Authored By: Zakiyyah Bibi Azraa Mungroo
Paris-Panthéon-Assas University
Abstract
This paper will examine the development of universal jurisdiction in international criminal law, beginning with the landmark Pinochet case and continuing up to the present-day prosecutions, and show how the doctrine has developed both conceptually and practically during the past quarter century. Through consideration of landmark judicial opinions, state practice, and commentary, the article tracks the ebb and flow of universal jurisdiction claims, highlighting the tensions that have always existed between theory and political reality. It demonstrates that, even though universal jurisdiction has gained theoretical legitimacy for core international crimes, its real-life application is limited by diplomatic factors, procedural issues and varying interpretations of the jurisdictional prerequisites. The paper asserts that the future usefulness of the principle will rest on the creation of more transparent international norms on its application, but with enough flexibility to address new threats to international peace and security.
Introduction
Universal jurisdiction is one of the most far-reaching mechanisms that international law has developed to obtain accountability for the most serious crimes, regardless of where they were committed or what nationality their perpetrators were.¹ In this doctrine, some crimes are considered so serious that they can be prosecuted by any state regardless of the absence of the traditional jurisdictional connection, including territoriality or nationality. Even though this principle has its roots in the pre-modern prosecution of piracy, its modern extension to international crimes was highlighted by the 1998-2000 Pinochet proceedings in the United Kingdom.²
The case of Pinochet in the United Kingdom was a landmark case in the development of international criminal law³ and showed that former heads of state could be tried on universal jurisdiction. The decision by the House of Lords that Pinochet could not claim immunity on the basis of torture charges⁴ was heard across the global community and set precedents that continue to form the backbone of the cases that followed it on universal jurisdiction. However, the 25 years since Pinochet have highlighted the potential and the shortcomings of universal jurisdiction as a means of international justice.
The practice of universal jurisdiction at the state level is currently quite variable, with some states interpreting and applying the concept broadly, to allow prosecution based only on the character of the offense, and others applying the concept more narrowly, requiring other jurisdictional connections.⁵ These differing views create confusion about the extent and limit of universal jurisdiction, which may undermine its usefulness as a crime deterrent to international crimes.
To conclude, universal jurisdiction has transformed over the years from a hypothetical possibility to a principle of international law, but it still has an uneven and politically limited practice. This article has three main arguments, which are, first, that the Pinochet case has broadened the doctrine beyond its original practical application; second, that the subsequent state practice has both solidified and limited the scope of the universal jurisdiction through differing interpretations of immunity, complementarity, and jurisdictional conditions; and third, that the future viability of the principle rests on both greater international coordination and more specific legal criteria, whilst maintaining the flexibility that is necessary to respond to new threats.
Historical Development and the Pinochet Precedent
Origins in Customary International Law
The concept of universal jurisdiction has strong roots in the doctrine of customary international law⁶ that some crimes are of a nature that they involve the common interest of the international community, which makes them subject to prosecution by any state. This doctrine was best expressed in the Lotus case,⁷ where the Permanent Court of International Justice ruled that piracy was a crime that could be prosecuted everywhere since it posed a danger to maritime traffic everywhere. This is the classic case of a crime that happens beyond any jurisdiction but has a universal jurisdiction upon apprehension of the offender.
The concept further grew during the post-World War II era in the proceedings of the Nuremberg and Tokyo tribunals.⁸ Although the proceedings involved the application of the victor’s justice, it still established the idea that states were able to prosecute crimes that contravened international law irrespective of the territorial nexus. Thereafter, universal jurisdiction over grave breaches was codified and institutionalized by the 1949 Geneva Conventions and their Additional Protocols,⁹ which defined the right and duty of states to prosecute or extradite the perpetrators.
The Convention Against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment, which was adopted in 1984,¹⁰ went further to incorporate the doctrine of torture and states parties were required to exercise jurisdiction over acts committed in any location. This treaty system gave the legal foundation to the subsequent Pinochet proceedings.
The Pinochet Case: Judicial Innovation and Legal Precedent
The detention of Pinochet in London in October 1998, under a Spanish extradition warrant,¹¹ transformed the doctrine of universal jurisdiction from an abstract principle of the law to a reality of international criminal procedure. The resulting case law produced a number of jurisprudential precedents that have endured into modern knowledge of universal jurisdiction.
