Prosecution Beyond Borders: The Incorporation of Universal Jurisdiction into Primary International Law

By Alexandra Winter

Universal jurisdiction as it stands now is a poorly understood concept, owing partly to its modernity and the failure of states to distinguish it from prior jurisdictional methods such as extraterritorial jurisdiction. Universal jurisdiction allows any state to bring proceedings against a perpetrator of a certain heinous crime regardless of the victim’s nationality or the location of the injury.1 As Mary Robinson, former United Nations High Commissioner on Human Rights, explained, “[U]niversal jurisdiction is based on the notion that certain crimes are so harmful to international interests that states are entitled—and even obliged—to bring proceedings against the perpetrator, regardless of the location of the crime or the nationality of the perpetrator or the victim.”2 A core principle of universal jurisdiction is that states may exercise this authority without having any territorial or nationality restrictions;3 however, differences arise when considering the obligation of the state to exercise universal jurisdiction. The Final Report on the Exercise of Universal Jurisdiction in Respect of Gross Human Rights Offences found that “[u]nder the principle of universal jurisdiction, a state is entitled, or even required to bring proceedings in respect of certain serious crimes, irrespective of the location of the crime, and irrespective of the nationality of the perpetrator or the victim.”4