Universal Jurisdiction

The principle of Universal Jurisdiction provides for state's jurisdiction over crimes against international law even when the crimes did not occur on that state's territory, and neither the victim nor perpetrator is a national of that state.

The term “Universal Jurisdiction” refers to the idea that a national court may prosecute individuals for serious crimes against international law and heinous offenses that include crimes against humanity, war crimes, genocide and torture. The perpetrators are considered hostes humani generis “enemies of all mankind.”

“An actio popularis” was an action in Roman Penal Law brought by a member of the public in the interest of public order.

Amongst a vast spread of literature surrounding the theory, application, and history of Universal Jurisdiction, there are two approaches: the "global enforcer" and the "no safe haven". "Global enforcer" refers to the usage of Universal Jurisdiction as an active way of preventing and punishing international crimes committed anywhere while "no safe haven" takes on a more passive tone, referring to the usage of this principle to ensure that the specific country is not a territorial refuge for any suspects of international crimes

Conditional Jurisdiction holds that the accused must be present in the state for the prosecution to move forward, while absolute jurisdiction gives the state the right to pursue any individual, regardless of their location, for criminal violations that fall within the authorizing legislation.

Universal Jurisdiction allows states or international organizations to claim criminal jurisdiction over an accused person regardless of where the alleged crime was committed, and regardless of the accused's nationality, country of residence, or any other relation with the prosecuting entity.

Nations are divided into around 320 separate jurisdictions with their own laws. Jurisdiction can be broadly classified into three main categories: Territorial Jurisdiction. Pecuniary Jurisdiction. Jurisdiction as to Subject-Matter.

Territorial Jurisdiction refers to power of the court to inquire and proceed with the trial of matter that is presented before it. In Public International Law, the concept of jurisdiction has a strong link with sovereignty. Jurisdiction allows State for sovereign independence which they pass on with the global system of equal States stating the laws related to persons or activities in which they have a legal interest.

International law consists of rules and principles governing the relations and dealings of nations with each other, as well as the relations between states and individuals, and relations between international organizations. In contrast, private international law deals with controversies between private persons.

The different types of recognized International law jurisdiction are each assessed, including Territorial Jurisdiction, Nationality Jurisdiction, Universal Jurisdiction, the protective principle, and passive personality jurisdiction. Article 38(1) of the Statute of the International Court of Justice (ICJ) lists four sources of international law: Treaties and conventions, custom, general principles of law, and judicial decisions and teachings.

In Criminal Law, Civic Law, and Public Law, jurisdiction sometimes refers to a particular geographic area containing a defined legal authority. There are different meanings to the word Law. Perhaps this is best conveyed by the view of Baron De Montesquieu in his book, Spirit of the Law, where he wrote:

“Laws in the wider possible connotations are any necessary relation arising from a thing in nature. In this sense, all beings have their laws; the Deity his laws, the material world it laws, the intelligence superior to man its laws, the beasts their laws, man his law…”

From the above, it can be seen that law is used in multiple senses. Thus it is imperative for the different types of law to be considered: Eternal Law; Divine Law; Natural Law; and Positive or Human Law.

”Law is a command and there is no necessary connection between law and morals or law as it is (lex lata) and law as it ought to be (de lege ferenda).” According to Professor HLA Hart, a positivist.

Examples of positivist law include the 1999 Constitution, Company and Allied Matters Act, Banks and Other Financial Institutions Act and a host of others enacted by man.

As imperative for the different classifications of law to be considered: Public and Private Law; Civil Law and Criminal Law; Substantive and Procedural Law; Municipal and International Law; Written and Unwritten Law; as well as Common Law and Equity.

That said, one of the major logistical issues courts may run into during an application of Universal Jurisdiction is the accessibility of witnesses. States do not actually have the legal authority to summon witnesses who currently reside abroad to appear before their national courts, nor do they always have access to the necessary witnesses or evidence needed to implicate a foreign national of crimes against humanity…

Food for thought!