277 Undergraduate International Law Review at Cornell Vol. I Universal Jurisdiction in International Law: A Historical and Contemporary Analysis Natalie Szeto1* I. Introduction After the Second World War, the international community faced a profound dilemma: how to hold individuals accountable for atrocities committed under the authority of a sovereign state without a clear international legal framework. Traditional notions of sovereignty had long shielded state actors from external prosecution, raising important questions about whether existing international law was sufficient to address the unprecedented crimes perpetrated by Nazi Germany. Although the concept of universal jurisdiction had existed for centuries—most notably to prosecute piracy on the high seas—it was after World War II that the principle became formalized through the Nuremberg and Tokyo trials and later codified in the Geneva Conventions of 1949.2 The Geneva Conventions required state parties to prosecute or extradite individuals suspected of committing war crimes that violated the conventions.3 More broadly, the Geneva Conventions set a precedent for the use of universal jurisdiction in international law. In modern-day contexts, universal jurisdiction is considered a mechanism to hold perpetrators accountable for crimes against humanity, war crimes, genocide, and torture. By allowing the scope of national courts to surpass territorial or nationality limitations, universal 3 Raymund T. Yingling; Robert W. Ginnane, "The Geneva Conventions of 1949," American Journal of International Law 46, no. 3 (July 1952): 393-427 2 M. Cherif Bassiouni, "Universal Jurisdiction for International Crimes: Historical Perspectives and Contemporary Practice," Virginia Journal of International Law 42, no. 1 (Fall 2001): 81-162 1*BS (Cornell)’2028. I am very grateful to the Undergraduate International Law Review at Cornell’s editors, in particular Yuvraj Tuli and Beth Ebrahimpour, for their support throughout the process of writing this article. All views contained in the article are mine, and any errors are my own. 278 Undergraduate International Law Review at Cornell Vol. I jurisdiction is intended to prevent political obstruction and force perpetrators, such as Augusto Pinochet, to face justice. In doing so, it reaffirms that the authority of international law takes precedence over assertions of state sovereignty. In many instances, universal jurisdiction has fulfilled its purpose, with responsible parties ultimately facing legal consequences for their crimes. However, in some cases, the principle has been inconsistently applied or entirely abandoned due to political pressure. Although universal jurisdiction was intended to provide an objective mechanism for prosecuting the most serious international crimes, in practice, its application remains highly selective, driven more by states’ political or diplomatic interests than by consistent legal guidelines. This selective enforcement undermines the legitimacy of universal jurisdiction, allowing individuals responsible for international offenses to evade accountability. This article examines the evolution of universal jurisdiction, from its early origins in piracy prosecutions to its legitimization after World War II, focusing on how the Nuremberg Trials, along with the Geneva Conventions, institutionalized the idea that certain crimes are so grave that they take precedence over national sovereignty. The article analyzes the case of Augusto Pinochet, in which universal jurisdiction was effectively invoked to illustrate its potential as a legal instrument for promoting international accountability. It then examines instances in which political and diplomatic interests have compromised the consistent application of the principle, highlighting Belgium’s and Spain’s curtailment of their universal jurisdiction statutes. In evaluating these successes and failures, this article argues that, without a comprehensive and enforceable framework to guide its invocation, universal jurisdiction risks becoming a polarized tool rather than a reliable process to impart justice. This article concludes by proposing concrete recommendations to strengthen the 279 Undergraduate International Law Review at Cornell Vol. I legal and institutional foundations necessary for a consistent and practical application of universal jurisdiction. II. An Early Origin: Piracy Prosecutions In the context of this article, piracy is defined as acts of robbery that occur beyond the boundaries of any state’s territorial waters.4 Prior research on piracy in the early modern period has primarily centered on the North Atlantic Ocean and Caribbean Seas, where England and France dominated international trade routes5; accordingly, this article will focus on the role of European powers in shaping early legal approaches to piracy. In the sixteenth century, many individuals operated as state-sanctioned privateers tasked with attacking and plundering the merchant ships of rival nations.6 An early example is Sir Francis Drake, who sailed under the flag of England and attacked Spanish vessels despite the two nations not being at war at the time. Although England did not officially commission Drake, his actions were still rewarded because of the substantial wealth he returned to the English treasury. He was even knighted by Queen Elizabeth I for his exploits.7 By the early 1700s, however, England’s permissive stance had shifted as mercantilist economic theories became increasingly popular.8 This change reflected a broader transition in Europe away from the tolerance of piracy states had embraced in the previous centuries. Mercantilism argued that a nation’s wealth and power depended on maximizing exports and minimizing imports. However, this exchange of goods was not possible if pirates regularly interfered 8 Joshua Michael Goodwin, "Universal Jurisdiction and the Pirate: Time for an Old Couple to Part," Vanderbilt Journal of Transnational Law 39, no. 3 (May 2006): 973-1012 7 Hallwood and Miceli, “Piracy in the Golden Age”. 