Treaties, Custom and Universal Jurisdiction

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International Law-making
Essays in Honour of Jan Klabbers
Edited by
Rain Liivoja and Jarna Petman

First published 2014
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International law-making : essays in honour of Jan Klabbers / [edited by]
Rain Liivoja, Jarna Petman.
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1. International law. I. Liivoja, Rain, editor of compilation. II. Petman, Jarna,
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18 Treaties, custom and universal
jurisdiction
Rain Liivoja*
The principle of universal criminal jurisdiction constitutes one of the pillars
in the edifice of international criminal justice. By and large, universal
jurisdiction refers to the (purported) authority of every state to make its law
applicable to, and to empower its courts to try, certain offences solely on
grounds that they are of universal concern, i.e. even where that state has no
substantive connection to the offence.1
The obvious conceptual and practical significance of this principle is
closely matched by the amount of controversy surrounding it. For one, there
is uncertainty as to which offences – other than piracy, if any2– could be
regarded as being of universal concern for criminal law purposes. This
problem is compounded by the fact that the rationale for placing piracy
under a special jurisdictional regime – the lack of territorialjurisdiction over
the high seas – does not apply to offences such as genocide, crimes against
humanity and war crimes, which are often seen as being subject to universal
jurisdiction.3But even if one accepts that universal jurisdiction applies
* I am grateful to Monique Cormier and Anna Hood for their perceptive comments on an
earlier draft of this chapter. The usual disclaimer applies.
1 For definitions of universal jurisdiction along these lines, see Restatement, Third, Foreign
Relations Law of the United States (2 vols, 1987), § 404; Kenneth C. Randall, ‘Universal
Jurisdiction under International Law’, 66 Texas Law Review (1988) 785–841, at 788;
Polyukhovich v. Commonwealth, [1991] HCA 32, (1991) 172 CLR 501, at 659 (Toohey J); The
Princeton Principles on Universal Jurisdiction (Program in Law and Public Affairs, Princeton
University, 2001), principle 1(1); Universal Criminal Jurisdiction with regard to the Crime of
Genocide, Crimes against Humanity and War Crimes, Resolution of the Institut de droit
international (26 August 2005), para. 1; Report of the AU-EU Technical Ad hoc Expert
Group on the Principle of Universal Jurisdiction, EU Doc. 8672/1/09 REV 1 (April 2009),
para. 8.
2 See, for example, Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v. Belgium),
ICJ Reports (2002) 3, Separate Opinion of President Guillaume, para. 12: ‘international
law knows only one true case of universal jurisdiction: piracy’; Sienho Yee, ‘Universal
Jurisdiction: Concept, Logic, and Reality’, 10 Chinese Journal of International Law (2011)
503–30, at 511: ‘The experience and reality of international relations are such that
universal jurisdiction over crimes other than piracy has not been established as a matter
of international law.’

beyond piracy, there are uncertainties as to the possible procedural precon-
ditions for its exercise: Is the presence of the accused necessary for any
proceedings to commence or could an extradition request be made on the
basis of universal jurisdiction? Should priority be given to proceedings in
states that have some connection with the offence, as a result of the
application of the principle of forum non conveniens?
More generally, there is much disagreement about whether universal
jurisdiction is a good idea to begin with.4Perhaps the principal problem is
that the use of universal jurisdiction to prosecute foreign dignitaries has the
clear potential for inflaming international relations. Also, prosecuting cases
far away from the scene of the crime involves serious practical problems, in
particular, the availability of evidence and witnesses. In stark contrast to the
enthusiasm of the 1990s, these considerations have in the past decade had
a chilling effect on universal jurisdiction, leading at least one commentator
to perform a ‘post mortem’ on the principle.5That said, the discussion over
the nature and scope of universal jurisdiction has recently been reinvig-
orated as a result of it being placed on the agenda of the UN General
Assembly at the request of the Group of African States.6
Much ink has been spilt in attempts to clarify the circumstances under
which universal jurisdiction operates and to reflect upon the wisdom of
having and using it. This chapter, however, considers the preliminary and
largely methodological question of how the principle can be grounded in
the sources of international law. I argue that universal jurisdiction does not
derive – indeed, it cannot derive as a matter of principle – from treaty
provisions (section 1). Rather, it is based exclusively on customary interna-
tional law. With respect to custom, I argue that the comparatively scant case
law is not necessarily an insurmountable obstacle in establishing universal
jurisdiction (section 2). Indeed, the adoption by a large number of states of
legislation purporting to attach universal jurisdiction to certain offences is
sufficient for a customary law rule to emerge.
Treaties, custom and universal jurisdiction 299
3 See, for example, Eugene Kontorovich, ‘The Piracy Analogy: Modern Universal Jurisdiction’s
Hollow Foundation’, 45 Harvard International Law Journal (2004) 183–237;Luis Benavides,
‘Universal Jurisdiction over War Crimes’, in Rain Liivoja and Tim McCormack (eds),
Routledge Handbook of the Law of Armed Conflict (Routledge, forthcoming).
4 The exchange between former US Secretary of State Henry Kissinger and Human Rights
Watch Executive Director Kenneth Roth has become a classic on this point. See Henry A.
Kissinger, ‘The Pitfalls of Universal Jurisdiction’, 80 Foreign Affairs (2001) no. 4, 86–96, and
Kenneth Roth, ‘The Case for Universal Jurisdiction’, 80 Foreign Affairs (2001) no. 5, 150–4.
5 See Luc Reydams, ‘The Rise and Fall of Universal Jurisdiction’, in William A. Schabas and
Nadia Bernaz (eds), Routledge Handbook of International Criminal Law (Routledge, 2010)
337–54, at 349–50.
6 See GA Res. 64/117, 16 December 2009; GA Res. 65/33, 6 December 2010; GA Res.
66/103, 9 December 2011; GA Res. 67/98, 14 December 2012; and the documents
referred to therein.

