Lagerwall and Hebert-Dolbec, Universal Jurisdiction, Max Planck Encyclopedia of International Procedural Law, July 2022
Lagerwall and Hebert-Dolbec, Universal Jurisdiction, Max Planck Encyclopedia of International Procedural Law, July 2022
Subject(s):
Crimes against humanity — Genocide — Human trafficking — Piracy — War crimes — Jurisdiction of
states, adjudicative — Jurisdiction of states, universality principle
Published under the direction of Hélène Ruiz Fabri, with the support of the Department of International
Law and Dispute Resolution, under the auspices of the Max Planck Institute Luxembourg for Procedural
Law.
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A. Introduction
1 Universal jurisdiction can be defined as the competence of a State to prosecute and
punish the alleged perpetrators of certain offences, regardless of their location or the
nationality of the perpetrators or victims. In other words, it is exerted over crimes or
offenders presenting no connection to the State assuming jurisdiction. Its desirability or
necessity have been asserted in relation to a limited set of offences, either because they are
transnational—as in the case of terrorism or illicit traffic of narcotics—or because these
offences threaten the shared interests of all States to ensure a secure world devoid of
particularly odious attacks on humankind—as in the case of torture or forced
disappearance. Its object and purpose are ‘to prevent alleged perpetrators … from going
unpunished, by ensuring that they cannot find refuge in any State’, to borrow the terms of
the International Court of Justice (‘ICJ’) commenting on the obligations codified by the
Convention against Torture and other Cruel, Inhuman or Degrading Treatment or
Punishment (1984) (‘Convention against Torture’) including the obligation to adopt the
legislative measures necessary to initiate proceedings based on universal jurisdiction over
such offences (→ Questions Relating to the Obligation to Prosecute or Extradite (Belgium v
Senegal), 2012, para 120).
3 Nonetheless, the features of criminal law do not preclude States from extending their
legislative and judicial powers to situations occurring outside their territory, as the
Permanent Court of International Justice (‘PCIJ’) affirmed as early as 1927. The Court
examined whether Turkey had violated international law by initiating criminal proceedings
against a French lieutenant who oversaw the watch on board the steamship Lotus when it
collided on the high seas with another steamship, the Boz-Kourt, resulting in the death of
eight Turkish citizens. The Court decided that:
Though it is true that in all systems of law the principle of the territorial character
of criminal law is fundamental, it is equally true that all or nearly all these systems
of law extend their action to offences committed outside the territory of the State
which adopts them, and they do so in ways which vary from State to State. The
territoriality of criminal law, therefore, is not an absolute principle of international
law and by no means coincides with territorial sovereignty (SS ‘Lotus’ France v
Turkey, 1927, 20).
However, as the Court observed, States mainly provided such extraterritorial jurisdiction
for offences involving nationals abroad, whether authors or victims in an application of
active and passive personal jurisdiction, or crimes committed against public security in an
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application of the protection principle (→ International Criminal Jurisdiction, Protective
Principle).
4 From the 1930s, authoritative doctrine progressively affirmed the right for States to
claim and exercise universal jurisdiction for specific offences if the accused was found on
their territory. The Institute of International Law recognized that:
every State has the right to punish acts committed abroad by an alien found in its
territory when these acts constitute an offence against general interests protected
by international law … provided that the extradition of the accused is not requested
or the offer is refused by the State in whose territory the offence was committed or
of which the accused is a national (Art 5 Institute of International Law Resolution
(‘Res’) IV/1931).
Examples of such offences included piracy, slave trade, the spread of contagious diseases,
or interference with international means of communication. The International Association of
Penal Law also supported universal jurisdiction for ‘offences which are harmful to the
interests common to all states’ which included piracy, slave trade, trading in women and
children, drug traffic, the circulation of and traffic in obscene publications, and acts
endangering transnational communications (Resolution adopted by the Third International
Congress of Penal Law, 1933, preamble). The Harvard Law School prepared a Draft
Convention on Jurisdiction with Respect to Crime (1935) which envisaged the universal
jurisdiction of States, but only for piracy as ‘there [seemed] to be little or no basis for
common agreement as to which offences should fall within the class of delicta juris gentium
which are to be prosecuted and punished on the same basis as piracy’ (Dickinson, 1935,
569).
5 Only after the Second World War was the right and even the duty for States to provide
for universal jurisdiction further substantiated. A series of rules were codified to entitle or
oblige States to prosecute crimes perpetrated outside their borders by foreigners against
foreigners when the perpetrators were present on their soil. The adoption of such rules
seems to indicate that States are generally enabled to exercise universal jurisdiction in
relation to specific offences, following an approach different from that of the PCIJ under
which States can exercise extraterritorial jurisdiction as long as they do not ‘overstep the
limits which international law places upon their jurisdiction’ (SS ‘Lotus’, France v Turkey,
19). In the → Arrest Warrant Case (Democratic Republic of the Congo v Belgium) (2002)
relating to the criminal proceedings initiated by Belgium against Congolese Minister of
Foreign Affairs Yerodia for his conduct in the Democratic Republic of Congo, the Court did
not address the validity of the universal jurisdiction claimed by Belgium as such validity was
not contested anymore by the applicant State in its final submissions. However, several
judges suggested that universal jurisdiction was not admissible per se and had instead to be
grounded on specific rules of conventional or customary rules (Arrest Warrant of 11 April
2000, Democratic Republic of the Congo v Belgium (Separate Opinion of President
Guillaume), para 19; (Joint Separate Opinion of Judges Higgins, Koijmans and Buergenthal),
para 50; (Separate Opinion of Judge ad hoc Bula-Bula), para 81; (Dissenting Opinion of
Judge ad hoc Van den Wyngaert), para 50).
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nine Rwandan officials belonging to the regime of President Kagame by a French judge in
2006 were vividly denounced by the African Union in 2008:
Despite a dialogue between the African Union and the European Union resulting in an
expert report in 2009, African States continuously echo concerns about how non-African
States exercise universal jurisdiction against African States’ officials (AU-EU Expert Report
on the Principle of Universal Jurisdiction, 2009). The African Group within the United
Nations General Assembly (‘UNGA’) insisted, with the support of the Latin American and
Caribbean Group and the Non-Aligned Movement, that the UNGA study ‘the abuse of the
principle of universal jurisdiction’ during its 63rd session in 2008, an item later renamed
‘The Scope and Application of the Principle of Universal Jurisdiction’ (Explanatory
Memorandum on the Scope and Application of the Principle of Universal Jurisdiction, 2009).
