It examinesthe notion of false conflicts and concludes that, properly exercised, uni-versal jurisdiction by its nature creates no conflict of laws among States.Because the State exercisi
International Jurisdiction
As Applied to Universal Jurisdiction
The Sam e Law
The second type of false conflict closely resembles the principle of universal jurisdiction, offering a clearer conceptual foundation than governmental interest analysis The appeal of applying the "same law" across jurisdictions aligns with the essence of universal jurisdiction, which arises from the global condemnation of certain international crimes.
When a State invokes universal jurisdiction, it serves as the adjudicator and enforcer of international law concerning universally condemned crimes, such as genocide Since international law is theoretically uniform across all nations, this practice avoids legal conflicts and ensures consistent enforcement The application of universal jurisdiction thus reflects a form of international false conflict, as it enforces a shared legal standard recognized by all States.
State Interests
Universal jurisdiction presents a complex yet compelling dimension in the analysis of false conflicts within governmental interest Unlike traditional jurisdiction rooted in national interests, universal jurisdiction arises from a collective international commitment to prosecute crimes recognized as universally condemnable This legal principle is grounded in the inherent nature and severity of the offense under international law, rather than any direct national connection, reinforcing a shared global responsibility to uphold justice across borders.
When a U.S national is accused of committing torture in Egypt, both Egypt and the United States may assert prescriptive jurisdiction under international law Egypt can apply its domestic laws to crimes committed within its territory, while the U.S retains the right to enforce its laws against its citizens abroad This dual claim highlights the complex interplay of national and international legal frameworks, offering a structured lens through which to understand the exercise of universal jurisdiction in global justice systems.
52 RESTATEMENT (THIRD) OF THE FOREIGN RELATIONS LAW OF THE UNITED STATES § 404 cmt a (1987).
54 RESTATEMENT (THIRD) OF THE FOREIGN RELATIONS LAW OF THE UNITED STATES § 402(l)(a) (1987).
In Spring 2009, Spain, along with other nations, demonstrated its commitment to international justice through its universal jurisdiction law, which empowers Spanish courts to prosecute cases of torture regardless of where the crime occurred or who was involved This legal framework positions Spain to potentially exercise jurisdiction over such violations, reinforcing its role in upholding human rights across borders.
Unlike the United States and Egypt, Spain's jurisdictional interest in prosecuting crimes is not based on national entitlement but rather on its commitment to international law Spain cannot apply its national law to ordinary crimes committed abroad, such as a robbery in Egypt by a U.S citizen Instead, Spain exercises jurisdiction solely through its authority over universal crimes like torture The Spanish law used in such cases functions as a conduit for enforcing international norms, lacking independent national jurisdictional support Nonetheless, Spain maintains a legitimate interest—shared by all nations—in upholding and enforcing international law against universally condemned offenses.
The central issue in interest analysis is whether any other jurisdictionally involved state holds a competing interest in applying its laws, and the answer is no According to Currie's framework, false conflicts arise when only one state has a legitimate interest, while true conflicts occur when multiple states have valid interests However, this distinction assumes that the laws of different states reflect genuinely conflicting interests.
56 See Strafgestzbuch [StGB] [Penal Code] § 64(1)(6) (Austria), translated in Luc REYDAMS, UNIVERSAL JURISDICTION: INTERNATIONAL AND MUNICIPAL LEGAL PERSPECTIVES
94 (2003); Code de proc&lure prnale, titre prrliminare, article 12 bis (Belg.), translated in
REYDAMS, supra, at 105; Straffeloven [Strfl] [Penal Code] § 8(l)(5) (Den.), translated in
REYDAMS, supra, at 127; Strafgesetzbuch [StGB] [Penal Code] § 6, translated in REYDAMS, supra, at 142; Wet Internationale Misdrijven (International Crimes Act), Staatsblad van het Koninkrijk der Nederlanden [Stb.] 270 (Neth.).