1 Treaties
The idea of treaty-based universal jurisdiction emanates from certain
multilateral conventions dealing with transnational offences. Such treaties
generally (i) define an offence, (ii) oblige states parties to criminalise the
offence under national law, (iii) establish which states have jurisdiction to
prosecute the offence and (iv) oblige states to either prosecute any suspects
caught in their territory or to hand them over to another state prepared to
do so (the so-called aut dedere aut iudicare principle).7One example of such
a treaty is the 1984 Torture Convention.8Article 1 of this Convention defines
‘torture’ and Article 4 requires parties to ensure that all acts of torture are
offences under domestic law. Article 7(1) contains the principle of aut dedere
aut iudicare:
The State Party in the territory under whose jurisdiction a person
alleged to have committed any offence referred to in article 4 is found
shall in the cases contemplated in article 5, if it does not extradite
him, submit the case to its competent authorities for the purpose of
prosecution.
It is important to note that this is a purely procedural obligation that is not
itself a basis for exercising jurisdiction.9The question of jurisdiction is
addressed separately in Article 5. Paragraph 1 on this Article provides that
each state party ‘shall take such measures as may be necessary to establish its
jurisdiction’ over the offences defined in the Convention:
(a) When the offences are committed in any territory under its
jurisdiction or on board a ship or aircraft registered in that State;
(b) When the alleged offender is a national of that State;
(c) When the victim is a national of that State if that State considers
it appropriate.
These paragraphs essentially reiterate several ‘traditional’ bases of criminal
jurisdiction: territoriality and flag principles in sub-paragraph (a), active
personality principle in sub-paragraph (b) and passive personality principle
in sub-paragraph (c).
300 Rain Liivoja
7 The prototype appears to be the Convention for the Suppression of Unlawful Seizure of
Aircraft, 16 December 1970, in force 14 October 1971, 860 UNTS 105. The jurisdictional
arrangements of the Convention are, however, very particular given that the Convention
offences can only take place on an aircraft.
8 Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or
Punishment, GA Res. 39/46, 10 December 1984, in force 26 June 1987, 1465 UNTS 85.
9 Yee, ‘Universal Jurisdiction’, supra note 2, at 513: ‘ “Extradite or prosecute” is a means of
exercising jurisdiction; it is not jurisdiction itself’; Report of the AU-EU Expert Group,
supra note 1, para. 11.

Paragraph 2 of Article 5 goes on to address the situation where none of
the traditional bases of criminal jurisdiction apply:
Each State Party shall likewise take such measures as may be necessary
to establish its jurisdiction over such offences in cases where the
alleged offender is present in any territory under its jurisdiction and
it does not extradite him pursuant to article 8 to any of the States
mentioned in paragraph 1 of this article.
There are two common ways of interpreting and conceptualising this type of
provision. For one, as has already been mentioned, a number of commen-
tators take the view that this is in fact universal jurisdiction or at least some
sub-species thereof.10 In the alternative, these types of provisions have been
regarded as creating a distinct basis of jurisdiction, which is based on the
mere presence of the suspect in the territory. As three judges on the Interna-
tional Court of Justice (ICJ) put it in Arrest Warrant, treaties can establish ‘an
obligatory territorial jurisdiction over persons, albeit in relation to acts
committed elsewhere’.11
Both of these approaches suffer from serious defects. To address the
second one first, the problem is that the presence of the suspect in the
prosecuting state is something that occurs only after the offence has taken
place. Roger O’Keefe has correctly noted that ‘the nexus relied on to ground
prescriptive jurisdiction over given conduct must exist at the time at which
the conduct is performed’ because otherwise a form of retroactive criminal-
isation would occur.12 Thus, as Judge Loder put it in Lotus, ‘the subsequent
presence of a guilty person cannot have the effect of extending the
jurisdiction of the State’.13
The problem with the first approach – the idea that treaties create a form
of universal jurisdiction – is that treaties by their very nature are not
universal; they only bind states parties thereto.14 A number of commentators
Treaties, custom and universal jurisdiction 301
10 See, for example, Michael P. Scharf, ‘Application of Treaty-Based Universal Jurisdiction to
Nationals of Non-Party States’, 35 New England Law Review (2001) 363–382; Roger O’Keefe,
‘Universal Jurisdiction: Clarifying the Basic Concept’, 2 Journal of International Criminal
Justice (2004) 735–60, especially at 747.
11 Arrest Warrant,supra note 2, Joint Separate Opinion of Judges Higgins, Kooijmans and
Buergenthal, para. 41 (emphasis added).
12 O’Keefe, ‘Clarifying the Basic Concept’, supra note 10, at 742.
13 The SS “Lotus” (France/Turkey), PCIJ Publications Ser. A, No. 10 (1927), Separate Opinion
of Judge Loder, at 35 (emphasis removed).
14 Vienna Convention on the Law of Treaties, 23 May 1969, in force 27 January 1980, 1155
UNTS 331, Article 26: ‘Every treaty in force is binding upon the parties to it and must be
performed by them in good faith.’

