Rapid changes in the world call for universal jurisdiction. With the accelerating pace of economic globalization, the emergence of many global public problems, that no single country is capable of solving alone, requires close international cooperation across borders.

In addition to economic globalization, the world also faces challenges that require an appropriate method to solve. The increasing prevalence of international terrorism in the 21st century has further highlighted the urgency of the practice of universal jurisdiction. Some extremist organizations and their affiliated groups continue to pose a significant and evolving threat worldwide. For example, in 2015, a suicide bomber attack was organized in four Shia mosques in Sanaa, killing 140 and wounding more than 350. Later, Islamic State of Iraq and the Levant claimed responsibility for that attack. In the economic sphere, another problem: illegal, unreported, and unregulated fishing (IUU) is a huge threat to global ocean safety. According to a report of the United Nations’ Food and Agriculture Organization, IUU activity causes the loss of twenty-six million tons of seafood worth up to $23 billion annually. This largely affects the tangible benefits of the fishing population, which represents 12% of the global population.2 Solving these types of problems by promoting the concept of universal jurisdiction, both to combat serious criminal crimes and to combat serious economic damage behaviors, is an important and serious topic facing society today.

II. The Problem We Are Facing

Some parties are very resistant to the International Criminal Court (ICC) as well as universal jurisdiction. After studying cases and doing research, I think there are two main reasons that cause this resistance.

Politics is the first concern of many parties. This conflict is most evident when an external tribunal seeks to hold the head of state, or other high-ranking official, accountable for international crimes. In such cases, there is a loss of sovereignty when a country’s citizens are placed under the criminal jurisdiction of someone else. Take the African Union (AU) as an example. When a Spanish investigative judge issued arrest warrants for current or former Rwandan officials, such arrest warrants was regard as part of “legal campaign” against the AU. In July 2008, the AU Assembly declared that:

[T]he political nature and abuse of the principle of universal jurisdiction by judges from some non-African States against African leaders, particularly Rwanda, is a clear violation of the sovereignty and territorial integrity of these States.3

Besides, the AU has called for the mass withdrawal of member states from the ICC. However, the resolution is non-binding, with Nigeria and Senegal opposing a withdrawal.4 South Africa and Burundi have already decided to withdraw, accusing the ICC of undermining their sovereignty and unfairly targeting Africans.

Practicalities form the second concern. Since World War II, many states have incorporated universal jurisdiction into their domestic legal frameworks in order to prevent the recurrence of horrific atrocities. Among them, Spain and Belgium are considered to be at the forefront of the expansion of universal jurisdiction.5 After the restriction of the application of universal jurisdiction in Belgium in 2003, Spain became the country with “the most liberal universal jurisdiction statute in the world” and “exercised universal jurisdiction more extensively than any other country,”6 taking up a large number of cases involving alleged serious international crimes. However, it was also the overly broad and general nature of Spain’s early legislation on universal jurisdiction that led to many serious problems in its judicial practice and repeated controversies. In 1998, the United Kingdom temporarily detained Augusto José Ramón Pinochet Ugarte, a former Chilean president and lifelong senator. The arrest warrant was issued in response to a request for extradition from Spain, which caused a global outcry. The Spanish High Court of Justice was suddenly transformed from a “nobody” to the center of the world’s attention.7 Some scholars have pointed out that, with the increasing number of universal jurisdiction cases in Spain, opposition to such proceedings and political pressure have increased.8 For example, the governments of the United States, Rwanda, and Israel all have protested the relevant decisions of the Spanish courts; some scholars have argued that Spanish legislation and practice have proven that absolute universal jurisdiction is not politically viable; and others have discussed the disadvantages of universal jurisdiction in Spain in terms of judicial inefficiency, the paucity of practical results, and the negative diplomatic, economic, and political implications. The disadvantages of universal jurisdiction in Spain have been described in terms of inefficient justice, few practical results, and negative diplomatic, economic, and political implications.9

