399
Towards the Development of an Effective
System of Universal Jurisdiction for
Crimes Under International Law
Bruce Broomhall
This article outlines the present state of universal jurisdiction over the
"core crimes"1
of international criminal law and situates it within the overall
development of that law. The article argues that, if regular enforcement
is (as it should be) a goal of the emerging system of international justice,
then universal jurisdiction will be an essential part of that system. At the
same time, the doctrine's application is laden with difficulties, particularly
because of its inherent reliance on national authorities to enforce international
norms. A reticence to apply (or indeed to implement) this doctrine
appears to rest, in important part, on uncertainty about the limits of its exercise.
It is argued, that such limits are best imposed by a prosecutorial
discretion structured to take into account certain legitimate factors ­ factors
which nonetheless require more clarification than they have so far
received. The article concludes that universal jurisdiction will not become
a reliable pillar of the international rule of law until these difficulties are
squarely faced, but that current developments give cause for optimism.
I. INTRODUCTION
Universal jurisdiction is at a turning point. After fifty years of relative
neglect, and with renewed impetus lent by the Pinochet hearings in the
United Kingdom2
and by the adoption of the Rome Statute of the International
Criminal Court,3
this doctrine stands poised to become an integral,
albeit supplemental, component of the emerging international justice system.
At the same time, serious obstacles stand in the way of its realization
 Senior Coordinator, International Justice Program, Lawyers Committee for
Human Rights; Ph.D. Candidate, King's College London. Views expressed are solely
those of the author.
1. The term "core crimes" refers here to crimes derived from the Nuremberg
legacy of international criminal law, and is used primarily to encompass genocide,
crimes against humanity and war crimes.
2. R. v. Bow Street Metropolitan Stipendiary Magistrate and Others, exparte
Pinochet Ugarte (No. 3), 2 All E.R. 97 (H.L. 1999).
3. Rome Statute of the International Criminal Court, 37 I.L.M. 999, arts. 5-8
(1998).
400 NEW ENGLAND LAW REVIEW [Vol. 35:2
as a consistently available tool of fair and impartial enforcement. These
obstacles are in some measure "technical," bearing on the need for implementing
legislation and appropriate international agreements. They are
also to some extent inherent in the nature of universal jurisdiction. Because
universal jurisdiction relies on national authorities to enforce international
prohibitions, pivotal decisions can be expected to reflect, to a
greater or lesser extent, domestic decision-makers' calculations as to the
interests of justice, the national interest and other criteria. The element of
uncertainty that this introduces is likely to prove durable and resistant to
control, even with all the necessary agreements and legislation in place.
The practice of universal jurisdiction is, therefore, unlikely to become significantly
more regular unless sustained awareness-raising initiatives, programs
of law reform and a marked convergence of opinion affect domestic
decision-makers over time.
In spite of such obstacles, it is clear that a number of governments,
through the express provision for universal jurisdiction over core crimes
during the process of International Criminal Court (ICC) implementation,
are choosing a path that will speed rather than curb the entrenchment of
this doctrine. The wave of legislative activity currently underway will in
time give rise to cases, and these will oblige legal systems to find working
solutions to problems which at present elude consensus. The extent to
which universal jurisdiction becomes a reliable part of a system for promoting
the international rule of law in practice depends in large measure
on the unfolding of these developments over the coming years.
II. DEFINITION AND RATIONALE
Universal jurisdiction fills a gap left where other, more basic doctrines
of jurisdiction provide no basis for national proceedings. Under universal
jurisdiction, the fact that a crime did not occur within or have a discernible
impact on the territory or security of a state (thus falling outside of territorial
or protective principle jurisdiction), or that no national of the state
perpetrated or was a victim of the act (active or passive personality jurisdiction)
is no impediment to proceedings by that state's authorities.4
Where international law recognizes this form of jurisdiction, states have in
effect acknowledged that any other state may or must investigate and
prosecute a given crime, even absent the usual jurisdictional links.
4. See Kenneth C. Randall, Universal Jurisdiction Under International Law,
66 TEX. L. REV. 785, 786-88 (1988); M. CHERIF BASSIOUNI, CRIMES AGAINST
HUMANITY IN INTERNATIONAL CRIMINAL LAW 227 (2d ed. 1999); IAN BROWNLIE,
PRINCIPLES OF PUBLIC INTERNATIONAL LAW 303-14 (5th ed. 1998).
2001] EFFECTIVE UNIVERSAL JURISDICTION 401
The words "may or must" conceal an important nuance. In ordinary usage,
"universal jurisdiction" encompasses both permissive and mandatory
forms, where a state may and where a state must exercise jurisdiction.
This largely parallels the distinction between the doctrine's manifestations
under customary and under conventional international law.
Treaties setting out a regime of "universal jurisdiction" typically define
a crime and then oblige all parties either to investigate and (if appropriate)
prosecute it, or to extradite suspects to a party willing to do so.5
This is the
obligation of aut dedere, aut judicare ("either extradite or prosecute").6
Once a state ratifies or accedes to a treaty, it has no option in the matter.7
Hence, this form of jurisdiction is not truly "universal," but is a regime of
jurisdictional rights and obligations arising among a closed set of states'
parties. Under customary law, states are (at least in the prevailing view)
merely permitted to exercise universal jurisdiction over, for example, piracy
on the high seas or crimes against humanity. The phrase "universal
jurisdiction" more accurately describes matters of custom than it does the
jurisdiction that arises only inter partes through a convention.
The rationales underlying international criminal law, in general, also
support universal jurisdiction.8
First, the serious crimes concerned are "of
5. Examples are found in relevant articles of the Geneva Conventions (including
Additional Protocol I). See infra notes 16-17. Additional examples can also be
found in the U.N. Convention Against Torture. See infra note 19 and accompanying
text. For treaties containing such provisions that do not deal with "core crimes" of
international criminal law, see infra note 18.
6. For an extensive discussion, see M. CHERIF BASSIOUNI & EDWARD M.
WISE, AUT DEDERE AUT JUDICARE: THE DUTY TO EXTRADITE OR PROSECUTE IN
INTERNATIONAL LAW (1995).
7. A rare example of a treaty provision providing for permissive universal jurisdiction
over a "core crime" is found in article 5 of the Convention on the Suppression
and Punishment of the Crime of Apartheid, Nov. 30, 1973, 1015 U.N.T.S. 246:
"Persons charged with . . . [the crime of apartheid] may be tried by a competent tribunal
of any State Party to the Convention which may acquire jurisdiction over the
person of the accused or by an international penal tribunal. . . ." Id.(emphasisadded).
With regard to the crime of piracy on the high seas, article 105 of the Convention
on the Law of the Sea, Dec. 10, 1982, 516 U.N.T.S. 205, reads:
On the high seas, or in any other place outside the jurisdiction of any State,
every State may seize a pirate ship or aircraft, or a ship or aircraft taken by
piracy and under the control of pirates, and arrest the persons and seize the
property on board. The courts of the State which carried out the seizure
may decide upon the penalties to be imposed, and may also determine the
action to be taken with regard to the ships, aircraft or property, subject to
the rights of third parties acting in good faith.
