Author: Poornesha Palanivelan, Government Law College, Tiruchirappalli
I. TO THE POINT
Crimes against humanity represent some of the gravest violations of international law, offending not merely individual victims or sovereign states but humanity as a whole. These crimes—characterised by their widespread or systematic nature and directed against civilian populations—strike at the foundational values of human dignity, equality, and the rule of law. Unlike ordinary transnational crimes, crimes against humanity are distinguished by their scale, intent, and moral reprehensibility, warranting a collective international response.
The doctrine of universal jurisdiction seeks to address such crimes by empowering national courts to prosecute perpetrators irrespective of territorial connection, nationality of the accused, or nationality of the victims. The rationale underpinning this doctrine lies in the recognition that certain crimes are so egregious that they affect the international community as a whole, thereby justifying the exercise of jurisdiction by any state. Universal jurisdiction thus operates as an exception to the classical principles of territoriality and nationality that traditionally govern criminal jurisdiction in international law.
In recent years, the renewed invocation of universal jurisdiction by domestic courts—particularly in Europe—has reinvigorated debates surrounding accountability, sovereignty, and the limits of international criminal justice. States such as Germany, France, and Spain have initiated prosecutions against foreign nationals for crimes committed entirely outside their territories, often in contexts where the territorial state is either unwilling or unable to prosecute. These developments have gained prominence against the backdrop of limitations faced by international criminal tribunals, including jurisdictional constraints, political deadlock, and enforcement deficits.
At the same time, the expansion of universal jurisdiction has raised complex legal and political questions. Critics argue that its exercise may encroach upon state sovereignty, undermine diplomatic relations, or be selectively applied against politically vulnerable actors. Supporters, however, contend that universal jurisdiction is indispensable in closing accountability gaps and preventing impunity for perpetrators of mass atrocities. The tension between these competing perspectives lies at the heart of contemporary international criminal jurisprudence.
This article examines the legal foundations of universal jurisdiction over crimes against humanity and analyses recent international prosecutions to extract lessons on its legitimacy, effectiveness, and future trajectory. By situating recent judicial practice within established principles of international law, the article seeks to assess whether universal jurisdiction can function as a credible and principled mechanism of global justice or whether it risks fragmenting the international legal order through inconsistent application.
II. USE OF LEGAL JARGON
The discourse surrounding universal jurisdiction is deeply embedded in principles of international criminal law and public international law. This article employs legal constructs such as jus cogens norms, erga omnes obligations, hostis humani generis, aut dedere aut judicare, individual criminal responsibility, command responsibility, customary international law, non-derogable rights, and complementarity. These concepts form the normative backbone of the legal justification for prosecuting crimes against humanity beyond traditional jurisdictional limits.
The classification of crimes against humanity as violations of jus cogens norms underscores their peremptory status in international law, from which no derogation is permitted. Correspondingly, the existence of obligations erga omnes implies that all states possess a legal interest in the prevention and punishment of such crimes. The characterization of perpetrators as hostis humani generis—enemies of all mankind—further reinforces the permissibility of universal jurisdiction by severing the nexus between crime and territorial sovereignty.
The principle of aut dedere aut judicare—the obligation to either extradite or prosecute—illustrates the procedural dimension of universal jurisdiction, ensuring that alleged perpetrators are not granted safe haven. Additionally, doctrines such as individual criminal responsibility and command responsibility dismantle the shield of state authority, enabling accountability for both direct perpetrators and those in positions of superior authority who knowingly permit or fail to prevent international crimes.
This article also evaluates the role of customary international law in crystallising universal jurisdiction, particularly in the absence of a comprehensive treaty mandating its exercise for crimes against humanity. The interaction between domestic implementing legislation and international norms is examined through the lens of complementarity, a principle that prioritises national prosecutions while recognising international mechanisms as forums of last resort.
Finally, the analysis addresses the tension between the sovereign equality of states under Article 2(1) of the UN Charter and the permissibility of extraterritorial jurisdiction for international crimes. While sovereignty remains a cornerstone of international law, its absolute character has been progressively curtailed where grave violations of human rights and humanitarian law are concerned. Universal jurisdiction thus reflects an evolving balance between respect for state sovereignty and the imperatives of international justice.
III. THE PROOF
The legal justification for exercising universal jurisdiction over crimes against humanity rests on the exceptional gravity of these offences and their recognition as violations of jus cogens norms. Crimes against humanity are universally condemned and attract obligations erga omnes, meaning every state has a legal interest in their suppression. Unlike ordinary crimes governed by territorial or nationality-based jurisdiction, these crimes are considered so heinous that no safe haven must exist for perpetrators.
Although the Rome Statute of the International Criminal Court does not explicitly mandate universal jurisdiction, it reinforces the principle of complementarity, encouraging domestic courts to prosecute international crimes where possible. In parallel, customary international law has evolved to permit—if not require—states to prosecute crimes against humanity when the territorial state is unwilling or unable to do so.
Recent prosecutions in national courts demonstrate the practical operation of universal jurisdiction. Germany’s prosecution of Syrian officials under its domestic international crimes statute illustrates how universal jurisdiction can function as a mechanism of last resort. These proceedings underscore the evidentiary and procedural complexities involved, including reliance on refugee testimony, documentation by international organizations, and cross-border cooperation. At the same time, they reveal the risk of selective enforcement and diplomatic backlash, highlighting the need for principled and restrained application.