6 Hallwood and Miceli, “Piracy in the Golden Age”. 5 C. P. Hallwood and T. J. Miceli, “Piracy in the Golden Age, 1690–1730: Lessons for Today,” in Maritime Piracy and Its Control: An Economic Analysis (New York: Palgrave Pivot, 2015), https://doi.org/10.1057/9781137461506_8. 4 Eugene Kontorovich, "The Piracy Analogy: Modern Universal Jurisdiction's Hollow Foundation," Harvard International Law Journal 45, no. 1 (Winter 2004): 183-238 280 Undergraduate International Law Review at Cornell Vol. I with trade.9 As a result, courts began imposing severe penalties on individuals convicted of piracy. By giving every state the authority to capture and prosecute pirates, regardless of the pirates’ nationality or the victims’ national affiliations, states effectively accepted that certain crimes harmed the collective interests of all nations. This early application of universal jurisdiction established the legal foundation for later developments in international law. III. The Post-World War II Era: The Nuremberg Trials Despite the early application of universal jurisdiction to piracy prosecutions, the principle did not take firm shape in modern international law until the indictments following World War II. The creation of the International Military Tribunal at Nuremberg (IMT) in 1945 marked the first formal application of universal jurisdiction to crimes beyond piracy. A crucial difference between the IMT and past international bodies was its focus on prosecuting individuals for their actions rather than solely punishing the defeated nation. The IMT was established by the Charter of the International Military Tribunal, an agreement for the prosecution and punishment of the Axis Powers by the governments of the United Kingdom, the United States, France, and the Soviet Union.10 The Charter articulated the rules of procedure for the Tribunal, including how trials would be conducted. However, the most significant article in the Charter was Article 6, which described the crimes that would be punished. The three major crimes were crimes against peace, war crimes, and crimes against humanity. Crimes against peace included conspiring to wage or waging a war of aggression or a war in violation of international treaties.11 War crimes were defined as violations of the laws or customs of war, including murder, ill-treatment of slave labor or prisoners of war, plunder of public or 11 Comyns-Carr, A. S. “The Tokyo War Crimes Trial.” Far Eastern Survey 18, no. 10 (1949): 109–14. https://doi.org/10.2307/3024579. 10 Charter of the International Military Tribunal, August 8, 1945, 82 U.N.T.S. 279, art. 6. 9 Goodwin, “Universal Jurisdiction and the Pirate”. 281 Undergraduate International Law Review at Cornell Vol. I private property, and unjustified destruction.12 Crimes against humanity referred to inhumane acts committed against a civilian population before or during a war, such as extermination, enslavement, and deportation; it also included persecutions on political, racial, or religious grounds, regardless of whether or not it violated the domestic law of the country in which it was perpetrated.13 The most notable aspect of the definition of crimes against humanity is that it expanded the scope of international law beyond traditionally defined war crimes to include human rights abuses that occur during times of peace.14 Of the twenty-two Nazi defendants tried by the IMT, twelve were sentenced to death, seven received prison terms, and three were acquitted.15 President Truman declared that the outcome of the Nuremberg Trials would serve as the foundation for future international law, cementing crimes against peace, war crimes, and crimes against humanity as offenses that could be subject to prosecution under universal jurisdiction.16 Notably, the Tribunal established the precedent that individuals acting on behalf of a state or under official orders—such as the Nazi officials who carried out crimes in the name of the German government—could still be held personally accountable under international law. The IMT’s ruling directly challenged the Führerprinzip, or “leader principle,” which had governed Nazi Germany and required absolute obedience from subordinates.17 By prosecuting individuals for their role in orchestrating and carrying out atrocities—including genocide, mass murder, and crimes against humanity—the Nuremberg Trials underscored the idea that 17 Pauley, Bruce F. “Fascism and the Führerprinzip: The Austrian Example.” Central European History 12, no. 3 (1979): 272–96. https://doi.org/10.1017/S0008938900022408. 16 Wright, "The Law of the Nuremberg Trial”. 15 Quincy Wright, "The Law of the Nuremberg Trial," American Journal of International Law 41, no. 1 (January 1947): 38-72 14 Cassese, Antonio. “The Legitimacy of International Criminal Tribunals and the Current Prospects of International Criminal Justice.” Leiden Journal of International Law 25, no. 2 (2012): 491–501. https://doi.org/10.1017/S0922156512000167. 