Id. (emphasis added).
8. The rationales outlined in the text following are those uniquely justifying
the availability of universal jurisdiction (and the imposition of individual responsibility
at international law). Of course, the rationales supporting the prosecution of all
crimes at domestic law also apply ­ with all their uncertainties ­ to crimes giving rise
402 NEW ENGLAND LAW REVIEW [Vol. 35:2
universal concern,"9
deserving condemnation in themselves, and deemed
to affect the moral and even peace and security interests of the entire international
community.10
Second, other bases of jurisdiction are insufficient
to see perpetrators brought to account, as these acts are frequently committed
by those who act from or flee to a foreign jurisdiction, or by those who
act under the protection of the state. As a result of these normative and
pragmatic rationales, universal jurisdiction does not arise with respect to
any and all crimes (as does jurisdiction under for example the territorial
principle), but rather arises only with respect to particular offences.11
The
pragmatic consideration is especially apparent with piracy on the high seas
(the first crime to be subject to universal jurisdiction), slavery12
and terror-
ism,13
where the potential to evade justice through absconding and safehavens
is great. The normative impulse is more apparent with crimes
against humanity and war crimes, the prosecution of which reinforces the
declared interest of all states in upholding fundamental principles of humanity.
Nonetheless, both pragmatism and normativity play a role with
respect to all these crimes. Pirates were labeled enemies of mankind
(hostis humani generis),14
emphasizing the moral aspect of the condemnato
universal jurisdiction at international law. These include deterrence, obtaining justice,
supporting the rule of law, facilitating social healing and reconciliation, revealing
the truth, and providing protection from perpetrators. See INTERNATIONAL COUNCIL
ON HUMAN RIGHTS POLICY, THINKING AHEAD ON UNIVERSAL JURISDICTION: REPORT
OF A MEETING HOSTED BY THE INTERNATIONAL COUNCIL ON HUMAN RIGHTS POLICY
14-21 (1999); see also INTERNATIONAL LAW ASSOCIATION, COMMITTEE ON
INTERNATIONAL HUMAN RIGHTS LAW AND PRACTICE, LONDON CONFERENCE: FINAL
REPORT ON THE EXERCISE OF UNIVERSAL JURISDICTION IN RESPECT OF GROSS HUMAN
RIGHTS OFFENCES 3 (2000).
9. RESTATEMENT (THIRD) OF THE FOREIGN RELATIONS LAW OF THE UNITED
STATES § 404 (1986).
10. See BASSIOUNI, supra note 4, at 228-29; Christopher C. Joyner, Arresting
Impunity: The Case for Universal Jurisdiction in Bringing War Criminals to Accountability,
59 LAW & CONTEMP. PROBS. 153, 166-67 (1996).
11. See Steamship Lotus (France v. Turkey), 1927 P.C.I.J. (Ser. A) No. 10
(Sept. 7). If one accepts the doctrine set down in Steamship Lotus, that states are entitled
by their sovereignty to exercise jurisdiction within their territory over acts committed
abroad, without the requirement of any permissive rule of international law,
provided only that to do so is not prohibited by a positive rule of international law,
then universal jurisdiction could in principle arise with respect to any crime. See id.
Nonetheless, the reluctance of states to exercise jurisdiction beyond the grounds traditionally
sanctioned by international law without its specific authorization, has led to
the development of the positive norms of universal jurisdiction forcertaincrimes. See
INTERNATIONAL LAW ASSOCIATION, supra note 8, at 11.
12. Rubin dissents on the availability of universal jurisdiction with respect to
slavery. See ALFRED P. RUBIN, THE LAW OF PIRACY 11 (2d ed. 1997).
13. See infra note 18 and accompanying text.
14. See SIR ROBERT JENNINGS & SIR ARTHUR WATTS, OPPENHEIM'S
2001] EFFECTIVE UNIVERSAL JURISDICTION 403
tion, while war crimes and crimes against humanity are often committed
by those whose political power renders their state a de facto safe-haven, a
driving consideration in the post-War development of international criminal
law generally.
The imperative to defend the fundamental interests of the international
community through criminal process has frequently been said to endow
national courts exercising universal jurisdiction with the de facto status of
agents of the international community, the declared values of which the
proceedings vindicate. To confer such a role on national authorities, however,
raises complex practical difficulties which have only begun to be
addressed in detail.
A. Scope
Since the end of World War II, a considerable number of international
conventions have established a duty to prosecute certain crimes. Such a
duty does not always entail universal jurisdiction. For example, article 4
of the 1948 Genocide Convention defines this crime, stating that
"[p]ersons commiting genocide . . . shall be punished" and article 1 affirms
that States Parties "undertake to prevent and to punish" it. However, article
6 of the Convention only refers to a trial before the tribunals of the
State within the territory of which the acts of genocide occur or before an
international criminal court, and does not provide for universal jurisdiction
or the duty to extradite or prosecute.15
Universal jurisdiction ­ in the form of the obligation to "extradite or
prosecute" ­ was recognized one year later in the four 1949 Geneva Conventions,
which oblige all States Parties to prohibit "grave breaches" of
them.16
Grave breaches are those violations of the Conventions that entail
individual responsibility. States Parties are under a duty to search for persons
alleged to have committed grave breaches, regardless of their nationality,
to bring them before their own courts or alternatively to hand them
over to another State Party for prosecution. The "extradite or prosecute"
obligation with respect to grave breaches under the Conventions was carINTERNATIONAL
LAW 746 (9th ed. 1996); see also BASSIOUNI, supra note 4, at 229.
15. Convention on the Prevention and Punishment of the Crime of Genocide,
Dec. 9, 1948, arts. 1, 4, 6, 78 U.N.T.S. 277.
16. See Geneva Convention for the Amelioration of the Condition of the
Wounded and Sick in Armed Forces in the Field, Aug. 12, 1949, arts. 49, 50, 75
U.N.T.S. 31; Geneva Convention for the Amelioration of the Condition of the
Wounded, Sick and Shipwrecked Members of the Armed Forces at Sea, Aug. 12,
1949, arts. 50, 51, 75 U.N.T.S. 85; Geneva Convention Relative to the Treatment of
Prisoners of War, Aug. 12, 1949, arts. 129, 130, 75 U.N.T.S. 135; and Geneva Convention
Relative to the Protection of Civilian Persons in Time of War, Aug. 12, 1949,
arts. 146, 147, 75 U.N.T.S. 287.