57 Ley Orgdnica del Poder Judicial [L.O.P.J.] 6/1985, B.O.E 1985, 157.
58 This was precisely Spain's jurisdictional justification for its famous extradition request for Pinochet.
59 See Statute of the International Criminal Tribunal for the Former Yugoslavia, S.C. Res 827, art 10, U.N Doc S/RES/827 (May 25, 1993) [hereinafter ICTY Statute]; Statute of the International Criminal Tribunal for Rwanda, S.C Res 955, art 9, U.N Doc S/RES/955 (Nov 8, 1994) [hereinafter ICTR Statute].
60 See Guatemala Genocide Case, supra note 26, § II The Spanish Constitutional Court rejected the argument that universal jurisdiction existed in Spanish courts over genocide abroad only where the victims were Spanish because such a limitation "contradicts the very nature of the crime and the shared objective that it be combated universally." Id
Universal jurisdiction empowers states to prosecute individuals for serious international crimes, regardless of where the offense occurred or the nationality of the perpetrator Under international law, when addressing universal crimes such as genocide, war crimes, or crimes against humanity, no state can claim a legitimate opposing interest in its domestic laws that would override these global legal prohibitions.
Universal jurisdiction operates on two interconnected levels within international law First, states generally do not enact laws that contradict international prohibitions on universal crimes, reflecting a global consensus rooted in customary international law This consensus, based on consistent state practice and opinio juris—the belief that such practice is legally obligatory—forms the foundation for universal jurisdiction Consequently, when a state invokes universal jurisdiction, conflicting national interests are unlikely to arise, rendering interest analysis unnecessary and eliminating the potential for legal conflict.
Under international law, there is a compelling legal argument that states cannot enact domestic legislation that contradicts prohibitions on universal crimes, even if they choose to Universal jurisdiction applies to the gravest offenses recognized globally, meaning no state can legally commit or endorse such acts through national laws Many legal scholars associate these prohibitions with jus cogens norms—peremptory principles of international law—from which no state is permitted to deviate.
63 See BRAINERD CURRIE, SELECTED ESSAYS ON THE CONFLICT OF LAWS 182 (1963) (explaining that in a true-conflict situation courts should apply the forum's law since "assess- ment of the respective values of the competing legitimate interests of two sovereign states, in order to determine which is to prevail, is a political function of a very high order This is a function that should not be committed to courts in a democracy.") (emphasis added); see also id at 184 ("If the court finds that the forum state has an interest in the application of its policy, it should apply the law of the forum, even though the foreign state also has an interest in the application of its contrary policy ) (emphasis added).
64 See RESTATEMENT (THIRD) OF THE FOREIGN RELATIONS LAW OF THE UNITED STATES § 102(2) (1987).
65 PRINCETON PRINCIPLES OF UNIVERSAL JURISDICTION, supra note 23, princ 2; see also Sadat, Exile, Amnesty and International Law, supra note 25, at 970-74, 1025-26; Donald Francis Donovan & Anthea Roberts, Note and Comment, The Emerging Recognition of Uni- versal Civil Jurisdiction, 100 AM J INT'L L 142, 159 (2006) ("By definition, universal jurisdiction applies to norms whose enforcement has been made imperative by the interna- tional community:').
66 For a good examination of this topic, see Sadat, Exile, Amnesty and International
Under the Vienna Convention on the Law of Treaties, a jus cogens norm is defined as a peremptory principle of international law that is universally accepted and recognized by the global community of states These norms are binding and non-derogable, meaning no exceptions are permitted, and they can only be altered by a subsequent norm of equal authority and character.
The Vienna Convention, opened for signature on May 23, 1969, remains a foundational treaty in international law While interpretations of its principles may vary, a core justification for modern universal jurisdiction is the assertion that states cannot, under international law, lawfully endorse or permit universal crimes through their national legislation.
Universal jurisdiction allows states to prosecute individuals for crimes so egregious that they are considered offenses against all humanity, even without a direct national link However, if such crimes are already prohibited and prosecuted by every state within their own territories or against their nationals, the necessity of universal jurisdiction becomes questionable—except in cases like piracy, historically committed by stateless actors on the high seas Extending this jurisdiction broadly risks unnecessary sovereign interference and may conflict with principles outlined in the U.N Charter.