The UNGA accepted the request in 2009, and the subject has since been examined yearly
by the Sixth Committee in a process that is still ongoing (Official Records of the UNGA,
63rd Session, 105th Plenary Meeting, 2009). On 20 December 2022, the UNGA invited the
working group of the Sixth Committee to consider and comment on the question ‘on the
relevant elements of a working concept of universal jurisdiction’ (UNGA Res 77/111 (2022),
para 3).
9 In his seminal book ‘On the Law of War and Peace’ of 1625, Grotius wrote that:
The fact must also be recognized that kings, and those who possess rights equal to
those kings, have the right of demanding punishments not only on account of
injuries committed against themselves or their subjects, but also on account of
injuries which do not directly affect them but excessively violate the law of nature
or of nations in regard to any persons whatsoever (1913, at 504).
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He believed that the State in which the perpetrator lived should either punish or hand the
perpetrator over to the requesting State (Grotius, 1913, 527). In ‘The Law of Nations’ of
1758, de Vattel affirmed the territoriality of criminal law but underlined that:
If the sovereign of the country in which crimes of this nature have been committed
requests the surrender of the perpetrators for the purpose of punishing them, they
should be turned over to him as being the one who has first interest in inflicting
exemplary punishment upon them (de Vattel, 1916, 93).
A century later, Heffter underlined that a violation of the law of nations could constitute
‘une offense envers tous les États qui obéissent aux mêmes lois morales, de nature à être
réprimée par leurs efforts communs (an offence against all States which obey the same
moral laws, likely to be repressed by their common efforts)’ [translation by the authors]
(1873, at 203), citing as examples of such offences acts of piracy or breaches of the sacred
rights of diplomats.
Some believe, also, that a cruel act done, for example, in Constantinople, may be
punished in Paris, for the abstract reason that one who offends humanity merits the
collective enmity of mankind and universal execration—as if judges were the
vindicators of the universal sensibility of men, rather than of the pacts that bind
them to one another. The place of punishment is the place of the crime, because
only there and not elsewhere are men under constraint to injure a private person in
order to prevent public injury (1963, at 60).
He was still convinced that there should be no sanctuaries where one could escape
punishment and contemplated the idea that ‘the persuasion that there is not a foot of soil
upon which real crimes are pardoned would be a most efficacious means of preventing
them’ (Beccaria, 1963, 61).
11 Universal jurisdiction thus appears to have been constantly torn between an idealistic
allocation of universal jurisdiction to national judges—inspired by jusnaturalism—and a
realist protection of States’ criminal sovereignty—inspired by voluntarist positivism. It must
be supposed that neither position was absolute in either upholding or excluding universal
jurisdiction. Some authors have also studied its object and purpose from notably different, if
not opposed, theoretical and methodological stances. Developments occurring in
international conventional and customary law during the 20th century framed universal
jurisdiction in refined terms. Given its axiologically marked features, authors from different
scholarly traditions continue to diverge as to its exact scope. Such controversies are
challenging to overcome from an ostensibly objective point of view. Suffice it to say that
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theoretical and methodological choices underpin most interpretative debates related to
universal jurisdiction in ways readers and commentators should be aware of.
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the Suppression of Unlawful Acts against the Safety of Fixed Platforms Located on the Continental
Shelf, 1988), terrorist bombings (Art 6 (4) Convention for the Suppression of Terrorist
Bombings, 1997), terrorism financing (Art 7 (4) Convention for the Suppression of the
Financing of Terrorism, 1999), and nuclear terrorism (Art 9 (4) Convention for the
Suppression of Acts of Nuclear Terrorism, 2005). Regional treaties such as the European
Convention on the Suppression of Terrorism (1977) impose a similar obligation upon States
Parties (Art 6 (1)).
14 A duty to establish such a subsidiary universal jurisdiction can also be found in largely
ratified treaties aiming at fighting drug trafficking. Article 36 (2) Single Convention on
Narcotic Drugs, adopted in 1961, holds that serious offences committed either by nationals
or by foreigners ‘shall be prosecuted by the Party in whose territory the offence was
committed, or by the Party in whose territory the offender is found if extradition is not
acceptable’ (see also Art 14 Protocol amending the Single Convention on Narcotic Drugs,
1972). The obligation was formulated in identical terms in Article 22 (2) (a) (iv) Convention
on Psychotropic Substances (1971). Article 4 (2) Convention against Illicit Traffic in
Narcotic Drugs and Psychotropic Substances (1988) instead allows State Parties to
establish their jurisdiction over such offences: ‘[e]ach party may also take such measures as
may be necessary to establish its jurisdiction over the offences … when the alleged offender
is present in its territory, and it does not extradite him to another Party’ [emphasis added].
15 A Convention was also adopted in 2000 within the United Nations to combat
transnational organized crime more generically by enhancing cooperation between States
in such criminal matters. Under the Convention against Transnational Organized Crime
(2000) ratified by nearly all States in the world, a State Party ‘may also adopt such
measures as may be necessary to establish its jurisdiction over the offences covered by this
Convention when the alleged offender is present in its territory, and it does not extradite
him or her’ (Art 15 (4)). The offences covered by the Convention have since been extended
by the adoption of the Protocol to Prevent, Suppress and Punish Trafficking in Persons,
Especially Women and Children (2000), the Protocol against the Smuggling of Migrants by
Land, Sea and Air (2000), and the Protocol against the Illicit Manufacturing of and
Trafficking in Firearms, Their Parts and Components and Ammunition (2001), all
supplementing the United Nations Convention against Transnational Organized Crime and
ratified by a great majority of United Nations Members.
16 Finally, States are entitled to adopt universal jurisdiction for acts of piracy understood
as acts of violence committed for private ends by the crew of a private ship or aircraft.
