Application of universal jurisdiction for war crimes in national legislations of states: comparative analysis

The present article is dedicated to the meaning, nature and scope of the universal jurisdiction over war crimes as well as the use of universal jurisdiction in the practice of various states. The universal jurisdiction on war crimes can be considered as one of the cornerstones of the current international law areas, particularly international criminal law and international humanitarian law. In this regard, not only international courts, but also national judiciary applies the concept of universal jurisdiction while overviewing the criminal cases of world-wide importance. The article deals with war crimes and the application of universal jurisdiction, which pose a serious threat to international peace and security. First of all, the essence of universal jurisdiction, the disagreement over its application and, consequently, its importance are touched upon. It has become the responsibility of states to prosecute or to extradite those convicted of war crimes, crimes against humanity, aggression and genocide, regardless of their nationality or home country. Of course, the goal here is to ensure that those convicted of international crimes that are dangerous to humanity go unpunished with no exception. There are many case examples from the national jurisdiction of different states and the article refers to specific court judgements in this regard. Finally, the author considers recommendations regarding the establishment of national legislation what allows more efficient application of universal jurisdiction in connection with war crimes.

ON THE ISSUE OF ORGANIZATION OF MILITARY CRIMES INVESTIGATION

The normative legal acts of Ukraine and the member states of Europol and Eurojust are analyzed, which are part of joint investigation groups within the European Union in the organization of the investigation of military crimes. The authors have pointed out that the customary international law requires the states to exercise their jurisdiction and provides an opportunity to exercise the universal jurisdiction regarding the military crimes, which are not serious violations. The authors determine that the universal jurisdiction may be provided by the norm of international customary or treaty law. Universal jurisdiction can be exercised either by the adoption of internal legislative acts (legislative universal jurisdiction), or in the form of investigation of persons, who are suspected of committing offenses and their transfer to the court (lawful universal jurisdiction). The grounds for the exercise of universal jurisdiction regarding the military crimes are present in both international treaty and customary law. The authors suggest forming a single concept for the investigation of the military crimes that have been committed in the conditions of armed conflict and the criminal prosecution of perpetrators. Namely, this concept, according to the authors, is defined as one that has important scientific and practical significance, a comprehensive, interdisciplinary holistic theoretical system regarding the activity in special conditions, which in general brings together a set of theoretical provisions on specific patterns in the sphere of legal support, organization of investigation and collection of evidentiary information on military crimes, search, detention and transfer of officials, who are involved in committing military crimes, carrying out the international legal proceedings regarding the perpetrators. Such concept will allow uniting scientific provisions on the activities of criminal justice bodies in the condition of the armed conflict into a single system, which, in turn, contributes to the identification of unexplored issues and the systematic solution of relevant problems. It is important for investigative and judicial practice, because it equips the criminal justice authorities with scientifically sound recommendations regarding the organization of the investigation of military crimes, as well as the methods of their conduction.

Treaty-Based Regulation and Evidence-Extradition Agreements as Critical Tools in the Fight against International Criminal Wrongdoing

Draft Article 7 of the UN Draft Convention regarding Crimes Against Humanity provides the terra firma for States to establish and exercise a range of jurisdictional bases, including universal jurisdiction, to be reinforced by State-to-State agreements regarding evidence-extradition for the benefit of downstream truth and justice seeking projects. Legal analysis demonstrates there persists an insistence on treaty regulation and clearly particularised laws at local and international levels to successfully pursue international criminal accountability. Draft Article 7 will give credence to universal jurisdiction, complement the International Criminal Court’s workings and counter its temporal limitations, and negate politically-motivated invocation of the doctrine. A case study involving Australian extradition proceedings highlights how evidence can be obtained efficiently on the basis of a pre-existing bilateral agreement between culturally distinct States. Formal arrangements regarding evidence-exchange will espouse a greater willingness by States to cooperate across borders and will strengthen universality by taking some of the guess-work out of its exercise.

6. Sovereignty and jurisdiction

This chapter briefly looks at the nature of sovereignty and its parameters in international law, but essentially focuses on the function and nature of jurisdiction. It first examines the breadth of the space in which sovereignty is exercised; namely, land, sea, and air. Thereafter, it assesses territorial jurisdiction (in both its objective and subjective dimensions) and examines the practice of the four extraterritorial principles of jurisdiction; namely, nationality-based, the protective principle, passive personality, and universal jurisdiction. The chapter then considers instances where national courts refuse to exercise their ordinary jurisdiction, namely, instances where the accused is covered by the privilege of immunity or because his or her arrest was illegal. Finally, it looks at the US practice of extraterritorial jurisdiction, whereby sometimes the sovereignty of other nations has been breached.

Will Universal Jurisdiction Advance Accountability for Sexualized and Gender-based Crimes? A View from Within on Progress and Challenges in Germany

This Article is based on the professional experiences of the authors working as lawyers and activists towards accountability for sexualized and gender-based crimes under international law. It provides a critical evaluation of universal jurisdiction cases in Germany addressing conflict-related sexualized violence. In particular, the article looks deeper into the Office of the German Federal Prosecutor General of the Federal Court of Justice’s (GBA) approach to gender while taking note of the barriers in the way of investigating and adjudicating crimes under international law. Both authors have been following universal jurisdiction developments in Germany closely, particularly in relation to the investigation and prosecution of sexual and gender-based crimes. With regard to the proceedings against two high-rank representatives of the armed rebel group Forces Démocratiques de liberation du Rwanda (FDLR), the findings in this article are informed by trial monitoring reports organized and conducted by a group of organisations and institutions, namely Medica Mondiale, the European Center for Constitutional and Human Rights (ECCHR), and the Hamburger Institut für Sozialforschung. In light of the fact that German trial records are absent of publicly accessible records of what was said in the court room, the consortium of groups co-monitored the FLDR trial.

United Kingdom Policy Towards Universal Jurisdiction Since the Post-War Period

From the 17th century onwards, Britain played a leading role in asserting the application of the universality principle to international piracy, the first crime to which the principle applied. Thereafter, during the quest for abolition, it exercised universality over slave traders at sea. With the exercise of universal jurisdiction over atrocity crimes in the post-War period there was a notable shift in the UK position to the principle. This article traces the history of UK policy towards the application of the universality principle to atrocity crimes since wwii. Using archival research from the UK National Archives and the travaux préparatoires to international treaties, it analyses UK policy towards the inclusion of universal jurisdiction in international treaties concerning atrocity crimes. It argues that historically, the UK supported the application of the principle to atrocity crimes committed during an international armed conflict, as this position supported its interests. The nexus between universal jurisdiction and international armed conflict shielded colonial abuses from prosecution in foreign courts. Once the colonial period had come to an end, there was a shift in UK support for the inclusion of universal jurisdiction in international treaties, which is evident since the negotiation of uncat and the Rome Statute.