China is another country concerned by the practicalities of universal jurisdiction. There is an important principle against presumption in Chinese criminal law, which means that “No crime without law making it so; no penalty without law making it so.” Many of the crimes in the international conventions to which China is a party are not regulated, or not regulated in the same way in Chinese criminal law, which leads to the inevitable conflict with the principle of prohibition of presumption when applying the principle of universal jurisdiction. If there is a presumption of crimes, there would be a presumption of specific penalties. This is in conflict with the principle of “no crime without law” in Article 3 of Chinese criminal law. For example, crimes against humanity in the sense of the Rome Statute are punishable as homicide or other crimes against public security in China, and the general elements of crimes against humanity require “widespread or systematic attack directed against any civilian population”10 whereas the crimes of intentional homicide and dangerous methods in Chinese criminal law subdivision would be punishable as crimes against humanity under the Rome Statute. Neither intentional homicide nor crimes against public safety by dangerous means can cover such elements of crimes against humanity in the Rome Statute. Besides, although China has acceded to many international conventions, these international conventions all have one common feature: namely, they do not provide for the issue of penalties. If a crime’s penalty is neither regulated in international conventions nor in Chinese criminal law, there will be a presumption of penalty which is against an important principle of Chinese criminal law. This makes it impossible to carry out conviction and sentencing. From this point of view, it can be said that China has not yet solved the problem of application of the principle of universal jurisdiction.

III. To Solve the Problem

As we all know, when something is vague and unfamiliar, it is less likely to be accepted. But when it becomes clearer, people’s resistance and fear of it will reduce. Universal jurisdiction is a powerful weapon to fight against crime, but it is so powerful that many countries will be afraid that it will infringe upon their national sovereignty.

To solve this problem, the ICC should send experts with legislative experience to countries who have no regulations about universal jurisdiction to help them draft relevant regulations. By being in the local environment, experts will be better able to understand the local people and communicate with the local government to produce effective results. With their expertise and experience, clear and well-defined laws are likely to be drafted and adopted.

A. Defining the Concept of Universal Jurisdiction

Although universal jurisdiction has been discussed frequently in recent years due to an increase in its use, at the legal level, the existing international conventions do not provide a clear definition of universal jurisdiction, and the provisions and application of universal jurisdiction in the domestic legislation and judicial practice of each country are also different.

There must be a clear definition of universal jurisdiction in regulation. It is generally accepted that there is a distinction between universal jurisdiction in a broad sense and in a narrow sense. Universal jurisdiction in the broad sense, also known as absolute universal jurisdiction, refers to criminal jurisdiction that applies solely based on the nature of the crime, without regard to whether there is any other connection between the place of commission of the crime, the nationality of the perpetrator or the victim(s), or the State exercising jurisdiction. Universal jurisdiction in the narrow sense, also known as limited universal jurisdiction, means that the exercise of universal jurisdiction is subject to factors other than the nature of the crime, such as the requirement that the State exercising universal jurisdiction obtain physical control over the perpetrator of the crime. It was noted in the Seventeenth Commission of Justitia et Pace Institute of International Law that “the competence of a State to prosecute alleged offenders and to punish them if convicted, irrespective of the place of commission of the crime and regardless of any link of active or passive nationality, or other grounds of jurisdiction recognized by international law,” but it also suggests that the exercise of universal jurisdiction required the State to acquire physical control over the perpetrator and emphasized the primacy of the jurisdiction of the State where the crime was committed and the State of the nationality of the perpetrator.11

If the ICC can send experts to countries who are willing to draft regulations about universal jurisdiction, those experts can help countries choose what approach to universal jurisdiction is suitable for them. Surely, the absolute universal jurisdiction in a broad sense is more comprehensive and effective, but it may not be acceptable to all countries. If some countries can accept universal jurisdiction in a narrow sense, it is clearly better than no universal jurisdiction at all. By negotiating with local governments, experts from the ICC can help them discover a suitable solution to this problem.