Article 19 Convention on the High Seas (1958) and Article 105 Convention on the Law of
the Sea (1982) enable States to seize a pirate ship or an aircraft on the high seas or in any
other place outside their jurisdiction and arrest the persons on board. As a corollary, both
treaties provide in identical terms that ‘[t]he courts of the State which carried out the
seizure may decide upon the penalties to be imposed’. The granting of universal jurisdiction
can partly be explained by the fact that piracy occurs on the high seas, which are not
subjected to the territorial sovereignty of any States and is carried out through the action of
unregistered ships or aircraft, which thus elude the jurisdiction of States. Universal
jurisdiction in such cases has also been deemed essential to protect States’ freedom to
navigate the high seas and secure the maritime routes used for their commercial activities
(Chadwick, 2018). This justification has sometimes been complemented by the necessity to
fight against impunity for persons labelled as ‘enemies of all mankind’. As early as 1820, the
United States Supreme Court held that ‘pirates being hostes humani generis, are
punishable in the tribunals of all nations. All nations are engaged in a league against them
for the mutual defence and safety of all’ (United States v Smith, 1820, 156). More recently,
the Supreme Court of the Seychelles asserted universal jurisdiction regarding Somali
pirates arrested by third States in the Indian Ocean and underlined that ‘piracy jure
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gentium is justiciable by the courts of every nation. Such universal jurisdiction is provided
for in international law, that the arresting State is free to prosecute suspected pirates and
punish them if found guilty’ (Republic v Dahir and 10 others, 2010, para 51). The assertion
of universal jurisdiction for piracy has been generally recognized as customary, maybe ‘the
sole traditional example where universal jurisdiction exists under customary law’ (Arrest
Warrant of 11 April 2000, Democratic Republic of the Congo v Belgium (Declaration of
Judge Ranjeva), para 6). Unsurprisingly, this uncontested example of a crime over which
States enjoy universal jurisdiction has served to justify such jurisdiction by analogy in the
case of international crimes. In his opening statement before the International Military
Tribunal in Nuremberg, United Kingdom Prosecutor Sir Hartley Shawcross affirmed that
‘[n]or is the principle of individual international responsibility for offences against the law
of nations altogether new. It has been applied not only to pirates. The entire law relating to
war crimes, as distinct from the crime of war, is based upon the principle of individual
responsibility’ (Trial of the Major War Criminals Before the International Military Tribunal,
4 December 1945, 56; see also Trial of the Major War Criminals Before the International
Military Tribunal, Opening Statement of United States Prosecutor Robert Jackson, 21
November 1945, 102).
under the obligation to search for persons alleged to have committed, or to have
ordered to be committed, such grave breaches, and shall bring such persons,
regardless of their nationality, before its own courts. It may also, if it prefers, and in
accordance with provisions of its own legislation, hand such persons over for trial to
another High Contracting Party concerned, provided such High Contracting Party
has made out a prima facie case (respectively Art 49 Geneva Convention for the
Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field
(‘GC I’); Art 50 Geneva Convention for the Amelioration of the Condition of
Wounded, Sick and Shipwrecked Members of Armed Forces at Sea; Art 129 Geneva
Convention Relative to the Treatment of Prisoners of War; and Art 146 Geneva
Convention Relative to the Protection of Civilian Persons in Time of War).
Neither the terms of the Geneva Conventions nor their First Additional Protocol relating to
the Protection of Victims of International Armed Conflicts (1977) explicitly impose that
States try the offences wherever they occur (Art 85). According to the commentary of
Article 49 GC I, however, it is commonly accepted that alongside the other bases of criminal
responsibility, ‘universal jurisdiction over grave breaches must be included in the
implementing legislation’ [emphasis added] (International Committee of the Red Cross
(‘ICRC’), 2016). For the ICRC, more than 115 national laws have adopted this form of
jurisdiction to try the perpetrators of grave breaches and other serious violations of
international humanitarian law (ICRC Statement on the Scope and Application of the
Principle of Universal Jurisdiction, 2018).
18 The adoption of these national laws has indeed been frequently justified as necessary to
implement the Geneva Conventions’ obligations. As an example, the adoption of Article 7 of
the Belgian law on the repression of grave breaches to Geneva Conventions and their
protocols (Loi du 16 juin 1993 relative à la répression des infractions graves aux
conventions internationales de Genève du 12 août 1949 et aux Protocoles I et II du 8 juin
1977 (Belgium)) was presented as an application of the Geneva Conventions (Rapport fait
au nom de la Commission de la Justice par Mme Stengers, 2003, 2). The scope of Belgian
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universal jurisdiction was restricted in 2003. The federal prosecutor now enjoys absolute
discretion to trigger the prosecutions in situations presenting no connection with Belgium.
Nonetheless, the idea of universal jurisdiction as necessary to implement Belgium’s
obligations under the Geneva Conventions remained.
19 National judicial practice shows—at least in some cases—that the Geneva Conventions
have been considered as embodying an obligation to exert universal jurisdiction. Notably, in
the → Eichmann Case, decided in 1961, the District Court of Jerusalem referred to the
Geneva Conventions to justify its criminal jurisdiction over Adolf Eichmann for the acts
which he had committed in Germany: ‘the principle of “universality of jurisdiction with
respect to war crimes” as the obligatory jurisdiction of the High Contracting Parties, an
obligation from which none of them may withdraw and which none of them may waive (as
expressly stated in the above-mentioned Conventions)’ (Attorney-General v Eichmann,
1961, at 38). In Demjanjuk v Petrovksy, decided in 1985, the United States Court of Appeals
accepted the validity of the criminal jurisdiction that Israel was seeking to exercise over
Demjanjuk by asking for his extradition from the United States, to try him for acts
committed in Poland and held that:
Israel is seeking to enforce its criminal law for the punishment of Nazis and Nazi
collaborators for crimes universally recognized and condemned by the community
of nations. The fact that Demjanjuk is charged with committing these acts in Poland
does not deprive Israel of authority to bring him to trial (Demjanjuk v Petrovsky,
1985, 545–46).
In other cases, courts have rather understood the Geneva Conventions as embodying an
encouragement to prosecute war crimes wherever they were committed (R v Finta, 1994;
Polyukhovich v Commonwealth, 1991, para 26).
20 States have since condemned individuals for war crimes committed outside their
territories (Director of Public Prosecutions v T, 1994). Given the practice of States adopted
in the last two decades and the absence of significant reaction as to the possible lack of
jurisdictional ground, it can indeed be said that the Geneva Conventions have been
interpreted as requiring States Parties to provide for universal jurisdiction in relation to
grave breaches of international humanitarian law.