Yet one reason such expansive jurisdiction is needed is precisely be- cause authorities in territorial and national jurisdiction States may themselves be the perpetrators of universal crimes Universal jurisdic- 72
67 See Donovan & Roberts, supra note 65, at 145, who note that:
Choice of Forum
While international law does not provide a legitimate choice of law objection to the exercise of universal jurisdiction by other States, territorial or national States may assert a choice of forum objection, claiming adjudicative primacy to prosecute universal crimes committed within their borders or by their nationals Although the practice of asserting universal jurisdiction over actions occurring in other States is relatively new, and it may be premature to declare a definitive legal norm granting territorial or national jurisdiction priority, emerging legal trends suggest a growing recognition of such adjudicative precedence.
Extensive empirical research into state practices—including judicial opinions, legislation, and prosecutorial discretion—demonstrates that national jurisdictions are increasingly prioritized in prosecuting universal crimes This hierarchy is reinforced by provisions in recent multilateral treaties addressing international offenses and supported by a Joint Separate Opinion from the International Court of Justice As more nations adopt laws enabling universal jurisdiction, a clear trend has emerged favoring prosecution by states with territorial or national connections to the alleged crimes.
Jurisdictional priority in cases involving universal crimes is less about the uniformity of the law itself—which remains consistent across borders—and more about the forum where that law is enforced Granting adjudication rights to states with stronger connections to the crimes offers both philosophical and practical advantages This approach supports a more effective and contextually grounded model for international justice.
77 See REYDAMS, supra note 56, at 1
78 See Colangelo, Double Jeopardy and Multiple Sovereigns, supra note 5, at 830-32.
80 For example, the authors of the Princeton Principles on Universal Jurisdiction note
"the longstanding conviction that a criminal defendant should be tried by his 'natural judge.'"
PRINCETON PRINCIPLES ON UNIVERSAL JURISDICTION, supra note 23, at 53 They further note
"societies that have been victimized by political crimes should have the opportunity to bring
Universal jurisdiction is increasingly recognized in international law as a complementary legal framework akin to the Rome Statute of the International Criminal Court (ICC), which limits ICC involvement when national courts with territorial or personal links to the alleged crime pursue prosecution in good faith This evolving jurisdictional approach plays a crucial role in addressing serious crimes across borders and will be further examined in relation to double jeopardy and non bis in idem principles, particularly in cases involving successive prosecutions by multiple states.
LIMITING PRINCIPLES
This Part uncovers and explores three limiting principles inherent in the concept of universal jurisdiction as conceived by the false-conflict framework advanced so far First, States must faithfully apply the inter- national legal definitions of the crimes they seek to prosecute when exercising universal jurisdiction Second, international law at present prevents the exercise of universal jurisdiction where the defendant's home State has a valid immunity claim Third, a State may not prosecute on the basis of universal jurisdiction where the crime in question already has been prosecuted by another State.
Faithful Application of International Law
State Sovereignty
Universal jurisdiction must be exercised in strict accordance with international law to avoid infringing on the sovereignty of other states When a state unilaterally expands its legal definitions—such as redefining torture in absurd terms—it risks undermining the legitimacy of prosecuting universally condemned crimes like genocide, war crimes, or torture Such actions highlight the dangers of national legislation misrepresenting international norms, leading to jurisdictional overreach and potential conflicts between states.
By arbitrarily redefining universally recognized crimes such as terrorism, a State could theoretically extend its national legal framework beyond its borders, asserting jurisdiction over foreign territories and undermining international legal norms.
Universal jurisdiction becomes highly contentious when the prosecuting State lacks laws prohibiting the alleged conduct, or when such conduct is protected by its domestic or constitutional law These "true conflicts" of law arise when one State criminalizes speech or expression on grounds of human dignity or religion, while another—such as the United States—protects it under the First Amendment If a foreign State expands the definition of "genocide" to include racially or religiously offensive speech and asserts jurisdiction over U.S nationals for remarks made within the U.S that have no impact abroad, it could be viewed as a violation of U.S sovereignty.
Now, it should be understood that if the speech was uttered by one of the foreign State's own nationals or had a substantial effect in the
83 See, e.g., Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, G.A Res 39/46, art 1, U.N GAOR, 39th Sess., Supp No 51, U.N Doc A/39/51 (Dec 10, 1984) [hereinafter Convention Against Torture].
