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Reading 6 Universal jurisdiction Crimes against humanity will only be deterred when their would-be perpetrators -be they political leaders, field commanders or soldiers and policemen-are given pause by the prospect that theywill henceforth have no hiding place: that legal nemesis may someday, somewhere, overtake them. The prospect is only realistic if there exists an international criminal court cognizant of their offence, or, in its absence, a rule permitting their punishment by courts ofcountries into whosejurisdiction they may come or perchance be brought. It is this practical consideration which makes universaljurisdiction the most important attribute ofa crime against humanity: it is. an offence so serious that any court anywhere is empowered by international law to try it and to punish it, irrespective of its place of commission or the nationality of the offender or the victims. Jurisdiction arises, in other words, wherever an offender is found, and it arises because he is alleged to have offended in a particularly outrageous way. There is no doubt that universaljurisdiction is recognized in customary international law as the basis for proceedings in domestic courts against pirates and slave traders. Equally, universal jurisdiction over aircraft hijackers , hostage-takers and other types of international terrorists has been partially achieved through the modern machinery of an international treaty requiring signatories to punish offenders found within their borders or else to extradite them to countries which will put them on trial. But these are all crimes which occur across borders, or on the open seas, or in air space of questionable ownership: universal jurisdiction arises not because they are crimes against humanity, but because they are crimes simpliciter,11 under any domestic law, which might otherwise go unpunished. As the Permanent Court oflnternationaljustice explained universal jurisdiction against pirates in the Lotus Case: It is an offence against the law of nations; and as the scene of the pirate's operations is the high seas, which it is not the right or duty of any nation to police, he is denied the protection of the flag which he may carry and is treated as an outlaw -as the enemy of mankind-hostis humanis generi.r-whom any nation may in the interest of all capture and punish. In fact, pirates-and the modern criminals such as hostage-takers, terrorists and international drug-traffickers, against whom universal jurisdiction is developing through treaties-are not usually implicated in crimes against humanity. The terrorist under one treaty may be a freedom 312 Chapter VII fighter under another; the drug dealer is a common criminal, heedless of the harm he puts in others' way, but it is an exaggeration to regard his offence as the equivalent of politically motivated mass murder. It follows that those courts and writers who have argued that universaljurisdiction for crimes against humanity arises on the same basis as universal jurisdiction over piracy are advancing a fundamentally flawed argument. Piracy occurs in a place, the high seas, which requires universaljurisdiction, as the alternative to there being no jurisdiction at all. The crime against humanity normally occurs in a country where there isjurisdiction, albeit one which (because of the power of the state-backed perpetrator) will not be exercised, and the issue arises years, perhaps decades, later, when the perpetrator is found (or brought) within the jurisdiction of a nation with the exceptional resolve to bring a prosecution. [...] Article 6(c) of the [Nuremburg] Charter12 defined a class of crime of which sixteen Nazi leaders were convicted, which is so peculiarly horrific that the very fact that educated, rational and otherwise respected rulers ofmen were capable ofconceiving and committing it must diminish whatever value there is in being human. The judgement at Nuremberg and the Conventions which followed gave this particular crime a special status in international law, as imposing an erga omnes13 obligation on every state to assist in its trial and punishment. This power to bring alleged perpetrators tojustice is described by the phrase "universaljurisdiction": states have the power, individually or collectively, to conduct a trial even if they have no link with the place where the crime was committed, or with its perpetrator or its victims. Jurisdiction over ordinary crime depends on a link, usually territorial, between the state of trial and the crime itself, but in the case ofcrimes against humanity that link may be found in the simple fact that we are all human beings. So an international tribunal, a court without a country, may be empowered to punish, as may (if no...

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