The Historical Basis of the Doctrine of Universal Jurisdiction

By Graham Reynolds

Graham Reynolds is a student at Trinity College Dublin obtaining his Bachelor in Laws (LL.B.).

The British High Court of Justice’s recent ruling, which quashed the Crown Prosecution Service’s decision to afford immunity to the Prince of Bahrain, is a welcome shift in the jurisprudence of “state immunity”. The ruling consequentially gives preference to the doctrine of “universal jurisdiction” within the adversarial relationship of state immunity and the former. It is felt that this ruling is reflective of the growing tide against arbitrary nature of some of the earliest doctrines of international law and their incompatibility with the influx in internationally recognized human rights.

As a starting point, it is necessary to distinguish  that the lexicographic scope of “universal jurisdiction” refers solely to the competence of national judicial authorities, rather than any international judicial body. [1] It affords the state the ability to initiate criminal proceedings regardless of its sovereignty. This principle differs from the typical scope of international criminal proceedings as the nature of the act may in itself confer jurisdiction on any state, “without regard to where the crime was committed.” [2] Most contemporary authors recognize the existence of such a universality principle; the issue is therefore not its existence, but its content and scope. In theory, such widened scope of assertion provides for obvious possibilities of abuse and conflicting jurisdictional claim, yet as the Arrest Warrant case shows, the courts in the past had typically implemented a weakened construction of the principal, if any. [3]

The doctrine of universal jurisdiction has certainly stood the test of time. In the early sixth century similar features of the doctrine were found in the Codex Justinianus. [4] In the seventeenth century, a number of Dutch scholars, such as Voet and—more importantly—Grotius, advocated the universal jurisdiction over crimes that violated the law of nature and shocked the societas generis humani. Grotius noted in his classic De Jure Belli ac Pacis Libri Tres (1625) that ordinary crimes should “be left to the States themselves and their rulers, to be punished or condoned at their discretion.” [5] But he went on later to note that kings “have the [right to demand] punishments not only on account of injuries which do not directly affect them but excessively violate the law of nature or of nations in regard of persons whatsoever”. [5] Emmerich de Vattel followed the lines of Grotius in his work Le droit des gens ou les principes de la loi naturelle appliques a la conduite et aux affaires des Nations et des Souverains (1758). 

• We ought to except from this rule those villains, who, by the nature and habitual frequency of their crimes, violate all public security, and declare themselves the enemies of the human race. [6]

Luc Reydams, author of Universal Jurisdiction,  notes in the Munich Session of 1883 of the Institute of International on international law that each drafter based his individual view of universal principles on different jurisprudence [1].  Christian von Bar, a modern German jurist, relies on the natural law ideas of universal justice and solidarity among nations as propagated by the founders of modern international law [7]. Brusa, by contrast grounded the competence of the judex loci deprehensionis on the territoriality principle, arguing that the right to punish follows from the right of every State to defend its public order. Brusa thus provided universal jurisdiction with a positivist basis, it is the expression of a State’s internal sovereignty.

Yet the contemporary jurisprudence of universal jurisdiction seems to draw upon Kantian worldview, pursuant to which crimes may be considered as attacks on individual interest, whereby if an individual is harmed somewhere on earth, he is entitled to have his day in court anywhere in the world

• The people of the earth have… entered in varying degrees into a universal community, and it has developed to the point where a violation of rights in one part of the world is felt everywhere. [8]
  

Jonathan H. Marks, author of Mending the Web: Universal Jurisdiction, Humanitarian Intervention and the Abrogation of Immunity by the Security Council draws upon this Kantian thought and emphasizes the shared interests which States have in exercising universal jurisdiction [9]. He acknowledges that the conduct of those who perpetrate serious international crimes in one state has an impact on other states: “Such conduct poses a potential threat to all States and thus all States have an interest in prosecuting the wrongdoer.” [9]

Once again in idealist Kantian thought, criminal law is a categorical imperative informed by practical reason. From this viewpoint some crimes are considered to be breaches of obligations egra omnes, owed to every state and which thus every state has an interest in prosecuting—even without a concrete link to the State. This justification of universal jurisdiction appears to have become the dominant; that some acts are considered so morally reprehensible that any state should be authorized or even required to prosecute them. However complications arise when the force and effect of this doctrine is placed against the accepted, yet some somewhat anachronistic principle of state immunity.

The complex relationship found between the sovereignty of a nation and the nation’s subsequent immunities and the desire to establish a universal set of norms under which prosecution can take place is highlighted in the case of Pinochet, the decision of the International ad hoc Tribunal in Prosecutor v Anto Furundzija. It was the first time whereby a former Head of State was confronted in the domestic court of a foreign state with a criminal accusation for acts perpetrated during the time he was in office in his country.

This situation produced the uncommon confrontation between the traditional common law doctrine of state immunity in respect of crimes committed by a Head of State or somebody in exercise of official functions; and on the other side, the doctrine of universal jurisdiction. The case in many respects can be seen as the confrontation between the increasingly tense relationship between the positivist nature of mature doctrines within the international law sphere and the ever-expanding approach of post-world war two doctrines that are built on the concept of natural rights.

In the case the judges accepted that the prohibition of torture had been elevated to the hierarchy of imperative law. At this rank, it was an absolute value from which nobody must deviate, imposing as consequence to all states that found a torturer within their territories, either to prosecute or extradite the person.

However on a closer inspection of the court’s decision highlights that there is no conclusive answer concerning immunity for Heads of State and other other officers for acts performed whilst enjoying official positions. British Judge Mark Saville, Baron Saville of Newdigate, noted that whilst immunity will continue being granted in civil litigation regardless of the conduct of the tortious offender, in criminal proceedings Heads of State and other prominent officials may be held accountable without the prospect that the immunity shield will cover their behavior. As it was stated by former British Judge Peter Millett, Baron Millett, “International law cannot be supposed to have established a crime having the character of ius cogens and at the same time to have provided an immunity which is coextensive with the obligation it seeks to impose.”

In this regard the High Court’s preference for the ius cogen against torture against the obligations of state immunity should be seen as a welcome shift in the jurisprudence of the court as it sees itself no longer blindly bound to a procedural safeguard that is being increasingly viewed as arbitrary in an international sphere dominated by human rights dialect.
 

[1] Reydams, Universal Jurisdiction, Oxford Press 2003
[2] Codification of International Law: Part II--Jurisdiction with Respect to Crime 29 Am. J. Int'l L. Sup 435 (1935)
[3] Democratic Republic of Congo v Belgium, I.C.J Rep 2002
[4] Reydams, Universal Jurisdiction, Oxford Press 2003 at 254
[5] Grotius, De Jure Belli ac Pacis Libri Tres (1625), book II, chapter XXI, III
[6] De Vattel,  Le droit des gens ou les principes de la loi naturelle appliques a la conduite et aux affaires des Nations et des Souverains, (1758) Book I Chapter XIX para 232
[7] A Mercier “Le conflit des lois penales en matiere de competence” Annuaire de l’Institut de Droit International” 1993, s.13 ff.
[8] Immanuel Kant, Toward Perpetual Peace, 1795 p.107-108
[9] Jonathan H. Marks, Mending the Web: Universal Jurisdiction, Humanitarian Intervention and the Abrogation of Immunity by the Security Council, 42 Columbia Journal of Transnational Law (2004)


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