404 NEW ENGLAND LAW REVIEW [Vol. 35:2
ried forward to the additional grave breaches of the first 1977 Additional
Protocol.17
The mechanism also became a characteristic feature of the terrorism-related
conventions of the 1960s and 1970s, as well as others that
followed.18
Finally, the Convention Against Torture19
provides an explicit duty to
make the crime of torture as defined in the Convention an offence under
national law (article 4). Each party is required to establish jurisdiction
over the crime when committed on its territory, by one of its nationals,
against one of its nationals (if the State feels it appropriate) or in any case
in which the accused is present on its territory and it does not extradite him
or her (article 5). The State Party is then obliged, if it does not extradite
the person, to submit the case to its authorities for prosecution (articles 6, 7
and 12). Thus, at least in the Geneva Conventions and the Convention
Against Torture, international law does provide a clear, mandatory form of
"universal" jurisdiction as between States Parties.20
Where genocide,
crimes against humanity and other war crimes are concerned, one must
turn to custom.
Customary law is less clear than law established by convention, but it
has the advantage of applying to all States. For this same reason, its scope
is often strongly contested. The clearly prevailing view is that genocide,
crimes against humanity and war crimes (including not only grave
breaches of the Geneva Conventions but also the "Hague law" applicable
in international armed conflict, as well as crimes arising in noninternational
armed conflicts) give rise to permissive universal jurisdiction
17. See Protocol Additional to the Geneva Conventions of 12 August 1949, and
Relating to the Protection of Victims of International Armed Conflicts, June 8, 1977,
arts. 11, 85, 86, 88, 1125 U.N.T.S. 3, 16 I.L.M. 1391, Annex I to U.N. Doc. A/32/144
(1977).
18. See Convention for the Suppression of Unlawful Seizure of Aircraft, Dec.
16, 1970, art. 7, 860 U.N.T.S. 105; Convention for the Suppression of Unlawful Acts
Against the Safety of Civil Aviation, Sept. 23, 1971, art. 7, 24 U.S.T. 565, 974
U.N.T.S. 177; International Convention Against the Taking of Hostages, Dec. 17,
1979, art. T.I.A.S. No. 11,081, 1315 U.N.T.S. 205; European Convention on the Suppression
of Terrorism, Jan. 27, 1977, art. 7, 90 E.T.S. 3.
19. See Convention Against Torture and Other Cruel, Inhuman or Degrading
Treatment or Punishment, Feb. 4, 1985, 23 I.L.M. 1027, U.N. Doc. A/39/51 (1984).
20. The limited effect of such jurisdiction is particularly noticeable where the
convention involved is adopted by a regional organization, and is thus not even potentially
universal. See The Inter-American Convention to Prevent and Punish Torture
Dec. 9, 1985, art. 8, 67 O.A.S.T.S., 25 I.L.M. 519. The Inter-American Convention on
the Forced Disappearance of Persons requires states parties either to extradite or to
prosecute offenders. See Resolution adopted by the OAS General Assembly, 7th Plen.
Sess., OEA/ser.P,AG/doc.3 114/94 rev.1 (June 9, 1994).
2001] EFFECTIVE UNIVERSAL JURISDICTION 405
at international law.21
That customary law provided universal jurisdiction
for the further grave breaches set out in Additional Protocol I, or for acts
committed in non-international conflicts ­ indeed, whether the latter attracted
individual responsibility under international law at all ­ has recently
become less difficult to support.22
The Statutes and jurisprudence
of the ad hoc tribunals for the Former Yugoslavia and for Rwanda, and the
Rome Statute itself confirm the international criminality of at least some of
these acts and strongly buttress claims that they give rise to customary
universal jurisdiction.23
Some commentators go beyond the above view on permissive universal
jurisdiction and argue with respect to some or all core crimes that such
jurisdiction is mandatory at customary law, often adducing arguments of
jus cogens and obligations erga omnes in support.24
From this perspective,
universal jurisdiction flows directly from the fact that the core crimes of
international criminal law rest on norms of jus cogens that give rise to obligations
erga omnes.25
The evidence from practice and opinio juris none-
21. For the view that customary international law supports only permissive and
not mandatory universal jurisdiction at present, see Michael Scharf, The Letter of the
Law: The Scope of the International Legal Obligation to Prosecute Human Rights
Crimes, 59 LAW & CONTEMP. PROBS. 41, 52-59 (1996). Theodor Meron argues that
universal jurisdiction is broadly available, but is not mandatory. See TheodorMeron,
International Criminalization of Internal Atrocities, in WAR CRIMESLAW COMES OF
AGE: ESSAYS 228, 251-52, 254-55 (1998). A leading text that is non-committal about
the existence of universal jurisdiction at all (apart from either a conventional manifestation,
or piracy at customary law) and concedes only a "gradual evolution" towards
even permissive universal jurisdiction over crimes against humanity is JENNINGS &
WATTS, supra note 14, at 998.
22. For a persuasive argument that permissive universal jurisdiction is long established
for these, see Meron, supra note 21, at 249-53.
23. Canada's implementing legislation for the Rome Statute declares that
"[C]rimes described in articles 6 [genocide] and 7 [crimes against humanity] and paragraph
2 of article 8 [war crimes in international and internal armed conflict] of the
Rome Statute are, as of July 17, 1998, crimes according to customary international
law, and may be crimes according to customary international law before that date."
Crimes Against Humanity and War Crimes Act, ch. 24, § 6(4), 2000 S.C. 23 (Can.)
(describing offenses outside Canada).
24. See BASSIOUNI, supra note 4, at 220, focusing on crimes against humanity:
Since `crimes against humanity' are international crimes for which there is universal
jurisdiction . . . any and all states have the alternative duty to prosecute or
extradite. Prosecution is premised not only on a state's willingness, but also on
its ability to prosecute fairly and effectively. In the absence of these premises,
the duty to extradite to a state willing and capable of prosecuting fairly and
effectively arises.
Id; see also M. Cherif Bassiouni, International Crimes: Jus Cogens and Obligatio
Erga Omnes, 59 LAW & CONTEMP. PROBS. 63 (1996).
25. See BASSIOUNI, supra note 4, at 210-17. See also Amnesty International's
thoroughly documented submission to the House of Lords in the Pinochet litigation:
United Kingdom: The Pinochet Case­Universal Jurisdiction and the Absence of Im-
406 NEW ENGLAND LAW REVIEW [Vol. 35:2
theless falls short of supporting such arguments unequivocally, at least at
present.26
As a result, the best that can be said with certainty is that customary
law allows a permissive, and may be evolving toward a mandatory,
exercise of universal jurisdiction over genocide, crimes against humanity
and some war crimes. This is less than ideal, as the jus cogens rationale
would lend coherence to the ongoing evolution of international criminal
law by pointing towards a vision of emerging international law that would
incorporate as an integral part the protection of fundamental rights. The
argument also makes practical sense, in that the ends of universal jurisdiction
(to impose accountability for crimes of international concern and to
eliminate safe havens) would be better served if the state where the perpetrator
is found did not have any discretion ­ least of all a politically motivated
discretion ­ as to whether to proceed. A permissive approach might
be thought to tolerate the possibility of safe-havens and thereby undermine
accountability. The crystallization of an emerging rule of customary law
that would oblige states to extradite or prosecute those reasonably suspected
of international crimes should therefore be encouraged.
