On 16 October 1998 a former Chilean President named Augusto Pinochet was arrested in his bed at the London Clinic on Devonshire Place, where he had been recovering from minor back surgery, by two officers of the London Metropolitan Police acting on an international arrest warrant issued by the Spanish judge Baltasar Garzón of the Audiencia Nacional. The warrant alleged that Pinochet, during his period as President of Chile from 1973 to 1990, had been responsible for the killing or disappearance of approximately 3,000 Chilean citizens, including a small number of Spanish citizens, and that the killings constituted crimes against humanity over which Spain had jurisdiction under the universal jurisdiction provisions of the Spanish criminal code. Pinochet was eighty-two years old. He was held under house arrest at a private estate near Wentworth Golf Course in Surrey for the next sixteen months while the British courts considered the Spanish extradition request. The proceedings produced two House of Lords judgments (in November 1998 and March 1999) that established, in English law, that no head-of-state immunity attached to former heads of state in respect of international crimes including torture and that the Spanish extradition request was therefore legally well founded. The proceedings also produced, by their international visibility, the most consequential single test case of the universal jurisdiction doctrine in postwar legal history. Pinochet was eventually returned to Chile on grounds of ill health in March 2000 without standing trial in Spain. He died in Santiago in December 2006 at the age of ninety-one. The principle that had brought him to the London Clinic on a Friday afternoon in October 1998 has been the operational driver of every subsequent universal jurisdiction proceeding.
The doctrine of universal jurisdiction holds that certain crimes are of such gravity that any state has jurisdiction to prosecute them, regardless of where the crimes were committed, regardless of the nationality of the perpetrator, regardless of the nationality of the victim, and regardless of any specific connection between the prosecuting state and the relevant events. The crimes covered by the doctrine include, in the contemporary operational consensus, genocide, crimes against humanity, war crimes, torture, and certain other categories. The doctrine emerged from the postwar Nuremberg framework and has been progressively developed in the subsequent national and international jurisprudence. It is now, by some measures, the most operationally effective single mechanism for the prosecution of senior figures of regimes that would otherwise have benefited from the absence of accountability in their own jurisdictions.
The doctrinal foundation
The doctrinal foundation of universal jurisdiction rests on three principal propositions developed in the postwar international legal literature.
The hostis humani generis proposition. The doctrine had a precedent in the law of piracy, which from the seventeenth century onwards had treated pirates as hostis humani generis (the enemies of all humanity) and had recognised the jurisdiction of any state to prosecute them regardless of the location of the relevant acts. The proposition was that certain crimes were of a character that placed them outside any specific national jurisdiction and within the universal jurisdiction of all states. The post-1945 application of the proposition extended the framework from piracy to international crimes more generally.
The Nuremberg foundation. The Nuremberg Principles of 1946 to 1950 established that international crimes attract criminal responsibility under international law and that senior state officials do not enjoy immunity from such proceedings. The proposition implied, in its operational logic, that any state could exercise jurisdiction over the relevant crimes if its domestic legislation permitted; the Principles did not themselves authorise universal jurisdiction but provided the substantive foundation on which subsequent national legislation could rest.
The Eichmann judgment. The Israeli Supreme Court’s judgment in the Eichmann case on 29 May 1962 was the first major postwar judicial articulation of the universal jurisdiction doctrine. The Court held that genocide and crimes against humanity were of such gravity that any state had jurisdiction to prosecute them, and that the Israeli courts therefore had jurisdiction over Eichmann’s conduct in occupied Europe between 1941 and 1944, notwithstanding that Israel had not existed as a state during the relevant period and had not had any territorial connection to the events. The Court’s reasoning has been substantially adopted by subsequent national courts in Spain, Belgium, France, Germany, the Netherlands, the United Kingdom, the United States, and elsewhere.
The Spanish framework
The principal national-court jurisdiction that has driven the development of the doctrine in operational terms has been the Spanish Audiencia Nacional. The Spanish criminal code’s Article 23(4), in its original 1985 formulation and in the subsequent revisions, has provided for Spanish jurisdiction over a list of international crimes (genocide, terrorism, illegal trafficking in drugs, and others) regardless of the location of the events or the nationality of the perpetrators. The Audiencia Nacional, the central Spanish criminal court for international cases, has applied the provision in a series of high-profile cases since the late 1990s.
