International law has always been debated and decided in specific, international courts and tribunals, such as the International Court of Justice (ICJ) and the International Criminal Court (ICC). The latter, in particular, is tasked with the criminal prosecution of individuals who have allegedly committed the most serious crimes in international law: genocide, crimes against humanity, and war crimes. The ICC has, however, jurisdictional constraints which prevent its prosecutors and judges from investigating these crimes, if committed in states that have not ratified the Rome Statute. Universal jurisdiction is an international law principle that allows states to avoid the aforementioned constraints and prosecute individuals for the same crimes in national courts.
International law is a body of law made up of rules and principles governing the relations between states, those between states and individuals, and those between international organizations.
It can be roughly divided between public and private international law, the former dealing with issues between states or between a state and citizens of other states; the latter, in contrast, dealing with issues between individuals.
International law has, since its inception, largely been debated and decided in specific, international courts and tribunals, such as the International Court of Justice (ICJ) and the International Criminal Court (ICC).
While the ICJ renders mostly advisory opinions on matters between states or involving organs and agencies of the United Nations (UN), the ICC is tasked with the criminal prosecution of individuals who have allegedly committed the most serious crimes in international law: genocide, crimes against humanity, and war crimes.
There is, however, another way to prosecute individuals guilty of the same international law violations: through the universal jurisdiction principle.
According to this doctrine, any national court might prosecute individuals for the aforementioned most serious crimes committed anywhere because such crimes cause harm to the international community and to the international order as a whole, and any state might act to protect them.
Universal jurisdiction is very closely connected to two other international law principles: that certain international norms constitute erga omnesobligations, meaning that all states have an interest in complying with them because they affect the international community as a whole, and that certain international law norms constitute a body of law referred to as jus cogens, which means that they permit no derogation and they constitute obligations for all states.
The application of universal jurisdiction is mandated by certain international treaties, such as the 1949 Geneva Conventions (GC I, Art 49; GC II, Art 50; GC III, Art 129; GC IV, Art 146) and the 1984 Torture Convention. Since these treaties are among the most ratified in the world – the Geneva Conventions in particular have been ratified by 194 states – it follows that a strong majority of states recognize that universal jurisdiction is a solid and substantial international law principle.
According to Human Rights Watch, “universal jurisdiction is a crucial tool by which victims of grave international crimes can obtain redress.” In fact, this principle provides a sort of safety net for two types of situations.
First and foremost, when the territorial state (meaning the state where the atrocities have been committed or the state whose national the perpetrators or victims are) is unwilling or unable to take charge of the investigation and trial: universal jurisdiction reduces the possibilities of perpetrators to travel to third party countries to escape accountability.
Furthermore, universal jurisdiction allows states to circumvent the restrictions to the territorial jurisdiction of the ICC.
In fact, the Rome Statute makes it quite clear that the Court’s jurisdiction is limited to its state parties: Article 12(1) reads that “A State which becomes a Party to this Statute thereby accepts the jurisdiction of the Court […].” Another avenue to involve the ICC in the investigation of crimes committed in states outside of its jurisdiction is a referral of the situation in question to the Court by the UN Security Council; however, the Council is often paralyzed by the threat of a veto either by the United States (US), by the Russian Federation, or by the People’s Republic of China.
It is noteworthy, for the sake of contextualizing this complex issue in contemporary situations, that neither Syria nor Myanmar are parties to the ICC; this means that the crimes which are being committed at the present time in both states cannot be automatically investigated by the Court.
It is precisely a case related to the situation in Syria that the principle of universal jurisdiction has recently led to the conviction of a low-level Syrian Intelligence officer “for having aided and abetted crimes against humanity for his role nearly 10 years ago in arresting and transporting protesters to an interrogation center known for torture,” according to the New York Times.
The defendant, Eyad al-Gharib, was sentenced to four-and-a-half years in prison by a German court in Koblenz, Germany. While the conviction is largely symbolic, the case constitutes the very first instance of sentencing of a Syrian official for crimes against humanity, a decade after the beginning of the revolution in Syria and the subsequent violent crackdown by the regime on protesters.
This case is likely to become a landmark and a steppingstone in international law, precisely because of its basis in the principle of universal jurisdiction.
Other similar proceedings have been initiated in several European countries, such as Sweden, Spain, and France, against other Syrian officials involved in the horrific crimes committed by the Assad regime. Furthermore, this case has the potential to become a very significant international law precedent for other situations, such as the one in Myanmar, where hundreds of thousands of Rohingyas, a Muslim minority, are being targeted because of their ethnicity.
In a world with several instances of grave human rights violations happening every day, universal jurisdiction represents a new frontier for justice and accountability.