21 The same may not be asserted with equal certainty about the customary rules of
international humanitarian law, which have been generally understood as conferring upon
States a right rather than an obligation to vest their judicial authorities with universal
jurisdiction. Practice is not devoid of examples illustrating the claim by a State to hold
jurisdiction over war crimes committed by foreigners outside their territory. In 1946, the
British Military Court established in Hamburg grounded its jurisdiction over German
industrialists Bruno Tesch, Joachim Drosihn, and SS Karl Weinbacher for the murder of
interned allied civilians using poison gas, not only on the supreme authority that Great
Britain, together with the three other Allied Powers, enjoyed over Germany as a result of
the declaration of its defeat in 1945, but also on ‘the general doctrine called Universality of
Jurisdiction over War Crimes, under which every independent State has in International
Law jurisdiction to punish pirates and war criminals in its custody regardless of the
nationality of the victim or the place where the offence was committed’ (Zyklon B Case,
1946). In its codification work, the ICRC adopted Rule 157, which holds that ‘States have
the right to vest universal jurisdiction in their national courts over war crimes’ [emphasis
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added] (Henckaerts and Doswald-Beck, 2005, Rule 157). In its commentary of Rule 157, the
ICRC underlines that:
The right of States to vest universal jurisdiction in their national courts over war
crimes in no way diminishes the obligation of States party to the Geneva
Conventions and States party to Additional Protocol I to provide for universal
jurisdiction in their national legislation over those war crimes known as ‘grave
breaches’ (Henckaerts and Doswald-Beck, 2005, 606).
22 Concerning the Rome Statute of the International Criminal Court (1998), it has been
argued that States Parties are obligated to exert universal jurisdiction regarding war
crimes, crimes against humanity, and the crime of genocide coming under the jurisdiction of
the Court. Its preamble underlines that ‘the most serious crimes of concern to the
international community as a whole must not go unpunished and … their effective
prosecution must be ensured by taking measures at the national level and by enhancing
international cooperation’ and that ‘it is the duty of every State to exercise its criminal
jurisdiction over those responsible for international crimes’. The Statute does not, as such,
impose an obligation for State Parties to exercise their criminal jurisdiction irrespective of
the place where the crimes were committed, the nationality of the suspects, or their
presence on the States’ territories. While States have, in the context of their ratification of
the Statute, granted universal jurisdiction to their judiciaries concerning the crimes listed
in the Statute, they have rarely considered that the Statute required such universal
jurisdiction. For example, during the adoption of French Law No 2010-930 adapting
criminal law to the institution of the International Criminal Court, modified in 2019 (Loi
portant adaptation du droit pénal à l’institution de la Cour pénale internationale (France)),
it was held that:
Thus, regarding war crimes, crimes against humanity, and the crime of genocide, State
Parties to the Rome Statute may exercise universal jurisdiction but are not obliged to under
the Statute (Tomuschat, 2002).
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odious scourge” (Preamble to the Convention)’ (Reservations to the Convention on the
Prevention and Punishment of the Crime of Genocide, 1951, 23). States have indeed
provided for and occasionally made use of universal jurisdiction in relation to the crime of
genocide. Examples range from the 1997 decision by the Higher Regional Court of
Dusseldorf sentencing a Bosnian Serb to life imprisonment for the crime of genocide and
other criminal offences (Nikola Jorgic Case, 1997), to the 2019 decision by the Court of
Assizes of Brussels sentencing a Rwandan national to 25 years of imprisonment for the
crime of genocide and war crimes (Fabien Nereste Case, 2019). In the former case, the
accused challenged the jurisdiction of German courts to try him for acts committed in a
foreign country against foreign victims before the European Court of Human Rights
(‘ECtHR’). He asserted that such universal jurisdiction was not recognized internationally in
the case of genocide and that German tribunals could consequently not qualify as
‘competent courts’ able to convict him to detention within the meaning of Article 5
Convention for the Protection of Human Rights and Fundamental Freedoms (1950) or as
‘tribunals established by law’ capable of hearing a fair trial within the meaning of Article 6.
The Court was not convinced by these arguments as the Genocide Convention did not
exclude such universal jurisdiction and given that international practice suggested that
States widely vested their judiciaries with such universal jurisdiction in relation to the
crime of genocide: ‘[i]ndeed, the principle of universal jurisdiction for genocide has been
expressly acknowledged by the [International Criminal Tribunal for the former Yugoslavia]
and numerous Convention States authorise the prosecution of genocide in accordance with
that principle’ (Jorgic v Germany, 2007, para 69).
24 The same can be said about crimes against humanity. States are certainly entitled, if not
obliged, to establish universal jurisdiction to be exercised even when such crimes occur
outside their territories. Since the International Law Commission (‘ILC’) decided to work on
crimes against humanity in 2013, comments provided by States show that they have
increasingly established universal jurisdiction for such crimes (First Report on Crimes
against Humanity, 2015, para 61; Mitchell, 2009, paras 34–35). The Commission was able to
adopt Article 7 (2) Draft Articles on Prevention and Punishment of Crimes against Humanity
which affirms that:
Each State shall also take the necessary measures to establish its jurisdiction over
the offences covered by the present draft articles in cases where the alleged
offender is present in any territory under its jurisdiction and it does not extradite or
surrender the person in accordance with the present draft articles.
Many States expressed their general support for the draft article in their written comments
or statements before the Sixth Committee (Fourth Report on Crimes against Humanity,
2019, para 163–64 and fns 420 and 421). Overall, the article did not meet any prominent
adverse reaction from States and Article 7 (2) was adopted by the Drafting Committee on
second reading in 2019 (Crimes against Humanity: Texts and Titles of the Draft Preamble,
the Draft Articles and the Draft Annex, 2019). The UNGA finally took note of the Draft
Articles on Prevention and Punishment of Crimes against Humanity (UNGA Res 74/187
(2019)) and decided that the Sixth Committee consider in 2024 the elaboration of a
convention on the prevention and punishment of crimes against humanity (UNGA Res
77/249 (2022)).
