The Problem of Universal Jurisdiction in Curbing International Crimes

• Author: Hasanov Rahim
• Position: PhD in progress, Azerbaijan National Academy of Sciences, H. Javid Av., 29A, Baku AZ1143, Azerbaijan
• Pages: 110-125

ACTA UNIVERSITAT

110

Abstract

: There is generally

conventional international la

essence of the concept as the

Therefore, the concept of un

entitles a State to exercise it

territory, has been perpetrate

the acts

." "Universal jurisd

suspected of a serious intern

torture-

even if neither the s

located ("the forum state"), a

legal principle which has ev

order. It is intended to ensure

crimes against humanity, gr

justice. Universal jurisdiction

nexus t o the crime (related,

prove unable or unwilling

inadequate, or when it is used

Keywords:

universal jurisdic

There are certain crimes

crimes, crimes against h

threat to international

jurisdiction in relation t

jurisdiction principle –

1

PhD in progress,

Azerbaij

Azerbaijan. Tel.:

+994 1

hesrahim@rambler.ru.

ATIS DANUBIUS

Vol. VII,

The Problem of Universal Jurisdic

Cur

bing International Crime

Hasanov RAHIM TASHAKKUL

1

lly no agreed doctrinal definition of universal jurisdiction in c

l law. However, this does not preclude any definition, which

the ability to exercise jurisdiction irrespective o f territoriality o

uni versal ju risdiction applies to a situation where "

the na tur

e its jurisdictio

n to apply its laws, even if the act ha s occurr

rated by a non

-

national, and even if (its) nationals have not be

isdiction" refers to the competence of a national court to

ernational crime

-

such as genocide, war crimes, crimes against

e suspect nor the victim are nation als of the country where

), and the crime took pla

ce outside that country. Universal ju

evolved in order to overcome jurisdictional gaps in the inter

ure that those responsible for international crimes

-

which inclu

grave breaches of the Geneva Conventions, and torture

-

a

tion is primarily enacted when States with a more traditional

d, inter alia, to the pla

ce of commission, or the perpetrator'

ng to genuinely investigate and prosecute: when their leg

sed to shield the accused from justice.

diction; legal prin

ciple; criminal law; crime; criminal code

es in the international law, such as aggression, gen

st humanity etc., that affect the interests of all states

al peace. Therefo

re any country of the world

n to these crimes. In international law this is calle

quasi delicta juris gentium.

aijan National Academy of Sciences,

H.

Javid Av., 29A, B

12 510 56 20,

Fax: +994 12 497-52-85.

Correspon

AUDJ, vol. VII, no. 1,

II, no

. 1/2011

diction in

mes

n customary and

ch embodies the

ty or nationality.

ture of (an) act

urred outside its

been harmed by

to try a p

erson

inst humanity or

ere the cou rt is

jurisdiction is a

ternational legal

clude genoc

ide,

are brought to

al jurisdictional

tor's n ationality)

legal system is

genocide, war

tes and pose a

ld shall have

lled universal

Baku AZ1143,

ponding author

. 1, pp.

110-125

JURIDICA

111

Like every concept, “jurisdiction” may have different meanings. The word comes

from latin roots: “jus” or “juris” means “law” and “dicere” means “to say” or “to

read”. Therefore, “jurisdiction” can be understood to mean; “to say the law” and,

as a derivative; “the power to say the law”. Presently, “jurisdiction” is understood

as the legislative, adjudicative and executive power that provides respectively

competence to prescribe, adjudicate or execute the law, in particular the territorial

competence of courts. Jurisdiction in criminal matters may be considered either as

substantial or procedural law. Customary international law was covering sea

piracy, slavery, and child and woman trade under universal jurisdiction.

These crimes were recognized as subject to universal jurisdiction not because they

were analogous to piracy, as Professor Eugene Kontorovich argues (2004), but

because of the heinous nature of the crimes. Furthermore, an analogy can be made

to piracy, not based on whether piracy was or was not outlawed for its heinousness,

but based on the definition of piracy as a “crime committed more or less

indiscriminately against citizens of different nations on the high seas.” (Slaughter,

2006) Third, each of the rationales that have been provided for universal

jurisdiction, as outlined by Jonathan Marks (2004, pp. 463-471)

Universal jurisdiction in international criminal cases may be an idea whose time

has finally come. The germ of the idea is that some crimes are so heinous that they

give rise to a duty in every nation to prosecute if the opportunity arises. The very

name "crimes against humanity" captures the notion of an offence to every nation,

and a corresponding obligation to take action.

Although the concept is old, and had been offered as one of the justifications for

the Nuremberg trials of World War II war criminals from 1945 to 1949, it came to

the fore after the widespread collapse of dictatorships, especially in Latin America,

during the 1980s. The cry was for "an end to impunity," and the hope was that

universal jurisdiction would help to bring torturers and murderers to justice. Time

outs of mind, deposed oppressors have sought amnesty in their own country, or

have fled into asylum on neutral ground. It often seemed that the worst criminals

were the most likely to escape justice. (Farmington, 2005, pp. 1110-1123)

Universal jurisdiction was applicable only to the crimes committed in terra nullius,

where the jurisdiction of any other country was invalid. It has been argued that

terra nullius is a requirement of universal jurisdiction, and that when sovereign