index  |  next>>

I. Introduction

“Universal jurisdiction” is an idea that is as much acclaimed as denounced.1 Much debated as a principle, the legal concept has attracted global attention since the dramatic 1998 arrest in London of former Chilean dictator Augusto Pinochet on charges of torture.  But the Pinochet case itself developed in a significantly changed international legal environment.  The last two decades have seen a revolution in forms of accountability for grave human rights violations, with the international community demonstrating a considerable interest in ensuring that certain international crimes are prosecuted.2 

Yet despite the creation of ad hoc international criminal tribunals for the former Yugoslavia and Rwanda, the Special Court for Sierra Leone and the International Criminal Court (ICC), vast gaps persist in the ability to bring to justice persons accused of the gravest international crimes: genocide, crimes against humanity, war crimes and torture.  With finite resources, international courts and mixed “internationalized” tribunals can try only a relatively small number of perpetrators, and the courts’ mandates are generally limited to crimes committed in specific territories and conflicts.  Even with the advent of a permanent International Criminal Court, it is expected that there will remain an “impunity gap unless national authorities, the international community and the [ICC] work together to ensure that all appropriate means for bringing other perpetrators to justice are used.”3  In combating impunity for grave human rights violations, a critical role thus remains for national courts and tribunals through the exercise of universal jurisdiction.

“Universal jurisdiction” refers to the competence of a national court to try a person suspected of a serious international crime—such as genocide, war crimes, crimes against humanity or torture—even if neither the suspect nor the victim are nationals of the country where the court is located (“the forum state”), and the crime took place outside that country.4 The exercise of universal jurisdiction is commonly authorized, or even required, by an international convention to which the state is a party.  For example, the Convention against Torture5 and the Grave Breaches provisions of the Geneva Conventions both mandate the exercise of universal jurisdiction.

On paper, a great many countries around the world appear to recognize that they can and should exercise universal jurisdiction over international crimes such as torture and war crimes, by passing laws that permit the prosecution of such crimes.6  But practice has generally lagged far behind laws on the books.  At the same time, concerns about the politicization of universal jurisdiction laws—and the risk that cases implicating foreign government officials could be inconvenient or embarrassing to the country where the court is located—have been a constant theme in debates about universal jurisdiction, and have led at least one country so far, Belgium, to significantly revise its laws.7  Issues of insufficient political will may be compounded by fear that universal jurisdiction cases, which concern events occurring in a foreign country and where suspects, witnesses and victims are likely to be foreign nationals, will be time- and resource-intensive to investigate and prosecute.

In the aftermath of Belgium’s 2003 decision to significantly narrow its universal jurisdiction laws (in part due to direct pressure from foreign governments including the United States, which threatened to have the NATO Headquarters moved from Brussels8), there was a widespread perception that universal jurisdiction was “on its last legs, if not already in its death throes.”9  But rumors of universal jurisdiction’s death would appear to have been greatly exaggerated. Despite setbacks such as Belgium’s law reforms, there has since 2000 been a steady rise in the number of cases prosecuted under universal jurisdiction laws in Western Europe, evidencing a heightened willingness among certain European states to utilize universal jurisdiction.  At the level of European Union (EU) policy, the Council of the European Union on Justice and Home Affairs (the Council) has adopted a decision recognizing that EU member states are “confronted on a regular basis” with persons implicated in genocide, crimes against humanity and war crimes, and who are trying to enter and reside in the EU.  In its decision, the Council declared that these crimes “must not go unpunished and that their effective prosecution must be ensured by taking measures at national level and by enhancing international cooperation.”10  An earlier Council decision created an “EU Network” of national contact points intended to enhance the exchange of information concerning the investigation of international crimes.11  Momentum has also been generated by the widespread ratification of the Rome Statute of the International Criminal Court among EU and non-EU states.  The Rome Statute requires states parties to complement the efforts of the court, and its preamble calls on national courts to exercise criminal jurisdiction over those responsible for international crimes.12

The successful prosecution of international crimes in 2005 by courts in Spain, France, Belgium, the United Kingdom and the Netherlands—with more trials scheduled for 2006—indicates that universal jurisdiction is now a practical reality that is gradually being assimilated into the functioning of criminal law systems in parts of Western Europe.  But relatively little is known about the practice of universal jurisdiction in various national legal systems, and the circumstances under which cases are actually investigated, prosecuted and tried.  In this report Human Rights Watch examines the practice of universal jurisdiction in several European states since 2001.13  Based on interviews with prosecutors, investigating judges, immigration officials, police personnel and defense and victims’ lawyers in eight different countries, the report examines the real challenges encountered when trying to exercise universal jurisdiction in domestic courts, and—more significantly—the variety of innovative and creative responses which have been developed in some countries to overcome many of these challenges.