In R v. Bow Street Metropolitan Stipendiary Magistrate, ex parte Pinochet Ugarte (No. 3),¹² the House of Lords held that a former head of state cannot claim immunity over international crimes like torture. By so doing, the Court dismissed the argument that because torture is a sovereign act, it is entitled to immunity on the grounds that international law cannot be assumed to have created a crime with the characteristics of a jus cogens and at the same time to have granted an immunity that is co-extensive with the obligation that it seeks to impose.¹³
The Court went further to hold that the United Kingdom had the capacity to exercise universal jurisdiction over torture committed in Chile despite the fact that the offender or victims did not have British nationality.¹⁴ This ruling broadened the territorial reach of universal jurisdiction and emphasized the fact that the requirement of traditional jurisdictional contacts is reduced with international crimes.
However, the case also demonstrated the political obstacles of universal jurisdiction. The legal grounds of prosecution were well-established by the judicial rulings, but Home Secretary Jack Straw eventually refused to extradite on medical grounds.¹⁵ This result demonstrated that legal precedent is not enough to guarantee prosecution when politics is involved, a trend that has been repeated in the years since in other universal jurisdiction cases.
Impact on International Legal Development
The Pinochet precedent was a turning point in the development of international criminal law and the principle of universal jurisdiction. The Rome Statute of the International Criminal Court,¹⁶ which was finalized just a few years after the arrest of Pinochet, incorporated the principles of complementarity, which ratify and limit the jurisdiction of universal jurisdiction by stating when international prosecution should take precedence over national prosecution.
The Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v. Belgium)¹⁷ also has the post-Pinochet legal environment in that it recognizes the theoretical validity of universal jurisdiction but limits its practical application by requiring immunity. The Court confirmed that sitting foreign ministers are absolutely immune to criminal prosecution¹⁸ and that the case was different from that of Pinochet in that immunity can be waived after officials leave office.
Contemporary State Practice and Jurisdictional Variations European Approaches: Expansion and Retreat
European states have traditionally been on the forefront of developing the concept of universal jurisdiction, but their practices have been quite different and have changed throughout history. The Belgian law of 1993¹⁹ provided extremely wide powers to prosecute international crimes and was used in cases against high-profile individuals like Ariel Sharon and Donald Rumsfeld. Later diplomatic pressure led to significant amendments in 2003,²⁰ which restricted jurisdiction to cases that had a provable Belgian nexus.
Following the Pinochet case, Spain became a leading force and the Audiencia Nacional investigated matters pertaining to Argentina, Chile and Guatemala, among other jurisdictions.²¹ The historic ruling of the Spanish courts in the Guatemala Genocide Case²² demonstrated the potential of universal jurisdiction in addressing mass atrocities. However, Spain has limited its power through statutory changes in 2009 and 2014, respectively,²³ requiring a Spanish connection to the majority of prosecutions.
Germany took a more uniform approach by enacting the Code of Crimes Against International Law (Völkerstrafgesetzbuch)²⁴ that gives universal jurisdiction to genocide, crimes against humanity, and war crimes regardless of whether Germany was involved or not. The German prosecutors have gone ahead to pursue a number of high-profile cases, such as the cases of the Rwandan and Congolese officials,²⁵ which points to the continued dedication to universal jurisdiction.
France has been selective in the exercise of universal jurisdiction, typically demanding some nexus to French interests or territory. The Munyakazi case²⁶ which was decided by the Court of Cassation, confirmed that the French courts have jurisdiction over genocide that occurred in Rwanda so long as the accused is within French territory.
Common Law Jurisdictions: Cautious Implementation
In common-law jurisdictions, universal jurisdiction is often narrowly construed and even requires express statutory authorization in many cases as well as other jurisdictional nexus. In post-Pinochet legislation in the United Kingdom,²⁷ prosecutorial actions must be approved by the Attorney General, and hence, a political filter is established, which has been shown to limit the real application of universal jurisdiction sanctions.
Canadian jurisprudence also recognizes universal jurisdiction when it comes to international crimes, but it also requires further links to Canada to make prosecution viable. The Supreme Court of Canada case R v. Mugesera²⁸ upheld the relevance of universal jurisdiction in crimes against humanity but at the same time stressed that the judiciary required express legislative authority.
Australia has chosen to enshrine universal jurisdiction in separate legislation²⁹ but has used it in a very limited way in absentia. In the Australian model, the complementarity with international adjudicative bodies is brought to the fore, and the careful consideration of whether the initiation of prosecution would serve the greater good of justice is required.
