Crimes of genocide, crimes against humanity, and war crimes (collectively known as core international crimes) have been on the rise for years, and this trend is expected to grow exponentially as a result of the war in Ukraine.
While EU Member States traditionally exercise jurisdiction over these crimes by prosecuting their own citizens (active personality principle) or when their citizens become victims of such crimes (passive nationality principle), an increasing number of cases are now being pursued under universal or extraterritorial jurisdiction.
This article explores the key considerations as outlined by Eurojust.
What is universal jurisdiction?
Universal jurisdiction allows a State to investigate and prosecute core international crimes:
- Committed abroad,
- By a perpetrator who is not a national of that State,
- Against a victim who is not a national of that State.
Ideally, the prosecution of core international crimes should take place in the country where the offences were committed, ensuring access to evidence. However, there are situations where the State in which the crimes occurred lacks the capacity or willingness to prosecute the individuals responsible, for reasons such as a non-functional judicial system or involvement of the ruling regime in the crimes. Universal jurisdiction is intended to serve as a last-resort mechanism is such cases.
In many instances, States will impose conditions prior to exercising jurisdiction over the crimes. This is why in some cases universal jurisdiction may be better described as extraterritorial jurisdiction.
Conditions for the exercise of universal jurisdiction
In most Member States the exercise of universal jurisdiction is limited by a number of conditions which may impede the arrest of suspects or the opening of a case into alleged core international crimes. These conditions include:
- Presence: Presence of a suspect on the territory of the Member State is required to initiate proceedings.
- Official approval: Pre-approval of Ministry of Justice, Prosecutor General or other official is required to initiate proceedings.
- Residence: Suspect must reside on the territory of the Member State to initiate proceedings.
- Subsidiarity principle: Absence of proceedings before the International Criminal Court (ICC), or before another competent international/national jurisdiction required to initiate proceedings.
- Double criminality principle: Prevents extradition where the alleged conduct would not amount to a criminal offence in the requested state.
Recent convictions in universal jurisdiction cases
In 2022, EU Member States were successful in bringing perpetrators of core international crimes to justice on the basis of universal or extraterritorial jurisdiction. Eurojust provides a number of case examples.
- Former commander of the ULIMO rebel group in Liberia convicted in France for crimes against humanity and torture (November 2022) – The accused was sentenced to life imprisonment for acts of torture and barbarism, as well as complicity in crimes against humanity of torture for the rape and sexual slavery committed by his subordinates during the first Liberian civil war (1989–1996).
- German court sentences high-ranking Syrian official to life imprisonment for crimes against humanity (January 2022) – The convicted official, a former member of the Syrian intelligence services, was arrested in Germany in 2019. The court held him directly responsible for, inter alia, the deaths of 27 members of the opposition, torture in at least 4000 cases, serious deprivation of liberty and rape in 2011 and 2012.
- Former assistant to deputy prosecutor at Gohardasht prison in Iran convicted in Sweden for war crimes (July 2022) – The accused was arrested in 2019 while traveling to Sweden. He was sentenced to life imprisonment for war crimes for his role in the mass executions of detained Mujahidin’s sympathisers and for murders for the executions of left-wing sympathisers, in 1988.
Key takeaways
EU Member States may exercise universal or extraterritorial jurisdiction over core international crimes such as war crimes in circumstances where such crimes cannot or will not be prosecuted by means of traditional jurisdiction. Despite most Member States imposing conditions for the exercise of universal jurisdiction that could impede investigations and prosecutions, there were numerous successful cases in 2022 where universal or extraterritorial jurisdiction was applied to bring perpetrators of core international crimes around the world to justice.