84 For a discussion of universal jurisdiction in relation to terrorism, see Colangelo,
Constitutional Limits on Extraterritorial Jurisdiction, supra note 18.
Universal jurisdiction allows a foreign state to assert legal authority over certain conduct, even when that conduct occurs outside its borders However, this can lead to conflicts when the state where the conduct occurred also claims sovereignty based on its national entitlements over its citizens and territory In such cases, overlapping prescriptive jurisdictions emerge, each grounded in internationally recognized sovereign rights, potentially complicating enforcement under international law.
Universal jurisdiction operates independently of any state's sovereign entitlements, allowing legal authority without territorial or national ties Its legitimacy stems from international law, which prohibits states from asserting conflicting sovereign interests When universal jurisdiction is exercised without strict adherence to the international legal standards that justify it, it undermines the principle itself and opens the door to arbitrary legal overreach, threatening the sovereignty of other nations.
The concept of universal jurisdiction raises complex legal and ethical questions, especially when applied to controversial practices such as harsh interrogation, suppression of political dissent, or ambiguous definitions of terrorism These issues often fall outside strict international definitions of universal crimes, yet some States may still assert jurisdiction Disputes also arise when evaluating universal crimes through subjective standards like proportionality and necessity in military actions that result in civilian casualties The core challenge for the international legal system is to establish a framework that enables States to prosecute serious international crimes without exploiting these definitions to impose domestic laws on other sovereign nations in politically sensitive contexts While the structure and function of such a regime remain uncertain, preliminary inquiries may help outline its foundational principles.
85 See supra notes 6-18 and accompanying text.
86 I have argued against the broad use of universal jurisdiction over war crimes in part for this reason, and for limiting its exercise only to grave breaches of the Geneva Conventions. See Colangelo, The Legal Limits of Universal Jurisdiction, supra note 24, at 191-95.
To ensure the fair application of universal jurisdiction, States must first establish clear international legal definitions of the crimes they intend to prosecute It is equally important for other nations to assess whether a State exercising universal jurisdiction adheres to these global standards Additionally, countries directly affected—either by the location of the alleged crimes or the nationality of those involved—should have mechanisms to challenge any overreach or politicization by courts that may misuse universal jurisdiction for sensationalist or political purposes.
The core substantive elements of universal crimes are clearly outlined in international treaties and conventions, which serve as the most reliable evidence of their definitions under positive international law Although universal jurisdiction is rooted in customary law rather than treaty law, these treaties reflect a broad global consensus on both the prohibition and substance of such crimes While customary definitions may evolve through state practice and opinio juris, nations seeking to apply universal jurisdiction can rely on treaty provisions for a practical and coherent framework Consequently, national legislation and judicial systems often adopt these treaty-based definitions to prosecute universal crimes effectively.
88 Like all bases of jurisdiction in international law, universal jurisdiction is a matter of customary law Id at 166 Indeed, otherwise it could not be truly universal (unless perhaps every State in the world was a party to the relevant treaty).
89 For the principle that treaties may embody customary norms, see North Sea Conti- nental Shelf (ER.G v Den.; ER.G v Neth.), 1969 I.C.J 3, 30 (Feb 20); see also
RESTATEMENT (THIRD) OF THE FOREIGN RELATIONS LAW OF THE UNITED STATES § 102(3)
International agreements serve as binding legal instruments for the states that become parties to them When these agreements are designed for broad international participation and gain widespread acceptance, they can contribute to the development of customary international law This process underscores the influential role of treaties in shaping global legal norms and fostering international cooperation.
90 For a catalogue of the relevant international treaties covering universal crimes and the number of States Parties, see Colangelo, The Legal Limits of Universal Jurisdiction, supra note 24, at 186-98.
91 Some legislation expressly declares its purpose in this regard The since-tamedBelgian War Crimes Act, under which Belgian courts have prosecuted a number of Rwandan war criminals for acts committed in Rwanda against Rwandans, had as its purpose "to define three categories of grave breaches of humanitarian law and to integrate them into the Belgian domestic legal order." Stefaan Smis & Kim Van der Borght, Introductory Note to Belgium: Act Concerning the Punishment of Grave Breaches of International Humanitarian Law, 38 I.L.M.
