The Principle Of Universal Jurisdiction Must Become Truly Universal

Over the years, several states have exercised universal jurisdiction to ensure that victims of some of the worst atrocities can see some justice being done during their lifetimes. The principle of universal jurisdiction allows for the prosecution of crimes such as genocide, war crimes, crimes against humanity, and torture committed on foreign territory by persons who are not nationals of the jurisdiction in question. Among others, the use of universal jurisdiction enabled German domestic courts to prosecute members of Daesh (also known as the Islamic State, ISIS, ISIL) for genocide and crimes against humanity.

Among others, in January 2023, the German Federal Court of Justice confirmed the conviction against Daesh member Taha A.-J. for genocide, crimes against humanity and war crimes committed against Yazidi victims in Fallujah, Iraq. The decision comes after the Daesh member tried to appeal his conviction of November 2021. In its 2021 judgment, the Higher Regional Court of Frankfurt found that in 2015, Taha A.-J. “purchased” and enslaved a five-year-old Yazidi girl named Reda and her mother. Taha’s wife was implicated as well. Taha and his wife held Reda and her mother as captives at their residence in Fallujah and forced them to practice Islam, work as slaves and deprived them of sufficient food. Taha would beat them and subject them to abuse. Reda died after Taha tied her with a cable outdoors to the bars of the window and left her in the heat of up to 51 degrees Celsius as a punishment for wetting the bed and a measure to “discipline” the girl. Taha A.-J. was prosecuted and convicted by German courts despite the fact that he was not German, the victims were not German, and the crimes were not perpetrated in Germany. The case shows how the principle of universal jurisdiction can be effectively used to ensure justice and accountability for international crimes.

However, the principle of universal jurisdiction is not yet universally understood and implemented. For example, in the United Kingdom, the law enables for a very narrow interpretation of the principle which is limited to crimes committed anywhere in the world as long as the perpetrators are U.K. nationals or residents. Furthermore, the law requires the Attorney General to consent to bring proceedings under the principle of universal jurisdiction, and as such, allows for politicization of such proceedings.

These limitations mean that essential opportunities for justice and accountability are ultimately missed. In order to address these shortfalls in the U.K. legislation, at the end of April 2023, Brendan O’Hara, British Parliamentarian, introduced a bill, the Universal Jurisdiction (Extension) Bill. As Brendan O’Hara M.P. explained, “the Bill would allow legal systems across the UK to do that, irrespective of where the crimes were committed, regardless of the nationality or location of the perpetrators or victims, and without having to consider whether the accused person or the victim had any specific connection to the UK. In short, the Universal Jurisdiction (Extension) Bill is about saying to the world’s worst criminals that there is no hiding place and there will be no immunity.”

As Brendan O’Hara M.P. further added “in this changing world, it is becoming increasingly clear that the UK’s position on universal jurisdiction is simply not fit for purpose. That is not just because we operate this extraterritorial jurisdiction, but because under current law, proceedings for international crimes cannot be brought without the consent of the Attorney General. Ultimately that means that decision to prosecute these crimes will be a political decision. Consequently, the UK cannot possibly play as meaningful a part in ensuring justice and accountability as it should. That may go some way to explaining why, to this day, British courts have not prosecuted anyone for their involvement in genocide, despite the fact that we have suspected perpetrators residing in the UK from both the Rwandan and the Yazidi genocides.”

The Bill is yet to go through the lengthy Parliamentary process. However, as the U.K. Government said in a response to a Written Parliamentary Question from Lord Alton of Liverpool, “there are no plans to reform the law on universal jurisdiction.” The Universal Jurisdiction (Extension) Bill could be the reform that is needed to help the U.K. to play its part in ensuring justice and accountability. Other states should follow suit to ensure that the principle of universal jurisdiction becomes truly universal.