African and Latin American Developments
In Africa, the increasing use of the concept of universal jurisdiction can be partly explained by the events of international criminal law that have arrived in the region under the jurisdiction of the International Criminal Court. The International Criminal Court Act in South Africa³⁰ provides extensive universal jurisdiction over Rome Statute crimes, although its application has faced major political and practical obstacles.
In other parts of the continent, the Democratic Republic of Congo has used the provisions of universal jurisdiction³¹ to prosecute international crimes that have been committed in its territory, though its capacity has been limited. The International Crimes Act in Kenya³² also provides universal jurisdiction powers, which is indicative of a growing African interest in international criminal law.
States in Latin America display equally ambivalent tendencies of interaction with universal jurisdiction. Argentina has been especially active,³³ using universal jurisdiction to bring former officials to trial on charges of crimes committed during the military dictatorship; the ruling of the Argentine Supreme Court in Arancibia Clavel³⁴ established several precedents regarding the inapplicability of statutes of limitations to crimes against humanity in Argentina.
Jurisdictional Requirements and Limitations
Presence Requirements and Custodial Jurisdiction
A notable practical constraint to the use of universal jurisdiction is the presence requirement.³⁵ In most jurisdictions suspects must be physically present in their jurisdiction to allow prosecution to take place, limiting universal jurisdiction to only those cases where extradition or direct capture is possible.
The International Court of Justice dealt with the issue in Questions Relating to the Obligation to Prosecute or Extradite (Belgium v. Senegal),³⁶ emphasizing that the conventional precondition of universal jurisdiction is that the accused person is on the territory of the state that prosecutes him. This requirement can be logistically problematic: accused individuals can refuse to go to courts that are likely to seek prosecution.
In an attempt to overcome the restriction, some governments have turned to absentia trials, but those trials raise acute due process issues³⁷ and interfere with interstate relations. With the controversial precedence of absentia judgments, the majority of states still demand the presence of the defendant in universal jurisdiction cases.
Immunity Challenges and Diplomatic Constraints
The state and diplomatic immunity still cause problems in the application of universal jurisdiction in contemporary jurisprudence. Even though the Pinochet precedent established that former officials can forfeit immunity over international crimes,³⁸ the extent and length of immunity are disputed.
The Jurisdictional immunities of the state (Germany v. Italy: Greece intervening)³⁹ judgment, the Court once again stated that state immunity also extends to international crimes, which limits universal jurisdiction. The ruling has been denounced as giving more weight to procedural immunity than to substantive responsibility but it reflects the continuing conflict between sovereignty and universal jurisdiction.
The diplomatic immunity adds a further twist especially when it is applied to incumbents. The example of the attempted prosecution of Congolese officials in Belgium and France⁴⁰ shows how diplomatic immunity may hinder universal jurisdiction even over serious international crimes.
Complementarity and International Court Coordination
The Principle of Complementarity, which is part of the jurisdiction of the International Criminal Court,⁴¹ has led to the emergence of new considerations in the exercise of universal jurisdiction. States now have to determine whether prior or expected international proceedings, and in some instances proceedings under other domestic legal systems, preclude their own universal jurisdiction claims.
The ICC can potentially prevent national prosecution on a universal basis by taking preliminary investigations and, in some cases, complete ones.⁴² This has been manifested in the activities of the Court in Uganda and the Democratic Republic of Congo, which have been affecting the decisions of national authorities to prosecute or not to prosecute.
In order to deal with these dynamics, some states have put in place formal arrangements that are aimed at aligning jurisdictional practices with those of international tribunals, and others have found themselves facing unexpected conflicts between their domestic interests in universal jurisdiction and parallel transnational proceedings.⁴³ Such situations highlight the need to have clear rules when it comes to jurisdiction priority and allocation of cases.
Critical Analysis: Achievements and Limitations
Normative Development and Legal Clarification
Since the Pinochet case, universal jurisdiction has experienced significant normative development, and there is wide agreement that the principle should be applicable to the most serious crimes of international concern.⁴⁴ This acceptance is evidenced by the integration of the principles of complementarity in the Rome Statute, which gives frameworks for harmonizing the national and international jurisdictions.
In general, academic commentary has supported the spread of universal jurisdiction,⁴⁵ arguing that globalization requires similar development in theories of criminal jurisdiction. Other scholars like Princeton’s Stephen Macedo,⁴⁶ believe that universal jurisdiction is a natural progression towards an efficient international legal regime.