have drawn attention to this problem.15 Also, the US Court of Appeals for the
Second Circuit has held, with respect to the Montreal Convention for the
Suppression of Unlawful Acts against the Safety of Civil Aviation,16 that
[t]he … Convention, unlike the customary international law prin-
ciples of criminal jurisdiction (including universal jurisdiction),
creates a basis for the assertion of jurisdiction that is moored in a
process of formal lawmaking and that is binding only on the States
that accede to it. The jurisdiction thus created is not a species of
universal jurisdiction, but a jurisdictional agreement among contract-
ing States to extradite or prosecute offenders who commit the acts
proscribed by the treaty – that is, the agreements between contracting
States create aut dedere aut punire (‘extradite or prosecute’)
jurisdiction.17
An attempt can be made to dispel the concern about the constraints of
treaties as a source of law by pointing out that while indeed ‘[a] treaty does
not create either obligations or rights for a third State without its consent’18
–pacta tertiis nec nocent nec prosunt – no actual obligations are created for third
states by allowing their nationals to be prosecuted by states parties to the
treaty. Nonetheless, it is difficult to see how states could endow themselves
by treaty with a right to exercise, vis-à-vis non-party nationals, jurisdiction
that none of them had as a matter of customary law. So perhaps more than
the pacta tertiis rule, the idea of treaty-based universal jurisdiction runs
counter to the general principle of law that one cannot give what one does
not have – nemo dat quod non habet.
In view of these considerations the two approaches to treaty-based jurisdic-
tional arrangements are indefensible. Yet there exists a third possibility,
which has perhaps not been paid sufficient attention. This approach would
regard the jurisdictional provision under consideration as a treaty-based
302 Rain Liivoja
15 Rosalyn Higgins, Problems and Process: International Law and How We Use It (Clarendon,
1994), at 63–65; Iain Cameron, The Protective Principle of International Criminal Jurisdiction
(Dartmouth, 1994), at 80; Antonio Cassese, ‘Is the Bell Tolling for Universality? A Plea
for a Sensible Notion of Universal Jurisdiction’, 1 Journal of International Criminal Justice
(2003) 589–95, at 591, 594; Claus Kreß, ‘Universal Jurisdiction over International Crimes
and the Institut de Droit International’, 4 Journal of International Criminal Justice (2006)
561–85, at 566. See also Institute of International Law, ‘Universal Criminal Jurisdiction’,
para. 2: ‘Universal jurisdiction is primarily based on customary international law. It can
also be established under a multilateral treaty in the relations between the contracting parties,
in particular by virtue of clauses which provide that a State party in the territory of which
an alleged offender is found shall either extradite or try that person’ (emphasis added).
16 23 September 1971, in force 26 January 1973, 974 UNTS 177.
17 US v. Yousef, 327 F3d 56 (US Court of Appeals, 2nd Circuit, 2003), at 96, citing Higgins,
Problems and Process,supra note 15, at 64.
18 Vienna Convention on the Law of Treaties, supra note 14, Article 34.

form of what is known in many national legal systems as the principle of
vicarious administration of justice or the principle of representative
jurisdiction (stellvertretende Strafrechtspflege,principe de la compétence par représen-
tation). This is a subsidiary basis for criminal jurisdiction, a typical example
of which can be found in the German Penal Code:
German criminal law shall apply to other offences committed abroad
if the act is a criminal offence at the locality of its commission or if that
locality is not subject to any criminal law jurisdiction, and if the
offender … was a foreigner at the time of the offence, is discovered
in Germany and, although the Extradition Act would permit extra-
dition for such an offence, is not extradited because a request for
extradition within a reasonable period of time is not made, is rejected,
or the extradition is not feasible.19
A provision of a similar nature can be found in a number of other
Continental legal systems20 and in South American criminal law,21 but is not
particularly well-known elsewhere.22 In cases contemplated by this type of
provision, the prosecuting state lacks original jurisdiction. The only reason
to exercise jurisdiction is the desire to fill a void that would emerge other-
wise. Thus, the forum deprehensionis effectively steps into the shoes of a state
that has original jurisdiction. While doubts can be expressed about this
arrangement being recognised in customary law – except, perhaps, as
regional or special custom – there is no obvious reason why states could not
enter into such arrangements by treaty.
Under this approach, the state where the suspect is captured and prose-
cuted would neither exercise its own quasi-territorial jurisdiction nor
universal jurisdiction belonging to all states. Rather, it would apply
jurisdiction delegated to it by other parties to the treaty. The jurisdiction
over a national of a non-party would thus be conditional on at least one of
the parties having jurisdiction over that person by virtue of one of the
traditional jurisdictional principles. According to Sienho Yee, in such a
situation ‘at least one party to the regime can legitimately exercise juris-
diction based on a traditional criterion, and the prosecuting State party is
Treaties, custom and universal jurisdiction 303
19 Strafgesetzbuch [Penal Code], 15 May 1871 (Germany), Section 7(2)(2).
20 See, e.g., Strafgesetzbuch [Penal Code], 15 May 1974 (Austria), section 65(1)(2); Karis-
tusseadustik [Penal Code], 6 June 2001 (Estonia), Riigi Teataja I 2001, 61, 364 ... RT I
04.04.2012, 1, section 7(3); Rikoslaki [Penal Code], 19 December 1889 (Finland),
39/1889, Chapter 1, section 3(1); Code pénal [Penal Code], 22 July 1992 (France), Article
113-8-1; Schweizerisches Strafgesetzbuch [Penal Code], 21 December 1937 (Switzerland),
SR 311.0, Article 7.
21 See, e.g., Código Penal [Penal Code], 24 July 2000 (Colombia), Ley N° 599, Article 16(6).
22 See Jürgen Meyer, ‘The Vicarious Administration of Justice: An Overlooked Basis of
Jurisdiction’, 31 Harvard International Law Journal (1990) 108–16.