Universal Jurisdiction to prosecute universal crimes, 9 2 thus reinforcing the customary law definitions.
Treaties serve as key evidence for defining universal crimes, making it essential to distinguish between "easy cases" and "hard cases" when assessing whether a state's claim of universal jurisdiction deviates from customary definitions In "easy cases," a court's clear departure from a crime’s core treaty-based definition—without proof of customary law evolution—signals jurisdictional overreach Crimes with rule-based elements often fall into this category, such as when Spain’s Audiencia Nacional broadened the definition of genocide to include political groups, aiming to justify its early claim of universal jurisdiction over former Chilean dictator Augusto Pinochet.
To ensure alignment with international legal standards, the Belgian Act Concerning the Punishment of Grave Breaches of International Humanitarian Law explicitly incorporates the language and definitions found in key international conventions Notably, the Act defines genocide in accordance with the Convention on the Prevention and Punishment of the Crime of Genocide of 9 December 1948, demonstrating its commitment to upholding globally recognized legal frameworks.
The 1999 Act, while formally adopting crime definitions from conventional law such as the Netherlands' International Crimes Act, expanded the scope of universal jurisdiction by categorizing certain acts as "grave breaches" even when they were not committed during an international conflict This marked a significant departure from traditional legal frameworks and broadened the legal basis for prosecuting serious violations of international humanitarian law.
Individual R ights
Expanding the scope of universal crimes to assert jurisdiction over foreign nationals for actions committed abroad raises significant concerns about individual rights, particularly in relation to the principle of legality—captured by the Latin phrase *nullum crimen sine lege, nulla poena sine lege* (no crime without law, no punishment without law) This principle, while not a strict legal rule, underpins various legal doctrines, including the U.S constitutional ban on ex post facto laws, protections against retroactive criminal legislation, and restrictions on creating offenses through common law Internationally, as Beth Van Schaack highlights, the legality principle is embedded in numerous human rights declarations, treaties, and the statutes of international criminal tribunals, though its enforcement tends to be more lenient compared to domestic legal systems.
A single State’s endorsement or passive acceptance of a broader definition is insufficient to alter the established customary definition of a crime, particularly when a widely ratified and enduring treaty contradicts such expansion According to the Restatement (Third) of the Foreign Relations Law of the United States, customary international law is defined by a general and consistent practice of States, adhered to out of a recognized legal obligation.
Under STATES § 102(2) (1987), the formation of customary international law requires a consistent and general practice However, a single improper claim of universal jurisdiction—especially when accepted by a State despite conflicting treaty obligations—fails to meet the threshold necessary to establish such law.
106 Paul H Robinson, Fair Notice and Fair Adjudication: Two Kinds of Legality, 154
108 Beth Van Schaack, Crimen Sine Lege: Judicial Lawmaking at the Intersection of Law and Morals, 97 GEO L.J 119, 173 (2008).
109 Id at 176 (discussing the ICC's legality provisions).
Since Spring 2009, the domestic landscape has been shaped by the unique and evolving nature of international criminal law Consequently, international criminal tribunals—beginning with those established after World War II in Nuremberg and Tokyo—have developed specific legal mechanisms to uphold the validity of criminal charges and avoid challenges based on the principle of legality.
The issue of fair notice in extraterritorial jurisdiction raises significant legal concerns, as the prosecuting State is not the one where the alleged criminal act occurred Traditional assumptions about territorial criminal law and the expectation that individuals are aware of local laws become less reliable Universal jurisdiction further complicates matters by weakening connections like nationality, placing the legality question at the crossroads of criminal law and conflict of laws Both disciplines aim to safeguard defendants from unjust legal applications, especially when laws were enacted post-offense or imposed by a foreign sovereign the defendant could not reasonably anticipate being subject to.