B. Defining Crimes That Can Apply to Universal Jurisdiction

Generally, universal jurisdiction may be exercised over international crimes, identified by international law as falling within that jurisdiction, in matters such as genocide, crimes against humanity, war crimes, and crime of aggression. The Rome Statute specifies four crimes that are within the jurisdiction of the ICC, and those crimes have generally been recognized as crimes of general concern to the entire international community. There is still a question whether states can accept all the definitions of crimes in the Rome Statute. Experts from the ICC can help draft local regulations on the basis of the Rome Statute while communicating and consulting with local government and the public on relevant problems.

C. Defining Preconditions of Applying Universal Jurisdiction

The first precondition of applying universal jurisdiction should be subsidiarity, which means that a case should be investigated or prosecuted by a State which has jurisdiction over it, unless the State is genuinely unwilling or unable to carry out the investigation or prosecution. Because universal jurisdiction is a complementary jurisdiction, it means that (1) the jurisdiction of the international court takes precedence. Once an international court decides to intervene in a case, the State should transfer the case to that court; (2) the jurisdiction of the State where the crime was committed or the State of nationality of the perpetrator takes precedence. Thus, when States initiate universal jurisdiction, they do so only if the State where the crime was committed or the State of nationality of the crime or even the State of nationality of the victim is not able or willing to exercise “primary” jurisdiction.

Once the relevant state has intervened or is prepared to intervene in the exercise of jurisdiction, universal jurisdiction cannot be triggered. For example, in a decision in 2000, the Spanish National High Criminal Court found that it should not have intervened in the Guatemala case to exercise universal jurisdiction because there were indications that Guatemala was about to launch an investigation into the crimes in question. The Spanish Constitutional Court, in the Guatemala case in 2005, even more explicitly ruled that the jurisdiction of the International Court of Justice, and the court located where the crime was committed, took precedence over Spain’s exercise of universal jurisdiction. However, the Spanish courts may exercise jurisdiction if the parties can show that the place where the crime was committed is unable or unwilling to exercise jurisdiction.12

The second precondition of applying universal jurisdiction should be “presence.” Universal jurisdiction can only be exercised by a State when the suspect is present, or likely to be present, in the State. This precondition can extend to situations where the suspect is anticipated to be present. The reason for this extended application is that, in many cases, it often takes time from the formal initiation of the charging process to the issuance of an arrest warrant against a suspect. If the suspect is only in transit, or in the country for a short period of time, it is often difficult to complete effective proceedings in a given period of time until he or she enters the country to start criminal proceedings. Before the warrant is issued, the suspect may have already been tipped off and fled from the country, thus rendering the entire previously initiated procedure ineffective. It is precisely to prevent this that it is possible to pre-activate the procedure by determining the imminent entry of a suspect based on an itinerary, or on other information obtained in advance, and to make an arrest on the basis of a warrant issued once entry has been made, and then to proceed to formal criminal charges.

The third precondition of applying universal jurisdiction should be “minimum link.” After the restrictions imposed by Belgium and Spain on the mechanisms and conditions for the exercise of their universal jurisdiction, most Western European States no longer exercise universal jurisdiction in the “absolute” way. In contrast, in most cases, the activation of a national universal jurisdiction mechanism is required only when there is some element of connection or a direct link to the case in question.

IV. Promoting Universal Jurisdiction Cautiously

Unlike other principles, the purpose of a state exercising criminal jurisdiction over a crime in accordance with the principle of universal jurisdiction is not to protect the interests of the state or its citizens, but rather to protect the common interests of the international community. In order to effectively combat international crimes, the principle of universal jurisdiction authorizes a state to prosecute and try suspects of an international crime under its criminal law when the suspects are present in its territory, regardless of whether the crimes committed have a link to the state. If the state decides not to exercise criminal jurisdiction, it is obliged to extradite the suspects to any other state that has jurisdiction over them, and not to let them go unpunished. Universal jurisdiction is such a powerful weapon that we should use it cautiously. Since 2009, the Sixth Committee of the U.N. General Assembly has been organizing discussions among states on the scope and application of the principle of universal jurisdiction. However, after many years of discussion, States still cannot agree on the concept of universal jurisdiction, the conditions for its application, and the crimes to which it applies.