Nonetheless, efforts to put into operation a workable system for the suppression
of international crimes must be mindful of international life as it
presently operates. While the coherence and effectiveness of the normative
order should always be borne in mind, it is important not to put conceptual
neatness ahead of the difficulties that arise in determining international
law and in putting doctrine into practice. As discussed below, this
requires that the hard legal problems be clarified in order to better realize
the aims of this law.
munity for Crimes Against Humanity (AI Index EUR 45/01/99) (London: Amnesty
International, 1999), at 20.
26. Even the most prominent advocate of the jus cogens approach, Bassiouni,
admits:
Positive ICL does not contain . . . an explicit norm that characterizes a certain
crime as part of jus cogens and the practice of states does not conform
to the scholarly writings that espouse the views expressed above [by Professor
Bassiouni]. States' practice evidences that, more often than not, impunity
has been allowed for jus cogens crimes, the theory of universality
has been far from universally recognized and applied, and the duty to
prosecute or extradite is more inchoate than established,otherthanwhenit
arises out of specific treaty obligations.
M. Cherif Bassiouni, The Sources and Content of International Criminal Law: A
Theoretical Framework, in I INTERNATIONAL CRIMINAL LAW 39-40 (M. Cherif Bassiouni
ed., 2000).
2001] EFFECTIVE UNIVERSAL JURISDICTION 407
III. CURRENT DEVELOPMENT OF UNIVERSAL JURISDICTION
To date, the exercise of universal jurisdiction over core crimes of international
criminal law has been sporadic at best, responding to selected
situations at particular times. With the movement towards the entry into
force of the Rome Statute, however, a process of national law reform has
begun which could develop into a trend that would entrench universal jurisdiction
as a more widely available means of accountability.
It was not until after World War II that universal jurisdiction was explicitly
recognized for the core crimes of international criminal law. However,
post-war activity subsided into the stasis of the Cold War, leaving universal
jurisdiction to fall into neglect. The Eichmann 27
case brought the doctrine
back to international attention in 1961. Although the case did not
lead to any similar prosecutions in the short term, it did inspire efforts to
secure accountability for crimes committed during World War II, which
bore fruit in the legislative activity and related cases that arose in the
1980s and 1990s. During these years, a number of countries passed legislation
and undertook proceedings, generally without great success, against
those alleged responsible for crimes during World War II.28
The establishment by the Security Council of ad hoc tribunals to try
those responsible for crimes committed in the Former Yugoslavia and
Rwanda led to a number of national prosecutions related to these situa-
tions.29
The need to pass national cooperation legislation and the presence
of suspected criminals among refugee populations facilitated these proceedings,
although the Security Council imprimatur, declaring the crimes a
threat to international peace and security, may have contributed to the willingness
of governments to act.30
Despite their limited temporal application
and the limited success (in terms of the number and completion of proceedings)
to this point, these activities did reflect an underlying endorse-
27. Att. Gen. of Israel v. Eichmann, 36 I.L.R. 277, 298-99 (Isr. S. Ct. 1962)
28. For a survey of several national jurisdictions, see the relevant chapters in
THE LAW OF WAR CRIMES: NATIONAL AND INTERNATIONAL APPROACHES (Timothy L.
H. McCormack & Gerry J. Simpson eds., 1997).
29. Statute of the International Tribunal for the Prosecution of Persons Responsible
for Serious Violations of International Humanitarian Law Committed in the Territory
of the Former Yugoslavia since 1991, adopted by Security Council on May 25,
1993, U.N. Doc. S/Res/827 (1993), adopting the Statute proposed by the SecretaryGeneral
in the Report of the Secretary-General pursuant to paragraph 2 of Security
Council Resolution 808 (1993), U.N. Doc. S/25704 at 36. International Criminal
Tribunal for the Prosecution of Persons Responsible for Genocide and Other Serious
Violations of International Humanitarian Law Committed in the Territory of Rwanda
and Rwandan Citizens Responsible for Genocide and Other Such Violations Committed
in the Territory of Neighbouring States, between 1January 1994 and 31 December
1994, adopted by Security Council on 8 November 1994, U.N. Doc. S/Res/955 (1994).
30. See Amnesty International, International Criminal Tribunals: Handbook
For Government Cooperation (AI Index: IOR 40/07/96, 1996).
408 NEW ENGLAND LAW REVIEW [Vol. 35:2
ment of universal jurisdiction, and opened the door for later developments
in establishing a role to national courts in enforcing fundamental norms of
humanity.
Previous failings in the implementation and use of universal jurisdiction
have recently been compensated for ­ at least in part ­ by a combination of
the U.K. Pinochet proceedings and the adoption of the Rome Statute for
the ICC (with its related process of national implementation). These two
events have made universal jurisdiction a subject of sustained debate in
many countries.
That the Rome Statute should stimulate the incorporation of universal
jurisdiction into national law was widely unforeseen, since the Statute imposes
no obligation on States Parties to prosecute the crimes it defines,
whether on a universal or any other basis. Rather, it provides a limited
incentive to prosecute crimes committed by the nationals or on the territory
of other States Parties. Yet, this incentive has been enough to prompt
a wave of legislative activity as countries that have ratified or are contemplating
ratification move to enable their domestic courts to meet the criteria
of "complementarity" set out in the Rome Statute. The question of
whether to provide for universal jurisdiction over these crimes has also
arisen.
The logic of providing for universal jurisdiction at the national level as
part of the regime of international justice foreseen by the Rome Statute is
compelling. The Rome Statute is premised on a desire to diminish impunity
for the most egregious conceivable crimes. It anticipates, through its
complementarity mechanism, that national courts will bear the greater part
of the burden in ensuring accountability, with the ICC playing a role only
where national courts are unwilling or unable to act themselves. At the
same time, it cannot be expected that the ICC will have the resources to try
more than a very limited number of cases.31
Thus, although the incentive
provided by the complementarity mechanism is limited to crimes committed
on the territory or by the nationals of State Parties, a role for universal
jurisdiction presents itself clearly. If the ICC will be unable to try more
than a fraction of alleged perpetrators at any one time, and if the most obvious
states to exercise jurisdiction (the territorial state of the crime or the
31. One document has assumed a "plausible" budget of $100 million for an ICC
with 60 states parties and called upon to deal with "one or two major situations." Cesare
Romano & Thordis Ingadottir, The Financing of the International Criminal
Court: A Discussion Paper (Project on International Courts and Tribunals New York
University), at 11. As this amount is slightly less than the 1999 budget of the ICTY,
see id. at 29, the jurisdiction of which is limited to one (former) country, one gets
some idea of how limited the capacity of even a well-provisioned international court
will be.