simply performing the function of that other party in its stead, for whatever
reason (such as its inability or unwillingness to do so)’.23
One of the distinct advantages of this approach is that it avoids the thorny
question about how to identify treaties that generate universal jurisdiction.
After all, there is no principled way of telling how widely a treaty has to be
ratified in order to be seriously considered as giving rise to jurisdiction that
is in any way universal. Construing such treaties instead as creating represen-
tative jurisdiction, their impact would be directly proportionate to the
number of ratifications – the more states parties, the more likely it is for one
of the parties to have original jurisdiction over the offence, which would
bring the perpetrator within the reach of the treaty regime.
Some commentators support the idea of treaty-based universal juris-
diction partly in order to bolster the jurisdiction of the International
Criminal Court (ICC) over non-party nationals.24 However, the legality of
the jurisdiction of the ICC is in no way premised on the possibility of creating
universal jurisdiction by treaty. The possibility of delegating criminal
jurisdiction by treaty seems to be one fairly convincing way of explaining the
competence of the Court: by becoming parties to the Rome Statute, states
have given to the Court a part of their own territorial and active personality
jurisdiction with respect to certain offences.25
2 Custom
When it comes to establishing universal jurisdiction as a matter of customary
international law, there are admittedly some difficulties relating to the
density of the state practice and clarity of the opinio juris. Commentators who
are sceptical about the notion of universal jurisdiction in general – or doubt
whether it extends to offences other than piracy – have drawn attention to
two factors. First, cases where a conviction has been obtained on the basis of
the universality principle are few and far between.26 Second, in a number of
304 Rain Liivoja
23 Yee, ‘Universal Jurisdiction’, supra note 2, at 515. See also Cassese, ‘Is the Bell Tolling for
Universality? A Plea for a Sensible Notion of Universal Jurisdiction’, at 591, 594: ‘it may be
contended that [treaty-based] jurisdiction does not extend to offences committed by
nationals of states not parties, unless the crime (1) is indisputably prohibited by customary
international law …; or (2) the national of a non-contracting state engages in prohibited
conduct in the territory of a state party, or against nationals of that state.’
24 See Michael P. Scharf, ‘The ICC’s Jurisdiction over the Nationals of Non-Party States: A
Critique of the U.S. Position’, 64 Law & Contemporary Problems (2001) 67–117; Scharf,
‘Application of Treaty-Based Universal Jurisdiction’, supra note 10.
25 See generally Dapo Akande, ‘The Jurisdiction of the International Criminal Court over
Nationals of Non-Parties: Legal Basis and Limits’, 1 Journal of International Criminal Justice
(2003) 618–50.
26 John B. Bellinger, III, and William J. Haynes, II, ‘A US Government Response to the
International Committee of the Red Cross’s Customary International Humanitarian Law
Study’, 89 International Review of the Red Cross (2007) no. 866, 443–471.

these cases – perhaps the majority – other bases of jurisdiction have been
operational as well; in other words, only very few cases have been decided
solely on the basis of universal jurisdiction. But neither of these points is
necessarily fatal to the argument that certain offences other than piracy are
subject to universal jurisdiction as a matter of customary international law.
It is convenient to address the second point – the lack of pure universal
jurisdiction cases – first. It is indeed true that cases purporting to apply
universal jurisdiction have most often been brought by states that also have
some substantive connection to the offence, the victims or the perpetrator.
The prosecution of Adolf Eichmann in Israel is a case in point. Eichmann’s
crimes were directed against the Jewish people, leading the District Court of
Jerusalem to place some reliance on the passive personality and protective
principles,27 notwithstanding the difficulty that the State of Israel did not
exist at the time the offences were committed.28
In more recent cases, the defendants have mostly become resident in the
state where they were prosecuted,29 and a number of legal systems regard
residency as a sufficient basis for the exercise of jurisdiction (as an extension
of sorts of the active personality principle). For example, in the recent
Finnish trial of Francoise Bazaramba for his involvement in the Rwandan
genocide, the defendant had been a resident of Finland for over three years
by the time an investigation was commenced,30 and under Finnish law,
residency, even if obtained after the alleged offence took place, appears to
be a sufficient basis for jurisdiction.31
However, in cases with a potentially ‘mixed’ jurisdictional basis, courts
have often either emphasised the particular significance of universal
jurisdiction or failed to explore seriously the alternative bases of jurisdiction.
In Eichmann, for instance, even though the Supreme Court subscribed to
the District Court’s views as to the applicability of the protective and passive
personality principles, it most emphatically stated that the ‘State of Israel …
was entitled, pursuant to the principle of universal jurisdiction and in the
capacity of a guardian of international law and an agent for its enforcement,
to try the appellant.’32 In Bazaramba, the District Court of Itä-Uusimaa based
Treaties, custom and universal jurisdiction 305
27 See Attorney General v. Eichmann, (1961) 36 ILR 5 (District Court of Jerusalem, Israel),
paras 30–38.
28 See James E. S. Fawcett, ‘The Eichmann Case’, 38 British Year Book of International Law (1962)
181–215, at 190–2.
29 Reydams, ‘The Rise and Fall of Universal Jurisdiction’, supra note 5, at 348.
30 Prosecutor v. Bazaramba, District Court of Itä-Uusimaa, Finland, 11 June 2010, at part IV,
section 4.5.
31 See Penal Code (Finland), Chapter 1, section 6(1): ‘Finnish law applies to an offence
committed outside of Finland by a Finnish citizen. …’; and section (3)(1), equating to a
Finnish citizen ‘a person who was permanently resident in Finland at the time of the
offence or is permanently resident in Finland at the beginning of the court proceedings’.
32 CrimA 336/61 Attorney General v. Eichmann, (1962) 16(3) PD 2033, (1962) 36 ILR 277
(Supreme Court, Israel), at 304.