13 Charter of the International Military Tribunal. 12 Charter of the International Military Tribunal. 282 Undergraduate International Law Review at Cornell Vol. I perpetrators of international crimes cannot shield themselves with domestic immunities or the defense of acting under state orders. In terms of the legal implications of the IMT, Article 3 of the Charter asserted that every signatory country was obligated to assist the IMT by making available for investigation and trial any Nazi leaders or other major war criminals in their custody or otherwise within their reach.18 Though Article 3 was created in the specific context of World War II, it is still significant because it reinforces the core principle of universal jurisdiction that certain crimes are of such exceptional gravity that they require international cooperation and may be prosecuted by any state, irrespective of the location of the offense or the nationality of the accused. IV. The Geneva Conventions of 1949 In 1949, the four Geneva Conventions were adopted, forming the basis of modern international humanitarian law. The First Geneva Convention addresses the treatment of wounded and sick soldiers on land, the Second extends these protections to members of armed forces at sea, the Third outlines the rights and protections of prisoners of war, and the Fourth safeguards civilians during times of war.19 The most contested article of the Geneva Conventions was Common Article 3, which appeared identically in all four conventions and extended the enforcement of the conventions to “armed conflict not of an international character.”20 In effect, this article ensures that civilians, prisoners, and persons placed out of combat are protected from murder, cruel treatment, and torture. This application to non-international conflicts is symbolic because it limits state sovereignty in the interest of human rights by imposing international legal obligations to internal conflicts. 20 Pictet, Jean S. "Geneva Convention." International Committee of the Red Cross (1952). 19 Raymund T. Yingling; Robert W. Ginnane, "The Geneva Conventions of 1949," American Journal of International Law 46, no. 3 (July 1952): 393-427 18 Charter of the International Military Tribunal. 283 Undergraduate International Law Review at Cornell Vol. I Among the most crucial innovations of the Geneva Conventions is the concept that grave breaches of the outlined agreements in international armed conflicts, including willful killing, torture, or inhumane treatment of civilians and prisoners of war, can be subject to prosecution by any contracting state. All states that have ratified the Geneva Conventions are bound by an obligation to prosecute or extradite individuals who have committed certain war crimes, as outlined by the second paragraphs in Articles 49, 50, 129, and 14621: Each High Contracting Party shall be 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 the 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.22 Through these obligations, the Geneva Conventions establish universal jurisdiction over grave breaches, allowing any state party to prosecute individuals suspected of such violations within its judicial system, regardless of the perpetrators’ nationality or the location of the offense. It is important to note that this obligation does not extend to all war crimes but is limited to those defined as grave breaches.23 For example, violations of human rights are not considered a war crime and, thus, are not mandated to be prosecuted by a contracting party. Moreover, the 1949 Conventions only required the prosecution of acts committed during international armed conflicts; this was later revised in the Additional Protocols 23 van Elst, "Implementing Universal Jurisdiction”. 22 Art. 146, second paragraph, (IV) Geneva Convention Relative to the Protection of Civilian Persons in Time of War of 12 August 1949, 75 UNTS 287 (1950). 21 Richard van Elst, "Implementing Universal Jurisdiction Over Grave Breaches of the Geneva Conventions," Leiden Journal of International Law 13, no. 4 (December 2000): 815-854 284 Undergraduate International Law Review at Cornell Vol. I of 1977, which broadened the scope of the Conventions to expand protections to civilians in non-international armed conflicts, such as civil wars.24 V. The Convention Against Torture The Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT), adopted by the United Nations General Assembly in 1984, further codified the principle of universal jurisdiction.25 The UN Torture Convention was the first international treaty to establish universal jurisdiction over human rights violations.26 The application of universal jurisdiction is evident in Article 5(2): “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.”27 If a state chooses not to prosecute within its own territory, it is obligated to extradite the alleged offender to another state that claims jurisdiction under Article 5(1)—including when the offense was committed on that state’s territory or the offender, or victim is a national of that state.28 Yet, until recently, many nations have been reluctant to exercise universal jurisdiction over torture offenses.29 The varying ways in which State Parties have adopted the UN Convention Against Torture have resulted in vastly different outcomes. For example, while the United States has incorporated universal jurisdiction over torture offenses into federal law, it has been criticized 29 Ryngaert, “Universal Criminal Jurisdiction Over Torture”. 