2001] EFFECTIVE UNIVERSAL JURISDICTION 409
national state of the accused) will typically be unwilling or unable to act in
a genuine manner, the sole choice remaining will often be between universal
jurisdiction and impunity. The argument for national provision of universal
jurisdiction is, therefore, a forceful one. Without the supplementary
recourse that universal jurisdiction could provide via the courts of individual
states, both the means of obtaining accountability and the credibility of
the international community's claim that it desires accountability would be
seriously reduced. States with the declared aim of ensuring that their
courts are able to serve as complements to the ICC are, therefore, open to
the argument that they must, to do so effectively, make universal jurisdiction
available for genocide, crimes against humanity and war crimes.
Without such a decision by a critical mass of states, the ICC's aim of eroding
impunity for the worst of crimes is likely to be seriously impaired.
A skeptic might reply that, while this argument has some force as part of
a doctrinal effort to achieve a coherent vision of individual accountability
at international law, it would not necessarily be compelling to states engaged
in questioning how best to legislate in their national interest. From
this prospective, there could be a gap between the international interest in
the rule of law and the immediate interests of an individual state or government.
It remains, at the time of this writing, too early to describe, definitively,
the direction of the emerging trend, but at the early stage of the
process of ICC implementation, a number of states have shown a willingness
to follow the above reasoning.
Canada, the first country to pass legislation implementing the Rome
Statute, established the jurisdiction of its national courts over genocide,
crimes against humanity and war crimes as defined by customary or conventional
international law, declaring the definitions of the Rome Statute
to constitute custom as of at least July 17, 1998.32
With regard to acts
committed outside of Canada, the legislation applies to conduct prior to its
entry into force, to the extent that international law allows. The jurisdiction
is limited by the requirements that: the accused was a Canadian or was
a national of a state engaged in an armed conflict against Canada; the victim
was Canadian or was the national of state allied with Canada in an
armed conflict; or subsequent to the alleged offence, the suspect was present
in Canada.33
This last criterion constitutes the "universal jurisdiction"
provision. New Zealand has legislated more broadly in some respects,
giving its courts jurisdiction to try Rome Statute crimes regardless of: the
32. See supra note 23.
33. See Crimes Against Humanity and War Crimes Act, ch. 24, §§ 8-11, 2000
S.C. 23 (Can.). It appears that the presence requirement will prevent Canada from
opening an investigation with respect to an alleged perpetrator known not to be present
in Canada, thus foreclosing the possibility of extradition requests. The shortcoming of
this limitation is discussed further at infra p. 418.
410 NEW ENGLAND LAW REVIEW [Vol. 35:2
nationality of the accused; whether or not any act forming part of the offence
occurred in New Zealand; or whether the accused was present in
New Zealand at the time of the alleged crime or at the time the decision to
charge was made.34
Belgium, which amended its legislation even before
ratification of the Rome Statute, provided for similar jurisdiction.35
Switzerland,
Germany and others have expressed intention to follow suit.36
On
the other hand, the United Kingdom, a third example among members of
the Commonwealth, declined to include such jurisdiction in the first draft
of its own legislation.37
The provision of universal jurisdiction even by a significant minority of
ratifying states will be an enormous advance for the doctrine. More
importantly, the jurisprudence that could be expected to follow from this
legislative process will offer an opportunity to wrestle with the thorny legal
and political problems that attend universal jurisdiction.
IV. PRACTICAL AND POLITICAL PROBLEMS TO BE ADDRESSED
The political and practical problems that arise in attempting to put universal
jurisdiction into practice are neither few nor lightly dismissed. The
political will of states to go forward with the legislative changes necessary
to make universal jurisdiction effective is conditioned in part by their un-
34. See International Crimes and International Criminal Court Act 2000, §§ 8-
11, and in particular § 8(1). The legislation appears to open the door for extradition
requests.
35. See Loi relative  la répression des violations graves de droit international
humanitaire (Feb. 10 1999), published in the Moniteur Belge (Mar. 23 1999), § 7. This
law amends an existing statute (the 1993 Loi relative  la répression des violations
graves du droit international humanitaire) to add genocide and crimes against humanity
(as defined in the Rome Statute) to serious violations of the 1949 Geneva Conventions
and their Additional Protocols, for all of which Belgian law now provides universal
jurisdiction.
36. See the discussion in Michael Cottier, The Case of Switzerland, in I THE
ROME STATUTE AND DOMESTIC LEGAL ORDERS: GENERAL ASPECTS AND
CONSTITUTIONAL ISSUES 219 (Claus Kress & Flavia Lattanzi eds., 2000) [hereinafter
Kress & Lattanzi]. Germany will refer to the principle of universality in its planned
Code of Crimes Against International Law, which will enable Germany to meet the
complementarity requirements of the Rome Statute. See Frank Jarasch & Claus Kress,
The Rome Statute and the German Legal Order, in Kress & Lattanzi. At a conference
on the International Criminal Court held at Pretoria on July 5-9, 1999, officials from
13 member states of the Southern African Development Community (SADC) adopted
the Pretoria Statement of Common Understanding on the International Criminal
Court, which recommended a (non-binding) Model Enabling Act developed at the
conference (on file). This act would provide for universal jurisdiction over all Rome
Statute crimes: § 5(ii).
37. See Crimes Against Humanity and War Crimes Bill,presentedtotheHouse
of Commons on July 24, 2000 <http://www.ishr.org/icc/detail/wense.htm>.
2001] EFFECTIVE UNIVERSAL JURISDICTION 411
derstanding of how these problems are to be dealt with. Although cases
pursued under the legislation passed during the process of ICC implementation
will undoubtedly uncover new difficulties, the main contours of the
obstacles to come appear to be well known, and have recently become the
object of increasing scrutiny and discussion.
A. Basic Legislative Shortcomings
The first level of difficulties relates to the legislative basis for the exercise
of universal jurisdiction by national authorities. Even assuming the
will and resources were present, prosecutors or investigating judges in
many countries simply would not have the necessary legal means to investigate
or prosecute on the basis of universal jurisdiction. For example, in
the United States torture alone is subject to universal (in fact, merely extraterritorial)
jurisdiction.38
Genocide,39
other crimes against humanity and
war crimes40
are not. Many countries are in a similar position.41
For universal
jurisdiction to fulfil its potential as part of an international system
for the suppression of impunity, such legislation should also be of adequate
scope and not subject to temporal, spatial and other restrictions. In
principle, such legislation could even be retroactive to the extent that the
conduct gave rise to individual responsibility in international law at the
time it was committed; politically, this will often be difficult. While adoption
of the Rome Statute, with its reasonably comprehensive definitions, is
likely to lessen dispute at least about the scope of universal jurisdiction at
customary law, broader doubts about the application of the doctrine will
still have to be overcome.
The incorporation of definitions and provisions of jurisdiction at national
law are not the end of the task. Even once jurisdictional and definitional
difficulties are overcome, the full implementation of universal jurisdiction
into national law requires the adaptation of adjacent areas of law
affecting the exercise of such jurisdiction. These areas include laws relating
to immunity (not dealt with here), mutual legal assistance (to facilitate
the exchange of evidence, witnesses, etc.) and extradition. Without a
38. See 18 U.S.C. § 2340A (1999) (This statute applies only to acts committed
outside the United States.).
