Edited by Alexander Orakhelashvili
Chapter 3: Universal jurisdiction: concept, logic and reality
1. The perceived abuse in recent years in the resort to universal jurisdiction, particularly over African officials, caused the Group of African States to request in February 2009 the inclusion of an additional item on the ‘Abuse of the principle of universal jurisdiction’ in the agenda of the 63rd session of the United Nations General Assembly (UNGA). The request was accepted and universal jurisdiction has been a subject of heated discussion in the UNGA since that time. Debates were conducted on this topic in the autumn of 2009. The UNGA then asked governments to submit observations and information on state practice. Again debates were held on the topic in the autumn of 2010. Further information has been sought and further work has been scheduled for 2011. 2. The comments and statements made by governments show that there is great confusion on the concept, the scope and application of universal jurisdiction. In order for us to properly understand universal jurisdiction, it will be helpful for us to recap the understanding of jurisdiction in general. Usually jurisdiction has three dimensions: prescriptive, adjudicative and enforcement. It is said that national criminal jurisdictionis normally justified on several grounds: territoriality, nationality, passive personality or protection of national vital interests. Sometimes the effects of an act upon a state are also assimilated to some of these principles. Sometimes a treaty may be considered an independent justification for the assertion of jurisdiction; whether a treaty without incorporating the normal links such as territoriality is a sufficient justification is a controversial question.
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