Finnish jurisdiction with respect to the crime of genocide squarely on the
universality principle.33 The Court invoked residency only to support the
alternative charges of murder.34 This approach to jurisdiction was not altered
on appeal.35
To return to the more general problem of the scarcity of case law, it is indeed
true that the total number of cases relying on universal jurisdiction has not
been all that great nor has it been geographically overly representative. While
precise figures are difficult to come by, there have probably been just over 30
prosecutions under the universality principle in fewer than 20 countries –
Australia, Canada, Israel, the US and a handful of European states.36
Yet the small number of cases should not be decisive as to the existence of
a rule of customary international law. While the offences that arguably fall
under universal jurisdiction are certainly far too common from the perspective
of the victims, they are not common enough to result in extensive case law in
a large number of states. The arrival of a suspected war criminal in, say, the
Cook Islands, is not exactly a daily occurrence. Furthermore, the evidentiary
and other practical difficulties in successfully mounting prosecutions under
universal jurisdiction also contribute to the small number of cases.
Accordingly, while actual cases and the reactions of other states to them
are a significant source of state practice, they do not accurately reflect the
attitude of the international community towards universal jurisdiction.
Potentially the greatest source of evidence for the purposes of establishing
customary law on this point comes from national legislation – states enacting
the principle in national criminal law.
Admittedly, the role of domestic legislation in constituting practice for
the purpose of customary international law has been downplayed by
eminent commentators. Some of them have argued that only the conduct of
organs capable of representing the state in inter-state affairs counts as state
306 Rain Liivoja
33 Bazaramba (District Court),supra note 30, at part III. Penal Code (Finland), Chapter 1,
section 7(1): ‘Finnish law applies to an offence committed outside of Finland where the
punishability of the act, regardless of the law of the place of commission, is based on an
international agreement binding on Finland or on another statute or regulation interna-
tionally binding on Finland (international offence). Further provisions on the application of
this section shall be issued by Decree.’ See also Asetus rikoslain 1 luvun 7§:n soveltamisesta
[Decree on the Application of Section 7 of Chapter 1 of the Penal Code], 16 August 1996,
627/1996, section 1(3) (listing the crime of genocide as an international offence).
34 Bazaramba (District Court),supra note 30, at part III.
35 Prosecutor v. Bazaramba, Court of Appeal of Helsinki, Finland, 30 March 2012.
36 Máximo Langer, ‘The Diplomacy of Universal Jurisdiction: The Political Branches and
the Transnational Prosecution of International Crimes’, 105 American Journal of
International Law (2011) 1–49, at 42, reports the total number of cases as 32, and mentions
13 States (Australia, Austria, Belgium, Canada, Denmark, France, Germany, Israel, The
Netherlands, Norway, Spain, Switzerland, UK). Prosecutor v. Bemba Gombo, ICC Pre-Trial
Chamber II, Amicus Curiae Observations on Superior Responsibility Submitted by Amnesty
International (20 April 2009), at footnote 71, adds three States to the list (Finland, Sweden
and the US).