39. Genocide is prohibited under U.S. law, but only when committed within the
U.S. or when the alleged offender is a U.S. national. See 18 U.S.C. § 1091 (1999).
40. The 1996 War Crimes Act made punishable certain war crimes only when
committed by or against members of the U.S. armed forces. See 18 U.S.C. § 2441
(1991).
41. "Until recently, only a few dozen states had provided their courts withthe
specific competence to try certain gross human rights offences under the principle of
universal jurisdiction. Even in those states legislation tended to be quite a patchwork."
INTERNATIONAL LAW ASSOCIATION, supra note 8, at 12.
412 NEW ENGLAND LAW REVIEW [Vol. 35:2
comprehensive system of laws at the national level, and without such laws
being adopted by a sufficient number of states, universal jurisdiction cannot
be expected to function in practice as a working pillar of the international
justice system. This is an area of legal reform that has only begun to
receive sustained attention in the wake of the U.K. Pinochet proceedings.
B. Evidence/Mutual Legal Assistance42
The exercise of universal jurisdiction raises special evidentiary challenges
because the majority of the evidence necessary to make out a case
may lie in the control of another jurisdiction ­ and indeed, of the jurisdiction
where the alleged crime occurred and where the accused may be a
standing official. State officials may make difficult or impossible visits to
sites or access to witnesses and documents indispensable to proving the
alleged crime. Even where documents can be obtained, courts outside the
jurisdiction of the crime may sometimes find it difficult to assess their
authenticity.
Such problems are the traditional domain of mutual legal (or judicial)
assistance. Mutual legal assistance is a complex area of law governed by
many bilateral and multilateral treaties or agreements, with corresponding
national implementing legislation. Typically, these agreements and this
legislation allow the requested state a wide latitude of discretion, and may
allow the state to refuse to provide assistance on a number of grounds,
including because: the offence is not recognized under its own law; the
proceedings in the requested state would be unfair (in the requested state's
judgment); or the national interest of the requested state dictates that assistance
be refused. Given the legal problems attendant on the exercise of
universal jurisdiction and the politically sensitive matters that typically
arise in cases involving crimes under international law, these factors pose
obvious problems.
Mutual legal assistance agreements do not at present deal specifically
with the issue of crimes under international law and universal jurisdiction.
Despite the fact that on a number of occasions international instruments
have called for a high degree of cooperation in this area.43
Partly as a result
42. See the discussion in INTERNATIONAL COUNCIL ON HUMAN RIGHTS POLICY,
supra note 8, at 48-50.
43. See Protocol Additional to the Geneva Conventions of 12 August 1949, and
Relating to the Protection of Victims of International Armed Conflicts (Protocol 1),
June 8, 1977, art. 8, 1125 U.N.T.S. 609:
1. The High Contracting Parties shall afford one another the greatest
measure of assistance in connexion with criminal proceedings brought in
2001] EFFECTIVE UNIVERSAL JURISDICTION 413
of the evidentiary problems arising in the absence of an effective system of
international cooperation, most cases based on universal jurisdiction have
relied essentially on eyewitness testimony that was available in the prosecuting
state.44
States legislating for universal jurisdiction should, therefore,
review their mutual assistance arrangements, taking into account the exercise
of this doctrine with respect to international crimes, and should revise
laws or agreements as necessary to address relevant issues, including:
a) On site investigations: It may be desirable for investigators, counsel
for the defense or prosecution, judges or juries to visit or examine sites
related to the alleged crime. Such visits require the permission of the requested
state, as well as adequate facilities for their proper conduct (such
as protection for the investigators, where necessary).45
b) Obtaining evidence: This would include "conducting searches and
seizures, interviewing witnesses, excavating graves, producing documents,
and supplying material evidence."46
Agreements could provide for making
evidence available across borders either in writing or by audio or video
link, but would have to take into account problems of verification, crossexamination,
and the sanctioning of false testimony.
respect of grave breaches of the Conventions or of this Protocol . . . . 3. The
law of the High Contracting Party requested shall apply in all cases. The
provisions of the preceding paragraphs shall not, however, affect the obligations
arising from the provisions of any other treaty of a bilateral or mu ltilateral
nature which governs or will govern the whole or part of the subject
of mutual assistance in criminal matters.
Id; see also 1984 Convention Against Torture and Other Cruel Inhuman or Degrading
Treatment or Punishment, supra note 19, art. 9:
1. States Parties shall afford one another the greatest measure of assistance
in connection with criminal proceedings brought in respect of any of the
offences referred to in article 4, including the supply of all evidence at their
disposal necessary for the proceedings. 2. States Parties shall carry outtheir
obligations under paragraph 1 of this article in conformity with any treaties
on mutual judicial assistance that may exist between them.
Id; see also, Principles of International Cooperation in the Detection, Arrest, Extradition
and Punishment of Persons Guilty of War Crimes and Crimes Against Humanity,
G.A. Res. 3074 (XXVIII) (Dec. 3, 1973), 6.
44. See INTERNATIONAL LAW ASSOCIATION, supra note 8, at 17.
45. In the Niyonteze case, arising from the 1994 genocide in Rwanda, the Swiss
court (a military tribunal) visited Rwanda to collect statements from witnesses who
would be unable to attend trial in Switzerland. See INTERNATIONAL LAW
ASSOCIATION, supra note 8, at 28 (citing Jugement en la cause Fulgence Niyonteze,
Tribunal militaire de division 2, Lausanne, Apr. 30, 1999).
46. Christopher Keith Hall, Outline of Some Legal and Practical Obstacles to
Prosecution Based on Universal Jurisdiction and Some Possible Solutions, in
INTERNATIONAL COUNCIL ON HUMAN RIGHTS POLICY 50 (1999) (paper prepared for
the International Council on Human Rights Policy meeting on Universal Jurisdiction,
6-8 May 1999).
414 NEW ENGLAND LAW REVIEW [Vol. 35:2
c) Protection of victims and witnesses: The prosecuting state is not in a
good position to provide protection for witnesses abroad either during trial
or in the long-term. A practical precondition to obtaining the cooperation
of witnesses may, therefore, be obtaining verifiable assurances that they
will be protected by authorities in their home state, or even allowing the
witness to relocate to the prosecuting state. Without such assurances, witnesses
may understandably be reluctant to testify, particularly where the
accused and his or her supporters retain significant power in the state of
the crime.
d) Reasons for refusal to provide assistance: In the case of serious
crimes under international law, such refusal should be subject to restrictions,
including restrictions on the national security and political offence
grounds for refusal.
Systematic amendments to mutual assistance arrangements no doubt entail
a comprehensive review and reform of commitments in this complex
and often overlapping area of law. Nonetheless, such changes to the mutual
legal assistance regime are potentially indispensable to the eventual
effective exercise of universal jurisdiction.