25 States must provide universal jurisdiction to bolster the prevention and repression of
grave violations of human rights such as policies or practice of apartheid (Art 4 (b)
Convention on the Suppression and Punishment of the Crime of Apartheid, 1973), acts of
torture and other cruel, inhuman, or degrading treatment (Art 5 (2) Convention against
Torture; see also Art 12 Inter-American Convention to Prevent and Punish Torture, 1985), or
enforced disappearance (Art 9 (2) Convention for the Protection of All Persons from
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Enforced Disappearance, 2006; see also Art IV Inter-American Convention on Forced
Disappearance of Persons, 1994). With regard to torture, this obligation was underlined by
the House of Lords in the Pinochet case: ‘if the states with the most obvious jurisdiction
(the Article 5 (1) states) do not seek to extradite, the state where the alleged torturer is
found must prosecute or, apparently, extradite to another country, ie there is universal
jurisdiction’ (R v Bartle and the Commissioner of Police for the Metropolis and others ex
parte Pinochet, 1999, 591). This was later recalled by the ICJ in 2012 when the Court was
invited to examine whether Senegal was in breach of its obligations under the Convention
against Torture for not having adopted until 2007 the necessary legislation enabling its
judicial authorities to prosecute persons suspected of committing torture occurring outside
its territory: ‘[t]he Convention against Torture thus brings together 150 States which have
committed themselves to prosecuting suspects in particular on the basis of universal
jurisdiction’ (Questions relating to the Obligation to Prosecute or Extradite, Belgium v
Senegal, para 75).
26 As for the crime of aggression, it remains doubtful that States are under an obligation
or even entitled to vest their judicial authorities with universal jurisdiction. Contrary to war
crimes, crimes against humanity, genocide, and crimes against United Nations and
associated personnel for which the Draft Code of Crimes against the Peace and Security of
Mankind, adopted in 1996, provides that ‘States shall take such measures as may be
necessary to establish its jurisdiction irrespective of where or by whom those crimes were
committed’, the jurisdiction for crimes of aggression was instead affirmed to rest ‘with an
international criminal court’ (Art 8; → Exercise of Jurisdiction over the Crime of Aggression:
International Criminal Court (ICC)). Doctrinal work later suggested to include the crimes
against peace or the crime of aggression in the list of international crimes that States may
prosecute even when they involve foreigners acting against foreign States, provided that
the suspect is under their jurisdiction (Principle 2 Princeton Principles on Universal
Jurisdiction, 2001; Cairo-Arusha Principles on Universal Jurisdiction in Respect of Gross
Human Rights Offences, 2002, para 3; Principle 2 Madrid-Buenos Aires Principles of
Universal Jurisdiction, 2015). If international military tribunals and national tribunals put
up by the Allied States in the aftermath of the Second World War did prosecute individuals
for the crime against peace, domestic courts have not and States have not so far granted
their courts with universal jurisdiction for such a crime (Scharf, 2012), except for some
States like Lithuania and Poland for example.
the exercise of civil jurisdiction by the courts of a state over conduct or events …
that all states have an interest in preventing and punishing even though the parties
involved are not affiliated in any way to the forum state, nor do the events take
place on the territory of the forum state, and nor do the events implicate the
interests of the forum state (Jain, 2015, 211).
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28 The issue has received much attention lately following the ECtHR decision in the case
of Naït-Liman v Switzerland (2018; see eg Mora, 2018; Saccucci, 2021; Ryngaert, 2017).
The case concerns Abdennacer Naït-Liman, a Tunisian national who acquired Swiss
nationality during the proceedings before the Swiss domestic tribunals. In 1992, after being
arrested by Italian police and handed over to Tunisian authorities, he was allegedly
detained in the Ministry of the Interior premises and tortured. He was later granted asylum
in Switzerland, where he lodged a claim for damages against the Tunisian State and its
former Minister of the Interior. The latter claim was rejected at all levels and dismissed by
the Swiss Federal Supreme Court in May 2007. The ECtHR rejected the applicant’s claim as
well as, among other things, it ‘considered that the respondent State was not bound to
accept universal civil jurisdiction under other norms of international law, despite the
undisputed jus cogens nature of the prohibition on torture in international law’ (Naït-Liman
v Switzerland, para 129).
29 In this respect, we must argue that the reasoning of the Strasbourg court is correct.
Nothing in international law, neither in treaty law nor customary law, points toward the
existence of an obligation for States to exercise universal civil jurisdiction. In other words,
there appears to be no autonomous obligation to exercise universal civil jurisdiction.
30 While it may be tempting to infer it from international legal instruments, this possibility
has been rebutted by courts and observers. Most of the debates revolve around Article 14
Convention against Torture. As a reminder, it provides that ‘[e]ach State Party shall ensure
in its legal system that the victim of an act of torture obtains redress and has an
enforceable right to fair and adequate compensation’. The Committee against Torture has
advocated in its General Comment No 3 for an extensive interpretation of the right to
redress and reparation included in Article 14 Convention against Torture (Committee
against Torture General Comment No 3 on the Implementation of Article 14, 2012). Yet,
General Comments are not binding and thus do not constitute an authoritative
interpretation (Committee against Torture General Comment No 1 on the Implementation of
Article 3, 1997, para 9), and the Committee appears more reserved when assessing
individual communications (Rosenmann v Spain, 2002; Z v Australia, 2014), caselaw
(ECtHR), and doctrine (Institute of International Law). As a matter of fact, it considers that
the Convention against Torture ‘does not require that a State endow its courts with
universal civil jurisdiction’ (Universal Civil Jurisdiction with regard to Reparation for
International Crimes, 2015; Naït-Liman v Switzerland, para 188). The same reasoning was
applied to other treaties, such as the Convention Relating to the Status of Refugees (1951).
31 Nor does customary international law provide for such an obligation. The ECtHR
asserts in this regard that ‘[a]lthough the States’ practice is evolving, the prevalence of
universal civil jurisdiction is not yet sufficient to indicate the emergence, far less the
consolidation of an international custom’ (Naït-Liman v Switzerland, para 187). That being
said, the very fact that there is an evolving States’ practice may be contested. States are, on
the contrary, quite reluctant to recognize any form of universal civil jurisdiction (see Jones v
Saudi Arabia, 2006; Belhaj v Straw, 2017; Kazemi v Iran, 2014). Even in the few States
recognized as exercising universal civil jurisdiction, the genuine nature of this jurisdiction
must be questioned.