practice37 – legislatures clearly are not such organs. Inasmuch as this
objection is based on the extreme voluntarist approach of construing
customary law as some sort of a tacit treaty, it has gone decidedly out of
fashion. Reflecting a different reality, the Principles on the Formation of
International Law adopted by the International Law Association in 2000 (the
ILA Principles) confidently note that ‘[t]he practice of the executive,
legislative and judicial organs of the State is to be considered, according to
the circumstances, as State practice’.38
Other commentators have held that only real, physical acts constitute state
practice.39 Another version of this theory holds that claims or statements are
relevant only when made in terms of a specific dispute.40 The notion that
actions speak louder than words certainly holds true in international law.
However, as the commentary to the ILA Principles points out, ‘there seems
to be no inherent qualitative difference’ between physical and verbal acts.41
Moreover, making statements is a rather common form of state practice and
indeed the only form on some topics (for example, the recognition of other
states).42 Thus, the Principles stipulate that ‘[v]erbal acts, and not only
physical acts, of States count as State practice’.43 As regards the ostensible
requirement that verbal acts relate to a particular dispute in order to be
considered state practice and not be merely abstract, Michael Akehurst has
accurately observed ‘there is no clear dividing line between the two classes
of assertions; they merge into one another’, especially as ‘assertions about a
particular dispute are [sometimes] dressed up as assertions in abstracto, and
vice versa’.44
In practice, states and courts often turn to national legislation in search
of evidence of customary rules of international law.45 For example, in the
landmark case of Paquete Habana, the US Supreme Court relied extensively
Treaties, custom and universal jurisdiction 307
37 See, in particular, Karl Strupp, ‘Les règles générales du droit de la paix’, 47 Recueil des
Cours (1934) 259–595, at 313–14.
38 International Law Association, Statement of Principles Applicable to the Formation of General
Customary International Law: Final Report of the Committee on Formation of Customary (General)
International Law, London Conference (2000), section 9.
39 Notably, Anthony A. D’Amato, The Concept of Custom in International Law (Cornell
University Press, 1971), at 88; Fisheries (UK v. Norway), ICJ Reports (1951) 116, Dissenting
Opinion of Judge Read, at 116 and 191.
40 See Hugh Thirlway, International Customary Law and Codification: An Examination of the
Continuing Role of Custom in the Present Period of Codification of International Law (Sijthoff,
1972), at 58.
41 ILA Principles, supra note 38, commentary to section 4, at para. (a).
42 See Michael Akehurst, ‘Custom as a Source of International Law’, 47 British Year Book of
International Law (1974–1975) 1–53, at 2–3.
43 ILA Principles, supra note 38, section 4. See also Jean-Marie Henckaerts and Louise
Doswald-Beck, Customary International Humanitarian Law (reprinted, corrected edn, 2 vols,
Cambridge University Press, 2009) vol. i, at xxxviii–xl.
44 Akehurst, ‘Custom as a Source of International Law’, supra note 42, at 4.
45 Ibid., at 8–10.

on historic pieces of domestic law of various states to determine the
existence of a customary law rule that fishing vessels were exempt from
capture as prizes in armed conflict.46
Customary law relating to universal jurisdiction can and should be
deduced from the legislation of various states making certain crimes of
international concern subject to their legal systems without any substantive
link to the offence. For example, while the Cook Islands have not had the
occasion to rely on universal jurisdiction for the purposes of a prosecution,
it is significant that their law makes grave breaches of the 1949 Geneva
Conventions and the 1977 Additional Protocol I offences under national
law whether committed ‘in the Cook Islands or elsewhere’ and ‘regardless
of [the] nationality or citizenship’ of the perpetrator.47
A tally of domestic legal systems recognising the principle of universality
goes beyond the scope of this contribution. However, the few studies that
have been compiled on this point show the situation in much better light
than the comparatively meagre supply of jurisprudence.48 That said,
something of a difficulty is presented by the failure of domestic law to
distinguish between a customary law-based right to exercise jurisdiction and
a treaty-based obligation to exercise jurisdiction.
With that in mind, the jurisdiction applicable as a matter of national law
to genocide and crimes against humanity – rather than the grave breaches
of the Geneva Conventions – would be a better indicator of the existence of
universal jurisdiction in customary international law. While the crime of
genocide is defined in a dedicated treaty, the Genocide Convention only
makes reference to territorial jurisdiction and the jurisdiction of interna-
tional tribunals49 – it does not create a treaty-based jurisdictional regime.
Crimes against humanity, while codified in the Rome Statute,50 do not have
an independent treaty basis at all – there is no international agreement
placing an obligation on states to make crimes against humanity part of
national criminal law, or to prosecute or extradite persons suspected of
having committed such offences. Thus, any state that, by virtue of domestic
law, is willing to prosecute genocide or crimes against humanity without any
substantive link to the offence is effectively endorsing a customary law-based
universal jurisdiction with respect to those offences.
308 Rain Liivoja
46 The Paquete Habana, 175 US 677 (1900), at 686 et seq.
47 Geneva Conventions and Additional Protocols Act 2002 (Cook Islands), section 5(1) and
(3).
48 See, in particular, Amnesty International, The Pinochet Case: Universal Jurisdiction and Absence
of Immunity for Crimes against Humanity, AI Index EUR 45/01/99 (January 1999); Amnesty
International, Universal Jurisdiction: The Duty of States to Enact and Implement Legislation, AI
Index IOR 53/002/2001–53/018/2001 (1 September 2001); Report of the AU-EU Expert
Group, supra note 1.
49 Convention on the Prevention and Punishment of the Crime of Genocide, GA Res. 260 A
(III), 9 December 1948, in force 12 January 1951, 78 UNTS 277, Article 6.
50 Rome Statute of the International Criminal Court, 17 July 1998, in force 1 July 2000, 2187
UNTS 90, Article 7.

