Universal Jurisdiction and International Jurisdiction

The visit of Saudi Crown Prince Mohammed bin Salman to France on Thursday, 28 July 2022, highlighted a fascinating theoretical question regarding the interplay between International Justice and the Domestic Justice of States. ( A claim against the Saudi Prince).

Indeed, two supporting rights International Non-Governmental entities ( Trial¹ International and Dawn²) submitted before a French Court a “complaint based on the principle of universal jurisdiction as provided for in Articles 689-1 and 689-2 of the Code of Criminal Procedure for acts of torture, and 689-13 for forced disappearance”.

The facts on which the complaint is founded resulted from a Special Rapporteur from United Nations (A/HR/41/CRP), issued on 17 June 2019, related to the death of Jamal Khashoggi³ (who was a founder member of the complainant Dawn), being the reasons for the petition underpinned by the 1984 Convention Against Torture and Other Inhuman or Degrading Treatment or Punishment and the 2006 Convention for the Protection of All Persons from Enforced.

The claim was filed with the “Tribunal Judiciaire de Paris” to the “Juge d’instruction” at the “Pôle crimes internationaux”.

But, if the alleged crime perpetrated by the Saudi Prince occurred in another country, and the victim was not a French national, on which grounds would a French domestic Court be competent to seize that claim?

Universal Jurisdiction is the answer!

Universal Jurisdiction and International Jurisdiction are two distinct juridical institutions, yet they both have the same ground: International Law. Nevertheless, the former´s legal foundation is the domestic law of the States, not the International Law.

One of the most exciting aspects of International Law is its remarkable capacity to defy the classical Manichaeism conception of Law in the sense that “if one thing is not on one side, it has to be on another”; this two-sided idea of Law’s institutions is a Roman heritage, quite probably rooted deep into the philosophical inspiration that “the most mathematically exact may a science be, the most perfect it will be.”

International Law challenges the ancient notion of absolute sovereignty. Its foundation rests not on the exercise of sovereignty but rather on its opposite. Essentially, International Law is predicated on the premise that states must relinquish some degree of sovereignty in their interactions with other states. Without this surrender, International Law would be limited to rare instances where the use of force is globally sanctioned, such as the United States intervention in Afghanistan in 2001, which was a war of self-defence endorsed by the United Nations Security Council.

Such a digression is necessary to portray that universal jurisdiction is born in Public International Law. However, it launches its effects in the Domestic Law of States, allowing the Judiciary of a given State to have the fictional competence to attain the ruling of a fact that has no connection with its territory or people. It means that being universal jurisdiction an institution of International Law, its applicability occurs in the State´s domestic law domain. Hence, a domestic court proceeds as if it were an International Court, exercising cross-border jurisdictional power. Therefore, universal jurisdiction essentially functions as a dual institution within international and national law, simultaneously straddling the two. Consequently, it defies categorization as strictly “one thing” (International Law) or “another” (National Law).

By the way, an interesting observation made by Sir Robert Jennings⁴ (in the preface of the fourth edition of Redfern and Hunter’s treatise on International Commercial Arbitration, it could be said that:

“Universal jurisdiction does not fit into orthodox modes of Jurisprudence´s categorization, as it lies astraddle the frontiers of foreign and domestic law and raises questions that do not easily fit within the category of public international law”

The assassination of Jamal Khashoggi is considered a grave crime with far-reaching implications in International Human Rights Law, to the extent that a domestic court in any country would be competent to adjudicate the case.

That is what those two supporting human rights International Non-Governmental entities (Trial International and Dawn) were fighting for as the Saudi Prince came to France. Since Mohammed bin Salman was appointed as responsible for that murder, he could be arrested and charged in France!

A concept as regards the difference between universal jurisdiction and international jurisdiction could be:

International Jurisdiction is the activity of settling disputes by international organisations tasked with that mandate, while Universal Jurisdiction is the application of domestic criminal law by national criminal courts to some specific types of crimes (set out in International Law) so egregious that any State has the competence to rule on them.

International Jurisdiction acts as a form of criminal extraterritorial competence. This contemporary legal construct aids in enforcing Human Rights by relaxing legal boundaries, thereby permitting a State’s Domestic Justice system to pursue criminal prosecution even when there is no connection between the crime’s elements and the State, including the potential criminal’s presence within its territory.

Then, the complaint those institutions filed with the French Tribunal is based on French domestic criminal Law, although with reasons connected with International Conventions.

Universal Jurisdiction is so relevant to International Law that the United Nations Sixth Committee, in its 75th Session,⁵ discussed “the scope and application of the principle of universal jurisdiction (Agenda item 87).⁶

It is worth noticing that Universal Jurisdiction may be the object of judgment by International Justice; for instance, if the Judiciary of a State prosecutes the national of a State, the latter can bring a complaint to the International Court of Justice (ICJ),⁷ alleging violation of the immunity granted by the 1961 Vienna Convention.⁸

The United Nations website provides relevant additional reading on the subject of universal jurisdiction: The scope and application of the principle of universal jurisdiction (Agenda item 85).

---

(1) TRIAL International is a non-governmental organization that fights impunity for international crimes and supports victims in their quest for justice. It takes an innovative approach to the law, paving the way for justice for survivors of unspeakable sufferings. The organization provides legal assistance, litigates cases, develops local capacity, and pushes the human rights agenda forward.”

(2) DAWN is “Democracy for the Arab World Now (DAWN) is a non-profit organization that promotes democracy, the rule of law, and human rights for all of the peoples of the Middle East and North Africa (MENA). We believe that peace, security, dignity, and prosperity in the region can only be achieved by democratically elected governments that respect human rights and abide by the rule of law.”

(3) Jamal Khashoggi: All you need to know about the Saudi journalist’s death, BBC, on 24 February 2021.

(4) A. Redfern and M. Hunter, Law and Practice of International Commercial Arbitration, 4th ed., London. Sweet & Marxwell, 2004, pp. 62-63.

(5) The Sixth Committee is the primary forum for the consideration of legal questions in the General Assembly. All of the United Nations Member States are entitled to representation on the Sixth Committee as one of the main committees of the General Assembly. See the Website.

(6) Canada, present at the meeting, committed that: “The Application of Universal Jurisdiction in Canada Canada has incorporated the principle of universal jurisdiction into domestic legislation by allowing Canadian courts to prosecute certain crimes that did not take place in Canada. The Government of Canada takes seriously its responsibility to ensure that Canada is not a safe haven for perpetrators of serious international crimes. In 2000, Canada enacted the Crimes Against Humanity and War Crimes Act (CAHWCA)1 to implement into Canadian law violations of international criminal law and international humanitarian law that are subject to individual criminal responsibility in the Rome Statute of the International Criminal Court (the Rome Statute). 2 The CAHWCA extends criminal liability in a manner consistent with the Rome Statute and at times goes beyond it, including within its ambit war crimes arising out of customary international humanitarian law and international criminal law. As a result, the CAHWCA is structured to accommodate new developments in international criminal law, whether originating from the International Criminal Court or other international law sources.”

(7) See the page on internet

(8) See: Arrest Warrant of 11 April 2000 (The Democratic Republic of the Congo v. Belgium) on the ICJ website. Exciting and valuable reading about the same subject: Opinion by Legal Advisory Committee to the Minister of Foreign Affairs of the Republic of Poland on immunities of State officials from foreign criminal jurisdiction, on the UN Website. See also Shi, X. (2021). Diplomatic Immunity Ratione Materiae and Crimes in International Law, Nordic Journal of International Law, 90(2), 228-252. doi: https://doi.org/10.1163/15718107-bja10025.