32 The most renowned forums for universal civil jurisdiction are United States tribunals.
The Alien Tort Claims Act or United States Alien Tort Statute (1948, 28 USC 1350) (‘ATCA’)
is a United States law granting jurisdiction to federal district courts in cases concerning
violations of public international law, ie ‘of all causes where an alien sues for a tort only in
violation of the law of nations or of a treaty of the United States’ (see also the Torture
Victim Protection Act, 1991, 28 USC 1350). First enacted in 1789, the Alien Tort Statute
was used in the case Filártiga v Peña-Irala (1980) to trigger what some have described as
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‘an absolute form of universal jurisdiction’ (Roper, 2018, 112). United States federal courts
could judge any acts committed in violation of universally accepted norms ‘regardless of the
nationality of the parties’ (Filártiga v Peña-Irala, 1980). While more than 200 cases were
prosecuted under the said Act, it has always been highly contested by other States
(Australia, Switzerland, and United Kingdom (Sosa v Alvarez-Machain, 2014); Canada
(Presbyterian Church of Sudan v Talisman Energy, 2009); Canada (Presbyterian Church of
Sudan v Talisman Energy, 2005); El Salvador (Chavez v Carranza¸ 2008); Indonesia (DOE
VIII v Exxon Mobil, 2002); South Africa (South African Apartheid Litigation, 2003)) and
observers (Van Schaack, 2005; Bellinger, 2009, 8). The Supreme Court ultimately restricted
the scope of the Alien Tort Claims Act in 2013 in the Kiobel case: claims shall now ‘touch
and concern the United States’, ie there must be a connection with the United States
(Kiobel v Royal Dutch Petroleum, 2013; see also Kiobel v Cravath, Swaine & Moore LLP).
Courts have since narrowly interpreted the ‘touch and concern’ standard, and even
dismissed cases based on the fact that they concerned foreign conduct, even when the
defendant was a United States corporation (see eg Mujica v Airscan Incorporated, 2014;
Cardona v Chiquita Brands, 2014; Mastafa v Chevron Corporation, 2014; see also Mora,
2018), let alone a foreign corporation (Jesner v Arab Bank, 2018). The exercise of any
universal civil jurisdiction by any United States court is now virtually impracticable (Ku,
2013).
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linked to criminal proceedings in those circumstances. In other words, there is no indication
of an obligation to establish an autonomous, universal jurisdiction (see eg Wallach, 2015,
830).
The decision found that Belgium failed to respect the immunity from criminal jurisdiction
and the inviolability which the Minister of Foreign Affairs enjoyed under international law
(Arrest Warrant of 11 April 2000, Democratic Republic of the Congo v Belgium, para 3).
Consequently, the Belgian law was modified in 2003 and provides that: ‘L’immunité attachée
à la qualité officielle d’une personne n’empêche l’application de la présente loi que dans les
limites établies par le droit international (the international immunity attached to the official
capacity of a person shall not prevent the application of this law, excepted within the limits
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established by international law)’ [translation by the authors] (Loi du 5 août 2003 relative à
la répression des violations graves du droit international humanitaire (Belgium)).
35 The ICJ ruling did not end the debates about the right or duty for States to waive
immunities in cases brought before their domestic courts concerning international crimes
committed abroad. The topic was mainly discussed during the work by the ILC devoted to
the immunity of State officials from foreign criminal jurisdiction. In 2017, the Commission
adopted, by 21 votes against eight with one abstention, Article 7 Draft Articles on Immunity
of State Officials from Foreign Criminal Jurisdiction, which provides that immunity of State
officials shall not apply in respect to genocide, crimes against humanity, war crimes, the
crime of apartheid, torture, and enforced disappearance (Report of the ILC, 2017, 176). As
the comments made by members of the Commission and States’ delegates during the Sixth
Committee of the UNGA illustrate, it remains uncertain whether such a rule is customary or
belongs instead to the progressive development of international law. Decisions grounded on
universal jurisdiction and denying immunity for international crimes remain scarce,
especially when the cases relate to high-ranking officials such as Chilean President Augusto
Pinochet (R v Bartle and the Commissioner of Police for the Metropolis and ors ex parte
Pinochet). Decisions initially waiving the immunity of Surinamese President Bouterse or
Libyan President Kaddafi have been reversed by higher courts (Bouterse, 2000, reversed by
Prosecutor-General v Bouterse, 2001; Khadafi, 2000, reversed by Khadafi, 2001; → Waiver
of Immunity). Domestic courts have also upheld immunity in cases concerning Ariel Sharon
(see Sharon and Yaron Case, 2003), George W Bush (Appeal No 20-80.511, 2021), or high-
ranking officials of the Israeli Defence Force (Case No 200.278.760/01, 2021).
36 This may partly explain why successful exercises of universal jurisdiction have primarily
concerned offenders with lower rank in the political or military structure of States who
were not considered to be entitled to immunity as in cases related to the head of
Afghanistan’s state intelligence service or deputy of state security (Hesam and Jalalzoy,
2008), a high official of the military regime of Mengistu Haile Mariam in Ethiopia (Eshetu
Alemu, 2017), or a Syrian colonel under the Asad regime (see the Trial of Anwar Raslan,
2022).
F. Concluding Remarks
37 The very idea of universal jurisdiction has sparked sheer enthusiasm as much as fierce
criticism in a manner reminiscent of the tension which characterizes international criminal
justice: both celebrated as an indispensable tool to win the fight against impunity and
decried as a neocolonialist device selectively serving the interests of the powerful in a
manner which jeopardizes the sovereignty of States from the global South. This tension has
been somehow toned down in practice as universal jurisdiction has generally been
exercised in the last two decades as a subsidiary title of jurisdiction for domestic courts to
refer to when the alleged offender—usually holding a lower-rank in the foreign State’s
military or political structure—is found on the territory of the forum State and is prosecuted
neither by the State on whose territory the crimes have been committed nor by the State of
which the alleged offender enjoys nationality. Cases have also remained scarce due to the
difficulties in gathering evidence in foreign countries; these difficulties being even more
acute when crimes have been committed decades ago. Obstacles have also come from
divergent interests held within the forum State between the judiciary, willing to let an
individual enter the territory in order to allow for their arrest, and the immigration services,
prone to refuse such access. Scarce as they may be, these cases continue to prompt
questions as to their legitimacy and effective contribution to justice. Reacting to the
sentencing by the German Court in Koblenz of a Syrian colonel for torturing and murdering
detainees in Damascus, the director of the European Center for Constitutional and Human
Rights, which supported 14 plaintiffs in this case, insisted: ‘[i]f Europeans only pursue
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“enemies of the West”, these cases will lead nowhere’ (Schaer, 2022). A justice and
accountability advocate further commented:
‘Today really wrenched my heart. When I imagined a process that might take us
close to justice, I imagined it would be in Syria in 2011. Not in Germany, in 2022 …
Of course, this trial is important and I saw hope in the eyes of the torture survivors
… But you cannot deny how most of us Syrians feel. We waited 11 years to get to
this moment but it’s not in Syria, it’s not in Arabic and the [al-Assad] regime is still
in power. So I just felt tired. How long do we need to wait to get to the end of our
story?’ (Schaer, 2022).