C. Extradition47
The primary shortcoming with respect to extradition relating to crimes
under international law is the lack of comprehensive and express treaty
obligations. As international law treats extradition generally as a matter of
comity, subject to the discretion of the requested state in the absence of a
treaty obligation,48
obligations to extradite must either emerge through
treaty,49
through a limiting rule of customary law, or conceivably through
47. See the discussion in INTERNATIONAL COUNCIL ON HUMAN RIGHTS POLICY,
supra note 8, at 45-46.
48. See I.A. Shearer, EXTRADITIONININTERNATIONAL LAW 23-27 (1971).
49. See Convention on the Prevention and Punishment of the Crime of Genocide,
Dec. 9, 1948, art. 7 (that states parties pledge themselves to grant extradition "in
accordance with their laws and treaties in force"); The Geneva Convention of 12
August 1949, art. 49 (Convention I), art. 50 (Convention II), art. 129 (Convention III),
art. 146 (Convention IV) (that a High Contracting Party is obliged to bring those responsible
for grave breaches, whatever their nationality, before its own courts or, if it
prefers, to hand them over to another Party that has made out a prima facie case);
Protocol I, supra note 43, art. 8 (that subject to the obligations under the Geneva Conventions,
"and when circumstances permit, the High Contracting Parties shall cooperate
in the matter of extradition. They shall give due consideration to the request of the
State in whose territory the alleged offence has occurred."); Convention Against Torture,
supra note 43, art. 7(1) ("The State Party in the territory under whose jurisdiction
a person alleged to have committed any offence referred to in article 4 is found shall in
the cases contemplated in article 5, if it does not extradite him, submit the case to its
2001] EFFECTIVE UNIVERSAL JURISDICTION 415
the unilateral decision on the part of the state to pass legislation allowing
such extradition. The emergence of an obligation to extradite or prosecute
at customary international law would represent an important development
and would do away with the need for an international convention or conventions
setting out a duty to prosecute or extradite for crimes beyond
those covered by existing treaties (grave breaches, torture, and apparently
genocide). With or without such a customary duty, however, changes to
national extradition laws are needed.
Yet, once the basic possibility of extradition for crimes under international
law is established, a host of difficulties remain. Pinochet made clear
the extent to which national laws relating to extradition can impose problems
and delay in the exercise of universal jurisdiction. The intricacies
that mark extradition law often make proceedings exceedingly slow. Issues
include those raised in the U.K. proceedings (primarily, whether the
offence was punishable under the law of the requested state at the relevant
time) and go farther to encompass a range of other matters. These may
involve such restrictions as the bar in many constitutions of extradition of
nationals,50
political offence exceptions,51
national interest or national security
factors, statutes of limitation,52
the perceived possibility of unfairness
in the proceedings, humanitarian grounds, non bis in idem, and more.
Importantly, such factors are often left to the discretion of political rather
than judicial authorities, without adequate transparency and possibility of
review.
While some of these factors would (at least in certain circumstances)
remain legitimate in cases involving international crimes (fair trial guarantees,
non bis in idem), others would not (political offence exception, statutes
of limitation). As with mutual legal assistance, each state that wishes
to have an effective international system for the exercise of universal jurisdiction
will have to undertake a thorough review of its extradition laws
to ensure that they treat crimes under international law appropriately.53
competent authorities for the purpose of prosecution"). See also Principlesofinternational
cooperation in the detection, arrest, extradition and punishment of persons
guilty of war crimes and crimes against humanity, G.A. Res. 3074 (XXVIII) (3 December
1973), 5.
50. See generally Michael Plachta, (Non-)Extradition of Nationals: A
Neverending Story?, 13 EMORYINT'L L. REV. 77 (1999).
51. See 1948 Genocide Convention, supra note 15, art. 7 (stating that genocide
shall not be considered a political crime for purposes of extradition).
52. See Convention on the Non-Applicability of Statutory Limitations to War
Crimes and Crimes Against Humanity, 8 I.L.M. 68 (1969) (adopted by the U.N. General
Assembly Nov. 26, 1968).
53. Canada, in implementing the Rome Statute into domestic law, modified its
extradition act to eliminate ordinary reasons for refusal in proceedings related to surrender
to the ICC. See Crimes Against Humanity and War Crimes Act, supra note23,
§ 52. This streamlining was not extended (in relevant part) to extradition proceedings
416 NEW ENGLAND LAW REVIEW [Vol. 35:2
D. The Decision to Proceed
Even where the legal basis is adequate, the questions of who makes the
decision to proceed, based on which factors, are likely to become pivotal
as universal jurisdiction shifts from an aspiration to a working legal reality.
Because these questions will determine how often universal jurisdiction
will be exercised, and on what conditions, they call for more sustained
examination than they have so far received. The ability of proceedings to
withstand criticisms that they are politically motivated or represent "jurisdictional
imperialism,"54
and the consequent support of governments for
the exercise of universal jurisdiction, will clearly be affected by the manner
in which discretion is exercised in the prosecuting state.
The discretion of the relevant officials ­ be they political or legal should
be structured to take into account certain legitimate factors for limiting
the exercise of universal jurisdiction. These (cumulative) factors
include:
(a) The presence of the defendant: If the defendant is not present,
authorities in the prosecuting state will have to assess the likelihood of
cooperation from the relevant state or states in his or her extradition (if
extradition requests are possible under national law).55
(b) Availability of sufficient evidence: An inability to acquire adequate
evidence (particularly where the state of the accused is not disposed to
assist) can effectively block proceedings. Absent sufficient evidence, the
possibility of cooperation will again have to be weighed. In this context,
the need to provide adequate protection for victims and witnesses must
also be considered.
(c) Severity: Prosecuting authorities could also take into account the seriousness
of the acts with which the accused is charged, the rank and role
of the accused in the crimes alleged, the impact of the relevant situation on
the international community, and the presence in the prosecuting state of a
victim community or of some other connection to the country or conflict in
question.
(d) Situation in the territorial state: If the territorial state is demonstrably
willing and able to prosecute the accused in a fair manner, or if there is
another, clearly more appropriate forum, the state considering universal
jurisdiction should ordinarily defer to its courts. If the territorial state is
not in a position to proceed effectively, authorities in the investigating
to states seeking to exercise universal jurisdiction over Rome Statute Crimes.
54. See INTERNATIONAL COUNCIL ON HUMAN RIGHTS POLICY, supra note 8, at
26.
55. See supra notes 34-35 and accompanying text.
2001] EFFECTIVE UNIVERSAL JURISDICTION 417
state will have to consider the attitude towards prosecution of civil society
(victims, non-governmental organizations, society at large) in the territorial
state,56
as well as the possibilities that proceedings will either prevent
or deter further abuses (particularly where the conflict to which they relate
is ongoing), or will stimulate more robust action in the territorial state itself.
The stability of the other country, the attitude of the government
there towards impunity, including the occurrence and context of a `truth
commission' or of an amnesty, will all be relevant to this important, notoriously
difficult calculation.57
It might be that a prosecutor could legitimately
choose not to proceed in light of all the circumstances, even for
example, where a decision to limit prosecutions has been made in the context
of a credible `truth commission' process in which full disclosure of the
accused's acts were made and the right of victims to reparations was fully
respected.
