Indonesian Journal of International Law

Volume 20
Number 2 Teaching and Researching Article 5
International in Asia II

February 2023

Addressing The Principle and Challenges of Enforcement and

Prosecution Under Universal Jurisdiction: Charting New Pathways
for International Justice
Uche Nnawulezi
Alex Ekwueme Federal University, Nigeria, [email protected]

Hilary Nwaechefu
Redeemers University, Ede, Osun State, Nigeria, [email protected]

Salim Bashir Magashi

Ahmadu Bello University

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Recommended Citation
Nnawulezi, Uche; Nwaechefu, Hilary; and Magashi, Salim Bashir (2023) "Addressing The Principle and
Challenges of Enforcement and Prosecution Under Universal Jurisdiction: Charting New Pathways for
International Justice," Indonesian Journal of International Law: Vol. 20: No. 2, Article 5.
DOI: 10.17304/ijil.vol20.2.5
Available at: https://scholarhub.ui.ac.id/ijil/vol20/iss2/5

This Article is brought to you for free and open access by the Faculty of Law at UI Scholars Hub. It has been
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Indonesian Journal of International Law (2023), Vol. 20 No. 2, pp. 263 - 286
http://doi.org/10.17304/ijil.vol20.2.5

ADDRESSING THE PRINCIPLE AND CHALLENGES OF

ENFORCEMENT AND PROSECUTION UNDER UNIVERSAL
JURISDICTION: CHARTING NEW PATHWAYS FOR
INTERNATIONAL JUSTICE

Uche Nnawulezi
Faculty of Law, Alex Ekwueme Federal University
Correspondence: [email protected]

Hilary Nwaechefu
Faculty of Law, Redeemers University

Salim Bashir Magashi

Ahmadu Bello University

Received : 9 June 2022 | Revised : 28 November 2022 | Accepted : 6 December 2022

Abstract
Remarkably, the principle of universal jurisdiction is increasingly gaining traction in the inter-
national justice system as a key aspect of the prosecution of crime globally. Driven primarily
by efforts to combat crime, this paper examined the relevance of universal jurisdiction in order
to determine its adequacy as a system of international justice. Contextually, the principle of
universal jurisdiction emerged as a supplemental component of the international justice system.
This paper adopts the doctrinal approach by identifying and analyzing the relevant provisions
and challenges of universal jurisdiction. It argues that if regular enforcement is a goal of the
emerging international justice system, then universal jurisdiction will be an essential part of the
system. The paper found out that the application of universal jurisdiction is saddled with chal-
lenges, not because of its reliance on national authorities to enforce international norms but due
to the reluctance of those authorities to play this role. It concludes that universal jurisdiction will
not become a reliable pillar of the international rule of law until these challenges are properly
addressed.
Keywords: Enforcement, International, Prosecution, Universal Jurisdiction, Principle.

Copyright © 2023 – Uche Nnawulezi, Hilary Nwaechefu, Salim Bashir Magashi

Published by Lembaga Pengkajian Hukum Internasional
Uche Nnawulezi, Hilary Nwaechefu Alex Ekwueme

I. INTRODUCTION
The urgent need for an international justice system account of
addressing international crimes has necessitated the ability of the
domestic judicial systems of the State to investigate and prosecute
certain crimes, even if they were not committed on its territory by one
of its nationals or against one of its nationals. However, in light of the
controversies the principle of universal jurisdiction has provoked, this
principle of universal jurisdiction on certain grievous crimes in violation
of the provisions of international law is not a new international legal
system. The important factor to be noted is that it was codified in an
international treaty many years ago in the Geneva Conventions on the
Laws of War in 1949,1 which provided that State parties must prosecute
or extradite persons suspected to have committed grave breaches of any
aspect of the Conventions.
The need to understand that international treaties such as the Geneva
Conventions of 1949, the Convention against Apartheid of 1973,2 the
Convention against Torture 19843 , and the Convention against Enforced
Disappearance of 20064 is important because it provides strong
premises for appreciation of the relevance of universal jurisdiction to
State parties. It is agreed that international customary law allows the
use of universal jurisdiction for crimes against certain crimes viewed as
weighty by the global community, which may be in the form of crimes
against humanity and/or genocidal crimes. However, this paper aims to
enrich our understanding of some of the critical issues associated with
the principle of universal jurisdiction as an international justice system.
This accounts for why the global community agitated for a standard
international justice system over the years. Now, the ultimate question
is premised on how do we guide against political manipulations of this
international justice system in order to safeguard the rights and freedom
1
Geneva Convention Relative to the Protection of Civilian Persons in Time of War
(Fourth Geneva Convention). 75 UNTS 287 (adopted on 12 August 1949, entered into
force on 21 October 1950).
2
International Convention on the Suppression and Punishment of Crime of Apartheid,
adopted on 30 November, 1973, (entered into force 18 July 1976).
3
Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or
Punishment, adopted on 10 December 1984, (entered into force 26 June 1987).
4
International Conventions for the Protection of All Persons from Enforced
Disappearance, adopted on 17 July, 1998 (entered into force 1 July 2002).

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 Addressing The Principle and Challenges of Enforcement and Prosecution

of the people oppressed? Before going into the different measures of

guiding against dictatorship and/or political manipulations by super
powers, understanding the basic principles of universal jurisdiction is
important. The rest of the paper is structured as follows: Section 2 is on
the concept of and overview of the principle of universal jurisdiction,
Section 3 presents the evaluation of the principle of universal
jurisdiction under the Statute of International Criminal Court. Section 4
is on the challenges of prosecution and enforcement, Section 5 focused
on the need to strengthened the international criminal law enforcement
mechanisms through the understanding of the changes and challenges,
while Section 6 gives concluding remark and policy implications. It
is therefore based on this that, this paper will attempt to advance the
relevance of universal jurisdiction and analyze the compelling need to
inculcate it our respective criminal procedure laws.