The experiences examined in this report suggest that the fair and effective exercise of universal jurisdiction is far from easy. The cases are more complex and resource-intensive than most ordinary criminal cases, and frequently raise novel legal questions for domestic courts.  Problems of a lack of political will to pursue prosecutions remain pervasive. These challenges must be taken into account when setting expectations—particularly the expectations of victims—about what is possible through universal jurisdiction cases. Fundamentally, however, the national experiences examined in this report show that the fair and effective exercise of universal jurisdiction is achievable where there is the right combination of appropriate laws, adequate resources, institutional commitments, and political will. 

The experiences examined in this report are exclusively European.  This is in part because, as noted above, a handful of EU member states have been at the center of developments in the exercise of universal jurisdiction.  It is also because the EU as an institution has, through its decisions, actively encouraged these developments and has the potential to do much more to enhance cooperation and the exchange of information.14  By assuming a leading role, both Western European states and the EU as a whole are uniquely situated to serve as examples to the wider international community of how universal jurisdiction can be strengthened as an effective, practical and realistic means of combating impunity for the worst international crimes.

[1] See for example Henry Kissinger, “The Pitfalls of Universal Jurisdiction: Risking Judicial Tyranny,” Foreign Affairs, July/August 2001, and reply by Kenneth Roth, “The Case for Universal Jurisdiction,” Foreign Affairs, September/October 2001. See also George Fletcher, “Against Universal Jurisdiction,” Journal of International Criminal Justice, vol. 1 (2003), p. 580, and Georges Abi-Saab, “The Proper Role of Universal Jurisdiction,” Journal of International Criminal Justice, vol. 1 (2003), p. 596.

[2] In this report, “international crimes” will be used to refer to genocide, war crimes, crimes against humanity, and torture. 

[3] Paper on Some Policy Issues Before the Office of the Prosecutor, ICC, 2003, p. 3, [online]

[4] Luc Reydams, Universal Jurisdiction: International and Municipal Legal Perspectives (Oxford, 2003),

p. 3; Mitsue Inazumi, Universal Jurisdiction in Modern International Law: Expansion of National Jurisdiction for Prosecuting Serious Crimes under International Law (Intersentia, 2005), pp. 25-26.  The country in which the crimes occurred is referred to in this report as the “territorial state.”

[5] Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, G.A. res. 39/46, [Annex, 39 U.N. GAOR Supp., No. 51, p. 197, U.N. Doc. A/39/51 (1984)], entered into force June 26, 1987, arts. 4-5; Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, 75 U.N.T.S. 31, entered into force October 21, 1950, art. 49; Geneva Convention for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea, 75 U.N.T.S. 85, entered into force October 21, 1950, art. 49; Geneva Convention relative to the Treatment of Prisoners of War, 75 U.N.T.S. 135, entered into force October 21, 1950, art. 129; Geneva Convention relative to the Protection of Civilian Persons in Time of War, 75 U.N.T.S. 287, entered into force October 21, 1950, art. 146.

[6] See Amnesty International’s survey of domestic laws, Universal Jurisdiction - The Duty of States to Enact and Enforce Legislation (AI Index: IOR 53/002/2001), September 2001, [online] (retrieved May 2006).

[7] See this report, Country Case Study: Belgium.

[8] The threat arose because the head of the U.S. Central Command, and sitting U.S., British and Israeli political leaders, had been the subject of complaints filed under Belgium’s universal jurisdiction law. See Luc Reydams, “Belgium Reneges on Universality: The 5 August 2003 Act on Grave Breaches of International Humanitarian Law,” Journal of International Criminal Justice, vol. 1 (2003), p. 679.

[9] Antonio Cassese, “Is the Bell Tolling for Universality? A Plea for a Sensible Notion of Universal Jurisdiction,” Journal of International Criminal Justice, vol. 1 (2003), p. 589.

[10] Council Decision 2003/335/JHA of 8 May 2003, Official Journal L 118, 14/052003 P.0012-0014, [online], preambular paras. 1, 6.

[11] Decision 2002/494/JHA of 13 June 2002, Official Journal L 167, 26/06/2002 P.0001-0002, [online]  (retrieved January 2006).

[12] See preambular para. 4, Rome Statute of the ICC, [online] (retrieved April 2006).

[13] Universal jurisdiction practice occurring before 2001 has been covered by REDRESS in Universal Jurisdiction in Europe, June 1999, [online] (retrieved May 2006).

[14] Of the eight countries surveyed for this report, seven are EU members. The eighth country surveyed, Norway, is not in the EU.

index  |  next>>June 2006