Universal Jurisdiction
wide-spread or systematic attack directed against any
The Universality Principle.
The universality principle recognizes that certain
activities, universally dangerous to states and their
subjects, require authority in all community members
to punish such acts wherever they may occur, even
absent a link between the state and the parties or the
acts in question.
Started with piracy
Piracy - means any illegal act of violence or
depredation committed for private ends on the high
seas or outside the territorial control of any state
Statute of the International Criminal Court
Article 6. Genocide For the purpose of this Statute,
genocide" means any of the following acts committed
with intent to destroy, in whole or in part, a national,
ethnical, racial or religious group, as such: (a) Killing
members of the group; (b) Causing serious bodily or
mental harm to members of the group; (c) Deliberately
inflicting on the group conditions of life calculated to
bring about its physical destruction in whole or in part;
(d) Imposing measures intended to prevent births
within the group; (e) Forcibly transferring children of
the group to another group.
Article 7. Crimes against humanity 1. For the purpose
of this Statute, crime against humanity means any of
the following acts when committed as part of
INTRODUCTION TO PUBLIC INTERNATIONAL LAW a
civilian population, with knowledge of the attack: (a)
Murder; (b) Extermination; (c) Enslavement; (d)
Deportation or forcible transfer of population; (e)
Imprisonment or other severe deprivation of physical
liberty in violation of fundamental rules of international
law; (f) Torture; (g) Rape, sexual slavery, enforced
prostitution, forced pregnancy, enforced sterilization,
or any other form of sexual violence of comparable
gravity; (h) Persecution against any identifiable group
or collectivity on political, racial, national, ethnic,
cultural, religious, gender as defined in paragraph 3, or
other grounds that are universally recognized as
impermissible under international law, in connection
with any act referred to in this paragraph or any crime
within the jurisdiction of the Court; (i) Enforced
disappearance of persons; (j) The crime of apartheid;
(k) Other inhumane acts of a similar character in
tentionally causing great suffering, or serious injury to
body or to mental or physical health. 2. For the
purpose of paragraph 1: (a) Attack directed against
any civilian population" means a course of conduct
involving the multiple commission of acts referred to in
paragraph 1 against any civilian population, pursuant
to or in furtherance of a State or organizational policy
to commit such attack; (b) Extermination includes
the intentional infliction of conditions of life, inter alia
the deprivation of access to food and medicine,
calculated to bring about the destruction of part of a
population; (c) Enslavement means the exercise of
any or all of the powers attaching to the right of
ownership over a person and includes the exercise of
such power in the course of trafficking in persons, in
particular women and children; CHAPTER 9
JURISDICTION OF STATES (d) Deportation or forcible
transfer of population" means forced displacement of
the persons concerned by expulsion or other coercive
acts from the area in which they are lawfully present,
without grounds permitted under international law; (e)
Torture" means the intentional infliction of severe
pain or suffering, whether physical or mental, upon a
person in the custody or under the control of the
accused; except that torture shall not include pain or
suffering arising only from, inherent in or incidental to,
lawful sanctions; (f) Forced pregnancy" means the
unlawful confinement of a woman forcibly made
pregnant, with the intent of affecting the ethnic
composition of any population or carrying out other
grave violations of international law. This definition
shall not in any way be interpreted as affecting
national laws relating to pregnancy; (g) Persecution
means the intentional and severe deprivation of
fundamental rights contrary to international law by
reason of the identity of the group or collectivity; (h)
The crime of apartheid" means inhumane acts of a
character similar to those referred to in paragraph 1,
committed in the context of an institutionalized regime
of systematic oppression and domination by one racial
group over any other racial group or groups and
committed with the intention of maintaining that
regime; (i) Enforced disappearance of persons
means the arrest, detention or abduction of persons
by, or with the authorization, support or acquiescence
of, a State or a political organization, followed by a
refusal to acknowledge that deprivation of freedom or
to give information on the fate or whereabouts of
those persons, with the intention of removing them
from the protection of the law for a prolonged period of
time. 3. For the purpose of this Statute, it is
understood that the term gender refers to the two
sexes, male and female, within the context of society.
The term gender does not indicate any meaning
different from the above. Article 8. War crimes 1. The
Court shall have jurisdiction in respect of war crimes in
particular when committed as part of a plan or policy
or as part of a large-scale commission of such crimes.