The principal cases under the Spanish framework have been:
Pinochet (1996 to 2000). The Pinochet case, brought by Garzón in 1996 and producing the London arrest of October 1998, was the foundational case under the Spanish framework. The Pinochet proceedings did not produce a Spanish trial of Pinochet himself, who was returned to Chile on grounds of ill health in March 2000, but did produce the substantial House of Lords jurisprudence on the absence of head-of-state immunity for international crimes. The Pinochet case was the proof of concept for the wider Spanish operation.
The Argentine cases (1996 onwards). Garzón also brought a series of cases against the senior figures of the 1976 to 1983 Argentine military junta, including Jorge Videla, Emilio Massera, Leopoldo Galtieri, and several dozen other officials. The Spanish proceedings produced the eventual return of several of the relevant figures to Argentina for trial in Argentine courts after the post-2003 Argentine government’s revival of domestic prosecutions; the Spanish framework operated, in the Argentine cases, principally as the political pressure that made the eventual Argentine domestic proceedings politically possible.
The Guatemala cases (1999 onwards). The Spanish prosecutions of senior Guatemalan figures including Efraín Ríos Montt and José Efraín Ríos Sosa in connection with the Guatemalan genocide of 1982 to 1983 were, similarly, principally important as political pressure that contributed to the eventual Guatemalan domestic prosecution of Ríos Montt in 2013. Ríos Montt was convicted of genocide by the Guatemalan domestic courts on 10 May 2013 (overturned on appeal on 20 May 2013 on procedural grounds; the retrial was incomplete at the time of his death in April 2018).
The Israeli cases. Several Spanish proceedings were brought from 2008 onwards against senior Israeli military and political figures in connection with the conduct of military operations in Gaza, the West Bank, and Lebanon. The Spanish government substantially restricted the scope of the Spanish universal jurisdiction provisions in 2009 and again in 2014, principally in response to the diplomatic pressure produced by these cases. The current Spanish framework is more restricted than the original 1985 framework but retains some operational scope.
The Belgian framework
The Belgian universal jurisdiction framework, established by legislation of 1993 and 1999, was the most expansive single national framework in the postwar period. The Belgian legislation provided for Belgian jurisdiction over genocide, crimes against humanity, and war crimes regardless of the location of the events, the nationality of the perpetrators, the nationality of the victims, or any specific Belgian connection. The legislation produced a substantial volume of cases in the late 1990s and early 2000s, including cases against senior Israeli, American, Iraqi, Iranian, and African figures.
The Belgian framework was substantially restricted by Belgian legislation of 2003, principally in response to the diplomatic pressure produced by the cases against senior American figures in connection with the conduct of military operations in Iraq. The current Belgian framework requires either Belgian nationality of the perpetrator, Belgian nationality of the victim, or the presence of the perpetrator on Belgian territory. The current framework is substantially less expansive than the original framework but retains operational scope.
The principal Belgian conviction under the original framework was the conviction of four Rwandan defendants for participation in the Rwandan genocide of 1994: two Benedictine nuns (Gertrude Mukangango and Maria Kizito), a former physics professor (Vincent Ntezimana), and a former businessman (Alphonse Higaniro). The four were tried in Brussels in April to June 2001 and convicted on 8 June 2001. The convictions were the first national-court convictions for the Rwandan genocide.
The German framework
The German universal jurisdiction framework, established by the Federal Code of Crimes against International Law (Völkerstrafgesetzbuch, CCAIL) of June 2002, has been the most operationally productive of the postwar national frameworks since the restrictions of the Spanish and Belgian frameworks. The CCAIL provides for German jurisdiction over genocide, crimes against humanity, and war crimes regardless of the location of the events or the nationality of the perpetrators. The German framework requires the presence of the perpetrator on German territory before substantive proceedings can be brought.
