7.2.3. National courts and the principle of universal jurisdiction

7.2.3 7.2.3. National courts and the principle of universal jurisdiction

The principle of universal jurisdiction is the mechanism that enables national courts of any State to prosecute and try persons accused of committing international crimes (such as genocide or crimes against humanity) regardless of where the crime was committed, the nationality of the perpetrators or the nationality of the victims. The Genocide Convention of 1948 (Article 6 of the Convention) had identified two possibilities for the criminal jurisdiction of genocide: (a) a competent tribunal of the State in whose territory the genocidal act was committed; (b) an international criminal court that has jurisdiction over that that States have recognized its jurisdiction. The principle of universal jurisdiction constitutes an extension of the criminal jurisdiction of the crime of genocide to a third possibility: a court of a State other than the State in whose territory the genocidal act was committed. In order to be applied constructively and realistically, the principle should meet at least two conditions: a) the existence of a link between the crime and the “foreign” State whose court is considering declaring its jurisdiction to prosecute and try persons who have committed international crimes (for example, the victims of the crime include nationals of that State); b) that State should intervene only in the absence of the exercise of the criminal jurisdiction of the State with jurisdiction by reason of territory.17

The Pinochet Case An emblematic example where this principle was applied was the case of Pinochet. In 1998, Spanish Judge Baltazar Garzón applied this principle and declared Spanish jurisdiction for crimes of genocide and crimes against humanity that occurred during the Pinochet dictatorship in Chile. Judge Baltazar Garzón ordered the international arrest of Pinochet, using the Genocide Convention of 1948 and arguing for the broadening of the concept of genocide to include the elimination of a part of the “national group” that was discriminated against on ideological grounds. Pinochet was arrested in London on October 16, 1998 and held in detention in London for about 503 days, until he was released on humanitarian grounds. The Pinochet case has made it clear that former heads of state do not have immunity from crimes against humanity or genocide.

17. CASSESE, Antonio. I diritti umani oggi. Bari: Gius Laterza & Figli, 2005, p. 219.