As we talk about arbitrary arrest, detention, torture, and conflict-related sexual violence, it is important to remember that when these crimes are committed at scale during a military conflict or in places where due process is non-existent, it is nearly impossible for perpetrators to be held accountable by the justice system of their home nations. When governmental systems are autocratic, self-serving, and corrupt, impunity for human rights violations is an inevitable outcome of those in power using any and all means to remain in power.
Universal jurisdiction offers an alternative route to pursuing justice and accountability. Universal jurisdiction is a legal principle that allows national courts to exercise jurisdiction over individuals for certain serious crimes, regardless of where the crime was committed, the nationality of the perpetrator or the victim, or any other connection to the country exercising jurisdiction. It enables a state (nation) to prosecute individuals who have committed crimes considered to be particularly heinous and have a global impact, such as crimes against humanity, genocide, and torture. The principle of universal jurisdiction is based on the idea that certain crimes are so severe that they concern the international community as a whole, and that no state should be allowed to provide a safe haven for perpetrators of such crimes.
Universal jurisdiction is an expansive undertaking by several governments around the world to create accountability for exceptionally terrible crimes that demand international interventions. Universal jurisdiction is enacted differently from territorial jurisdiction and nationality jurisdiction.
Territorial jurisdiction is based on the principle that a state has the right to exercise jurisdiction over any person or activity within its territory. This means that a state can prosecute individuals for crimes that were committed within its borders, regardless of the nationality of the perpetrator or the victim.
On the other hand, nationality jurisdiction allows a state to exercise jurisdiction over its nationals, regardless of where the crime was committed. This means that a state can prosecute its citizens for crimes committed abroad, even if it is not considered a crime in the country where it was committed.
In contrast, universal jurisdiction allows a state to exercise jurisdiction over crimes committed outside of its territory by individuals who are not its nationals and who did not commit the crime within its borders.
One of the first notable cases that helped develop the principle of universal jurisdiction was the arrest and attempted prosecution of former Chilean dictator Augusto Pinochet. The Pinochet case was a landmark case that helped to establish and expand the use of universal jurisdiction. The case began in 1998 when Pinochet, who had been in London for medical treatment, was arrested on a warrant issued by a Spanish judge who sought to extradite him to Spain to face charges of torture and other crimes committed during his regime. The extradition request was based on the principle of universal jurisdiction. The Pinochet case established that universal jurisdiction could be applied to crimes committed by high-ranking officials, including heads of state, and that national courts could hold them accountable.
Survivors of arbitrary detention, torture, and sexual violence and civil society organisations (CSOs) play an essential role in making the prosecution of universal jurisdiction cases possible. In order to prosecute cases under universal jurisdiction, there is a need for evidence and testimony that meets the standards of international criminal courts. Organisations like Synergy for Justice and Lawyers and Doctors for Human Rights play an essential role in helping survivors document their cases, ensuring that the documentation and record-keeping requirements are met and maintained as these cases are submitted to international justice actors.
Synergy and its partners conduct forensic medical evaluations (FMEs) for survivors of torture and sexual violence. These FMEs can prompt investigations into crimes against humanity and other international crimes, guide case-building efforts as prosecutors hone in on patterns, locations, and perpetrators, and serve as evidence in criminal and civil court. Synergy and LDHR work together with plaintiff lawyers and prosecutors in Europe and the US and with UN mechanisms (such as the UN Commission of Inquiry on Syria and the IIIM), providing forensic medical documentation to support case-building efforts. In line with our survivor-centric approach, we only provide information to justice actors after obtaining full informed consent from survivors to share the information.
One notable outcome of the documentation work done by Synergy for Justice and LDHR is the inclusion of our joint report on male sexual violence into the record of the Al-Khatib trial that ultimately contributed to the conviction of Anwar Raslan, a Syrian Intelligence officer for crimes against humanity.
Many survivors, families, and justice actors are hopeful that commencement of universal jurisdiction trials will be the means of ensuring accountability for those who commit atrocities. However, recent evidence suggests that states are hesitant to use absolute universal jurisdiction, and instead, more countries are implementing measures to limit its application. Even though universal jurisdiction can be used to prosecute a growing range of international crimes, there is limited evidence of its use in national courts. As a result, states are moving towards conditional universal jurisdiction that requires a stronger connection between the alleged crime and the prosecuting state. This shift is due to concerns among states regarding the risks of overstepping judicial boundaries and prosecuting foreign nationals for crimes committed in foreign territories, which could have negative implications for international justice. - Paraphrased, Source
While the use of universal jurisdiction is limited, it is growing. A recent report by the International Center for Transitional Justice states:
“Although the numbers of universal jurisdiction cases are tiny compared to the number of criminal cases opened, there is nonetheless great value in each case for the global fight against impunity. A complaint brought before a domestic court for international crimes is already a small measure of acknowledgement for victims because it is often accompanied by considerable media attention and advocacy campaigns. Similarly, an international arrest warrant issued against a high-level perpetrator constitutes a form of accountability because it inhibits travel and places them at risk of arrest. The issuing of arrest warrants focuses attention on the suspects and raises questions around their role in public life. Universal jurisdiction convictions contribute to the development of state practice and international law.”
According to the 2023 universal jurisdiction annual review published by Trial International, 78 universal jurisdiction cases have resulted in convictions since its inception in 2015. This report also highlighted that universal jurisdiction is also being utilised to investigate economic actors for international crimes that have global impacts.
The use of universal jurisdiction to bring justice to victims of international crimes is still a work in progress. While there have been some successful prosecutions, using this principle in various countries worldwide, there are still limitations and ongoing challenges to its application. However, the increasing recognition of the need for universal jurisdiction in national and international legal systems signals a shift towards holding perpetrators of heinous crimes accountable regardless of their location or nationality. As efforts to expand the reach and use of universal jurisdiction continue, we hope to see it play a critical role in deterring and punishing international crimes and promoting global justice.