Having said all this, when assessing the existence of a rule of customary
international law where practice is contested, it is critical to take into account
negative or contradictory practice. The most vocal protests against the use
of universal jurisdiction have come from the US and Israel over the attempts
to have their officials prosecuted in different European countries. US
Secretary of Defence Donald Rumsfeld memorably threatened to have
NATO headquarters removed from Brussels if Belgium did not tone down
its legislation on international crimes, which made extensive use of universal
jurisdiction.51 Israel engaged in political countermeasures against the UK,
including cancelling a ‘strategic dialogue’ meeting in 2010, because of the
real possibility of Israeli politicians being arrested when visiting Britain.52 In
2003, Belgium reduced the scope of its universal jurisdiction legislation and,
in 2011, the UK made it more difficult for ordinary citizens to obtain arrest
warrants for suspected war criminals present in Britain. But based on the
material that is in the public record, it does not appear that the US or Israel
would have objected to the principle of universal jurisdiction as such. Their
objections were of a political character. Both States basically claimed that
criminal law was being used imprudently and in a manner likely to inflame
international relations.
Given that a significant proportion of the defendants in proceedings
premised on universal jurisdiction have come from African states, the
African Union (AU) has also taken umbrage with the principle. Starting in
2008, the AU Assembly has adopted a series of decisions on what it calls the
‘abuse of the principle of universal jurisdiction’. In the first of these
decisions, the Assembly took the view that ‘[t]he political nature and abuse
of the principle of universal jurisdiction by judges from some non-African
States against African leaders, particularly Rwanda, is a clear violation of the
sovereignty and territorial integrity of these States’.53 It resolved that the
relevant warrants of arrest ‘shall not be executed in African Union Member
States’ and requested ‘all UN Member States, in particular the EU States, to
impose a moratorium on the execution of those warrants’ pending discuss-
ions between the AU, the EU and the UN.54 In a more recent decision, the
Assembly went as far as to urge ‘[AU] Member States to use the principle of
reciprocity to defend themselves against the abuse of the principle of
Universal Jurisdiction’.55
Treaties, custom and universal jurisdiction 309
51 Craig S. Smith, ‘Rumsfeld Says Belgian Law Could Prompt NATO to Leave’, The New York
Times, 12 June 2003.
52 Adrian Blomfield, ‘Israel suspends Britain security meeting’, The Telegraph, 3 November
2010.
53 Assembly/AU/Dec.199(XI), 1 July 2008, para. 5(ii).
54 Ibid., paras 5(iv) and 8.
55 Assembly/AU/Dec.420(XIX), 16 July 2012, para. 5.

But in this very string of decisions, the AU Assembly explicitly recognised
that
universal jurisdiction is a principle of International Law whose
purpose is to ensure that individuals who commit grave offences such
as war crimes and crimes against humanity do not do so with impunity
and are brought to justice, which is in line with Article 4(h) of the
Constitutive Act of the African Union.56
Moreover, in a recent decision, the Assembly welcomed ‘the elaboration [by
the AU Commission] of a Model National Law on Universal Jurisdiction over
International Crimes’ and encouraged ‘Member States to fully take
advantage of this Model National Law in order to expeditiously enact or
strengthen their National Laws in this area’.57 The Model Law in question
stipulates that the highest court of original jurisdiction in a state
shall have jurisdiction to try any person charged with committing any
crime prohibited under this law, regardless of whether such a crime
is alleged to have been committed in the territory of the State or
abroad and irrespective of the nationality of the victim, provided that
such a person shall be within the territory of the State at the time of
the commencement of the trial.58
The offences mentioned by the Model Law are genocide, crimes against
humanity, war crimes, piracy, trafficking in narcotics and terrorism.59
Accordingly, AU member states clearly recognise the principle of univer-
sality. Moreover, they recognise it as applicable to a fairly broad range of
offences – indeed, ‘pushing … the boundaries of the crimes covered by that
principle’60 – and without the need for the defendant to be present in the
prosecuting state for proceedings to be initiated. Only in absentia trials are
excluded61 and extradition on the basis of universal jurisdiction seems
perfectly compatible with the Model Law. As Dapo Akande rightly notes,
310 Rain Liivoja
56 Assembly/AU/Dec.199(XI), supra note 53, para. 3.
57 Assembly/AU/Dec.419(XIX), 16 July 2012, para. 11.
58 African Union (Draft) Model National Law on Universal Jurisdiction over International
Crimes, Meeting of Government Experts and Ministers of Justice/Attorneys General on
Legal Matters (2012), section 4(1). Subsection (2) adds that the court ‘[shall] accord
priority to the court of the State in whose territory the crime is alleged to have been
committed, provided that the State is willing and able to prosecute’.
59 Ibid., section 8.
60 Dapo Akande, ‘The African Union, the ICC and Universal Jurisdiction: Some Recent
Developments’, EJIL:Talk!, 29 August 2012 <www.ejiltalk.org/the-african-union-the-icc-
and-universal-jurisdiction-some-recent-developments>.
61 Ibid.