Marie-Laurence Hébert-Dolbec
Cited Bibliography
AW Heffter, Le droit international de l’Europe (EH Schroeder Berlin Cotillon Paris
1873).
H Grotius, De jure belli ac pacis libri tres (On the Law of War and Peace Three Books)
(Carnegie Institution of Washington 1913).
E de Vattel, The Law of Nations, or, The Principles of Natural Law: Applied to the
Conduct and to the Affairs of Nations and of Sovereigns (Carnegie Institution of
Washington 1916).
A Mercier, ‘Le conflit des lois pénales en matière de compétence: Révision des
résolutions de Munich’ (1931) 36 YIIL 87–162.
SD Murphy, ‘US Reaction to Belgian Universal Jurisdiction Law’ (2003) 97 AJIL 984–
87.
R O’Keefe, ‘Universal Jurisdiction: Clarifying the Basic Concept’ (2004) 2 JICJ 735–45.
From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2023. All Rights Reserved.
Subscriber: University of British Columbia; date: 11 October 2024
S Villalpando, ‘Eichmann Case’ in R Wolfrum (ed), The Max Planck Encyclopedia of
Public International Law (OUP Oxford 2007), <www.mpepil.com> (accessed July
2022).
H Abtahi and P Webb, The Genocide Convention: The travaux préparatoires (Martinus
Nijhoff Leiden 2008).
JB Bellinger, ‘Enforcing Human Rights in US Courts and Abroad: The Alien Tort
Statute and Other Approaches’ (2009) 42 VandJTransnatL 1–14.
J Ku, ‘Kiobel and the Surprising Death of Universal Jurisdiction Under the Alien Tort
Statute’ (2013) 107 AJIL 835–41.
S Breyer, The Court and the World Court: American Law and the New Global Realities
(Vintage New York 2015).
From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2023. All Rights Reserved.
Subscriber: University of British Columbia; date: 11 October 2024
PD Mora, ‘Universal Civil Jurisdiction and Forum Necessitatis: The Confusion of
Public and Private International Law in Naït-Liman v Switzerland’ (2018) 65 NILR
155–83.
A Saccucci, ‘The Case of Naït-Liman before the European Court of Human Rights’ in S
Forlati and P Franzina (eds), Universal Civil Jurisdiction: Which Way Forward? (Brill
Leiden 2021) 3–37.
Cited Documents
African Union, ‘Decision on the Report of the Commission on the Abuse of the
Principle of Universal Jurisdiction’ (1 July 2008) AU Doc Assembly/AU/14 (XI).
AU-EU Expert Report on the Principle of Universal Jurisdiction (16 April 2009)
8672/1/09 REV1.
Convention against the Taking of Hostages (signed 17 December 1979, entered into
force 3 June 1983) 1316 UNTS 205.
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Subscriber: University of British Columbia; date: 11 October 2024
Convention against Transnational Organized Crime (signed 15 November 2000,
entered into force 29 September 2003) 2225 UNTS 209.
Convention for the Protection of All Persons from Enforced Disappearance (signed 20
December 2006, entered into force 23 December 2010) 2716 UNTS 3.
Convention for the Protection of Human Rights and Fundamental Freedoms (signed 4
November 1950, entered into force 3 September 1953) 213 UNTS 221.
Convention for the Suppression of Acts of Nuclear Terrorism (signed 13 April 2005,
entered into force 7 July 2007) 2445 UNTS 89.
Convention for the Suppression of the Traffic in Persons and of the Exploitation of the
Prostitution of Others (signed 2 December 1949, entered into force 25 July 1951) 96
UNTS 271.
Convention for the Suppression of the Traffic in Women and Children (signed 30
September 1921, entered into force 15 June 1922) 9 LNTS 415.
Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation
(signed 23 September 1971, entered into force 26 January 1973) 974 UNTS 177.
Convention for the Suppression of Unlawful Acts against the Safety of Maritime
Navigation (signed 10 March 1988, entered into force 1 March 1992) 1678 UNTS
201.
Convention on the High Seas (signed 29 April 1958, entered into force 30 September
1962) 450 UNTS 11.
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Subscriber: University of British Columbia; date: 11 October 2024
Convention on the Suppression and Punishment of the Crime of Apartheid (signed 30
November 1973, entered into force 18 July 1976) 1015 UNTS 243.
Draft Convention on Jurisdiction with Respect to Crime (1935) 29 AJIL Supp 439–42.
Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in
Armed Forces in the Field (signed 12 August 1949, entered into force 21 October
1950) 75 UNTS 31.
Geneva Convention for the Amelioration of the Condition of the Wounded, Sick and
Shipwrecked Members of the Armed Forces at Sea (signed 12 August 1949, entered
into force 21 October 1950) 75 UNTS 85.
ILC, ‘Crimes against Humanity: Texts and Titles of the Draft Preamble, the Draft
Articles and the Draft Annex Provisionally Adopted by the Drafting Committee on
Second Reading’ (15 May 2019) UN Doc A/CN.4/L.935.
ILC, ‘Draft Code of Crimes against the Peace and Security of Mankind’ [1996] II
YBILC 15–73.
Institute of International Law Res IV/1931, ‘Le conflit des lois pénales en matière de
compétence’ (1931).
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Subscriber: University of British Columbia; date: 11 October 2024
Institute of International Law, ‘Universal Civil Jurisdiction with regard to Reparation
for International Crimes’ (2015) 76 YIIL 1–266.
