Extra Territorial Jurisdiction

Topics: International law, Human rights, International Criminal Court Pages: 10 (3670 words) Published: February 24, 2011
Universal jurisdiction is considered by some to be “one of international law’s most controversial topics”, and given that its practice has only recently been reinvigorated, its standing within the international legal order must be evaluated. This essay discusses the concept of universal jurisdiction in relation to the 1984 Torture Convention; cites significant cases relating to this area and outlines its impact and/or pitfalls on society before concluding that universal jurisdiction is undeniably important in society. The concept of universal jurisdiction developed significantly following the Second World War, gaining ground through the establishment of the International Military Tribunal and the adoption of new conventions containing explicit or implicit clauses on universal jurisdiction. The idea that in certain circumstances, sovereignty could be limited for heinous crimes was accepted as a general principle. Later on, other international conventions and, to some extent, rules of customary law enlarged the principle’s scope of application.” The International Community has since then recognized that certain crimes are so inherently odious that they must be treated differently from ordinary delicts. Such crimes are against the universal interest, offend universal conceptions of public policy and must be universally condemned. Therefore the international community is under a duty to bring to justice any individual who commits such crimes. The most important of such international crimes for present purposes is torture which is regulated by the International Convention Against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment. The concept of universal jurisdiction acknowledges that certain crimes such as torture, which are considered harmful to all states and their subjects require the authority of all states to punish, irrespective of the location of the crime or the absence of a link between the state and the parties or the act in question. There is no authoritative definition of ‘universal jurisdiction.’ However, a ‘practicable’ definition describes universal jurisdiction as: “the ability of the prosecutor or the investigating judge of any state to prosecute persons for crimes committed outside the state’s territory which are not linked to that state by the nationality of the suspect or the victim or by harm to the state’s own national interests.” Universal jurisdiction is intended to overcome jurisdictional gaps in the international legal framework by ensuring that individuals accused of international crimes like torture do not remain beyond the reach of the law; that they can be investigated and punished in any jurisdiction, and at any time. Given the nature of international crimes, it is evident that the international legal order “has a fundamental interest in upholding the integrity and credibility of the [international legal] system by prosecuting those who violate its basic injunctions.” It is strongly linked to the idea that certain international norms are erga omnes, i.e. owed to the entire world community, as well as the concept of ‘jus cogens’ that certain international law obligations are binding on all states and cannot be modified by treaty. One of the consequences of the jus cogens character bestowed by the international community upon the prohibition of torture is that every state is entitled to investigate, prosecute, and punish or extradite individuals accused of torture, who are present in a territory under its jurisdiction." MODERN EVOLUTION OF UNIVERSAL JURISDICTION:

The modern evolution of universal jurisdiction may be looked at in terms of two components. Foremost, universal jurisdiction obligations under the Torture Convention and secondly, its implementation at legislative and judicial levels. Torture is widely recognized as an international crime for which individuals or states have responsibility at international level. In certain contexts, torture can constitute a war...
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