The International Law Association⁴⁷ has also done a lot to make it clear what is required and the best practices, but still there are debates that are going on in respect to scope and implementation. The resolution of the Association in 2000⁴⁸ brought in guidelines that have shaped the practice of the states and the rulings of the courts.
Practical Implementation Challenges
The empirical evidence shows that the concept of universal jurisdiction is a valid legal concept in theory, but in practice, it is not as widely used. Human Rights Watch and other agencies⁴⁹ have repeatedly found that prosecutorial results of any kind are rare in comparison to the broad statutory scope initially envisioned of universal jurisdiction.
Some of the states do not have the necessary means to investigate and prosecute transnational crimes.⁵⁰ Multifaceted international investigations require international cooperation, expertise, legal specialization, and funding beyond the capacity of national courts.
Universal jurisdiction is also limited by political considerations. Actors are often reluctant to press cases that can threaten diplomatic ties, which is one way that the geopolitical needs can restrain the extraterritorial prosecutorial ambition. A notable regional case of this dynamic is the recent contraction of universal jurisdiction in Spain and Belgium.⁵¹
Deterrent Effect and Accountability Gaps
The deterrence power of universal jurisdiction is hard to measure, mainly due to its unstable nature and the political limitations. As much as high-profile prosecutions, like that of Pinochet, can change the behavior of some potential perpetrators,⁵² a deterrent framework requires more uniform and widespread enforcement.
There are still accountability gaps in those areas where universal jurisdiction may, in theory, be possible, but in practice it is not possible to prosecute. The conflict in Syria⁵³ is an ideal example of such difficulties, as various states have the right to exercise universal jurisdiction, but only a tiny fraction of them are willing to do so due to political and practical considerations.
Some researchers argue that the symbolic meaning of universal jurisdiction is more important than its practical effects⁵⁴ because it is primarily a form of international condemnation, but not a guarantee of systematic responsibility. These critiques indicate that the main contribution of the regime is in the normative aspect and not in its operating ability.
Contemporary Challenges and Emerging Trends
Terrorism and Transnational Crime
The doctrine of universal jurisdiction has been applied in modern international law to include the new forms of international crimes, such as terrorist crimes and other transnational crimes. Many states have also claimed jurisdiction over acts of terrorism,⁵⁵ an indication that acts of terrorism are seen to jeopardize international peace and security.
This has been facilitated by the September 11 attacks and the prosecutions that followed,⁵⁶ as some jurisdictions interpreted the counter-terrorism duties as justifying extended jurisdiction. However, the political nature of terrorism brings forth more complications in the application of universal jurisdiction.
The same complications and opportunities occur in relation to transnational organized crime. Although the United Nations Convention against Transnational Organized Crime⁵⁷ encourages wide jurisdictional positions, there is significant variance in practice between signatory countries.
Corporate Criminal Responsibility
Recent controversies over the corporate criminal liability of international crimes have raised new issues of the limits of universal jurisdiction. Some researchers have argued that corporations that are involved in such crimes⁵⁸ should also be subject to universal jurisdiction, despite the fact that there is still little state practice on this matter.
The possibility of charging corporations with complicity in international crimes⁵⁹ presents complex jurisdictional and enforcement problems. Since the concept of universal jurisdiction
has traditionally focused on individual actors, the system might have to be adjusted to suit corporate involvement in mass atrocities.
The recent cases in South Africa concerning corporate cooperation with crimes of the apartheid era,⁶⁰ combined with current inquiries into the role of business in armed conflicts, have started to examine these issues, but no clear legal principles have yet been established.
Digital Crimes and Cyber Warfare
The emergence of cyber warfare and online crime has brought new aspects to the use of universal jurisdiction. Specific cyberattacks are recognized as possible international crimes⁶¹ under universal jurisdiction, although state practice is not yet developed.
The traditional principles of territorial and nationality-based jurisdiction face difficulties in cyberspace, which is a space that does not respect borders and, thus, may add weight to the arguments of expanded universal jurisdiction.⁶² However, the technicalities and the associated issues of attribution make practical implementation problematic.
It is expected that the rise of international cyber law⁶³ will affect the course of universal jurisdiction, especially in the case of crimes that violate traditional territorial jurisdiction. The existing attempts to develop cyber norms can eventually include the universal jurisdiction approach to the most egregious cyber crimes.