II. PRINCIPLE OF UNIVERSAL JURISDICTION

The dire need to ensure that international crimes are prosecuted and
offenders are punished according to the provisions of the law informed
the emergence of the principle of universal jurisdiction. In this sense, the
principle of universal jurisdiction is simply defined as a legal principle
that allowed or required a State to commence a criminal proceedings
with regards to certain crimes committed by individual and/or State
irrespective of the location of the crimes and the nationality of perpetrator
or the person who may be affected by the act.5 A thorough understanding
of the meaning of universal jurisdiction, and the complicated processes
through which it is applied and realized, would seem to link the ability
of the domestic judicial systems of a State to investigate and prosecute
certain crimes, even if such crimes are not committed on its territorial
borders by one of its nationals, and or against one of its nationals. Thus,
it is important to note that this principle is dependent on the notion that
some crimes are so injurious to global interest in such a manner that
States are empowered to commence any criminal proceedings against
the perpetrator (s) irrespective of where the crimes was committed and
or the nationality of the crimes offenders or persons who are injured by
5
K.C. Randall, “Universal Jurisdiction under International Law,” Texas Law Review
66, (1988): 785-788.

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Uche Nnawulezi, Hilary Nwaechefu Alex Ekwueme

the commission of the crimes.6

While the positive aspects of the perspectives of universal jurisdiction
principle is not claimed to have the sole answer to ensuring that the
advancement of international justice is assured, it provides a veritable
basis for comparison and the choice for best practices. What is important
therefore is that universal jurisdiction can be traced back to the writings
of the early scholars who had advocated for a better mechanisms that
will be applicable around the globe that will achieve global Justice for
victims. Research has shown that early scholars like Grotius,7 have in
his book wrote on universal jurisdiction bordering on the prosecution
and or punishment of the crime of piracy that was found to be prevalent
at that material time.8 Historically, one of the successful attempt made
after the second world war was the establishment of an International
Military Tribunal9 and the adoption of several Conventions embedded
with some clauses bordering on universal jurisdictions principle which
sought to fine-tune its applications. In all of this, regards are placed on
the Geneva Conventions of 1949 in ensuring clarity on the applications
of universal jurisdiction on heinous crimes in the Conventions.10
Indeed, for the purpose of promoting international Justice
system, it must be emphasized that universal jurisdiction are to fill
the gap where basic doctrines of jurisdiction did not provide any
basis for national proceedings, establishing what constitutes offences
that States are obliged to investigate in application of universal
jurisdiction; determining offences committed outside the territorial
or protective principle jurisdiction, and establishing how legal rights,
such as the right to life11 are extended to persons outside the territorial
6
Mary Robinson, The Princeton Principles of Universal Jurisdiction (Princeton:
Princeton University Press, 2001), 16.
7
Grotius, Hugo, De Jure Belli ac Pacis. Paris, 1625: Chap. XX1, 3, 1-2.
8
United States v. Smith, US Supreme Court, 18 U.S. 5 Wheat. 153 153, (1820): 161-
2.
9
Agreement on the application of Article 65 of the Convention on the Grant of
European Patents (London Agreement), (opened for signature 17 October 2000,
entered into force 1 May 2008), Article 1.
10
Geneva Convention Relative to the Protection of Civilian Persons in Time of War
(Fourth Geneva Convention). 75 UNTS 287 (adopted on 12 August 1949, entered
into force on 21 October 1950), Article 50, GC 111, Article 129, GC 1V, Article 146.
11
Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or
Punishment. 217 A (111), (adopted on 10 December 1984), Article 3.

266
 Addressing The Principle and Challenges of Enforcement and Prosecution

boundaries. The thematic focus of universal jurisdiction is wide and

all-encompassing. The scope of universal jurisdiction to a large extent
represents a situation where States have in effect acknowledged that any
other State may or must investigate and prosecute a given crime, even
in the absence of the usual jurisdictional links. Notwithstanding the
significance of universal jurisdiction under international law, it must be
emphasized that ‘universal jurisdiction comprises both permissive and
mandatory forms, where a State may or may not exercise jurisdiction.
Thus, this argument was reinforced and sustained by the treaties setting
out a regime of universal jurisdiction by the constitutional provisions
which practically define a crime or better still expected all persons to
investigate and/or prosecute it, or to extradite accused persons to those
willing to do so.12 Moreso, in line with the treaty basis for the assertion
of Universal jurisdiction, the Convention13 provides that:
State parties will outlaw torture in their national legislation but notes
explicitly that no order from a superior or exceptional circumstance
may be invoked as a justification for torture or other cruel, inhuman
or degrading treatment or punishment. No exceptional circumstances
whatever, whether a state of war, internal political instability or any
other public emergency, may be invoked as a justification of torture.
In a similar manner, it is unquestionable that universal jurisdiction
was first introduced by the four Geneva Conventions of 1949 for
the protection of war victims in relation to those violations of the
conventions ascribed as grave breaches. Notably, it should be borne
in mind that under the relevant article of each Conventions,14States are
obliged to search for alleged offenders regardless of their place of origin,
and either arraign before their own Courts or submit them for trial to the
prosecuting State who has made out a substantial case. However, it can
also be argued that while the Conventions do not expressly state that
jurisdiction is to be asserted regardless of the place of the offence, they
12
Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or
Punishment, adopted on 10 December 1984, (entered into force 26 June 1987), Art.
1, 2 & 3.
13
Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or
Punishment, adopted on 10 December 1984, (entered into force 26 June 1987).
14
Geneva Convention Relative to the Protection of Civilian Persons in Time of War
(Fourth Geneva Convention). 75 UNTS 287 (adopted on 12 August 1949, entered into
force on 21 October 1950), Art. 49, 50, 129 and 146.

