By Allison Hastings-Wottowa
Universal jurisdiction (UJ) is the practice in which a state’s domestic courts can try an individual for crimes committed beyond that state’s traditional jurisdiction. The concept applies in limited cases of serious international law violations considered to be affronts to the international community and humanity as whole, including genocide, crimes against humanity, and war crimes. It is an incredibly important innovation in international law, as it allows states to hold criminals accountable for the most egregious crimes when other mechanisms, such as the International Criminal Court, are not available.
The idea of UJ was first codified in the 1949 Geneva Conventions, which stated that no matter an individual’s nationality, one could be tried or extradited for “grave breaches” of the international laws of war. It is because of this particular provision that Adolf Eichmann was able to be tried in one of the most famous prosecutions of a former Nazi. Similar versions of UJ have been enumerated and put into force in the 1973 Apartheid Convention and in the 1984 Torture Convention.
Today, UJ is largely used throughout the European Union and has been successful in bringing a number of former ISIS fighters to justice. For example, in November of 2021, a German court convicted an Iraqi national for acts of genocide and crimes against humanity that targeted the Yazidis. It was the first case in which a former ISIS member has been convicted of genocide, which could not have occurred without the principle of UJ. Although the defendant is not a German national and did not commit his crimes on German soil, he faced justice, and the Yazidi victims of ISIS’ genocide were globally recognized. There are many more examples of successful UJ cases that have brought perpetrators of the most horrific crimes to justice and simultaneously acknowledged the harm victims have suffered. Clearly, UJ is a valuable international justice mechanism, but can it hold Russia accountable?
Currently, there are two primary ways in which international legal institutions can hold states and individuals accountable for international crimes. The first is the International Court of Justice. This is a potential avenue for accountability, but only in certain cases. The ICJ functions as an arbiter of state-to-state disputes—meaning that non-state actors and individuals cannot be brought before the Court. Therefore, the ICJ is only relevant in cases where injured individuals have a government that is able and willing to put forth a case. For example, a case is currently underway after Ukraine instituted proceedings against Russia, charging the Russian government with violating the Genocide Convention. This alone is extremely positive, especially considering that several other nations have joined the suit in support of Ukraine. However, due to the anarchic nature of the international system, there is little the ICJ can do to actually hold the state of Russia accountable for its crimes in Ukraine. The ICJ is also an insufficient institution when it comes to holding states accountable for crimes that were committed alongside allies. In the case of Syria, for example, the Syrian people have suffered greatly at the hands of the Russian Federation, but due to the fact that the Assad regime is allied with Putin, the Syrian government would never pursue a case against Russia on behalf of its people. Thus, there is little the ICJ can do.
The International Criminal Court is another supposed avenue for seeking accountability for rogue states, as it allows the international community to try individuals responsible for perpetrating crimes against peace. Unfortunately, due to the nature of our state-based international system, Russia can excuse itself from the ICC’s jurisdiction. The only established way around this obstruction is through a Security Council resolution mandating that the belligerent state grant the Court jurisdiction over its citizens. Though, as Russia is a permanent member of the UNSC, it will undoubtedly veto any proposed resolution that would require Russia to grant the ICC jurisdiction over itself. Therefore, due to the innate power structures within our international institutions, we know that the UNSC will not extend ICC jurisdiction over Russia—at least not within the foreseeable future.
So what, then, is the role of universal jurisdiction? Essentially, if a Russian perpetrator is found to be in a state with UJ laws, then that perpetrator can be tried for their crimes. In other words, expanded universal jurisdiction legislation would help eliminate “safe havens” for war criminals, genocidaires, and other atrocity perpetrators. Therefore, it is imperative that more states adopt UJ laws—including major powers such as the United States. Unfortunately, the nature of UJ requires us to rely on the will of individual states to implement these laws. Although numerous states have already signed onto various international agreements that affirm forms of UJ—such as the Apartheid and Torture Conventions—they have yet to enforce universal jurisdiction within their domestic judicial systems. Universal jurisdiction is, oddly enough, an international legal principle carried out on a domestic level. Therefore, states must largely implement UJ legislation independently in order to ensure enforcement—meaning that it is imperative that global political pressure on states to domestically legislate on UJ be amplified by states, IGOs, NGOs, and other civil society actors.
It should be stated that the chances of UJ being passed in the United States are very slim—particularly of recent developments regarding a customary international legal principle known as “sovereign immunity.” In a letter sent to the Justice Department in November, the State Department is now requesting that Saudi Arabia’s crown prince be given immunity in the murder of Jamal Khashoggi based on this principle and the US Foreign Sovereign Immunities Act (FSIA). Sovereign immunity, as enumerated by the FSIA, essentially grants foreign officials acting on behalf of their government immunity from certain lawsuits in other states. It has also been interpreted to provide heads of state and/or heads of government immunity by virtue of their position as the sovereign of their state. Applied to the crisis of Russian aggression, this principle could mean immunity for Putin within the US—at least for certain crimes not directed at the United States. Although the FSIA has been weakened over the past couple of decades as US presidents have gone after various state and non-state actors throughout the war on terror, this new development represents a doubling down on sovereign immunity. This, subsequently, is an obstacle to future UJ implementation in the US and justice for the victims of Russia’s crimes.
Although universal jurisdiction is by no means a perfect solution to Russian aggression, it is an important tool to bring those responsible for the commission of mass crimes to justice when other international legal institutions fall short. We must realize that even in our state-based international system, there are certain crimes that are so grave that they are injustices to us all. Universal jurisdiction can be a key strategy for eradicating safe havens for perpetrators of these global atrocities, as well as providing victims with the recognition and reparation they deserve.
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