Legal challenges of prosecuting international crimes
Jurisdiction is one the legal terms that must be used with extreme caution. Most generally jurisdiction is understood as the power of the State to regulate affairs pursuant to its laws.1 Controversial issues may arise when offence assumes international aspect which can cause conflict between jurisdictions of the countries. In each of the preceding bases of jurisdiction there must be a material link between the state asserting jurisdiction and the crime. That is what distinguishes the Universality Principle from the other bases; there need not be any specific link between the crime, its perpetrator or victims, and the state undertaking to exercise jurisdiction2. It might be said, that this principle developed in regard with State’s aim not only protect its own interests, but international community’s interests as whole, as international crimes may affect all the international legal order. More specifically, international crimes, such as crimes against peace, war crimes or crimes against humanity and transnational crimes – money laundering, terrorism, piracy, etc. are global and causes threat to international community as whole. However, universality principle has generated a great deal of controversy, in equal parts exegetical and political. 3 The aim of this essay is to identify and analyze some of the legal challenges of prosecuting international crimes under the basis of universal jurisdiction.
True meaning of universal jurisdiction is that international law permits any state to apply its laws to certain offenses even in the absence of territorial, nationality or other accepted contacts with the offender or the victim. These are offences that are recognized by the community of nations as of universal concern, and as subject of universal condemnation. 4 More and more states exercise universal jurisdiction, however primarily right to prosecute still has a state in which’s territory the crime was committed. That means that territorial principle has preference. It must be indicated that basis for prosecution under universal jurisdiction are international conventions. Significant change in international law was the foundation of International Criminal Tribunals and the establishment of International Criminal Court. According to the legal doctrine, the exercise of universality principle requires such conditions: the relevant criterion for the application of the universality principle is the nature of the crime, not the place where the crime was committed, the nationality of the accused or the victim, or other elements. States invoke other bases of jurisdiction under international law such as: the territorial principle (jurisdiction over crimes committed in the territory of the prosecuting state); the active nationality principle (jurisdiction over crimes committed abroad by nationals of the prosecuting state); the more controversial passive personality (jurisdiction over crimes affecting nationals of the prosecuting state); and protective principles (jurisdiction over crimes prejudicial to certain fundamental interests of the prosecuting state).5 Crimes which can be prosecuted under the basis of universal jurisdiction are more specific and presuppose the interest of all international community to take an action against it. The existence of different grounds of jurisdiction invoked by national courts means that several states may have concurrent jurisdictions - that is, the criminal may be tried and punished by several different countries. International law is silent on this point, and the result may be a great hardship, unless protection of international human rights can be invoked. 6 Despite these difficulties, the principle of universal jurisdiction remains widely accepted by states owing to the specific nature of international crimes. It might be said, that universal consideration is one of the general strengths of the principle and difficulties arise when it...
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