Reform Proposals and Future Directions
Institutional Coordination Mechanisms
Increasing literature and practice indicate that more effective coordination mechanisms are needed⁶⁴ to increase the effectiveness of universal jurisdiction without creating tension between national and international prosecutorial fora. International Criminal Justice Coordination Council proposals propose an institutional structure that would divide jurisdictional competence and avoid duplicating prosecutions.
Regional organizations can play a better role in taking on more coordinating roles,⁶⁵ with the example of the European Union judicial cooperation models. A relevant example is the current effort of the African Union to develop the continental criminal law capabilities.
The already existing organizations, especially Interpol and Eurojust,⁶⁶ may expand their mandate to include information sharing and joint operational responses, which will help in the practical application of jurisdiction without undermining state sovereignty.
Legislative Harmonization Efforts
The differentiated nature of the regulatory regimes that apply to national universal jurisdiction adds inconsistency and the threat of competing interpretations. Therefore, legislative harmonization has become popular in recent academic discourse.⁶⁷ Among the possible reform paths is the publication of model statutes that would enable the implementation of similar frameworks without being insensitive to legal traditions that differ.
Another option for more uniformity is the negotiation of international treaties⁶⁸ that clarify expectations regarding the exercise of universal jurisdiction. The current mechanisms, like the Geneva Conventions and the Rome Statute, can be used as a point of reference to come up with new norms that can define the existence requirement, define the immunity doctrines, and institutionalize coordination mechanisms.
Moreover, the regional agreements⁶⁹ can serve as transitional tools, and states with similar legal systems and political principles can introduce common solutions. The Framework Decision on combating terrorism by the European Union provides a good example of this modality and can be used in a wider application in other areas.
Capacity Building and Technical Assistance
The ability of various states to pursue offenses under universal jurisdiction is still inadequate, reflecting the need to develop thorough capacity-building and technical-assistance programs.⁷⁰ International organizations and donor states can play a great role in the development of specialized training curriculum and institutional structures.
The complementarity system of the International Criminal Court⁷¹ offers an excellent case study on how to develop national capabilities that may be used in universal jurisdiction cases. Similar initiatives would develop the investigatory and legal skills that would be required to take such cases to court.
The cooperation between the regional training centers and universities, as well as the interaction between the academics and practitioners,⁷² would enhance both the theoretical study and practical skills needed in the process of the universal jurisdiction trials.
Conclusion
In the last quarter-century, universal jurisdiction has developed from a scholarly idea into a well-established legal principle, with increasingly comprehensive treaty regimes, codified state practice, and the progressive crystallization of customary international law. This development, although it has validated the theoretical validity of the doctrine, has also revealed the existence of ongoing practical limitations.
The extradition case of Pinochet continues to be a stimulus in this process. The decision of the UK House of Lords that the trial could be carried out despite the immunity of the defendant was the first case when modern international criminal law had gone beyond the boundaries of traditional sovereign immunity. The case therefore demonstrated the potential of the principle to attain transnational accountability. This precedent has been expanded upon and limited by subsequent jurisprudence, creating a complicated, unevenly applied regime.
The contemporary practice of states reveals the range of strategies that are predetermined by the legal tradition, political priorities, and institutional capacity. Even though some states have adopted the far-reaching universal jurisdiction claims, many others have backed off, particularly when confronted by diplomatic colleagues and the logistical challenges of trying a complex, transnational prosecution. This inconsistency undermines predictability and can destroy the deterrence effect of the doctrine.
The effectiveness in the future is conditional upon a number of complex challenges. First, international consensus on jurisdictional thresholds, waivers of immunity, and modes of
coordination needs to be more specific. Second, the state should be encouraged to engage in the prosecution of universal jurisdiction through capacity-building programs and technical assistance systems. Third, coordination systems should be improved to minimize conflict between national and extraterritorial proceedings, and at the same time, they should not create accountability gaps.
More importantly, political commitment is vital. The conflict between the rule of law and diplomatic restraint witnessed with Pinochet remains and requires not only new legal responses but also a long-term political determination.
New issues such as terrorism, corporate complicity, cyber warfare, and climate-related crimes present new challenges that will challenge the flexibility of universal jurisdiction. The survival of the doctrine will be determined by its ability to change and still maintain its core goal of accountability.