267
Uche Nnawulezi, Hilary Nwaechefu Alex Ekwueme

have generally been interpreted as providing for mandatory universal

jurisdiction. In this context, it can therefore be said that given that
extradition to another state may not be an option, states must in any
event have in place criminal legislation enabling them to try alleged
offenders, regardless of their nationality or the place of the offence.
In addition, this view, which holds that universal jurisdiction is
more accurately applied where it arises as a matter of custom than when
used to describe the jurisdiction that arises only inter partes through
convention has set out a rationale for determining the application
of universal jurisdiction at any given situation seems to have been
endorsed by the international council on Human Rights Policy.15 The
council based its analysis on the rationales underlying international
criminal law in general and also support universal jurisdiction. Thus,
it is submitted here that given that the alleged offence committed is a
serious crime of universal concern and other bases of jurisdiction are
insufficient to prosecute the alleged offender, the functional approach
in this sense, would thus be a reliance on the normative and pragmatic
rationales since universal jurisdiction does not arise with respect to any
and all crimes, but only with respect to particular offences.16
The notion of pragmatic and normative rationales has played
various roles with respect to crimes such as privacy on the high seas,
slavery, terrorism and crimes against humanity or war crimes. Given
the premise above, it has, however, conceded that Additional Protocol 1
of 1977 to the Geneva conventions of 194917 also extends the principle
of Universal Jurisdictions to grave breaches relating to the conduct of
hostilities. More so, it has qualified all grave breaches as war crimes.18

15
International Council on Human Rights Policy, “Thinking ahead on Universal
Jurisdiction,” Report of a Meeting on 6-8 May 1999 (1999): 14-21.
16
International Law Association, Committee on International Human Rights Law and
Practice, the Exercise of Universal Jurisdiction in Respect of Gross Human Rights
Offences: Final Report (London: Report of the 69th International Law Association
Conference, 2001), 11.
17
Geneva Convention Relative to the Protection of Civilian Persons in Time of War
(Fourth Geneva Convention). 75 UNTS 287 (adopted on 12 August 1949, entered into
force on 21 October 1950).
18
Geneva Convention Relative to the Protection of Civilian Persons in Time of War
(Fourth Geneva Convention). 75 UNTS 287 (adopted on 12 August 1949, entered into
force on 21 October 1950), Additional Protocol 1 of 1977.

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 Addressing The Principle and Challenges of Enforcement and Prosecution

Aside from being a tool for the expansion of international justice system,
other instruments relevant to international humanitarian law, such as the
Hague convention of 195419 for the protection of cultural property in the
event of armed conflict and its second protocol, provided for a similar
obligation, requiring states parties to repress serious violations of these
instruments on the basis of the principle of universal jurisdiction. Also,
it is interesting to note that the 2006 international convention for the
protection of all persons from enforced disappearance20 requires states
to take measures in order to exercise universal jurisdiction over the
offence of enforced disappearance, when the alleged offender is present
in their country and they do not extradite him. From the holistic view
of the foregoing, it is important to note that States have adopted a wide
range of measures to provide for universal jurisdiction under their
national laws.

III.THE PRINCIPLE OF UNIVERSAL JURISDICTION AND THE

STATUTE OF INTERNATIONAL CRIMINAL COURT (ICC)
Basically, the common conception is that International Criminal
Court (ICC) was founded on a Treaty of the Rome Statute21 which
granted the ICC jurisdiction over four main categories of crimes
ranging from genocide, crime against humanity, war crimes and crime
of aggression. In this regard, it must be emphasized that the ICC’s legal
process may function differently from that in one’s national jurisdiction.
For the purpose of promoting international justice, it shall be the duty
of the Court to exercise jurisdiction in situations where genocide, crime
against humanity or war crimes are committed on or after 1 July 2002,
and in this case, such crimes may have been committed by a State party
national, or in a State that has submitted itself to the jurisdiction of
the Court, and or such crimes was referred to the ICC Prosecutor by
the United Nations Security Council pursuant to a resolution adopted
under Chapter VII of the United Nations Charter.22 This is advanced on
19
Convention for the Protection of Cultural Property in the Event of Armed Conflict,
adopted on 14 May 1954 (entered into force 7 August 1956).
20
International Conventions for the Protection of All Persons from Enforced
Disappearance.
21
Rome Statute of the International Criminal Court (adopted 18 July 1998, entered
into force 1 July 2002).
22
Charter of the United Nations 1 UNTS XVI, opened for signature 26 June 1945,