160 INTRODUCTION TO PUBLIC INTERNATIONAL LAW 2.
For the purpose of this Statute, war crimes means:
(a) Grave breaches of the Geneva Conventions of 12
August 1949, namely, any of the following acts against
persons or property protected under the provisions of
the relevant Geneva Convention. ...
Article 8 enumerates in detail the war crimes under
the Geneva Convention.
The following are a number of cases illustrative of the
universality principle:
F1LARTIGA V. PENA-IRALA 630 FJD 876. (1980) [This
was a wrongful death action which was brought by two
nationals of Paraguay, the father and sister of a 17-
year old Paraguayan, who, it was alleged, was tortured
to death in Paraguay by the defendant Pena-Irala who
at the time was Inspector-General of the police.
Jurisdiction was claimed principally on the basis of the
Alien Tort Statute (28 U.S.C. & 1350). The Court held
that deliberate torture under the color of official
authority violated the universal rules of international
law regardless of the nationality of the parties. In
reaching the conclusion that the prohibition of torture
has become part of customary international law, the
Court referred as evidence to the Universal Declaration
of Human Rights and as particularly relevant, the 1975
Declaration on the Protection of all Persons from
Torture. [The relevant portions of the Courts opinion
read as follows:] The Declaration goes on to provide
that [w]here it is proved that an act of torture or other
cruel, inhuman or degrading treatment or punishment
has been committed by or at the instigation of a public
official, the victim shall be afforded redress and
compensation, in accordance with national law. This
Declaration, like the Declaration of Human Rights
before it, was adopted without dissent by the General
Assembly. Nayar, Human Rights: The United Nations
and United States Foreign Policy, 19 Harv. Intl LJ. 813,
816 n. 18 (1978). These U.N. declarations are
significant because they specify with great precision
the obligations of member nations under the Charter.
CHAPTER 9 JURISDICTION OF STATES 161 Since their
adoption, [m]embers can no longer contend that they
do not know what human rights they promised in the
Charter to promote. Sohn, A Short History of United
Nations Documents on Human Rights," in the The
United Nations and Human Rights, 18th Report of the
Commission (Commission to Study the Organization of
Peace [Ed., 1968]).... Accordingly, it has been observed
that the Universal Declaration of Human Rights no
longer fits into the dichotomy of binding treaty
against non-binding pronouncement, but is rather an
authoritative statement of the international
community. E. Schwelb, Human Rights and the
International Community 70 (1964). Thus, a
Declaration creates an expectation of adherence, and
insofar as the expectation is gradually justified by
State practice, a declaration, may by custom become
recognized as laying down rules binding upon the
States. 34 UN. ESCOR, supra. Indeed, several
commentators have concluded that the Universal
Declaration has become, in toto, a part of binding,
customary international law. Nayar, supra, at 816-17;
Waldock, Human Rights in Contemporary
International Law and the Significance of the European
Convention, I.C.L.Q., Supp.Publ. No. 11 at 15 (1965).
Turning to the act of torture, we have little difficulty
discerning its universal renunciation in the modern
usage and practice of nations. Smith, supra, 18 US. (5
Wheat.) at 160-61,5 L.Ed. 57. The international
consensus surrounding torture has found expression in
numerous international treaties and accords.... The
substance of these international agreements is
reflected in modem municipal i.e., national law as
well. Although torture was once a routine concomitant
with criminal interrogations in many nations, during
the modem and hopefully more enlightened era it has
been universally renounced. According to one survey,
torture is prohibited, expressly or implicitly, by the
constitutions of over fifty-five nations, including both
the United States and Paraguay. Our State Department
reports a general recognition of this principle: There
now exists an international consensus that recognizes
basic human rights and obligations owed by all
governments to their citizens. ... There is no doubt that
these rights are often violated; but virtually all
governments acknowledge their validity.
INTRODUCTION TO PUBLIC INTERNATIONAL LAW
ATTORNEY GENERAL OF ISRAEL v. EICHMANN
Trial Court Decision 36 Intl. L. Rep. 5 (Israel,
Dist. Ct. Jerusalem 1961)
Adolf Eichmann was a high ranking SS officer who
played a central role in the planning and
implementation of the persecution of Jews in Germany,
Poland, Hungary and several other countries before
and during World War II. At the end of the war, he
escaped to Argentina where he lived and worked under
an alias until May, 1960 when he was kidnapped by
Israeli agents. Argentina complained to the Security
Council about this clear violation of Argentine
sovereignty. The Security Council, while making it clear
that it did not condone Eichmanns crimes, declared
that, acts such as that under consideration [the
kidnapping of Eichmann] which affect the sovereignty
of a Member State and therefore cause international
friction, may, if repeated, endanger international
peace and security. The Security Council requested
the Government of Israel to make appropriate
reparation in accordance with the Charter of the
United Nations and the rules of international law.
