected world like today’s world.71

Furthermore, others have said that the principle of universal jurisdiction “relegates domestic courts to a

second class status,”72 it even replaces them. However, the truth is something different. Universal jurisdiction

63 Id. at 51.64 Id.65 Id.

66 KISSINGER, supra n. 51. With this regards, Kissinger states that “historically, the dictatorship of the virtuous has often led to inquisitions and even witch-hunts.”

67 The Fifth Amendment of the U.S. Constitution guarantees that: “No person shall be deprived of life, liberty or property without due process of law (…).” Due process of law includes proper service of process, reasonable opportunity to be heard and present evidence, etc.

68 RUANE, Christopher. Should Any Court have Jurisdiction over Offences in Other Countries?, at http://www.debatabase.org/details.asp?topicID=265

69 Id.70 ZUPI, supra n. 45.71 Id.72 RUANE, supra n. 68.

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principle, as it is nowadays, is complementary to domestic justice. That is to say, it acts only when the

domestic courts are not able or willing to do so.

Rouane comments to this respect that:

Universal jurisdiction does not replace domestic courts. Rather, it simply allows another avenue to

justice so that, if the domestic judicial system fails to act on something, the possibility of justice is

not extinguished. If anything, this should create an effective incentive for national judicial systems to

be more efficient in pursuing wrongdoers.73

Presently, the ICC is not a replacement for national prosecutions.74 In fact, the Rome Statute requires

ratifying States to accept the primary responsibility to investigate and prosecute suspects of crimes within the

Court's jurisdiction in their courts.75

According to article 17 (1.a) of the Statute of Rome:76

The Court shall determine that a case is inadmissible where:

(a)     The case is being investigated or prosecuted by a State which has jurisdiction over it, unless the

State is unwilling or unable genuinely to carry out the investigation or prosecution;

Afterwards, it has been criticized that several countries could try to exercise universal jurisdiction

principle simultaneously since this principle gives all countries the power to prosecute certain crimes .77 For

instance, Belgium, Spain, Switzerland and Italy ask for bringing general Pinochet to justice.78 Nevertheless,

this problem is not as serious as it seems. The State that holds the suspect within their territory will have an

obvious advantage over the others, given the difficulties that the extradition problem presents. 79 Thus,

everything points out that this problem can be solved by means of the -not so legal- rule first come, first

served.

Finally, there are some who express their strangeness (it is better to write down: surprise?) about the

present scope of the principle of universal jurisdiction. Precisely, Kissinger asserts that neither the Universal

73 Id.

74 AMNESTY INTERNATIONAL, supra n. 37. This was not the case of the International Criminal tribunals for Rwanda and former Yugoslavia.

75 Id. The International Criminal Court also has a limited jurisdiction and, in the absence of a UN Security Council referral of a case the Court, is not be able to prosecute people accused of international crimes, who are nationals of a country which has not ratified the Rome Statute or if the crime was committed in a country that has not ratified it.

76 Statute of Rome, supra n. 48.77 INTERNATIONAL COUNCIL ON HUMAN RIGHTS, supra n. 43, at 56.78 Id.79 Id.

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Declaration of Human Rights of 1948 nor the Convention on Torture 1984 or the International Tribunal for

Rwanda “were conceived at the time as instituting a universal jurisdiction.” Even with respect to binding

treaties,80 such as the Convention on the Prevention and Punishment of the Crime of Genocide, it was never

thought that they would subject leaders of one State to prosecution by the judges of another State where the

violations had not occurred.81

Kissinger’s argument sounds very convincing, although it does not take into account a fundamental premise:

time. In fact, everything evolves -changes, if you want to be more realistic- because of this factor. His mistake

consists on not admitting this; nothing is absolute, everything is relative.

CONCLUSION

The globalization penetrates in all areas, it expands concepts. Today, the sovereignty principle

implies the State’s acceptance that no single and exclusive action of a State, in Human Rights issues, is

permitted.

Human Rights are gradually occupying, in an effective way, the place they deserve within the

priorities of the States. They have been internalized and internationalized to the point that, today, are not more

privative of domestic legislation and adjudication.

To end impunity demands, today, that the States accept and implement universal jurisdiction

principle in their respective criminal systems so they give a message to the world that those who committed

international crimes never will be safe from the "hands of justice."

Today, ending impunity requires of political will of the governors and inter-States cooperation so the

word justice will not only be exclusive of legal texts but that it also appears in reality, in all the corners of the

world. This does not constitute interference in domestic affairs; it is simply to take care of those without the

world would not exist, the human beings. As important as that.

80 It is undeniable the binding character of the Convention on the Prevention and Punishment of the Crime of Genocide; however, there are those who recognize that character to the Universal Declaration of Human Rights.

81 KISSINGER, supra n. 51.

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