269
Uche Nnawulezi, Hilary Nwaechefu Alex Ekwueme

the basis that the ICC offers a complementary function in the universal
jurisdiction processes, and not to assumed the function of national
criminal system in this regard. In addition, this argument is premised
on the obvious fact that ICC only prosecutes cases where States are not
willing or incapable of doing so to a large extent.
That said, the history of its adoption is a reminder of how States
aimed at prohibiting and criminalizing certain crimes in a manner
that confirms with international rules and standards, and act as
primary players, not as spectators showing their concern for respect
of the principle of sovereignty.23 However, the emergence of universal
jurisdiction and the movement towards the entry into force of the
Rome Statute has been viewed as part of the movement for national
law reform explicitly recognized as the core crimes of international
criminal law after the second world war. Also, it has been observed in
this study that the above assertion hardly formed the exclusive basis of
prosecutions that took place after the war.24 Moreso, it should be noted
that international law rules under the principle of universal jurisdiction
prohibiting and criminalizing certain crimes remain dead letters if
they are not properly implemented at the national level. In addition,
it is therefore clear that the Rome Statute is premised on a desire to
remove impunity in crimes that are heinous in nature. Recognizing that
the State has the primary responsibility of guaranteeing compliance
with international standards on the desired respect for the provisions
of the Rome Statute. However, it is important to highlight that through
the complementarity mechanism, national courts will bear the greater
burden of ensuring accountability.
It is acknowledged that within the context of this research that States
with the primary aim of ensuring that their courts complements with
the provisions of International Criminal Court are therefore open to the
arguments that they must be ready to submit themselves to the universal
jurisdiction on cases bordering on genocide, crimes against humanity
and or war crimes. In light of the above development, it may be argued
that there exists a gap between the international interest in the rule of
(entered into force 24 September 1973), Chapter VII.
23
Antonio Cassese, International Criminal Law (Oxford: Oxford University Press,
2003), 285.
24
Ibid, 805.

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 Addressing The Principle and Challenges of Enforcement and Prosecution

law and the immediate interests of an individual state or government

that sometimes affects the proceedings of the Court. Similarly, with
the current advances in the understanding of the principle of universal
jurisdiction, such as the compatibility of the International Criminal
Court Statutes with constitutional provisions on the immunity of Heads
of States and or amnesty laws, there exists the notion that certain crimes
are so harmful to international interests that States are obliged to bring
proceedings against the perpetrator, regardless of where the crime was
committed and or the nationality of the perpetrator of the crime. Of even
greater concern is the emerging cross-border crimes which highlights
that universal jurisdictions allows for the trial of international crimes
committed by anybody, anywhere around the globe.25
In addition, it is important to note that the preamble to the International
Criminal Court (ICC) Statute contains the universal jurisdiction
principle which provides that the most serious crimes of concern to
the international community as a whole must not go unpunished and
that their effective prosecution must be ensured by taking measures at
the national level and by enhancing international cooperation.26 That
said, there are however, three necessary steps to get the principle of
universal jurisdiction more efficient: Firstly, the existence of a specific
ground for universal jurisdiction, secondly, a sufficient clear definition
of the offence, and thirdly, the constitutive elements and national means
of enforcement that allows the national judiciary to exercise their
jurisdiction over these crimes.27 Thus, it should be noted that with the
above three ingredients being proactive, it will then imply that such
a Country has set up an efficient mechanisms for the prosecution of
criminal matters within the ambit of universal jurisdiction.
Indeed, while it is true that the Rome Statute forms the international
bedrock that underpins the domestic enactment of the international
crimes act, and the engagement of the judiciary in handling cases that
are injurious to humanity in general, irrespective of their location or
place of commission, it may be argued that serious crimes that attract
25
Robinson, The Princeton Principles, 16.
26
Preamble, Rome Statute of International Criminal Court.
27
Xavier Phillipe, “The Principles of Universal Jurisdiction and Complementarity:
How do the two Principles Intermesh?” International Review of the Red Cross 68, no.
862 (2006): 379.

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Uche Nnawulezi, Hilary Nwaechefu Alex Ekwueme

the application of universal jurisdiction are captured within the principle

of jus cogens. In this regard, there will be no derogation by any State.
This view is predicated on the fact that persons who are alleged to have
committed serious crimes like genocide,28 crime against humanity;29 or
a war crime30 cannot be allowed to thrives at the expense of the other
fellow human beings.
Against this background, it is important to recall that Article 8 (2) of
the Rome Statute of International Criminal Court31 bestows competent
jurisdiction on the High Courts of the State in prosecuting any person
under this Act. According to Article 8(2)(1) of the Rome Statute of
International Criminal Court: “The Court shall have jurisdiction in
respect of war crimes in Particular when committed as part of a plan or
policy or as part of a large scale commission of such crimes.”
However, there is a strong argument that the wordings of Article
8(2)(1) makes it clear that the principle of complementarities will serve
as a nexus that will enable universal jurisdiction to be more pragmatic
in terms of enforcement. While this might seem reassuring at first sight,
it has also been argued that this principle is said to derogate from the
ordinary rules of criminal jurisdiction requiring a territorial or personal
link with the perpetrator of the crime or the victim as the case may be.32
On the other hand, it must be emphasized that at the end of the
second world war, International Military Tribunal was established as
well as the adoption of new Conventions that contained several clauses
on universal jurisdiction. These developments suggest that international
crimes will no longer remained unpunished. In this sense, in order to
established criminal liability, other international conventions and or rules
of customary international law will expand the scope of the principle of
universal jurisdiction in terms of its application. Greater clarity on the
applicable legal regime along with restraints was confirmed by notable

28
Rome Statute of the International Criminal Court, art. 6.
29
Ibid., art. 7.
30
Ibid., art. 8.
31
Ibid., art. 8(2).
32
This Territorial Link has been overcome by two criteria allowing for extra territorial
jurisdiction i.e. active personality jurisdiction and passive personality.

