On The Exercise Of Universal Jurisdiction

The principle of universal jurisdiction, as an important complement to principles of traditional jurisdiction, has been becoming the central difficulty in the community of scholars and criminal justice in recent years. "Universal jurisdiction" refers to that, based on common interests of human beings, any country is entitled to exercise criminal jurisdiction to those who charged with the most serious crimes, whatever their nationality or wherever commit a crime. Universal jurisdiction originated from the principle of "aut dedere aut judicare" posed by Hugo Grotius, and putted into practice from the anti-piracy operation in early period. It was established as the obligation of contracting states in Nuremberg trials after Warâ…¡, and confirmed in the majority of international criminal treaties in 1970s. The fundament of universal jurisdiction is that everyone should be responsible for his or her grave breach of international crimes in order to end impunity.European experiences on universal jurisdiction are very sophisticated in the whole world. There are specialized legislations without successful prosecution in Germany United Kingdom and Netherlands, while Belgium and Spain have advanced the integral legislation and successful prosecution. Nevertheless, it is very difficult for international community to establish the settlement mechanism on the conflicts of universal jurisdiction because of the diversity of legislative system and legal tradition in different countries. Such mechanism refers to the principles of universal jurisdiction, including that of "unwilling or unable" and "be present". The "unwilling or unable" principle means the case is being investigated or prosecuted by a State which has jurisdiction over it, unless the State is unwilling or unable genuinely to carry out the investigation or prosecution. The "be present" principle means the limiting factor that prevents the exercise of extra-territorial criminal jurisdiction from amounting to an unwarranted interference with the internal affairs of another State is that, for the trial to be fully effective, the accused must be present in the forum State. The former one refers to the jurisdiction conflicts among relevant countries, and the latter one emphasizes on avoiding the invasion of judicial sovereignty of other states.Universal jurisdiction should be limited in practice, and the limitation from the principle of immunity is the focus issue in this area. The "Pinochet Case" in British court and "Congo vs. Belgium" in ICJ show that international community holds positive attitude on absolute immunity to head of states. Obviously, it is harmful to development of universal jurisdiction. International unity mechanism or specialized treaties to exercise universal jurisdiction should be formulated so as to solve the conflict between universal jurisdiction and immunity system.The specialized legislation and judicial practice are not yet existed in China. Clause 9 of Criminal Code should not be regarded as the legal foundation of universal jurisdiction, since it only involves basic principle of jurisdiction, not the specific provision about universal jurisdiction. In order to carry out the duty of prosecution on universal jurisdiction according to the international treaties, China should add the relevant crime in Criminal Code, formulate the implementary bill of international treaties, and establish specialized institution.