IV. ABSTRACT
Universal jurisdiction has emerged as a critical instrument in the global architecture of accountability for crimes against humanity. As international tribunals face jurisdictional, political, and logistical constraints, domestic courts have increasingly assumed responsibility for prosecuting perpetrators of mass atrocities. This article analyses the doctrinal foundations of universal jurisdiction, its compatibility with state sovereignty, and its contemporary application through recent international prosecutions. By examining judicial practice and legal principles, the article evaluates whether universal jurisdiction effectively combats impunity or risks undermining the coherence of international criminal law. It argues that while universal jurisdiction remains indispensable, its legitimacy depends on consistent application, procedural safeguards, and international cooperation.
V. CASE LAWS
1. Attorney General of Israel v. Adolf Eichmann (1961–1962)
The Israeli Supreme Court upheld the prosecution of Adolf Eichmann for crimes against humanity committed during the Holocaust, affirming that such crimes justify universal jurisdiction due to their nature as offences against the law of nations. The Court reasoned that the absence of territorial or nationality nexus does not bar jurisdiction where crimes shock the conscience of mankind.
2. Prosecutor v. Furundžija (ICTY, 1998)
The International Criminal Tribunal for the former Yugoslavia recognized that violations such as torture and crimes against humanity attract universal jurisdiction due to their jus cogens character. The judgment reinforced the obligation of states to prosecute or extradite perpetrators of international crimes.
3. Belgium v. Sharon and Others (2003)
Belgium’s expansive universal jurisdiction statute allowed complaints against foreign officials for crimes against humanity. Although later amended due to political pressure, the case illustrates both the potential reach and political sensitivity of universal jurisdiction.
4. Germany v. Anwar Raslan (Higher Regional Court of Koblenz, 2022)
In a landmark decision, a German court convicted a former Syrian intelligence officer for crimes against humanity committed in Syria. Exercising universal jurisdiction under domestic law, the court relied on survivor testimony and international documentation, marking the first conviction globally for Syrian state-sponsored torture.
5. Arrest Warrant Case (Democratic Republic of Congo v. Belgium, ICJ, 2002)
While recognizing limits related to immunities of incumbent officials, the International Court of Justice did not reject universal jurisdiction per se, leaving open its applicability subject to international law constraints.
VI. CONCLUSION
Universal jurisdiction has become an indispensable mechanism in addressing crimes against humanity in an era where territorial states often fail to prosecute perpetrators of mass atrocities. Where domestic legal systems collapse, are compromised, or deliberately shield offenders, the invocation of universal jurisdiction ensures that accountability is not rendered illusory. Recent international prosecutions demonstrate that domestic courts can meaningfully contribute to global accountability by operationalising international criminal norms within municipal legal frameworks, thereby reinforcing the normative force and moral authority of international criminal law.
However, the exercise of universal jurisdiction must remain exceptional, principled, and procedurally robust. Its legitimacy depends on adherence to due process guarantees, judicial independence, and evidentiary rigour. Unrestrained or politically motivated assertions of jurisdiction risk undermining the credibility of international criminal justice and provoking diplomatic friction. Accordingly, safeguards against politicisation, respect for functional and personal immunities recognised under international law, and consistency in prosecutorial standards are essential to prevent abuse.
Enhanced international cooperation is equally critical. Mutual legal assistance, evidence-sharing mechanisms, and coordination with international organisations strengthen the effectiveness of universal jurisdiction proceedings. When integrated within a cooperative international legal order, universal jurisdiction complements rather than supplants international courts and territorial jurisdictions. When applied judiciously, universal jurisdiction serves not as an affront to sovereignty but as a reaffirmation of humanity’s collective commitment to justice, dignity, and the prevention of future atrocities.
VII. FAQS
1. What are crimes against humanity under international law?
Crimes against humanity consist of widespread or systematic acts such as murder, torture, enslavement, deportation, enforced disappearance, and persecution committed against civilian populations. These acts are prohibited regardless of whether they occur during armed conflict and constitute violations of peremptory norms of international law.
2. What is the principle of universal jurisdiction?
Universal jurisdiction allows states to prosecute certain grave international crimes irrespective of where they were committed or the nationality of the accused or victims. It is premised on the notion that some crimes harm the international community as a whole and therefore justify jurisdiction by any state.
3. Is universal jurisdiction mandatory under international law?
While not uniformly mandatory, universal jurisdiction is widely recognised under customary international law for crimes against humanity, genocide, war crimes, and torture. Certain treaties impose an obligation to prosecute or extradite, reinforcing the permissibility of universal jurisdiction.
4. How does universal jurisdiction differ from ICC jurisdiction?
The ICC’s jurisdiction is limited by state consent, territorial nexus, and the principle of complementarity, whereas universal jurisdiction is exercised directly by national courts under domestic legislation without requiring a direct link to the forum state.
5. What are the key challenges in exercising universal jurisdiction?
Challenges include evidentiary hurdles, political resistance, diplomatic tensions, issues of immunity of state officials, resource constraints, and the risk of selective or politicised prosecutions. Addressing these challenges is crucial to ensuring the fair and effective application of universal jurisdiction.
