International Criminal Law
158
the
jus cogens
nature of these crimes necessarily entails the peremptory character of
the jurisdiction they carry under international law; that is, an international crime is
always accompanied by its jurisdiction under international law. This narrow view
of universal jurisdiction was confirmed, albeit
obiter dicta,
by the ICJ in the
Belgian
Arrest Warrant
case. In that case, a Belgian Investigating Judge issued in April 2000
an international arrest warrant against the then incumbent Congolese Foreign
Minister, on the basis of the Belgian 1993 Law Relative to the Repression of Grave
Breaches, charging him for grave breaches in violation of the 1949 Geneva
Conventions, Protocols I and II of 1977, as well as crimes against humanity. The ICJ
did not view universal jurisdiction as central to the issue, but in his Separate Opinion,
Judge Guillaume took a narrow view of universal jurisdiction, finding it applicable
in limited cases, and certainly not
in absentia
.
108
The fact that an international crime does not attract universal jurisdiction under
international law does not necessarily mean that it may not attract broad extra-
territorial jurisdiction (similar to universal) under domestic law. In fact, relevant
international treaties encourage parties to assert expansive jurisdiction with respect
to the offences contemplated, very much akin to universal jurisdiction. Such
jurisdiction, even if termed universal, is established after incorporation into
municipal law of the international offence. In this case, it is delineated in scope
according to domestic legislation. This is evident in, for example, Art 5 of the 1984
UN Torture Convention, which primarily establishes territorial (and State of
registration),
109
nationality
110
and passive personality jurisdiction.
111
Article 5 further
confers jurisdiction on:
(2) Each State party [to] 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 to any of the
States mentioned in para 1 of this article.
(3) This Convention does not exclude any criminal jurisdiction exercised in
accordance with internal law.
Article 5(2) and (3) thus permits the exercise of universal jurisdiction with respect to
the incorporated domestic offence of torture. Section 134 of the UK CJA 1988
incorporates this type of universal jurisdiction with regard to torture. It is not clear
whether such universal jurisdiction is primary or secondary to those mentioned in
Art 5(1). In terms of international comity, at least, the
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