Universal Jurisdiction: National Courts and the Prosecution of Serious Crimes under International Law (review)

The attempt to put Chilean ex-dictator Augusto Pinochet on trial in Spain for human rights crimes captured media and public imagination worldwide. The case quickly acquired immense significance as symbol and demonstration of a growing international mood to tackle impunity. It ignited huge controversy over the respective roles of law and politics in the international arena, and focussed the world's attention on the issue of universal jurisdiction, and on whether, when, and by whom such jurisdiction could be exercised. Yet as some of the contributors to this volume show, debates around the Pinochet case often generated more heat than light around these questions, attributing a much greater role to universal jurisdiction than it actually played in this case, and contributing to mounting confusion among politicians, publics, and even legal actors. This volume sets out to rectify this confusion, to define the role of universal jurisdiction, and further, to offer a considered set of guidelines governing its responsible use.

The Princeton Project, of which the book is an outcome, began in January 2000 as a collaboration of eminent scholars and jurists, brought together to discuss and agree on a consensus set of principles—The Princeton Principles on Universal Jurisdiction—which have since been distributed as a UN General Assembly document. Universal jurisdiction stands for the principle that some crimes are so heinous that a state is entitled or even obliged to undertake legal proceedings without regard to where the crime was committed or to the nationality of perpetrators and victims. Notwithstanding the claims made by some campaigners against impunity that universal jurisdiction offers the promise of a system of global accountability, in fact, as this book makes abundantly clear, the principle has an uncertain status in international law, which lacks any clear principles governing its use. Moreover, incidences of its application have been relatively rare. However, a recent proliferation of cases actually or potentially involving claims to universal jurisdiction (some apparently inspired by "the Pinochet precedent") has placed great pressure on national courts, forcing domestic judges to grapple with defining the relationship between national and international law. As the book makes clear, the creation of the International Criminal Court (ICC) does not obviate the need for states to press cases based on universal jurisdiction, since its jurisdiction is complementary to that of national courts. It is to national courts, then, that the Principles are addressed, and to the question "when should national courts in Europe or elsewhere undertake legal proceedings based on the principle of universal jurisdiction?"¹

The answer is presented in the form of fourteen numbered principles, prefaced by a discussion of "the challenge" (to end impunity and enforce accountability), and succeeded by thirteen essays which, as well as amply illustrating the need for clear guidelines, provide a valuable and interesting insight into the debates that led up to the drafting of the Principles. The Principles themselves present a balanced and clear set of guidelines which, while supportive of national courts' use of universal jurisdiction—for example, Principle 3 states that universal jurisdiction can be used by national judicial agents even where national legislation does not specifically provide for it, while later principles rule out the application of statutes of limitations, and suggest that national courts need not accept amnesties as a bar to prosecution—also recognise the possible problems of inconsistent or irresponsible recourse to universal jurisdiction. Thus there is a recognition of procedural immunity (which gives heads of state and other officials immunity from prosecution while in office) but a rejection of substantive immunity (in other words, their immunity only lasts as long as their office). Principle 8 offers some carefully considered guidelines for the resolution of competing national jurisdictions, foregrounding territoriality, while Principle 9 recommends some safeguards against possible prosecutorial abuses, making states responsible for ensuring that an individual is not exposed to multiple prosecutions. Principles 11–13 are aimed at stabilizing and...