[t]he Model Law and its endorsement by AU leaders contributes to
the State practice regarding the principle of universal jurisdiction.
Even if the Model Law is not used by States, acceptance of the Model
Law by the AU Assembly is also evidence of the opinio juris of African
States regarding the application of the principle.62
It should also be noted that some African states have not only refrained from
objecting to particular uses of universal jurisdiction by European states, but
actively assisted these states in carrying out proceedings. One commentator
has observed that, when Belgium carried out proceedings with respect to
individuals suspected of having taken part in the Rwandan genocide, ‘local
authorities offered the most extensive judicial cooperation, despite the absence
of a treaty between Belgium and Rwanda’.63 More recently, Finnish courts were
able to hold public hearings in Rwanda and Tanzania for weeks on end.64
In sum, far from collectively objecting to the principle of universality, many
African states seem to wholeheartedly endorse the principle. What does this
mean? The contentious legal issue emerges from the very same AU Assembly
decisions on the ‘abuse of universal jurisdiction’ that I mentioned above. The
Assembly has repeatedly called upon ‘all concerned States to respect Interna-
tional Law and particularly the immunity of state officials when applying the
Principle of Universal Jurisdiction’.65 The concerns are about immunities and
these concerns are entirely legitimate. The judgement of the ICJ in Arrest
Warrant made it quite clear that, whatever the rule for international tribunals,
certain high-ranking state officials enjoy immunity before national courts of
other states while in office, even for international crimes.66
There is, moreover, admitted difficulty in determining the range of
officials entitled to such immunity. In Arrest Warrant, the ICJ noted somewhat
ambiguously that ‘in international law it is firmly established that … certain
holders of high-ranking office in a State, such as the Head of State, Head of
Government and Minister for Foreign Affairs, enjoy immunities from
jurisdiction in other States’.67 The open-endedness of this view, compounded
by the limited ratification and uncertain customary law status of the 1969
Special Missions Convention,68 means that it is not at all clear which high
Treaties, custom and universal jurisdiction 311
62 Ibid.
63 Damien Vandermeersch, ‘Prosecuting International Crimes in Belgium’, 3 Journal of
International Criminal Justice (2005) 400–421, at 412.
64 See Rain Liivoja, ‘Dish of the Day: Justice sans frontiers à la finlandaise’, 1 Helsinki Review of
Global Governance (2010) 20–22; Minna Kimpimäki, ‘Genocide in Rwanda: Is It Really
Finland’s Concern?’, 11 International Criminal Law Review (2011) 155–76.
65 Assembly/AU/Dec.243(XIII) Rev.1, 3 July 2009, para. 6; similarly, Assembly/AU/
Dec.271(XIV), 2 February 2010, para. 7.
66 Arrest Warrant,supra note 2, at paras 58–61.
67 Ibid., at para. 51 (emphasis added).
68 Convention on Special Missions, GA Res. 2530 (XXIV), 8 December 1969, in force 21
June 1985, 1400 UNTS 231.

state officials, other than the ‘big three’, are entitled to immunity under
international law. This has been a source of dispute between European and
African states, resulting in several contentious cases before the ICJ.69 Also,
the AU Assembly recently requested the AU Commission to study the advisa-
bility of obtaining, through the UN General Assembly, an advisory opinion
of the ICJ on the question of immunities of Heads of State and senior state
officials from states that are not parties to the Rome Statute.70
All of the above suggests that protests by African states against the use of
universal jurisdiction with regard to prosecutions of their state officials relate
more properly to the scope of immunities under international law than
universal jurisdiction. Hence these objections do not have a negative impact
on the existence of universal jurisdiction in customary law.
3 Concluding remarks
This chapter made two related arguments about the sources of international
law as a basis for universal jurisdiction. First, I suggested that universal
jurisdiction cannot be based on a treaty as a treaty only creates a legal regime
as between its states parties. I also suggested that treaty provisions that
ostensibly create universal jurisdiction should rather be seen as devices for
allowing a state that captures a suspect to prosecute him/her on behalf of
another party to the treaty that has jurisdiction deriving from customary law.
Second, I argued that, when it comes to the purported rules of customary
international law that deal with universal jurisdiction, a singular focus on
case law is not justified. The legislation of various states should also be taken
into account as state practice. Finally, I also argued that, on closer exam-
ination, protests made by states with respect to the exercise of universal
jurisdiction are often not really directed against universal jurisdiction as such
but relate to a separate legal matter (in particular, immunity).
312 Rain Liivoja
69 Djibouti brought a case against France in the ICJ, arguing that its Director of Public
Prosecutions and Head of National Security would be entitled to such immunity. The
Court disagreed: Certain Questions of Mutual Assistance in Criminal Matters (Djibouti v. France),
ICJ Reports (2008) 177, at para. 194. Congo also instituted proceedings against France,
claiming that its Minister of the Interior was entitled to immunity. However, Congo later
had the case removed from the General List: Certain Criminal Proceedings in France (Republic
of the Congo v. France) (Order), ICJ Reports (2010) 635. Most recently, Rwanda has sought
to bring a claim against France, alleging that the Chief of General Staff of its Defence
Forces and the Chief of Protocol attached to the Presidency are entitled to immunity. So
far, France has not expressed its acceptance of the Court’s jurisdiction in this matter:
International Court of Justice, ‘The Republic of Rwanda applies to the International Court
of Justice in a dispute with France’, Press Release No. 2007/11 (18 April 2007). For a
discussion of the dispute underlying Congo’s application, see Charles Chernor Jalloh,
‘Universal Jurisdiction, Universal Prescription? A Preliminary Assessment of the African
Union Perspective on Universal Jurisdiction’, 21 Criminal Law Forum (2010) 1–65.
70 Assembly/AU/Dec. 419(XIX), supra note 57, at para. 3.