The principal German cases under the CCAIL have been:
The Syrian cases (2017 onwards). The German prosecutorial authorities have brought a substantial number of cases against former Syrian intelligence and military officials who have travelled to Germany as refugees. The most consequential single case was the conviction of Anwar Raslan on 13 January 2022 for crimes against humanity in connection with his service as a senior officer at the Branch 251 detention facility in Damascus. The conviction was the first national-court conviction for crimes against humanity arising from the Syrian conflict. Several further Syrian cases are currently in proceedings.
The Yazidi cases (2019 onwards). The German prosecutorial authorities have brought a series of cases against ISIS members in connection with the genocide of the Yazidi minority in Iraq and Syria from 2014 onwards. The most consequential single case was the conviction of Taha al-Jumailly on 30 November 2021 for the genocide of the Yazidi, the first national-court conviction for genocide in seventy-five years. The conviction was based on the killing of a five-year-old Yazidi girl by al-Jumailly through deliberate exposure to extreme temperatures in southern Iraq. Several further Yazidi cases are currently in proceedings.
The Rwandan cases (2010 onwards). The German prosecutorial authorities have brought a series of cases against Rwandan defendants in connection with the genocide of 1994. The principal conviction was the conviction of Onesphore Rwabukombe on 18 February 2014 for participation in the Kiziguro church massacre of April 1994. The case is one of approximately a dozen Rwandan cases that have been pursued by the German prosecutorial authorities.
The French framework
The French universal jurisdiction framework has been more restrictive than the German or Spanish frameworks but has produced a substantial number of convictions principally in connection with the Rwandan genocide. The principal French convictions have included Pascal Simbikangwa (convicted in March 2014 for participation in the Rwandan genocide); Octavien Ngenzi and Tito Barahira (convicted in July 2016 for participation in the Kabarondo massacre of April 1994); and Sosthène Munyemana (convicted in November 2023 for participation in the Tumba massacre of April 1994). The French framework is now operationally productive principally in respect of the Rwandan genocide and to a lesser extent in respect of the Syrian conflict.
The British framework
The British universal jurisdiction framework, established by the War Crimes Act 1991 and supplemented by the International Criminal Court Act 2001, has been substantially less productive than the German or French frameworks. The 1991 Act, which had been adopted specifically to permit prosecutions of Eastern European immigrants suspected of war crimes during the German occupation of the Soviet Union, produced one prosecution to verdict in its operational period: the conviction of Anthony Sawoniuk in April 1999 for crimes committed during his service as a Belorussian auxiliary policeman in 1941 to 1942. Sawoniuk died in prison in November 2005 at the age of eighty-four. The 2001 Act has not produced any convictions to date.
The American framework
The American universal jurisdiction framework is more restricted than the European frameworks but has produced a substantial number of cases in particular contexts. The principal American framework is the Office of Special Investigations (subsequently renamed the Human Rights and Special Prosecutions Section) of the Department of Justice, which has produced approximately 107 successful denaturalisations and deportations of individuals who served in operational roles during the killing of European Jewry. The American framework is principally a denaturalisation and deportation framework rather than a substantive criminal-prosecution framework; the criminal proceedings against the relevant individuals have generally taken place in the receiving European countries to which they have been deported.
The principal American substantive criminal universal jurisdiction case was the prosecution of Charles Taylor’s son Charles Taylor Jr. in 2008 to 2009 for torture committed in Liberia between 1999 and 2003. The conviction, the first under the American Torture Victim Protection Act, established a foundation for subsequent American prosecutions but has not produced a substantial body of subsequent case law.
The political constraints
The doctrine of universal jurisdiction has been substantially constrained by political considerations throughout its postwar development. The principal political constraints have been three.
The diplomatic costs. Universal jurisdiction proceedings against senior figures of foreign states have generally produced sustained diplomatic protests from the relevant home states. The Spanish proceedings against the Argentine, Guatemalan, and Chilean figures produced sustained diplomatic complaints. The Belgian proceedings against the senior American military and political figures in 2003 produced direct American diplomatic pressure that resulted in the substantial restriction of the Belgian framework. The Spanish proceedings against the Israeli figures from 2008 produced similar diplomatic pressure. The diplomatic costs have, in several cases, produced legislative restrictions on the originating frameworks.
