Translated from Arabic by : Teeba Haitham Abdulhousain
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It is known that each country has a judicial jurisdiction that may be personal or regional. Personal judicial jurisdiction may be positive or negative. Positive personal judicial jurisdiction means that the state exercises its judicial jurisdiction over perpetrators of crimes who hold the nationality of the country in question. Negative personal judicial jurisdiction means that the state exercises its judicial jurisdiction over perpetrators of crimes against those who hold its nationality. As for the regional judicial jurisdiction of the country, it means that the state exercises its judicial jurisdiction within the borders of its territory, regardless of the nationality of the perpetrator of the crime, whether he is a citizen holding the nationality of the country in question or a foreigner, without its judicial authority extending to its citizens outside the borders of its territory until the accused returns to the territory. Most principles of criminal law limit the authority of national courts to consider crimes committed within the territory of the other country in question while maintaining its jurisdiction over its citizens even if they committed crimes outside the territory of the country. However, there are some crimes whose nature or the context in which they were committed makes it difficult to prosecute them before the courts of the country in which these crimes were committed.
Another judicial jurisdiction has emerged that is exercised by states on the international, not the domestic, level, which is the universal judicial jurisdiction stipulated in the four Geneva Conventions of 1949 in Articles 49, 50, 129, and 146, which states: the obligation of the states parties to the conventions to prosecute, punish, or hand over the accused to the state concerned for punishment, regardless of the nationality of the accused and regardless of the place where they committed the crime.
In other words, all countries that have signed the Geneva Conventions are obligated to take the necessary measures to prosecute and punish perpetrators of certain violations, most of which fall under either the category of war crimes or crimes against humanity, which will be mentioned later.
The principle of universal jurisdiction came to fill the legal gap and gap resulting from the overlapping and conflicting jurisdictions between countries, which was revealed by practical reality as a result of the spread of crimes that threaten the security and peace of the international community. It is an exceptional procedure for criminal justice, as it gives countries the authority to prosecute perpetrators of serious crimes, even if the countries have no connection to the accused or the acts they committed. The person accused of committing a serious violation of international humanitarian law can be prosecuted before any court in any country. This principle is one of the basic tools to ensure the prevention of violations of international humanitarian law and punish them by imposing criminal penalties by foreign courts for crimes.
The fact that there is no permanent international criminal court competent to punish perpetrators of serious international crimes had an impact on increasing the opportunity for perpetrators of these crimes to obtain immunity from punishment and prosecution. Therefore, the countries that signed the four Geneva Conventions were obligated to participate in investigating, prosecuting, and punishing the perpetrators of these crimes. Even after the issuance of the Statute of the Permanent International Criminal Court on July 17, 1998, and its entry into force on July 1, 2002, and the statement of its jurisdiction to consider most serious crimes such as genocide, crimes against humanity, war crimes, and acts of aggression, the court was not able to fill the gap in the international judicial response to the many serious violations of international humanitarian law committed in the world today.
Crimes to which universal jurisdiction applies:
War crimes
some crimes against humanity
Genocide
Torture
Slavery
piracy
The jurisdiction of States includes the following obligations:
- Investigation
– to Trial of the accused or the extradition of the accused to another country for trial.
The importance of universal jurisdiction:
The practice of universal jurisdiction is considered the most effective method at the international level regarding imposing penalties on perpetrators of serious crimes. This practice has been incorporated into many international agreements, such as the Convention against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment, known as the Convention against Torture, which was issued on December 10, 1984.
Other international instruments also develop a similar commitment to international jurisdiction over States parties that their local courts will make the right to consider serious violations of those instruments.
State practice and the belief that it is bound have helped to establish a customary rule that gives States the right to extend their universal jurisdiction to other serious violations of international humanitarian law. The fact that states have the right to confer universal jurisdiction on their national courts has become a rule of customary law.
«Rule 157 of the International Committee of the Red Cross Study on Customary International Humanitarian Law (2005)»
Conditions for exercising universal jurisdiction:
Its acceptance by the state through its legislative organization by stipulating it in its legislative systems.
The presence of the accused of committing the crime within the territory of the state.
The rules of universal jurisdiction are characterized by being unilateral rules.
Every legislator addresses the cases in which national courts have jurisdiction without going beyond that to specify cases within the jurisdiction of courts of other countries.
The unilateral nature of the rules of universal jurisdiction, the multiplicity of foundations on which they are based, and the absence of a higher authority that distributes jurisdictions among the various courts have led to a conflict of jurisdiction between states with respect to crimes with a foreign element.
Conflict of laws rules and universal jurisdiction rules.
The rules of conflict of laws are dual-sided rules that are not limited to determining the cases in which national law is applied but also indicate the law applicable to disputes of an international nature, regardless of whether this law is a national or foreign law, unlike the rules of universal jurisdiction, whose rules are unilateral and have one aspect, and whose function is limited to indicating the cases in which national courts have jurisdiction in disputes of an international nature, without extending to indicating the limits of the jurisdiction of foreign courts.
The principle of complementarity and the exercise of universal jurisdiction over core international crimes :
The principle of complementarity is one of the principles on which the permanent International Criminal Court is based. It means that the court cannot investigate and punish core crimes unless the state concerned is unable or unwilling to do so. This principle is one of the principles for accepting a case before the permanent International Criminal Court.
The principle of universal jurisdiction is the last resort stipulated by many national criminal systems when it is impossible to prosecute basic international crimes due to the principle of territorial or personal jurisdiction (positive/negative).
References:
Practical Dictionary of Humanitarian Law.
International Committee of the Red Cross / Scope and application of the principle of universal jurisdiction.
the centre for international law research and policy.
Journal of Legal and Social Sciences / Sobhi Muhammad.
Journal of Legal and Economic Research.