Argentina did not demand the return of Eichmann, and
in August, 1960, the Argentine and Israeli
governments resolved in a joint communique to
regard as closed the incident which arose out of the
action taken by citizens of Israel, which infringed the
fundamental rights of the State of Argentina.
Eichmann was then tried in Israel under Israels Nazi
Collaborators Law (a law enacted after Israel became a
state in 1948). He was found guilty and the conviction
was subsequently upheld by the Supreme Court of
Israel. On May 31,1962, Eichmann went to the gallows,
the only person ever formally executed by the State of
Israel. Learned defence counsel... submits: (a) that the
Israel Law, by imposing punishment for acts done
outside the boundaries of the State and before its
establishment, against persons who were not Israel
citizens, and by a person who acted in the course of
duty on behalf of a foreign country (Act of State),
conflicts with international law and exceeds the
powers of the Israel Legislature; (b) that the
prosecution of the accused in Israel following his
abduction from a foreign country conflicts with
international law and exceeds the jurisdiction of the
Court.... CHAPTER 9 JURISDICTION OF STATES 163 From
the point of view of international law, the power of the
State of Israel to enact the Law in question or Israels
right to punish is based, with respect to the offences
in question, on a dual foundation: the universal
character of the crimes in question and their specific
character as intended to exterminate the Jewish
people.... 12. The abhorrent crimes defined in this Law
are not crimes under Israel law alone. These crimes,
which struck at the whole of mankind and shocked the
conscience of nations, are grave offenses against the
law of nations itself (delicta juris gentium). Therefore,
so far from international law negating or limiting the
jurisdiction of countries with respect to such crimes,
international law is, in the absence of an International
Court, in need of the judicial and legislative organs of
every country to give effect to its criminal interdictions
and to bring the criminals to trial. The jurisdiction to
try crimes under international law is universal.... 26. ...
It is superfluous to add that the crime against the
Jewish people, which constitutes the crime of
genocide, is nothing but the gravest type of crime
against humanity (and all the more so because both
under Israel law and under the Convention a special
intention is requisite for its commission, an intention
that is not required for the commission of a crime
against humanity). Therefore, all that has been said in
the Nuremberg principles about crimes against
humanity applies a fortiori to crime against the Jewish
people. ... 27. ... It is indeed difficult to find a more
convincing instance of a just retroactive law than the
legislation providing for the punishment of war
criminals and perpetrators of crimes against humanity
and against the Jewish people, and all the reasons
justifying the Nuremberg judgments justify eo ipse the
retroactive legislation of the Israel legislator. ... The
accused in this case is charged with the
implementation of the plan for the final solution of the
problem of the Jews. Can anyone in his right mind
doubt the absolute criminality of such acts? ...
INTRODUCTION TO PUBLIC INTERNATIONAL LAW 28. ...
The contention of learned counsel for the defense that
it is not the accused but the State on whose behalf he
had acted, who is responsible for his criminal acts is
only true as to its second part. It is true that under
international law Germany bears not only moral, but
also legal, responsibility for all the crimes that were
committed as its own acts of State, including the
crimes attributed to the accused. But that
responsibility does not detract one iota from the
personal responsibility of the accused for his acts....