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 Addressing The Principle and Challenges of Enforcement and Prosecution

cases such as the Demanjule case in 1985,33 Pinocet case in 199934 and
the Butare Four Case in 200135 respectively where the above cases raised
fundamental issues of public international law and its interactions with
the domestic law of the Country. It must be emphasized that in these
cases, international justice has reached a new stage that other Countries
around the globe should emulate or be encouraged. However, there is a
strong argument that despite the relevance of the principle of universal
jurisdiction, it might be argued that the implementation of the general
principle has remained an intractable problem as it is an issue not only
of international, but also of national law concern. Given these realities,
States are obliged to grant their own Courts universal jurisdiction over
certain crimes arising from a national decision, and not only of rule or
principle of international law.

IV. CHALLENGES IN PROSECUTION AND ENFORCEMENT

The notion of principle of universal jurisdiction is one that should
be of enormous concern given the political and practical problems that
have arisen while trying to put universal jurisdiction into practice. In
addition, under the principle of universal jurisdiction, the nature and
scale of international crimes such as genocide, crime against humanity
and war crimes make them amongst the most complex to prosecute.
However, these difficulties are multiplied when investigations or trials
are taken place beyond the Country where the said crimes are committed.
Be that as it may, the question of the legislative basis for the exercise
of universal jurisdiction by national authorities to a large extent still
remains an intractable problem. It is therefore paramount to say that
for universal jurisdiction to fulfil its potential as part of an international
justice system in the suppression of impunity, such legislation should
also be of adequate scope and not subject to temporal, spatial, and or other
restrictions.36Acknowledging a wide range of beneficial applications of
33
Demanjuk v. Petrovsky, US Court of Appeal, 6thcir, 31.co, ILR 79, 546, (1985).
34
House of Lords, 2 WLR 827, UK, (1999) https://www.rechtbanken-tribunaux.be/fr/
cour-dassises-de-larrondissement-administratif-de-bruxelles-capitale/info
35
Cour D’Assises Bruxelles, “Quatre Rwandais condamnés pour génocide à
Bruxelles,” accessed https://www.rechtbanken-tribunaux.be/fr/cour-dassises-de-
larrondissement-administratif-de-bruxelles-capitale/info, 1 June 2022.
36
Jurisdictional Decision of the International Criminal Tribunal for the former

273
Uche Nnawulezi, Hilary Nwaechefu Alex Ekwueme

universal jurisdiction, particularly in addressing international priority

issues such as genocide crimes against humanity and war crimes as
well as strong interests in the development of international justice
system, it should be pointed out that the adoption of Rome Statute, with
its reasonably comprehensive definitions may likely lessen dispute
within the scope of universal jurisdiction at customary law. Taking into
consideration that the principle of universal jurisdiction is well regulated
by acceptable norms as well as customary laws which remained an
essential components of international criminal Justice system. In this
context, it may be argued that the jurisdictional basis of customary law
oftentimes are strongly contested.
The above dominant view suggests that full implementation of
universal jurisdiction into national law requires the adoption of similar
areas of law that are related to the exercise of such jurisdiction. It is
posited that these areas of law included laws related to immunity, mutual
legal assistance and or extradition. Given the rapid pace of development
of international justice system and the pressing dangers that genocide,
crime against humanity and war crimes have posed to global peace and
security, it is worth mentioning that without a comprehensive system of
laws at the national level being adopted by sufficient number of States,
universal jurisdiction cannot be expected to function in practice as a
working pillar of the international justice system around the globe.
Furthermore, it goes without saying that the exercise of universal
jurisdiction has raised special evidentiary challenges which is
predicated on the challenges of mutual legal assistance. In light of
the specificities of these offences, particularly in terms of gathering
and recording evidence, the principle’s application does not cast any
doubt on the traditional jurisdictional links based on territoriality or
personality. However, in the absence of a truly universal framework
for mutual legal assistance and the lack of universal acceptance of the
Rome Statute of International Criminal Court, universal jurisdiction
remains an important guarantee against impunity. This is in spite of the
fact that international institutions have been called upon a number of
times for a high degree of cooperation in this regard.37 However, it is
Yugoslavia, No. IT-94-1, Prijedor Dusko Tadic, 2000.
37
Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or
Punishment, adopted on 10 December 1984, (entered into force 26 June 1987), art.

274
 Addressing The Principle and Challenges of Enforcement and Prosecution

often assumed that States legislating for universal jurisdiction should

as a matter of necessity review their mutual assistance arrangements
taking into consideration the exercise of this doctrine with respect to
international crimes, and furthermore, review it’s laws or agreements
in such a manner that it will be capable of addressing relevant issues
bordering on investigation, obtaining evidence, protection of victims
and witnesses. Most fundamentally, this paper suggests that a systematic
amendment to mutual legal assistance arrangements will further
strengthened the operations of universal jurisdiction around the globe.
In a similar vein, another notable challenge is on the issue of
extradition. It may be added that the emergence of international
criminal jurisdictions increases the possibility of individual and state
accountability for actions resulting to war crimes or crimes against
humanity. Additionally, and crucially, a notable short-comings of
extradition with respect to crimes under international law has been lack
of comprehensive and express treaty obligations. In light of the above
situation, necessity could be invoked to justify the assertion that as
international laws perceived cases of extraditions as a matter of comity
that is subject to the discretion of the requesting State in the absence
of treaty obligation.38 In this sense, it may be submitted that specific
obligations to extradite must emerged from either through a treaty or a
rule of customary law.
From a global legal point of view, it is widely accepted that the
emergence of an obligation to extradite or prosecute at customary
international law would represent an important development in
international criminal law.39 That being said, it may be argued that as
the obligation to extradite or prosecute is found in numerous treaties;
there are different viewpoint as to whether there is such an obligations
in Customary International Law. One commonly asserted explanation
on the above subject matter is that there are several multilateral treaties
combining extradition and prosecution as alternative measures of

9(2).
38
I.A. Shearer, Extradition in International Law (Manchester: Manchester University
Press, 1971), 23.
39
M. Cherif Bassiouni, “International Crimes: Jus Cogens and Obligations in Erga
Omnes,” Law of Contemporary Problems 59, no. 4 (1996): 67.