When selecting countries to promote universal jurisdiction, one thing that must be considered is a country’s level of economic development. For some developed countries, defending human rights and upholding justice may be one of their most important goals. However, developing countries may focus on other priorities. They may be more concerned about abusing universal jurisdiction. There is an old saying in China—“达则兼济天下，穷则独善其身”—which says that if someone is wealthy, he should go out and help everyone else in world, but if someone is poor, he should focus on his own situation and try to help himself. Some African countries are too busy dealing with the basic problems of survival—war, disease, and hunger—to care about the exercise of universal jurisdiction.

The principle of universal jurisdiction is not intended to create an obligation for a small number of countries that have greater capacity to have greater responsibility, but, rather, to give states the right to exercise jurisdiction over serious international crimes. In a situation where it is difficult to investigate and obtain evidence, or even where there is a lack of physical control over the perpetrators, the unrestricted exercise of universal jurisdiction in the name of justice has the possibility of creating unrealistic hope and fostering an illusion of justice, rather than actually ending impunity. Without caution in its exercise, universal jurisdiction could be reduced to a declaration, slogan, or a political tool.

Endnotes — (click the footnote reference number, or ↩ symbol, to return to location in text).

1. 1.

   Stephen Macedo ed., The Princeton Principles on Universal Jurisdiction, Principle 1 (May 2001), available online. ↩

2. 2.

   Joseph Christensen, Illegal, Unreported and Unregulated Fishing in Historical Perspective, in Perspectives on Oceans Past (Kathleen Schwerdtner Máñez & Bo Poulsen eds., May 2016), paywall, doi. ↩

3. 3.

   Karinne Coombes, Universal Jurisdiction: A Means to End Impunity or A Threat to Friendly International Relations, 43 The Geo. Wash. Int’l L. Rev. 419, 442 (2012), available online. ↩

4. 4.

   African Union Backs Mass Withdrawal From ICC, BBC News, Feb. 1, 2017, available online. ↩

5. 5.

   Morten Bergsmo, Complementarity and the Exercise of Universal Jurisdiction for Core International Crimes (2010), available online. ↩

6. 6.

   Zachary Mills, Does the World Need Knights Errant to Combat Enemies of All Mankind? Universal Jurisdiction, Connecting Links, and Civil Liability, 66 Wash. & Lee L. Rev. 1315 (2009), available online. ↩

7. 7.

   Wolfgang Kaleck, From Pinochet to Rumsfeld: Universal Jurisdiction in Europe 1998–2008, 30 Mich. J. Int’l L. 927 (2009), available online. ↩

8. 8.

   Claudia Jiménez Cortés, ICIP, Combating Impunity for International Crimes in Spain: From the Prosecution of Pinochet to the Indictment of Garzón (May 1, 2011), available online, doi. ↩

9. 9.

   Ignacio de la Rasilla del Moral, The Swan Song of Universal Jurisdiction in Spain, 9 Int’l Crim. L. Rev. 777, 808 (Jul. 15, 2009), available online, doi. ↩

10. 10.

    Rome Statute of the International Criminal Court, Adopted by the United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court, Jul. 17, 1998, U.N. Doc. A/CONF.183/9 [hereinafter Rome Statute], Art. 7, available online. ↩

11. 11.

    Institute of International Law, Resolution on Universal Criminal Jurisdiction With Regard to the Crime of Genocide, Crimes Against Humanity and War Crimes (Aug. 26, 2005), available online. ↩

12. 12.

    Nehal Bhuta, Arthur Helton Fellow & Jrgen Schurr, HRW, Universal Jurisdiction in Europe: The State of the Art (Jun. 27, 2006), available online. ↩