28 Ryngaert, “Universal Criminal Jurisdiction Over Torture”. 27 Convention against Torture, 1984. 26 Cedric Ryngaert, "Universal Criminal Jurisdiction Over Torture: A State of Affairs After 20 Years UN Torture Convention." Netherlands Quarterly of Human Rights 23, no. 4 (2005): 571-611. 25 Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, December 10, 1984, 1465 U.N.T.S. 85, art. 5. 24 Antonio Cassese, "The Geneva Protocols of 1977 on the Humanitarian Law of Armed Conflict and Customary International Law," UCLA Pacific Basin Law Journal 3 (1984): 55-118 285 Undergraduate International Law Review at Cornell Vol. I for failing to fully implement the UN Torture Convention because of its involvement in state-sponsored torture. In numerous instances—most notably during its post-9/11 “War on Terror” campaign—the United States has transferred suspected terrorists to countries that practice interrogational torture, despite the Convention Against Torture prohibiting both participation in and facilitation of state-sponsored torture.30 The legal ambiguity surrounding the application of the Convention Against Torture has enabled State Parties to interpret the Convention according to their own interests, allowing torture to continue and undermining the enforcement of universal jurisdiction. VI. Applying Universal Jurisdiction: Augusto Pinochet The arrest of General Augusto Pinochet in 1998 marked a crucial advancement in the practical application of universal jurisdiction. Under Pinochet’s regime, from 1973 to 1990, Chile witnessed extensive human rights violations, including enforced disappearances and systemic torture.31 Even after Chile returned to a democratic system, Pinochet’s status as a lifetime senator granted him immunity from domestic prosecution, effectively shielding him from accountability within Chilean jurisdiction. However, in 1998, Spanish Magistrate Baltasar Garzón invoked Spain’s universal jurisdiction statute, seeking to extradite Pinochet from the United Kingdom. Spain relied on obligations outlined in the UN Convention Against Torture, emphasizing states’ responsibility to either prosecute or extradite those accused of torture.32 The British House of Lords, in a landmark decision, rejected Pinochet’s immunity claim, reinforcing the principle that “universal jurisdiction enables states to deny diplomats immunity for crimes against 32 Ruth Wedgwood, "International Criminal Law and Augusto Pinochet," Virginia Journal of International Law 40, no. 3 (Spring 2000): 829-848 31 Silva, Patricio. "Augusto Pinochet: The emergence of one-man rule in Chile (1915–2006)." In Dictators and Autocrats, pp. 71-90. Routledge, 2021. 30 Linnartz, Isaac A. “The Siren Song of Interrogational Torture: Evaluating the U.S. Implementation of the U.N. Convention against Torture.” Duke Law Journal 57, no. 5 (2008): 1485–1516. http://www.jstor.org/stable/40040624. 286 Undergraduate International Law Review at Cornell Vol. I humanity.”33 The actions taken by the Spanish and British governments operated under the assumption that, under the Convention Against Torture, Chile did not have a protected right to try Pinochet, given the state’s direct involvement in the perpetrator’s crimes.34 The judicial ruling made by the House of Lords affirmed an important precedent that immunity does not shield former leaders from prosecution for internationally recognized crimes. Although Pinochet was eventually allowed to return to Chile due to medical considerations, the decision significantly strengthened universal jurisdiction's legitimacy as a legal doctrine. The ruling by the British House of Lords emboldened victims in Chile to pursue legal action against Pinochet, resulting in approximately 300 new cases filed by the end of 2003.35 Beyond the increased number of cases against Pinochet himself, Pinochet’s arrest caused Chilean courts to reinterpret the country’s amnesty law. Cases regarding forced disappearances were reconsidered as crimes of ongoing kidnapping because the bodies of the victims had not been recovered, meaning that perpetrators could still be prosecuted despite being officially pardoned.36 Several other countries have followed Spain’s example by invoking the Convention Against Torture to prosecute individuals accused of violating international law. In 2000, a judge in Senegal initiated legal proceedings against Hissène Habré, the former president of Chad, for torture of members of the Hadjera and Zaghawa ethnic groups.37 Similarly, Belgium employed universal jurisdiction to charge Abdoulaye Yerodia, the foreign minister of the Democratic Republic of Congo, with crimes against humanity and violations of the Geneva Conventions.38 The actions taken by 38 Ruth Wedgwood, "Augusto Pinochet and International Law," McGill Law Journal 46, no. 1 (November 2000): 241-254 37 Wedgwood, "International Criminal Law and Augusto Pinochet”. 36 Jonas, “The Ripple Effect of the Pinochet Case”. 35 Jonas, Stacie. "The Ripple Effect of the Pinochet Case." Human Rights Brief 11, no. 3 (2004): 10. 34 Wedgwood, "International Criminal Law and Augusto Pinochet”. 