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Uche Nnawulezi, Hilary Nwaechefu Alex Ekwueme

actions in bringing suspects to justice.40 In that respect, it is submitted

that core crimes bordering on the obligations aut de dere aut judicare
relates only to those war crimes that constitutes ‘grave breaches’ of the
Geneva Conventions and Additional Protocol 1.41
In a different context, it is noted that the Genocide Convention
does not incorporate the obligations, but does provide that persons
charged with genocide are to be tried by the Court of the State in the
territory where the crime was committed, or by an International Court
that has jurisdiction to entertain the matter.42 From this viewpoint,
there is therefore no treaty-based obligation aut de dere aut judicare
for genocide crimes against humanity and, except in cases of grave
breaches, or serious violations of the laws and customs applicable
in armed conflicts of an international or non-international character.
However, it has sometimes been argued that a common feature of this
different treaties embodying the obligations to extradite or prosecute
is oftentimes predicated on the duty imposed on States to ensure the
prosecution of the offender either by extraditing the individual to a
State that will exercise criminal jurisdiction or by enabling their own
judicial authorities to prosecute the accused persons. Beyond the above,
the provisions greatly vary in their formulations, content and or scope
particularly with regards to the conditions for extradition, prosecution
and or the relationship between these two possible cause of actions.43
This position is applicable to situations where the treaty applies to those
States that are parties to them.
On the other hand, and on the basis of customary international law,
the above approach is particularly relevant as it has raised questions on
whether there is an obligations to extradite or prosecute under customary
international law binding on all States. If so, the question in this regard
40
The Obligation to Extradite or Prosecute: (Study by the Secretariat, 18 June, 2010)
UN Doc A/CN4/630, 4.
41
Geneva Convention (GC 1) 1949, Art. 49; Geneva Convention II (GC II) 1949. Art.
50 Article 129 of the Geneva Convention (GC III) 1949; Article 145 of the Fourth
Geneva Convention (GC IV) 1949 and Article 85 of the Additional Protocol I (AP I)
1977.
42
United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading
Treatment or Punishment, adopted by the UN Res 39/46 of 10 December, 1984
(entered into force 26 June, 1987), Article 6.
43
Ibid., 126, 150.

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is: Does it apply in respect of all or merely on certain crimes under

international law? Also, while it has been argued that prohibition of
certain crimes under international law, such as genocide, crimes against
humanity and war crimes derived their powers from a pre-emptory
norm (ius cogens) from which derogation are not permitted. It is then
necessary to point out that violations of such a norm gives rise to a
corresponding obligations erga omines which is an obligation owed by
States to the global community as a whole either to institute criminal
proceedings or to extradite the suspect to be tried in another Court of
competent jurisdiction in that State.44 In addition, it would not be far-
fetched, however, to imagine that the above views relied on the Trial
Chamber’s conclusion in the Furundzija Case45 in the International
Criminal Tribunal for the Former Yugoslavia (ICTY) wherein one of the
consequences of the jus cogens character bestowed by the international
community on the prohibition of torture is that every State is entitled
to investigate, prosecute and punish or extradite individuals accused of
torture who are present in a territory under its jurisdiction.46 In these
circumstances, it must be emphasized that the above submission have
been criticized on the argument that the erga omnes and jus cogens
nature of the prohibitions does not as such give rise to the formation
of customary international law and also does not imply the recognition
of a customary nature for the obligation to extradite or prosecute.47
However, it has been argued that the accumulation of multilateral
treaties containing the obligations to extradite or prosecute, and their
wide acceptance by States, signifies the existence of rule of customary
international law.48 Indeed, it must be noted that while such treaties can

44
Guy S. Goodwin-Gill, “Crime in International Law: Obligations Erga Omnes and
the Duty to Prosecute,” in The Reality of International Law: A Collection of Essays
in Honour of Ian Browlie, Guy S. Goodwin-Gill and Stefan Talmon eds., (Oxford:
Clarendon Press, 1999), 2-3.
45
Prosecutor v. Furundzija. Case No. IT-95-17/I-T, Judgment Trial Chamber,
International Criminal Tribunal for the Former Yugoslavia 1998: 156.
46
Ibid.
47
Raphael Van Steenberghe, “The Obligation to Extradite or Prosecute, Clarifying its
Nature,” Journal of International Criminal Justice 9, 2011: 1092.
48
Enache-Brown Colleen and Ari Fried, “Universal Crime, Jurisdiction and Duty:
The Obligation of Aut Debere Aut Judicare in International Law,” in The Reality of
International Law, Essay in Honour of Ian Browlie, Guy S. Goodwin-Gill and Stefan
Talmon eds., (Oxford: Clarendon Press, 1999), 629-630.