In U.S conflict of laws cases, the Supreme Court has established that a state may only apply its laws to a dispute if it has significant contacts that create legitimate state interests, ensuring the choice of law is neither arbitrary nor fundamentally unfair under the Fourteenth Amendment's Due Process Clause A key factor in determining fairness is the parties' expectations Additionally, recent rulings by U.S Courts of Appeal have examined the extraterritorial reach of federal jurisdiction over foreign nationals, guided by the Fifth Amendment's Due Process Clause, raising complex legal questions about constitutional limits.
110 See generally Van Schaack, supra note 108.
In matters of criminal jurisdiction over visiting armed forces, concerns about unfair treatment of foreign nationals due to lack of legal notice are partially addressed by the principle that individuals aware of their subjection to local laws bear the responsibility to understand and comply with those legal restrictions.
113 Phillips Petroleum Co v Shutts, 472 U.S 797, 818 (1985) (quoting Allstate Ins.
115 See United States v Yousef, 327 F.3d 56, 111-12 (2d Cir 2003); United States v. Moreno-Morillo, 334 E3d 819, 827-30 (9th Cir 2003); United States v Quintero-Rendon,
354 F3d 1320, 1324-26 (1 ith Cir 2003); United States v Perez-Oviedo, 281 F.3d 400, 402-
03 (3d Cir 2002); United States v Suerte, 291 E3d 366, 369-75 (4th Cir 2002); United States v Cardales, 168 E3d 548, 552-54 (1st Cir 1999).
The principle of universal jurisdiction raises constitutional questions about applying U.S criminal laws to individuals with minimal or no ties to the United States at the time of their alleged offenses abroad This issue was central to the landmark case under the U.S Torture Convention Implementation Act, where Chuckie Taylor, son of former Liberian dictator Charles Taylor, challenged the application of U.S law on Fifth Amendment due process grounds He was prosecuted for acts of torture committed in Liberia against non-U.S nationals, despite having no substantial connection to the United States during the time of the alleged crimes.
The false-conflict view of universal jurisdiction upholds legality and fairness by ensuring both victims' and defendants' rights are protected It prevents defendants from escaping accountability by claiming ignorance of international law, which is universally applicable and preexisting Since the prosecuting state enforces global legal standards rather than its own extraterritorial laws, this approach avoids legality issues and reinforces the legitimacy of universal jurisdiction.
U.S Courts of Appeal that adopt Fifth Amendment due process tests for federal extraterritorial jurisdiction based on the Supreme Court's Fourteenth Amendment framework risk overlooking critical international legal principles By requiring a domestic "nexus" to the forum state, these courts ignore universally prohibited acts under international law that are enforceable in U.S courts This narrow interpretation of jurisdiction hampers efforts to prosecute human rights violators, such as torturers and war criminals, and obstructs the fight against transnational terrorism by creating constitutional hurdles to convicting individuals in U.S custody for globally condemned terrorist offenses lacking direct domestic ties.
116 Particularly since the Supreme Court has also stated that "a postoccurrence change of residence to the forum [sitate-standing alone-[is] insufficient to justify application of forum law." Allstate, 449 U.S at 302.
In *United States v Emmanuel*, No 06-20758-CR (S.D Fla July 5, 2007), the District Court denied the defendant's motion to dismiss the indictment, concluding that Taylor was a presumptive U.S citizen This status established a sufficient nexus to justify the application of U.S law, ensuring that its enforcement was neither arbitrary nor fundamentally unfair.
119 See supra note 115 and accompanying cases.
10 •121 122 bombing of public places, infrastructure, transportation systems, airports 2 3 and aircraft, 2 as well as hijacking,12 hostage taking,' 2 6 and even financing foreign terrorist organizations 27
These crimes are considered universal due to their inclusion in widely ratified international treaties that not only criminalize the acts and require national-level enforcement, but also grant extraterritorial jurisdiction to all State Parties This means perpetrators can be prosecuted even if the crime occurred in a non-party state The treaties further mandate a "prosecute or extradite" obligation, compelling any State Party where offenders are found to take legal action or transfer them for prosecution.
States Parties to the treaty possess broad jurisdictional authority, allowing them to prosecute or extradite offenders regardless of territorial or national ties This framework creates a comprehensive legal reach among member states Notably, the treaty’s prohibition on the crime extends its influence even into non-party states, due to the prescriptive nature of its provisions Although non-party states are not legally bound by the treaty, the widespread jurisdictional claim underscores the global intent to suppress the crime universally.
