Universal jurisdiction is generally based on the principle of aut dedere, aut judicare, under which States are obliged either to extradite perpetrators arrested on their soil (or transfer them to an international court) or to prosecute and judge them themselves. Universal jurisdiction allows all the national courts in the world to prosecute and sentence perpetrators of serious international crimes, regardless of the location in which crimes are committed and the nationality of perpetrators or victims of crimes. The source of this jurisdiction lies in the nature of the crime in question, which is important insofar that the international community as a whole is affected.
At first glance, the principle of universality creates an obvious possibility for victims of serious violations of human rights committed by multinational enterprises in a third country to lodge a complaint in any State invested with such jurisdiction. This principle requires neither a territorial link (in most cases the requirement of the suspect’s presence) nor a particular nationality among suspects and/or victims. It should be noted, however, that whereas the definitions of international crimes are characterised by the scope, systematic nature and destructive spirit of serious violations of fundamental rights such as the right to life and the bans on torture and degrading and inhumane treatment, violations attributed to multinational enterprises are not committed in this context (violations of civil and political rights are carried out at the company level, not at the host country level), or are of a different nature (violations of economic and social rights).
Three international conventions explicitly provide for universal jurisdiction:
- The four Geneva Conventions of 1949, Art. 49, 50, 129 and 146;
- The Convention against Torture and Other Cruel, Inhuman or Degrading Treatment of 1984, Art. 5(2); and
- The International Convention for the Protection of All Persons against enforced Disappearance of 2006, Art. 9(2).
Implementing the principle of universal jurisdiction is either a treaty obligation that a country has accepted, or a country’s own initiative. Thus, a variety of universal jurisdiction rules exists among EU Member States. 1 This next section provides a summary of these systems to more precisely identify the crimes for which universal jurisdiction is exercised. This will be followed by a review of technical and practical issues which have hindered or could hinder the use of universal jurisdiction to prosecute a company.