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Uche Nnawulezi, Hilary Nwaechefu Alex Ekwueme

assist in the crystallization of emerging rules in customary international

law, there is no presumption that they will do so.49 This notwithstanding,
it is only in exceptional cases that a multilateral treaty can give rise to
a new customary rules or assist in the creation of its own impact, if it
is widely adopted by States and it is the clear intention of the parties to
create customary law.50

V. INTERNATIONAL CRIMINAL LAW ENFORCEMENT MECH-

ANISM: UNDERSTANDING CHANGES AND CHALLENGES
As has been discussed above, a legal framework for the enforcement
of international criminal law issues under the principle of universal
jurisdiction should aim at addressing cases ranging from genocide,
crime against humanity, war crimes and host of others. In addition,
the international criminal law enforcement mechanism should be
able to provide the highest attainable standard of protection and
institutionalization of human rights norms. Aside from being a tool for
the expansion of international justice system, it should be noted that the
failure of enforcement undermines progress towards the realization of
these goals. It is interesting to note that for international criminal law
to have any deterrent effect, or for it to achieve any of the other goals
of justice, attention needs to be paid on its enforcement at the national
level of operations. However, recognizing that there are a number of
challenging issues associated with the enforcement of international
criminal law, this paper suggests that further broadening of the conceptual
coverage of international customary and treaty laws regarding atrocity
crimes, immunities, extra-territorial jurisdiction, or expansion of the
geographical coverage of international criminal law should be seen
as a priority issue amongst State parties. Also, the ratification and
implementation of the Rome Statute of the International Criminal Court;
or by extension, increasing the temporal coverage of the law through
retrospective applications of the jurisdiction of tribunals and national
Courts over acts which are illegal under customary international law,
and should be seen as a matter of urgent concern. In light of domestic
legal provisions improvement on the ability of the National Judicial
Systems to investigate and try suspected war criminals as well as the
49
International Law Commission Report on Customary International law, 2011: 49.
50
Ibid., 50.

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establishment of specialist war crimes units and or judicial chambers

will help in strengthening the international criminal law enforcement
mechanisms.
Notably, attention must also be given to the Genocide Conventions51
which had significant weaknesses ranging from the very specificity
of the Nazi Crimes. One specific challenge which often comes to the
fore is that Genocide Convention’s practical understanding of the
definition of a crime that can be used to prosecute individuals suspected
of orchestrating mass atrocities of course, has limited the convention
usage of the definition of a crime. Also, the Convention provides that
such a crime had to be committed with the intent to destroy in whole or
in part,52 the protected group. However, it is important to bear in mind
that the controversy arising from how to infer intent from patterns of
events, and the confusion over whether intent is the same as motive has
raised several questions. It has also been observed that the Genocide
Convention’s focus on intent and protected groups has limited its
applicability.
It must be taken into account that a wider use of extra-territorial
jurisdiction is an important part of any strategy aimed at improving the
enforcement of international criminal law. In a similar vein, it must be
emphasized that the position with regards to immunities before National
Courts is clear. In this sense, whilst it is commonly accepted that State
officials are immune in certain circumstances from the jurisdictions
of foreign States, there has been uncertainties about how far those
immunities remained applicable where such an official is accused of
committing international crimes. The judgment of the United Kingdom
House of Lords in Pinochet53 was hailed by many as a new dawn in
the struggle by victims, non-governmental organization, human rights
activists and others to bring former leaders to account for international
crimes committed while in office. It can thus be argued that questions
regarding the immunities of foreign leaders and other high officials arise
more frequently now than they once did because of the development of
51
Convention on the Prevention and Punishment of the Crime of Genocide (adopted
by the UNGA 9 December, 1948 and entered into force 12 January, 1951).
52
Ibid., art. 2.
53
R v. Bow Street Metropolitan Stipendiary Magistrate, ex parte Pinochet Ugarte
(No. 3), UK, AC 147, (2000).

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Uche Nnawulezi, Hilary Nwaechefu Alex Ekwueme

universal jurisdiction for international crimes.54

It is nonetheless worth noting that the United Nations Convention
against Torture55 provides a system of extra-territorial criminal
jurisdiction to torture, as defined in Article 1, but makes no mention of
State immunity.56 But by definition, the international crime of torture
must be committed by or with the acquiescence of a public official or
other persons acting in a public capacity. In this sense, all defendants
will therefore be State officials or former State officials or agents, and
would have carried out the torture as an official act for which they
will relied on immunity clause. By these provisions, it appears to have
been the tension between this fact and the object and or purposes of
the Convention that informed the majority opinion that there could be
no immunity for the international crimes of torture and conspiracy to
torture. Even more noteworthy, several jurists have referred to the ius
cogens57 status of the prohibition against torture, arguing that such a
prohibition, by reason of its pre-emptory and supreme nature, must
override any immunity. However, in Ferrini v. Germany58 the Italian
Supreme Court of Cessation held that Germany was not entitled to
immunity for serious violations of human rights carried out by Germans
occupying forces during the Second World War. In the circumstances,
the Court relied heavily on the ius cogens norms supremacy principle.
It should be noted that the rules on State immunity, which are only
procedural in character, cannot conflict with substantive ius cogens
norms prohibiting international crimes.59 Similarly, the common theme
underlying the judgment of the majority of the Pinochet case was that it
would be absurd and inconsistent with the United Nations Convention
against Torture to allow an immunity that was virtually co-extensive
54
Louise Arimatsu, “Universal Jurisdiction for International Crimes: African’s Hope
for Justice”, Chatham House Briefing Paper, ILBP 2010/01, April, (2010).
55
Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or
Punishment, adopted on 10 December 1984, (entered into force 26 June 1987).
56
Ibid, art. 1.
57
Vienna Convention on the Law of Treaties, adopted 23 May 1969 (entered into
force 27 January 1980), art. 53.
58
Ferrini v. Federal Republic of Germany, Italian Court of Cessation, 128ILR 659,
(2004).
59
Jones v. Ministry of the Interior of the Kingdom of Saudi Arabia case no. 2, UKHL
26, House of Lords, 2006.