128 Colangelo, Constitutional Limits on Extraterritorial Jurisdiction, supra note 18, at 176-88.
A notable illustration of international legal commitment is the Convention Against Torture, which mandates in Article 5(2) that each State Party must establish jurisdiction over acts of torture when the alleged offender is present within its territory and extradition is not pursued This provision ensures accountability and reinforces the global stance against impunity for torture-related crimes.
When a person accused of committing an offense under the relevant provision is found within the jurisdiction of a State Party, and extradition is not pursued, that State Party is obligated—under the conditions outlined in Article 5—to refer the matter to its competent legal authorities for prosecution.
131 Article 34 of the Vienna Convention on the Law of Treaties provides that "a Treaty does not create either obligations or rights for a third State without its consent." Vienna Con-
Imm unity and Amnesty
International law recognizes immunity ratione personae, which protects sitting heads of state, accredited diplomats, and other officials from prosecution while in office for actions taken in their official capacity This principle reinforces state sovereignty by limiting the reach of universal jurisdiction claimed by other nations A landmark example is the 2002 International Court of Justice ruling that invalidated Belgium’s arrest warrant for the Democratic Republic of the Congo’s acting Foreign Minister, Abdoulaye Yerodia Ndombasi, citing a violation of international immunity laws.
The Court clarified that jurisdictional immunity granted to incumbent officials does not equate to impunity for crimes committed, emphasizing that such immunity only protects against prosecution under specific conditions This protection is not absolute nor a personal entitlement, but rather subject to the discretion of the official’s home State, which may choose to prosecute or waive the immunity Additionally, the Court affirmed that international tribunals with proper jurisdiction can override such immunity However, domestic courts must adhere to constitutional principles and may face limitations in applying international law as a basis for legal decisions.
140 PRINCETON PRINCIPLES ON UNIVERSAL JURISDICTION, supra note 23, at 31.
141 Dapko Akande, International Law Immunities and the International Criminal Court, 98 AM J INT'L L 407, 409-10 (2004).
142 Arrest Warrant of I1 April 2000 (Dem Rep Congo v BeIg.), 2002 1.C.J 3, 22 (Feb 14).
144 See Ruth Wedgewood, International Criminal Law and Augusto Pinochet, 40 VA J. INT'L L 829, 838 (2000); Curtis A Bradley & Jack L Goldsmith, Pinochet and International Human Rights Litigation, 97 MICH L REV 2129, 2140 (1999).
145 Arrest Warrant of II April 2000, 2002 L.CJ 3, 25-26.
Universal jurisdiction presents a complex balance between state sovereignty and the pursuit of justice within the international legal system International law tends to favor tribunals established by global consensus when administering justice, prioritizing them over individual state sovereignty However, when a coequal sovereign state seeks to exercise universal jurisdiction independently, the law often defers to state sovereignty, even at the expense of delivering justice.
The Court emphasized that the immunity granted to officials significantly weakens once they leave office, reducing barriers to the application of universal jurisdiction Under international law, former officials retain only functional immunity (ratione materiae), which protects them from prosecution for acts performed within their official duties However, this immunity does not apply when individuals are accused of international crimes, making them subject to foreign domestic criminal jurisdiction This legal nuance has been central to several high-profile cases involving international justice.
148 For why this may be, see Sadat, Exile, Amnesty and International Law, supra note
The vertical relationship between international and national law, particularly concerning jus cogens crimes, differs significantly from the horizontal framework seen in universal inter-state jurisdiction Legal scholar Dapo Akande highlights a critical distinction between tribunals formed by the U.N Security Council and those created through treaties He argues that while U.N.-mandated tribunals possess the authority to override personal immunity (immunity ratione personae) of state officials, treaty-based tribunals lack such power when dealing with representatives of non-party states.