The political selectivity. The operational practice of universal jurisdiction has been criticised as politically selective. The cases brought against senior figures of small or weak states have generally proceeded; the cases brought against senior figures of major powers have generally been substantially constrained or terminated. The pattern has been criticised as a contradiction of the doctrine’s core principle that international crimes attract jurisdiction regardless of the position of the perpetrator. The criticism has reasonable force on the empirical merits.
The capacity constraints. National-court universal jurisdiction proceedings require substantial prosecutorial and investigative capacity. The German, Spanish, French, and Belgian frameworks have produced operational results principally because the relevant national authorities have devoted substantial resources to the work. National frameworks in states that have not devoted equivalent resources have produced fewer results regardless of the substantive scope of their legal frameworks.
What the doctrine has produced
The doctrine of universal jurisdiction has produced, in operational terms, the second-largest single category of postwar international criminal accountability proceedings. The principal categories, in approximate aggregate terms, are: the Allied Nuremberg proceedings (1945 to 1949, approximately 200 substantive convictions); the Subsequent Eastern European postwar proceedings (1945 to 1955, approximately 5,000 substantive convictions); the postwar West German domestic prosecutions (1946 to 2022, approximately 6,000 substantive convictions); the international ad hoc tribunals (1993 to 2017, approximately 160 substantive convictions); the universal jurisdiction proceedings (1990 to present, approximately 70 substantive convictions); and the International Criminal Court (2002 to present, approximately 11 substantive convictions). The universal jurisdiction proceedings, while smaller in absolute numbers than the postwar proceedings, are operationally important because they have addressed cases that would not otherwise have been addressed by any tribunal.
The wider lesson of the doctrine is the lesson of national-court enforcement of international criminal law. The doctrine has demonstrated that, even in the absence of a fully effective international tribunal system, national courts in states with adequate legal frameworks and adequate prosecutorial capacity can produce substantial accountability outcomes. The doctrine is likely to remain the principal operational driver of international criminal law in the foreseeable future, particularly given the political constraints on the International Criminal Court’s operations against senior figures of major powers.
The doctrine’s continuing development depends substantially on the maintenance of the existing national frameworks (particularly the German framework, which is now the operationally most productive); the development of new frameworks in additional states (particularly in non-Western states, where the existing frameworks have been substantially limited to Western European states); and the resolution of the political constraints that have substantially limited the doctrine’s application against senior figures of major powers. The future of the doctrine will be substantially shaped by the responses of the international system to these challenges. The doctrine has, in its operational practice over the past three decades, shown itself to be a substantially more durable and more effective mechanism than its critics had originally suggested. It is, by some measures, the most successful single product of the postwar attempt to make state-organised mass atrocity legally answerable.
See also
- Crimes Against Humanity, a New Concept in International Law
- Adolf Eichmann
- The Nuremberg Principles and Their Legacy
Sources
- Israeli Supreme Court, Attorney General v. Eichmann, judgment, 29 May 1962, reprinted in International Law Reports, vol 36, 1968
- House of Lords, Regina v. Bow Street Metropolitan Stipendiary Magistrate, ex parte Pinochet (No 3), judgment, 24 March 1999
- Princeton Project on Universal Jurisdiction, The Princeton Principles on Universal Jurisdiction, Princeton University, 2001
- Cherif Bassiouni, ed, International Criminal Law, 3 vols, Martinus Nijhoff, 3rd edn, 2008
- Stephen Macedo, ed, Universal Jurisdiction: National Courts and the Prosecution of Serious Crimes Under International Law, University of Pennsylvania Press, 2004
- Naomi Roht-Arriaza, The Pinochet Effect: Transnational Justice in the Age of Human Rights, University of Pennsylvania Press, 2005
- Wolfgang Kaleck, Double Standards: International Criminal Law and the West, Torkel Opsahl Academic EPublisher, 2015
- Trial International, annual reports on universal jurisdiction proceedings, 2015 to 2025