EICHMANN V. ATTORNEY-GENERAL OF ISRAEL
Supreme Court of Israel (1962) 136 IIJl. 277
Judgment Per Curiam:
The crimes created by the Law and of which the
appellant was convicted must be deemed today to
have always borne the stamps of international crimes,
banned by international law and entailing individual
criminal liability. It is the particular universal character
of these crimes that vests in each State the power to
try and punish any who assisted in their
commission. . . . [Reference the Genocide Convention
and the Nuremberg judgment].. ... As is well known,
the rules of the law of nations are not derived solely
from international treaties and crystallized
international usage. In the absence of a supreme
legislative authority and international codes, the
process of its evolution resembles that of the common
law;... its rules are established from case to case, by
analogy with the rules embodied in treaties and in
intentional custom, on the basis of the general
principles of law recognized by civilized nations, and
in the light of the vital international needs that impel
an immediate solution. A principle which constitutes a
common denominator for the judicial systems of
numerous countries must clearly be regarded as a
general principle of law recognized by civilized
nations. ... [C]ustomary international law is never
stagnant, but is rather in a process of constant
growth.... ... [As to] the features which identify crimes
that have long been recognized by customary
international law[,] ... they constitute acts which
damage vital international interests ... they impair
CHAPTER 9 JURISDICTION OF STATES the foundations
and security of the international community; they
violate universal moral values and humanitarian
principles which are at the root of the systems of
criminal law adopted by civilized nations. The
underlying principle in intentional law that governs
such crimes is that the individual who has committed
any of them and who, at the time of his act, may be
presumed to have had a thorough understanding of its
heinous nature must account in law for his behavior. It
is true that intentional law does not establish explicit
and graduated criminal sanctions; that there is not as
yet in existence either an intentional Criminal Court, or
intentional machinery for the imposition of
punishment. But, for the time being, intentional law
surmounts these difficulties ... by authorizing the
countries of the world to mete out punishment for the
violation of its provisions. This they do by enforcing
these provisions either directly or by virtue of the
municipal legislation which has adopted and
integrated them.... The classic example of a
customary international crime ... is that of piracy
jure gentium. ... [Another] example ... is that of a war
crime in the conventional sense. ... the group of acts
committed by members of the armed forces of the
enemy which are contrary to the laws and customs of
war. individual criminal responsibility because they
undermine the foundations of intentional society and
are repugnant to the conscience of civilized nations.
When the belligerent State punishes for such acts, it
does so not only because persons who were its
nationals ... suffered bodily harm or material damage,
but also, and principally, because they involve the
perpetration of an intentional crime in the avoidance
of which all the nations of the world are interested....
In view of the characteristic traits of international
crimes and the organic development of the law of
nations a development that advances from case to
case under the impact of the humane sentiments
common to civilized nations, and under the pressure of
the needs that are vital for the survival of mankind and
for ensuring the stability of the world order it definitely
cannot be said that when the Charter of the
Nuremburg International Military Tribunal was signed
and the categories of war crimes and crimes
against humanity were defined in it, this merely
amounted to an act of legislation by the victorious
countries.... ... [The interest in preventing and
imposing punishment for acts comprised in the
category in question especially when they are
perpetrated on a very large scale must necessarily
extend beyond the borders of the State to which the
perpetrators belong INTRODUCTION TO PUBLIC
INTERNATIONAL LAW and which evinced tolerance or
encouragement of their outrages; for such acts can
undermine the foundations of the international
community as a whole and impair its very stability.... If
we are to regard customary international law as a
developing progressive system, the criticism becomes
devoid of value.... [E]ver since the Nuremberg Tribunal
decided this question, that very decision must be seen
as a judicial act which establishes a precedent
defining the rule of international law. In any event, it
would be unseemly for any other court to disregard
such a rule and not to follow it. ... If there was any
doubt as to this appraisal of the Nuremberg
Principles as principles that have formed part of
customary international law since time immemorial,
such doubt has been removed by ... the United Nations
Resolution on the Affirmation of the Principles of
International Law Recognized by the Charter and
Judgment of the Nuremberg Tribunal and that affirming
that Genocide is a crime under intentional law ... and
as [is seen] in the advisory opinion of 1951 ... the
principles inherent in the [Genocide] Convention as
distinct from the contractual obligations embodied
therein had already been part of customary
intentional law at the time of the shocking crimes
which led to the Resolution and the Convention.... ...
[T]he crimes established in the Law of 1950 ... must be
seen today as acts that have always been forbidden by
customary international law acts which are of a
universal criminal character and entail individual
criminal responsibility. ... [T]he enactment of the Law
was not, from the point of view of international law, a
legislative act that conflicted with the principle nulla
poena or the operation of which was retroactive, but
rather one by which the Knesset gave effect to
intentional law and its objectives.... ... [I]t is the
universal character of the crimes in question which
vests in every State the power to try those who
participated in the preparation of such crimes, and to
punish them therefor.... One of the principles whereby
States assume, in one degree or another, the power to
try and punish a person for an offence he has
committed is the principle of universality. Its meaning
is, in essence, that that power is vested in every State
regardless of the fact that the offence was committed
outside its territory by a person who did not belong to
it, provided he is in its custody at the time he is
brought to trial. This principle has wide support and is
universally acknowledged with respect to the offence
of piracy jure CHAPTER 9 JURISDICTION OF STATES 167
gentium.... [One view] holds that it cannot be applied
to any other offence, lest this entail excessive
interference with the competence of the State in which
the offence was committed.