The applicability of international law immunities, particularly immunity ratione personae, in shielding officials from prosecution by international tribunals depends on the tribunal’s origin and the legal obligations of the state involved Tribunals established by United Nations Security Council resolutions, such as the ICTY and ICTR, can override immunities due to the binding nature of Council decisions on all UN member states, which have implicitly consented via the UN Charter In contrast, tribunals formed through treaties lack the authority to remove immunities for officials of non-signatory states, as those immunities are protected rights under international law that cannot be nullified by agreements to which the state has not consented.
Under international law, once an individual no longer holds official office, they are no longer entitled to the immunities previously granted by other States If a court has jurisdiction, it may prosecute a former official for actions taken before, during, or after their term, including those carried out in a private capacity.
150 Roth, supra note 131, at 218; see also, Akande, supra note 141, at 412-14.
151 Akande, supra note 14 1, at 413 Moreover, as Brad Roth points out:
In Spring 2009, the British House of Lords issued a landmark ruling in response to Spain's extradition request for Augusto Pinochet, invoking universal jurisdiction over charges of torture The majority of Law Lords determined that Pinochet, as a former head of state, was not entitled to immunity from prosecution, setting a significant precedent in international human rights law.
Domestic amnesties remain a contentious issue in international law, particularly regarding their role in balancing peace and justice While extensive scholarship explores their legitimacy, there is broad consensus that international law does not obligate one state to honor another state's domestic amnesty for universal crimes Critics like Eugene Kontorovich argue that universal jurisdiction can hinder peace efforts, as a single uninvolved "holdout" state may obstruct comprehensive amnesty agreements supported by the directly affected parties, thereby undermining the prospects of a negotiated resolution.
The nullem crimen defense may stem directly from immunity ratione materiae, particularly when a domestic prosecution seeks to address an international law violation that is not classified as an international crime If such prosecution relies on extraterritorial penal legislation within the State’s internationally recognized jurisdiction to prescribe, immunity ratione materiae can override this jurisdiction when the conduct falls within the foreign agent’s official capacity As a result, no applicable penal law exists to criminalize the agent’s actions.
152 For a discussion of the complexities here, see Bradley & Goldsmith, supra note
153 See Regina v Bow Street Metropolitan Stipendiary Magistrate, Ex parte Pinochet Ugarte (No 3), [1999] UKHL 17, (1999) 2 W.L.R 827, reprinted in Bartle ex parte Pinochet
The absence of immunity ratione materiae for international crimes is partly attributed to the evolution of international law, which now allows domestic courts to exercise universal jurisdiction over certain offenses, including those committed in an official capacity This legal development implies that immunity for state officials cannot logically coexist with such jurisdictional authority Applying immunity in these cases would effectively nullify the purpose and impact of the newer jurisdictional rules, undermining efforts to hold perpetrators accountable under international law.
154 For recent commentary, see Kontorovich, supra note 6; Diane F Orentlicher, Set- tling Accounts: The Duty to Prosecute Human Rights Violations of A Prior Regime, 100 YALE
L.J 2537 (1991); Sadat, Exile, Amnesty and International Law, supra note 25; Michael P. Scharf, From the eXile Files: An Essay on Trading Justice for Peace, 63 WASH & LEE L REv.
339 (2006); Ronald C Slye, The Legitimacy of Amnesties Under International Law and Gen- eral Principles of Anglo-American Law: Is a Legitimate Amnesty Possible?, 43 VA J INT'L L.
173 (2002); Charles P Trumbull IV, Giving Amnesties a Second Chance, 25 BERKELEY J INT'L L 283 (2007).
Universal jurisdiction plays a critical role in resolving international conflicts, especially when amnesties are viewed with skepticism under international law Legal scholar Michael Scharf highlights the prevailing assumption among experts that widespread state practices favoring amnesties may actually violate international legal standards rather than reflect them Supporting this view, Leila Sadat advocates for careful consideration when a state exercises universal jurisdiction, emphasizing the need for alignment with global legal norms.
Amnesties are generally disfavored and may even be considered illegal under international law Allowing national amnesties to override obligations established by international law contradicts the core principles of international criminal justice and opposes the prevailing legal consensus and evolving global practices While states may assert immunity against the application of universal jurisdiction by other nations, relying solely on domestic amnesty offers a significantly weaker—if not entirely invalid—legal basis under current international law standards.