To conclude, universal jurisdiction is a long-standing accomplishment and a stillborn dream of international criminal law. Its transformation since Pinochet bears witness to the innovative power of the global legal order but it also bears witness to the continuing boundaries of sovereignty, and political realism. With transnational crimes on the rise, universal jurisdiction will remain, albeit imperfectly but inevitably, a means of ensuring that the most serious crimes are not permitted to pass unpunished.
The way ahead must be a combination of ambition and pragmatism. The last quarter-century indicates that the enduring potential of the doctrine is based on its ability to evolve in response to changing realities and still be guided by the initial principles of accountability and justice. The Pinochet case is both an example to be emulated and an example to be avoided; legal precedents are not a sufficient condition to create global justice, but it is crucial to consider that without them, justice remains impossible.
Reference(S):
¹ See generally CEDRIC RYNGAERT, JURISDICTION IN INTERNATIONAL LAW 104-27 (2d ed. 2015).
² Regina v. Bartle and the Commissioner of Police for the Metropolis and Others Ex Parte Pinochet, [2000] 1 A.C. 147 (H.L.) (appeal taken from Eng.).
³ NAOMI ROHT-ARRIAZA, THE PINOCHET EFFECT: TRANSNATIONAL JUSTICE IN THE AGE OF HUMAN RIGHTS 1-15 (2005).
⁴ Regina v. Bartle and the Commissioner of Police for the Metropolis and Others Ex Parte Pinochet, [2000] 1 A.C. 147, 201-02 (H.L.) (appeal taken from Eng.).
⁵ AMNESTY INT’L, UNIVERSAL JURISDICTION: THE DUTY OF STATES TO ENACT AND IMPLEMENT LEGISLATION 15-34 (2001).
⁶ The S.S. Lotus (Fr. v. Turk.), 1927 P.C.I.J. (ser. A) No. 10, at 70 (Sept. 7).
⁷ Id.
⁸ See generally GARY JONATHAN BASS, STAY THE HAND OF VENGEANCE: THE POLITICS OF WAR CRIMES TRIBUNALS 147-205 (2000).
⁹ Geneva Convention Relative to the Protection of Civilian Persons in Time of War art. 146, Aug. 12, 1949, 6 U.S.T. 3516, 75 U.N.T.S. 287.
¹⁰ Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment art. 5, Dec. 10, 1984, 1465 U.N.T.S. 85.
¹¹ See HUGH BOCHEL ET AL., THE PINOCHET CASE: A LEGAL AND CONSTITUTIONAL ANALYSIS 45-67 (2000).
¹² Regina v. Bartle and the Commissioner of Police for the Metropolis and Others Ex Parte Pinochet, [2000] 1 A.C. 147 (H.L.) (appeal taken from Eng.).
¹³ Id. at 204.
¹⁴ Id. at 201-04.
¹⁵ NAOMI ROHT-ARRIAZA, THE PINOCHET EFFECT: TRANSNATIONAL JUSTICE IN THE AGE OF HUMAN RIGHTS 67-89 (2005).
¹⁶ Rome Statute of the International Criminal Court art. 17, July 17, 1998, 2187 U.N.T.S. 90.
¹⁷ Arrest Warrant of 11 April 2000 (Dem. Rep. Congo v. Belg.), 2002 I.C.J. 3, 51 (Feb. 14).
¹⁸ Id. 61.
¹⁹ See Loi relative à la répression des violations graves de droit international humanitaire [Law on the Repression of Grave Breaches of International Humanitarian Law], June 16, 1993, MONITEUR BELGE [MB] [Official Gazette of Belgium], June 5, 1993.
²⁰ Loi modifiant la loi du 16 juin 1993 relative à la répression des violations graves de droit international humanitaire [Law Modifying the Law of June 16, 1993 on the Repression of Grave Breaches of International Humanitarian Law], Aug. 5, 2003, MONITEUR BELGE [MB] [Official Gazette of Belgium], Aug. 7, 2003.
²¹ See generally ALMUDENA BERNABEU, GLORIA ELGUETA & KATHERINE GALLAGHER, PROSECUTING PINOCHET: INTERNATIONAL CRIMES IN SPANISH DOMESTIC LAW 89-145 (2009).
²² Audiencia Nacional [AN] [National Court], Nov. 13, 2000, Fundación Rigoberta Menchú Tum v. Ríos Montt (Spain).
²³ Ley Orgánica 1/2009, de 3 de noviembre, complementaria de la Ley de reforma de la legislación procesal para la implantación de la nueva Oficina judicial, por la que se modifica la Ley Orgánica 6/1985, de 1 de julio, del Poder Judicial [Organic Law 1/2009], B.O.E. 2009, 266.
