Rule 157. Jurisdiction over War CrimesRule 157. States have the right to vest universal jurisdiction in their national courts over war crimes.
SummaryState practice establishes this rule as a norm of customary international law with respect to war crimes committed in both international and non-international armed conflicts. The universality principle is additional to other bases of criminal jurisdiction: territoriality principle (based on where the crime occurred); active personality principle (based on the nationality of the perpetrator); passive personality principle (based on the nationality of the victim); and protective principle (based on the protection of national interests or security).
International and non-international armed conflictsThe right of States to vest universal jurisdiction in their national courts for war crimes is supported extensively by national legislation. There have also been a number of cases of suspected war criminals being tried by national courts on the basis of universal jurisdiction. Over the last decade, several persons have been tried by national courts for war crimes committed in non-international armed conflicts on the basis of universal jurisdiction. It is significant that the States of nationality of the accused did not object to the exercise of universal jurisdiction in these cases. Several military manuals further support the rule that war crimes jurisdiction may be established on the basis of the principle of universal jurisdiction.
The right of States to vest universal jurisdiction in their national courts for war crimes is also supported by treaty law. The Second Protocol to the Hague Convention for the Protection of Cultural Property states that it does not affect “the exercise of jurisdiction under customary international law”, which was intended by delegates at the negotiation of the Protocol to refer to the right of States to vest universal jurisdiction in their national courts for war crimes. The Genocide Convention, which refers explicitly to territorial jurisdiction, has been interpreted as not prohibiting the application of the principle of universal jurisdiction to genocide. While the Statute of the International Criminal Court does not oblige States to establish universal jurisdiction over the war crimes it lists, several States have incorporated the list of war crimes contained in the Statute in their national legislation and vested jurisdiction in their courts to prosecute persons suspected of having committed such war crimes on the basis of the principle of universal jurisdiction.
Link to the prosecuting StatePractice is not uniform with respect to whether the principle of universal jurisdiction requires a particular link to the prosecuting State. The requirement that some connection exist between the accused and the prosecuting State, in particular that the accused be present in the territory or has fallen into the hands of the prosecuting State, is reflected in the military manuals, legislation and case-law of many States. There is also legislation and case-law, however, that does not require such a link. The Geneva Conventions do not require such a link either.
In 2000, the Democratic Republic of the Congo instituted proceedings before the International Court of Justice challenging an international arrest warrant issued by a Belgian judge against the Congolese Minister of Foreign Affairs. In its pleadings before the Court in 2001, the Democratic Republic of the Congo did not object in principle to the existence of States’ right to vest universal jurisdiction in their national courts over war crimes, but argued that the indicted person needed to be in the territory of the State exercising such jurisdiction. The judgment of the International Court of Justice turned on the question of immunity of heads of State and foreign ministers and therefore no decision was taken on the extent of universal jurisdiction. In their separate and dissenting opinions, the judges were divided on the issue of whether universal jurisdiction could be exercised when the accused was not present in the territory of the prosecuting State, but the majority did not contest the right to try a suspected war criminal on the basis of universal jurisdiction.
Obligation to establish universal jurisdictionThe right of States to vest universal jurisdiction in their national courts over war crimes in no way diminishes the obligation of States party to the Geneva Conventions and States party to Additional Protocol I to provide for universal jurisdiction in their national legislation over those war crimes known as “grave breaches”. Numerous States have given effect to this obligation in their legislation. Several suspected war criminals have been prosecuted for grave breaches on the basis of universal jurisdiction.
In addition to the Geneva Conventions and Additional Protocol I, a number of other treaties oblige States party to provide for universal jurisdiction over certain crimes, including when they take place during armed conflict. These are, in particular, the Convention against Torture, the Inter-American Convention on Forced Disappearances, the Convention on the Safety of UN Personnel and the Second Protocol to the Hague Convention for the Protection of Cultural Property.