What is Universal Jurisdiction?
International law recognizes that certain crimes are so serious that the duty to prosecute them transcends all borders, giving rise to “Universal Jurisdiction” over grave crimes in violation of international law, such as crimes against humanity, war crimes, genocide, and torture. Universal Jurisdiction is based on the idea that since perpetrators who commit such heinous crimes are hostes humani generis—“enemies of all mankind”—any nation should have the authority to hold them accountable, regardless of where the crime was committed or the nationality of the perpetrator or the victim.
An Exception to General Principles of Sovereignty
When a state seeks to exercise jurisdiction on things that happened outside its territory, international law generally requires the state to show some connection to its territory, nationality, or national security interests. These limitations flow from international legal principles of sovereign equality and noninterference in the domestic affairs of other sovereign states (see UN Charter, Art. 2). Universal Jurisdiction is an exception to these rules, for a certain set of very serious crimes.
Universal Jurisdiction around the World
Universal Jurisdiction can take different forms, depending on the domestic implementing legislation. As of September 1, 2012, according to Amnesty International, a total of 147 States have provided Universal Jurisdiction over one or more crimes under international law. (For a comprehensive summary of domestic legislation incorporating Universal Jurisdiction, see Amnesty International’s report, Universal Jurisdiction: A Preliminary Survey of Legislation Around the World – 2012 Update.) Because definitions of crimes such as torture and war crimes may nonetheless vary from country to country in their domestic legislation, accountability gaps can arise.
In 1961, Universal Jurisdiction enabled Israel to prosecute a senior Nazi official, Adolf Eichmann, for his role in the Holocaust during World War II. Other examples of states exercising Universal Jurisdiction include: the U.K.’s consideration of Spain’s request to extradite former Chilean dictator Augusto Pinochet, and the Spanish prosecution of an Argentine naval officer for crimes against humanity during the Dirty War.
Universal Jurisdiction in the U.S.
United States courts have used the concept of Universal Jurisdiction since the 19th century, to justify the regulation of piracy on the high seas (see, for example, United States v. Smith, 18 US (5 Wheat) 153, 161 (1820), referring to piracy as “an offence against the universal law of society, a pirate being deemed an enemy of the human race”).
In recent years, the Alien Tort Statute (ATS) has been used in U.S. courts as a form of Universal Jurisdiction for cases involving serious human rights violations committed outside the U.S. In 2004, the U.S. Supreme Court in Sosa v. Alvarez-Machain held that the ATS grants federal courts jurisdiction over claims based on specifically defined, universally accepted international law norms, upholding the connection between the ATS and Universal Jurisdiction. While the Supreme Court later placed some limitations on the extraterritorial reach of the ATS (in Kiobel v. Royal Dutch Petroleum Co. (2013)), it left a window open for ATS claims involving extraterritorial conduct that sufficiently “touch and concern the territory of the United States.”
Universal Jurisdiction allows CJA and other human rights defenders to bring perpetrators of gross human rights violations to justice in domestic courts.