Universal Jurisdiction: On the Relative Importance of Human Rights, and Its Application in the War in Ukraine

Traditionally, criminal law is understood to be the reflection of a broader societal consensus on what behavior is inappropriate or unacceptable. Adherence to these agreed-upon norms is then enforced under threat of penalty by the state as the holder of the monopoly on violence. By nature of being the outcome of public discourse, however, the classification of certain acts as either tolerated or inadmissible is subject to change over time. As society’s attitudes towards its underlying value system change, so do its judgements on certain actions. It is worth noting here that the consensus reflected in criminal law tends to be rather conservative and reflects outdated societal perceptions. This is especially the case as legislation requires a certain societal agreement to already exist, and even then, the process of drafting and passing a corresponding law is lengthy.

Since different societies have diverging conceptions of what exactly constitutes inappropriate or undesirable conduct, states have their own penal codes. In fact, the right of states to establish and maintain their individual domestic legal systems is closely tied to one of the most fundamental principles of international law to date – that of state sovereignty. This principle grants states their position as legal subjects, from which the right to self-determination is derived as a logical consequence. One expression of this self-determination is states’ freedom of self-legislation and, by consequence, the ancillary right of defense against any external interference in domestic affairs. A state’s jurisdiction – its legal authority to make, apply, and enforce laws and legal decisions regulating the civil and criminal conduct of both natural and legal persons – therefore generally finds its limits where that of another begins. Consequently, governments perceive external interventions as not only a violation of their interests but of their fundamental sovereignty.

The development of an international society has inevitably weakened the absolute application of state jurisdiction. In today’s globalized world, states may indeed sometimes have justified interest in extending the territorial scope of their legal competence beyond their own borders. In very specific instances, international legal practices therefore allow for a state to assert its jurisdiction over a crime that has either been committed by a different state’s citizen or even on another state’s territory entirely. Three types of extraterritorial jurisdiction exist in which a sufficient connection is assumed between a state and a given crime to justify that state’s interference in another’s internal affairs as they relate to the case:

The so-called Territoriality Principle establishes that a state may prosecute any crime that has been committed on its territory, even if the alleged offender is not a citizen of said state.
Conversely, the Nationality Principle authorizes extraterritorial jurisdiction where a sufficient link between state and crime is established through the nationality of either the victim or the alleged perpetrator.
Lastly, the so-called Protective Principle allows a state to exercise jurisdiction over non-nationals who have allegedly committed crimes abroad if they are considered a threat to its security or its “fundamental national interests.”

If a state can claim a connection to the alleged crime on one of the grounds listed above, legal practice holds that the breach of state sovereignty posed by extraterritorial jurisdiction is justified and therefore permissible.

One last legal principle allows a state to exercise exterritorial jurisdiction, only with the distinction that it does away altogether with the general requirement of a link between the state and the alleged crime. Known as Universal Jurisdiction, this international legal practice allows – or even obliges – states and international courts to prosecute certain crimes regardless of the existence of any links to the offense. This interference in another state’s domestic affairs is justified by the nature of those crimes to which Universal Jurisdiction is applied. Offenses that violate these most basic rules are so unquestionably horrendous that it is considered to be in every state’s interest to bring proceedings against the alleged perpetrators. In these instances, no specific link between the prosecuting state and the crime is required, as the concept of Universal Jurisdiction is strongly influenced by the concept of natural law. The concept of state sovereignty is here considered secondary to certain universal standards of justice, and no state may claim a legitimate interest in protecting an alleged perpetrator of such a crime.

The Universal Jurisdiction principle has organically developed alongside the international community as a whole, growing to protect its fundamental values and ideals in the absence of a centralized entity for their enforcement. Since the Nuremberg Trials – which inaugurated the modern practice of Universal Jurisdiction for the persecution of war crimes and crimes against humanity – the international community has consistently expanded the principle’s scope of application. Over the last decades, international legal practice has evolved to reflect “a broader reappraisal […] of the relative importance of fundamental human rights and state sovereignty,” so that “state interests are no longer the be-all and end-all of international law.” By now, the use of Universal Jurisdiction is broadly accepted for a list of crimes for which agreement exists both on its status as an international crime and on it being subject to universal jurisdiction. Aside from piracy, war crimes, and crimes against humanity, this has also evolved to undisputedly apply to slavery, genocide, and torture. A contentious debate exists as to what other crimes may qualify, but to date, no sufficient international consensus has been reached to warrant their inclusion.

Universal Jurisdiction continues to be employed as a tool to ensure that the violation of fundamental international norms does not go unpunished. Currently, the principle is of use in the investigation of war crimes committed since the unlawful Russian invasion of Ukraine in 2022. The ICC officially opened investigations into “alleged crimes committed in the context of the situation in Ukraine” in March of 2022, explicitly charging Vladimir Putin and Maria Alekseyevna Lvova-Belova with war crimes. Since then, a number of European countries have opened investigations under universal jurisdiction, notably among them Germany, Estonia, and Poland. Simultaneously, many parties – such as the UN, the New York Times, and Ukraine 5 AM Coalition, a Ukrainian collective of human rights organizations – continuously work to document evidence of the atrocities committed in the conflict. In this context, it is that LeMonde asserts that “never has a war been investigated so quickly.”

Little has been publicized about these investigations’ results since their opening. This, however, doesn’t mean the required work is not being done. In cases where all other legal options have failed, the Universal Jurisdiction principle is the most certain and effective option to pursue justice for these most horrendous, universally condemned offenses. Compare, for example, the first conviction of a senior Assad government official of crimes against humanity and torture in Germany early last year: The trial of Anwar Raslan, a former Syrian government official who fled to Germany after overseeing the interrogation of prisoners at the infamous Al-Khatib detention center, served as a watershed moment in both the context of the Syrian War and for the application of Universal Jurisdiction overall. It signaled the international community’s readiness to ensure the persecution of crimes committed by Syrian government officials even in the absence of traditional enforcement mechanisms. The prospect of further such trials thus demonstrates to other perpetrators of international crimes that “the time of impunity is over, and you will not find a safe place to go.” Moreover, the trial also proves to survivors that, even where domestic courts may fail them, justice can still be delivered elsewhere.