²⁴ Völkerstrafgesetzbuch [VStGB] [German Code of Crimes Against International Law], June 26, 2002, BUNDESGESETZBLATT, Teil I [BGBL I] at 2254.
²⁵ See WOLFGANG KALECK, DOUBLE STANDARDS: INTERNATIONAL CRIMINAL LAW AND THE WEST 178-203 (2015).
²⁶ Cour de Cassation [Cass.] [supreme court for judicial matters] crim., Nov. 6, 2008, Bull. crim. No. 225 (Fr.).
²⁷ See International Criminal Court Act 2001, c. 17, § 53 (Eng.).
²⁸ R. v. Mugesera, [2005] 2 S.C.R. 100, 2005 SCC 40 (Can.).
²⁹ See International Criminal Court Act 2002 (Cth) div. 268 (Austl.).
³⁰ Implementation of the Rome Statute of the International Criminal Court Act 27 of 2002 § 4 (S. Afr.).
³¹ See generally HUMAN RIGHTS WATCH, SEEKING JUSTICE: THE PROSECUTION OF SEXUAL VIOLENCE IN THE CONGO WAR 45-67 (2005).
³² International Crimes Act, No. 16 of 2008, KENYA GAZETTE SUPPLEMENT No. 30 (Kenya).
³³ See CENTRO DE ESTUDIOS LEGALES Y SOCIALES, HACER JUSTICIA: NUEVOS DEBATES SOBRE EL JUZGAMIENTO DE CRÍMENES DE LESA HUMANIDAD EN ARGENTINA 123-45 (2011).
³⁴ Corte Suprema de Justicia de la Nación [CSJN] [National Supreme Court of Justice], Aug. 24, 2004, “Arancibia Clavel, Enrique Lautaro s/ homicidio calificado y asociación ilícita y otros,” Fallos (2004-327-3312) (Arg.).
³⁵ See PRINCETON UNIVERSITY, THE PRINCETON PRINCIPLES ON UNIVERSAL JURISDICTION 28-34 (2001).
³⁶ Questions Relating to the Obligation to Prosecute or Extradite (Belg. v. Sen.), 2012 I.C.J. 422, 74 (July 20).
³⁷ See Antonio Cassese, Is the Bell Tolling for Universality? A Plea for a Sensible Notion of Universal Jurisdiction, 1 J. INT’L CRIM. JUST. 589, 595-98 (2003).
³⁸ See generally Dapo Akande, International Law Immunities and the International Criminal Court, 98 AM. J. INT’L L. 407 (2004).
³⁹ Jurisdictional Immunities of the State (Ger. v. It.: Greece intervening), 2012 I.C.J. 99, 139 (Feb. 3).
⁴⁰ See Arrest Warrant of 11 April 2000 (Dem. Rep. Congo v. Belg.), 2002 I.C.J. 3 (Feb. 14).
⁴¹ See Carsten Stahn, Complementarity: A Tale of Two Notions, 19 CRIM. L.F. 87 (2008).
⁴² See William W. Burke-White, Implementing a Policy of Positive Complementarity in the Rome System of Justice, 19 CRIM. L.F. 59 (2008).
⁴³ See generally JANN K. KLEFFNER, COMPLEMENTARITY IN THE ROME STATUTE AND NATIONAL CRIMINAL JURISDICTIONS 245-67 (2008).
⁴⁴ Rome Statute of the International Criminal Court art. 17, July 17, 1998, 2187 U.N.T.S. 90. ⁴⁵ See Kenneth C. Randall, Universal Jurisdiction Under International Law, 66 TEX. L. REV. 785 (1988).
⁴⁶ See STEPHEN MACEDO ET AL., UNIVERSAL JURISDICTION: NATIONAL COURTS AND THE PROSECUTION OF SERIOUS CRIMES UNDER INTERNATIONAL LAW 1-18 (2004).
⁴⁷ See International Law Association, Resolution No. 3/2000: Universal Criminal Jurisdiction with Regard to the Crime of Genocide, Crimes Against Humanity and War Crimes (2000). ⁴⁸ Id.
⁴⁹ See HUMAN RIGHTS WATCH, THE LONG ARM OF JUSTICE: LESSONS FROM SPECIALIZED WAR CRIMES UNITS IN FRANCE, GERMANY, AND THE NETHERLANDS 5-12 (2014).