(e) Resources available to the prosecutor: Apart from other constraints,
prosecutors may be loath to expend resources on crimes having no or only
slight direct connection to their own jurisdiction. Having budgetary limits
to consider, prosecutors will want to examine the cost implications of universal
jurisdiction proceedings. Even where evidence is available, the cost
of such proceedings can be exorbitant, with correspondingly high opportunity
costs in terms of resources available to pursue local matters potentially
important in themselves. Prosecutors, particularly in over-stressed
systems, will eventually have to struggle with the question of when the
service to the international community of a universal jurisdiction prosecution
is counterbalanced by the need for prosecution of local crime. While
the cost of exercising jurisdiction often will not be unmanageably high,
and would not in any event excuse inaction (as extradition to a state willing
to take proceedings would still be possible), the reality of the resource
factor points at the least to the need for sensitizing the responsible officials
to the crucial role of national courts in enforcing international law.
(f) Relation to other country: Universal jurisdiction contains what is
probably an irreducible element of political friction. Jurisdiction may be
unlikely to be exercised where the government is able to influence the decisions
of national prosecutors and where national interests might, in the
view of the government, be harmed by prosecution. At present, the law of
56. See INTERNATIONAL COUNCIL ON HUMAN RIGHTS POLICY, supra note 8, at
34.
57. For preliminary proposals on the evaluation of national amnesties and truth
commissions respectively, see generally Priscilla B. Hayner, InternationalGuidelines
for the Creation and Operation of Truth Commissions: A Preliminary Proposal,59
LAW & CONTEMP. PROBS. 173 (1996); Douglass Cassel, Lessons from the Americas:
Guidelines for International Response to Amnesties for Atrocities, 59 LAW &
CONTEMP. PROBS. 197 (1996).
418 NEW ENGLAND LAW REVIEW [Vol. 35:2
many states accord a pivotal role to political officials.58
Yet, political officials
are typically required to take the full national interest into account
when making their decisions, and this typically involves the weighing of a
multiplicity of trade, strategic and other factors. To eliminate this "interference,"
one must either structure the discretion of the political officer, or
eliminate it. The rule of law would presumably be better served if all relevant
decisions were taken in a transparent and accountable manner by
prosecutors and judges. If states remain reluctant to eliminate the discretion
of political officials, the second-best alternative would be to subject
the exercise of ministerial discretion to controls that ensured, to the extent
possible, the legitimacy of the decisions. This might include provision for
public guidelines outlining the factors to be considered, followed by provision
for judicial review in which the exercise of discretion could be chal-
lenged.
At present, officials have little experience and little authoritative guidance
on the appropriate exercise of discretion, in the specific context of
universal jurisdiction, over the often politically charged core crimes of
international criminal law. Those who promote universal jurisdiction
should recognize that states have a legitimate desire to ensure that the
caseload, likely to lay claim to the resources of their authorities, is manageable.
Similarly, even governments that are committed proponents of
accountability will want to have a reasonable degree of clarity as to the
potential political fallout of universal jurisdiction proceedings. Concerns
about the potentially real consequences of universal jurisdiction proceedings
on interstate relations are not trivial. It would be one thing for France
to prosecute a former head of state of Haiti before its domestic courts, and
quite another for the Marshall Islands to prosecute a former President of
the United States. If regular enforcement ­ the rule of law ­ is to become
even a clearly emergent reality, then supporters of universal jurisdiction
will have to propose credible means of addressing the complex decisions
and (sometimes political) value-judgments faced by those operating in
real-world situations.
VI. CONCLUSION
It may be that the requirement of the presence of the accused in the investigating
country (as in the legislation of Canada and others)59
should be
58. Examples include Canada (Crimes Against Humanity and War Crimes Act,
supra note 23, § 9(3)) and New Zealand (International Crimes and International
Criminal Court Act 2000, supra note 34, § 13).
59. See supra note 33 and accompanying text.
2001] EFFECTIVE UNIVERSAL JURISDICTION 419
conceived of simply as a place-holder, putting an imperfect limit on litigation
until the international community develops the experience and some
measure of consensus about how best to make the complex and critical
decisions for the effective exercise of universal jurisdiction. It is not difficult
to imagine circumstances in which the international community, and
the particular states involved, would favor extradition and trial in another
country. Yet, the full presence requirement will prevent this without providing
answers as to when universal jurisdiction is best exercised by the
forum contemplating it. It would be preferable to enable authorities to
open an investigation of a suspect absent from the investigating state's
territory, with the aim of requesting extradition, in the context of a clear
understanding of the grounds on which the decision to proceed has been
made. Yet for a greater number of states to take this step, they will have to
become comfortable that universal jurisdiction proceedings will neither
become a financial drain nor an unmanageable political or diplomatic burden.
Thus, practical concerns about the feasibility of universal jurisdiction
will have to be addressed thoroughly and convincingly, in terms relevant
to those confronting them most directly (that is, working prosecutors and
policy-makers). Still once this is done, the weightiness of the decisions to
be made, affecting as they may the internal situation of the country in
question, as well as the prosecuting state's interests in its relations with
that country, is all but certain to make many governments hesitate before
reforming their law to allow for the full and effective exercise of universal
jurisdiction.
Despite these difficulties, there are substantial reasons to believe that
universal jurisdiction is deeply consonant with the underlying aim of international
justice. As part of a comprehensive regime for ensuring accountability
for the core crimes of international criminal law, such jurisdiction
will be indispensable as a complement to, and a surrogate for, the ICC. At
the same time, such jurisdiction will, by its nature, always be a jurisdiction
of secondary recourse, and it will often not be feasible to exercise it. Even
with the wide provision of an adequate legal basis and full and transparent
prosecutorial (not political) control, universal jurisdiction will always be
subject to "political" and resource judgments that themselves create tensions
involving consideration of a wide range of justice and reconciliation
factors. Such judgments will require the development of special expertise
and administrative arrangements for the establishment of such jurisdiction
as a working norm. Nonetheless, judgments about the wisdom of proceeding
will vary among good faith actors from state to state, resulting in a
certain irreducible element of controversy. This tension is inherent in
delegating to national authorities the enforcement of international law.
These problems have scarcely begun to be addressed in the way that a
working legal system requires. Until now, the exercise of universal jurisdiction
has depended on the largely fortuitous convergence of the presence
420 NEW ENGLAND LAW REVIEW [Vol. 35:2
of a defendant, of members of the public interested in a case, availability
of evidence (in particular from victims or other eyewitnesses), the necessary
legal regime, political and prosecutorial will and the necessary resources.
An element of the fortuitous is probably inherent in the exercise
of this form of jurisdiction, given the many contingencies involved. Nonetheless,
its entrenchment in the international system as a means of fair and
regular enforcement will require wide-ranging law reforms and education,
the difficulties of which should not be underestimated.