International Convention for the Suppression of the Traffic in Women of Full Age
(signed 11 October 1933, entered into force 24 August 1934) 150 LNTS 431.
International Law Association Res 2/2012, ‘International Civil Litigation and the
Interests of the Public’ (26–30 August 2012) ILA 75th Session.
Loi du 16 juin 1993 relative à la répression des infractions graves aux conventions
internationales de Genève du 12 août 1949 et aux Protocoles I et II du 8 juin 1977,
Moniteur belge, 5 August 1993 (Belgium).
Loi du 16 juin 1993 telle que modifiée par la loi du 10 février 1999 relative à la
répression des violations graves du droit international humanitaire, Moniteur belge,
23 March 1999 (Belgium).
Loi du 5 août 2003 relative à la répression des violations graves du droit international
humanitaire, Moniteur belge, 7 May 2003 (Belgium).
Official Records of the United Nations General Assembly, 63rd Session, 105th Plenary
Meeting (14 September 2009) UN Doc A/63/PV.105.
Optional Protocol to the Convention on the Rights of the Child on the Sale of Children,
Child Prostitution and Child Pornography (signed 25 May 2000, entered into force 18
January 2002), 2171 UNTS 227.
Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the
Protection of Victims of International Armed Conflicts (signed 8 June 1977, entered
into force 7 December 1978) 1125 UNTS 3.
Protocol against the Illicit Manufacturing of and Trafficking in Firearms, Their Parts
and Components and Ammunition, Supplementing the United Nations Convention
against Transnational Organized Crime (signed 31 May 2001, entered into force 3 July
2005) 2326 UNTS 211.
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Protocol against the Smuggling of Migrants by Land, Sea and Air, Supplementing the
United Nations Convention against Transnational Organized Crime (signed 12
December 2000, entered into force 28 January 2004) 2241 UNTS 507.
Protocol amending the Single Convention on Narcotic Drugs (adopted 25 March 1972,
entered into force 8 August 1975) 976 UNTS 3.
Protocol for the Suppression of Unlawful Acts against the Safety of Fixed Platforms
Located on the Continental Shelf (signed 10 March 1988, entered into force 1 March
1992) 1678 UNTS 304.
Resolution adopted by the Third International Congress of Penal Law (Palermo, 3–8
April 1933): For What Offences is it Proper to Admit Universal Competency? (1948)
19 RIDP 418–21.
Rome Statute of the International Criminal Court (adopted 17 July 1998, entered into
force 1 July 2002) 2187 UNTS 90.
Single Convention on Narcotic Drugs (signed 30 March 1961, entered into force 13
December 1964) 520 UNTS 151.
UNGA Res 74/187, ‘Crimes against Humanity’ (18 December 2019) UN Doc A/RES/
74/187.
UNGA Res 76/118, ‘The Scope and Application of the Principle of Universal
Jurisdiction’ (17 December 2021) UN Doc A/RES/76/118.
UNGA Res 77/111, ‘The Scope and Application of the Principle of Universal
Jurisdiction’ (7 December 2022) UN Doc A/RES/77/111.
UNGA Res 77/249, ‘Crimes against Humanity’ (30 December 2022) UN Doc A/RES/
77/249.
United Nations Convention on the Law of the Sea (adopted 10 December 1982,
entered into force 16 November 1994) 1833 UNTS 397.
Cited Cases
Akpan v Royal Dutch Shell plc, The Hague District Court, 30 January 2013, C/
09/337050/HA.
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Application of the Convention on the Prevention and Punishment of the Crime of
Genocide, Bosnia and Herzegovina v Yugoslavia, Judgment, 11 July 1996, ICJ Rep 595.
Belhaj and others v Straw and others, 17 January 2017, [2017] UKSC 3.
DOE VIII v Exxon Mobil Corporation, Letter from the Government of Indonesia
submitted to the US Department of State, 15 July 2002.
El-Hojouj v Amer Derbas and others, The Hague District Court, 21 March 2012,
400882/HA.
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Subscriber: University of British Columbia; date: 11 October 2024
Fang v Jiang, [2007] NZAR 420.
Jones and others v United Kingdom, Merits and Just Satisfaction, ECtHR, 14 January
2014, Reports 2014-I 1.
Jones v Ministry of the Interior of Saudi Arabia, 14 June 2006, [2006] UKHL 26.
Jorgic v Germany, Merits and Just Satisfaction, ECtHR, 12 July 2007, Reports 2007-III
263.
Kazemi (Succession) v Islamic Republic of Iran, 10 October 2014, [2014] 3 SCR 176.
Kiobel v Cravath, Swaine & Moore LLP, 10 July 2018, 895 F 3d 238 (2d Cir 2018).
Kiobel v Royal Dutch Petroleum Company, 17 April 2013, 569 US 108 (2013).
Mastafa v Chevron Corporation, 23 October 2014, 770 F 3d 170 (2nd Cir 2014).
Mujica v Airscan Incorporated, 12 November 2014, 771 F 3d 580 (9th Cir 2014).
Naït-Liman v Switzerland, Merits and Just Satisfaction, ECtHR, 15 March 2018, App
No 51357/07.
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Questions relating to the Obligation to Prosecute or Extradite, Belgium v Senegal,
Judgment, 20 July 2012, ICJ Rep 422.
R v Bartle and the Commissioner of Police for the Metropolis and ors ex parte
Pinochet, 24 March 1999, 2 WLR 827.
Republic v Dahir (Mohamed Ahmed) and 10 others (The Topaz Case), Criminal Side
No 51 of 2009, Supreme Court of the Seychelles, 2010 SCSC 81.
Sharon and Yaron Case, Belgian Court of Cassation, 12 February 2003, P.02.1139.F/1.
Trial of Anwar Raslan, Koblenz Higher Regional Court, 1st Criminal Division, State
Security Division, 13 January 2022.
Trial of the Major War Criminals Before the International Military Tribunal, 4
December 1945, [1947] Vol III, Proceedings.
Trial of the Major War Criminals Before the International Military Tribunal, Opening
Statement of United States Prosecutor Robert Jackson, 21 November 1945.
Zyklon B Case, British Military Court, 8 March 1946, (1947) I LRTWC 103.
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