33 Melinda White, "Pinochet, Universal Jurisdiction, and Impunity," Southwestern Journal of Law and Trade in the Americas 7, no. 1 (2000): 209-226 287 Undergraduate International Law Review at Cornell Vol. I Senegal and Belgium signal a global willingness to pursue accountability beyond national borders. VII. Political Influences on Universal Jurisdiction Despite the notable success of the Pinochet case, subsequent applications of universal jurisdiction have highlighted significant inconsistencies and obstacles, underscoring the need for a more comprehensive legal framework. Belgium and Spain, both initially leading proponents of universal jurisdiction, eventually curtailed their statutes due to political pressure. In Belgium, the universal jurisdiction law enacted in 1993 was modified in 2003 after controversial cases targeting high-profile political figures from Israel and the United States provoked diplomatic backlash. Belgium brought charges against former U.S. President George H.W. Bush, Vice President Dick Cheney, and Secretary of State Colin Powell for alleged crimes related to military actions during the 1991 Gulf War, as well as Israeli Prime Minister Ariel Sharon for war crimes related to the Sabra and Shatila massacre in 1982. Belgium’s amended law restricted jurisdiction primarily to cases involving Belgian nationals or individuals residing in Belgium, significantly undermining the principle’s effectiveness as a tool for international accountability.39 Similarly, Spain amended its universal jurisdiction laws in 2009 after investigations targeting Chinese officials for human rights abuses in Tibet drew significant complaints from China, with the Chinese government accusing Spain of defamation and reprimanding the Spanish ambassador for Spain’s involvement in Chinese affairs.40 Out of fear of economic retaliation from China and a desire to preserve profitable trade, Spain responded by limiting its jurisdiction to cases involving Spanish nationals or clear links to Spain. The changes made by Belgium and 40 Castelos, Montserrat Abad. "The end of universal jurisdiction in Spain?." Spanish yearbook of international law 18 (2013): 223-230. 39 Roht-Arriaza, Naomi. "Universal Jurisdiction: Steps Forward, Steps Back." Leiden Journal of International Law 17, no. 2 (2004): 375-389. 288 Undergraduate International Law Review at Cornell Vol. I Spain reflect the vulnerability of universal jurisdiction to political pressures, compromising its credibility and impartiality as a judicial instrument. VIII. Policy Recommendations To address the shortcomings in the current application of universal jurisdiction, it is important to establish clear and enforceable international guidelines that reduce the influence of political considerations. Firstly, states should reinforce their commitment to international treaties such as the Geneva Conventions and the Convention Against Torture by explicitly integrating universal jurisdiction mandates into domestic legal frameworks. There is a significant gap in the codification of treaties that impose an obligation on states to exercise universal jurisdiction in cases of genocide and crimes against humanity.41 Explicit integration into states’ domestic laws would clarify legal obligations and improve state compliance with international treaties. Secondly, the international community should support the establishment of permanent international judicial bodies specifically dedicated to adjudicating cases of universal jurisdiction. Existing bodies, such as the International Criminal Court (ICC), have limited jurisdictional reach, which makes it challenging to address violations of international law. Creating permanent institutions would minimize domestic political pressures and conflicts of interest, providing an impartial platform for prosecuting serious international crimes. A permanent tribunal—whether through expanding the role of the ICC or establishing a new institution entirely—would help build trust in international justice systems and ensure more consistent application of universal jurisdiction. Thirdly, procedural reforms are necessary to protect universal jurisdiction cases from political manipulation and bias. The current lack of clear procedures for initiating investigations enables the selective prosecution of 41 Hovell, Devika. "The authority of universal jurisdiction." European Journal of International Law 29, no. 2 (2018): 427-456. 289 Undergraduate International Law Review at Cornell Vol. I perpetrators based on political or diplomatic considerations. Implementing transparent and rigorous standards for investigations and prosecutions would encourage accountability and impartiality. Further, states should introduce procedural safeguards, including independent international advisory committees, to objectively evaluate the legitimacy of cases and shield judicial processes from undue political influence. Universal jurisdiction remains a critical mechanism for addressing war crimes, genocide, torture, and crimes against humanity. However, its application will remain inconsistent and polarized without a comprehensive, enforceable framework to insulate it from political and diplomatic pressures. By adopting clear legal standards, establishing impartial international judicial mechanisms, and implementing procedural safeguards, the global community can significantly enhance the legitimacy, effectiveness, and consistent application of universal jurisdiction, ultimately strengthening international law. Universal Jurisdiction in International Law: A Historical and Contemporary Analysis