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with the offence created by the Convention.60 In this regard, a similar

situation may take place in the case of enforced disappearance, which,
like torture, is committed by or with the acquiescence of a public official.61
At the same time, the paper noted that in the Pinochet Case,62 Lord
Phillips went a little further in stating that functional immunity cannot
co-exist with international crimes where a system of extra-territorial
jurisdiction applies as the latter must necessarily override the principle
that one State should not interfere with the internal affairs of another.
Thus, this argument was reinforced and sustained on the basis that it
has been suggested that the true rationale for an exception to immunity
in the case of certain international crimes lies in the development of
international conventions providing for the exercise by State parties of
extra-territorial jurisdictions over such crimes and demonstrating that
international law now accepts that States may exercise jurisdiction
over certain official acts of foreign States in the context of assigning
individual criminal responsibility for such acts.63 This progressive
ideology is explicit and has informed the argument that the exception
identified by the law Lords in the Pinochet case with regards to torture
should also extend to other international crimes. Indeed, it is submitted
that, while genocide, war crimes and crimes against humanity may
be committed by private individuals, their primary focus is still State
conducts.64

VI.CONCLUSION
This paper has attempted a survey of the nature of the principle of
universal jurisdiction vis-a-vis the challenges confronting the principle
of universal jurisdiction. The challenges and changing trends in our
national criminal law legislations and scope of international criminal
law necessitates the inclusion of hitherto perspectives that the difficulties
in prosecuting perpetrators of atrocities arose from the complications in
60
Ibid.
61
International Conventions for the Protection of All Persons from Enforced
Disappearance.
62
Ibid.
63
Dapo Akande and Sangeeta Shah, “Immunities of State Officials, International
Crimes and Foreign Domestic Courts,” European Journal of International Law 21,
no.4 (2011): 821.
64
Ibid.

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Uche Nnawulezi, Hilary Nwaechefu Alex Ekwueme

the national judicial system around the globe. Thus, it is not wrong to
submit that an in-depth and thorough analysis as well as objective view
of the problems that have arisen from its application stems from the fact
that there is a compelling need for reforms in the area of creation of a
new treaty on crimes against humanity, and an Optional Protocol to the
Genocide Convention, as well as full participation of the International
Criminal Court in catalyzing domestic convictions which could improve
the enforcement of international justice system.
Be that as it may, the establishment of international courts has so
far lessened the burden of resort to universal jurisdiction by national
courts. The paper has also looked at an array of questions such as:
Are there ways of solving the problems? and Can the disagreements
be resolved by legal principles? Moreso, the paper noted further that
the development of international treaties providing for the exercise
by States parties on extra-territorial jurisdiction over crimes that are
themselves defined as official acts, or that are linked closely with such
acts, suggests that international law now contemplates the prosecution
in national courts of foreign officials accused of such crimes.
Given that these international legal frameworks comprehensively
addressed these various challenges, the focus should be on the adoption
of new treaties that will expressly provide for wide jurisdictional basis.
Thus, such a provision could be included, for example, within a new
treaty on crimes against humanity. In this regard, there is a need to
develop or where they already exist, strengthened domestic normative
frameworks, policy and operational practices, and sharing of good
practices to that effect. It must also be emphasized that a strict application
of the principle of aut dedere aut judiciare under relevant international
treaties working alongside the application of universal jurisdiction
under customary international law could contribute to deterring the
most serious crimes. It would as well have enhanced the fight against
immunity. Alternatively, it will be safer to limit the exercise of universal
jurisdiction to occasions where there is a link to the State concerned,
including where the victims have acquired the nationality of the forum
State, albeit after the commission of the offence, or where the offender
is resident in the State.
In light of the above examinations, what is urgently needed are not

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 Addressing The Principle and Challenges of Enforcement and Prosecution

more international law rules to be incorporated under the principle of

universal jurisdiction, but rather a better implementation of the existing
rules at the domestic level as well as effective prosecution of perpetrators
of such crimes at the domestic and international levels. Basically,
considering how important this aspect of international justice system is,
the paper has highlighted some of the notable challenges and submitted
that by prohibiting and criminalizing such crimes in the domestic legal
frameworks in such a manner that it will conform with international
rules and standards that will make the application of the principle easier
and better. Ultimately, on the argument that the principle of universal
jurisdiction rules could be in applicable in non- State parties Countries
or where there is no mutual legal assistance has made it impossible for
this principle to be effective and universally applicable in all States.
The paper however submitted that for this principle to have unlimited
application on State parties, it must be incorporated into the domestic
laws of member States as well as having a new binding treaties that will
guarantee its enforcement. Thus, it is anticipated that this deliberations
will be useful to policy makers and as well contribute to the development
of international criminal law jurisprudence as this is the only means
through which perpetrators of international crimes will be brought to
justice irrespective of his or her locations around the globe.

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Uche Nnawulezi, Hilary Nwaechefu Alex Ekwueme

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Steenberghe, Raphael V. “The Obligations to Extradite or Prosecute: Clarifying its
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285