⁵⁰ See Mark S. Ellis, The International Criminal Court and Its Implication for Domestic Law and National Capacity Building, 15 FLA. J. INT’L L. 215 (2002).
⁵¹ See Wolfgang Kaleck & Miriam Saage-Maaß, Corporate Accountability for Human Rights Violations Amounting to International Crimes, 8 J. INT’L CRIM. JUST. 699, 702-05 (2010).
⁵² See generally PAYAM AKHAVAN, BEYOND IMPUNITY: CAN INTERNATIONAL CRIMINAL JUSTICE PREVENT FUTURE ATROCITIES? 45-67 (2001).
⁵³ See HUMAN RIGHTS WATCH, THESE ARE THE CRIMES WE ARE FLEEING: JUSTICE FOR SYRIA IN SWEDISH AND GERMAN COURTS 1-15 (2017).
⁵⁴ See David Luban, A Theory of Crimes Against Humanity, 29 YALE J. INT’L L. 85, 118-22 (2004).
⁵⁵ See NICO SCHRIJVER & LARISSA VAN DEN HERIK, LEIDEN POLICY RECOMMENDATIONS ON COUNTER-TERRORISM AND INTERNATIONAL LAW 89-102 (2010).
⁵⁶ See ANDREA BIANCHI, ENFORCING INTERNATIONAL LAW NORMS AGAINST TERRORISM 456-78 (2004).
⁵⁷ United Nations Convention Against Transnational Organized Crime art. 15, Nov. 15, 2000, 2225 U.N.T.S. 209.
⁵⁸ See generally ANITA RAMASASTRY & ROBERT C. THOMPSON, COMMERCE, CRIME AND CONFLICT: LEGAL REMEDIES FOR PRIVATE SECTOR LIABILITY FOR GRAVE BREACHES OF INTERNATIONAL LAW 145-67 (2006).
⁵⁹ See Andrew Clapham, Extending International Criminal Law Beyond the Individual to Corporations and Armed Opposition Groups, 6 J. INT’L CRIM. JUST. 899 (2008).
⁶⁰ See Khulumani v. Barclays Nat’l Bank Ltd., 504 F.3d 254 (2d Cir. 2007).
⁶¹ See MICHAEL N. SCHMITT, TALLINN MANUAL 2.0 ON THE INTERNATIONAL LAW APPLICABLE TO CYBER OPERATIONS 567-89 (2017).
⁶² See SCOTT J. SHACKELFORD, MANAGING CYBER ATTACKS IN INTERNATIONAL LAW, BUSINESS, AND RELATIONS 234-56 (2014).
⁶³ See generally MARCO ROSCINI, CYBER OPERATIONS AND THE USE OF FORCE IN INTERNATIONAL LAW 178-203 (2014).
⁶⁴ See Máximo Langer, The Diplomacy of Universal Jurisdiction: The Political Branches and the Transnational Prosecution of International Crimes, 105 AM. J. INT’L L. 1, 48-52 (2011). ⁶⁵ See generally Charles Chernor Jalloh, The African Union, the African Court and Universal Jurisdiction, 21 CRIM. L.F. 441 (2010).
⁶⁶ See GISELLE BARCIA, JUDICIAL COOPERATION IN THE EUROPEAN UNION: EUROJUST AND THE EUROPEAN JUDICIAL NETWORK 145-67 (2010). ⁶⁷ See REDRESS, UNIVERSAL JURISDICTION IN EUROPE: THE STATE OF THE ART 78-92 (2007).
⁶⁸ See Lyal S. Sunga, The Emerging System of International Criminal Law: Developments in Codification and Implementation, 234-56 (1997).
⁶⁹ Council Framework Decision 2002/475/JHA of 13 June 2002 on combating terrorism, 2002 O.J. (L 164) 3.
⁷⁰ See HUMAN RIGHTS WATCH, UNIVERSAL JURISDICTION IN EUROPE: THE STATE OF THE ART 89-105 (2006).
⁷¹ See OFFICE OF THE PROSECUTOR, INT’L CRIM. CT., PAPER ON SOME POLICY ISSUES BEFORE THE OFFICE OF THE PROSECUTOR 5-7 (2003).
⁷² See WILLIAM A. SCHABAS, AN INTRODUCTION TO THE INTERNATIONAL CRIMINAL COURT 456-78 (5th ed. 2017).
