UNIVERSAL JURISDICTION, is the theory basing on criminal jurisdiction which deals with

criminal matters which based solely on the nature of the crime without considering the place
where the crime was committed, nationality of alleged or convicted one and the nationality of the
victim.

Where by in 17th Century Hugo Grotius established the principle where by the perpetrators
where known as Hostis Humani Generis Means Enemies of all Mankind. Where by in 19th
century the principle developed which lead to the drafting of the Universal Declaration of
Human Rights, which established that Criminal accountability need to not end with home state
international law provides for Jurisdiction for the state to be free to adjudicate cases committed
abroad. The state competent or which has Jurisdiction to adjudicate the Criminal matters is that
where the offense was committed in its territory. The principle of Universal Jurisdiction can be
known as Universality of the right to punish.

The following are the conditions for the Universal Jurisdiction principle to be applicable which
are.

Firstly, the offense should be committed abroad, secondly, the offense should be committed by a
foreigner and thirdly, the offense must have been committed against Foreigners in case one of
this condition will be absent the normal rules for Jurisdiction will be applied and the Universal
Jurisdiction it applies if no other Jurisdiction is applied.

Characteristics of Universal Jurisdiction

Prosecution may be conducted by the state, for the principle of Universal Jurisdiction to be
applied the state itself has the authority to prosecute the case and not the international
community it’s a state.

The procedural rule should involve the application of laws; the Principle of Universal
Jurisdiction is required to follow the jurisdiction of Law which means the law must be applied in
prosecuting the case. Where by the state on whose Territory the offender is arrested has the
choice to either extradite or prosecute the case. This theory of Universal Jurisdiction progressed
in the early Communication and movement this theory it didn’t arise in the Classical period
because murder committed abroad by foreigners against nationals were considered the
Jurisdiction arises from the normal rules of passive personal Jurisdiction this advance it deceived
the Roman Law “Forum Loci Delicti” means the location of the time this was the exception.

The Roman Law contributed in the progress of the idea of Universal Jurisdiction because at that
time the Rome were the one Conquered the Empire of the world. The Universal Jurisdiction is a
mechanism that allows a state’s courts to prosecute the perpetrators (Offenders) of the most
serious crimes example torture, Disappearances, War crimes, crimes against Humanity,
Genocide for the crime committed abroad by the Foreigner against Foreign Victims there are
agreements made on (Geneva Convention) the (Convention against Torture) but for the other
Customary International Law that allows prosecution of their offenders wherever they are.

The mechanism of Universal Jurisdiction is provided under International Convection whereby

there are some treaties are directly applied and the other treaty requires the state to adopt specific
provision in its Domestic legal order so as to be verified and Ratified and apply them(treaty).
The Universal Jurisdiction basis in International Law is both Conventional (War crimes and
Torture) and Customary are (crimes against Humanity and Genocide). The following are the
Convection and treaties established the Universal Jurisdiction which are.

(I)According to the Convectional Basis

there are convection and treaties which established the Universal Jurisdiction which are the
Geneva Convections of 1949 and other Protocols Universal Jurisdiction of National Courts in
Serious Violations of International Humanitarian Law it has established the Mandatory Universal
Jurisdiction it’s not necessarily to try alleged perpetrators of Serious Violations of International
Humanitarian Law and they should perform the procedures to send the Violations to another
state that has advance Prima facie evidence. The 1984 Convection adopted in New York this
Convection entered into force on 26th June 1987 this Convection Prohibited Torture
International.

(ii)Customary Foundation

Crimes against Humanity Example Murder, Extermination, Enslavements, Torture, Rape, Sexual
Slavery, Enforced pregnancy the International Criminal Courts article 7 paragraph 1 established
the acts done may constitutes to crime against Humanity.
Genocide, the convection on the prevention and punishments of the crime of Genocide of 9
December 1948 Article 2 established the acts constituted to Genocide example killing the group
of people, causing serious bodily harm or Mental harm to members of the group there are also
punishments to the Conspiracy to Committee Genocide

At National Levels in Tanzania for the International Treaty to be applicable Domestically it

should creates rights and liabilities actionable in Tanzania Law Legistration the matter must be
sent to the cabinet then to an Inter-Ministerial Committee before legal officer the first drafting of
the Bill to implement the treaty. In Tanzania the International Criminal Court was established it
was signed in 2002 and ratified in 2002 it has not implement the Rome statutes at National Law.
The International Criminal Court it has not be implemented. the reasons for the delay is that
matter was not seen as the priority for Tanzania there were no any Agency pushing the matter
forward no official, Local political groups to advocate or opposing the implementation it was not
seen as the important issue by the legal profession others saw it as the “WESTERN PRIORITY”
lack of appreciations priority in Tanzania.

THE APPLICATION OF THE PRINCPLE OF UNIVERSAL JURISDICTION.

The Perpetrators, most of the individual tend to committee the International Crimes and still are
remained unindicated and unidentified the ones who committed the crimes are often the member
of the Organization groups example Military, Paramilitary, Police Unit, it involves the strong
hierarchical political and Military Structure for the commission of crimes.in this sector there are
two people who are considered which are

The superior, he may be prosecuted for the act he committee himself or for the order he gave for
his or subordinates commits the crimes the individual criminal liability and command
responsibility the person with Authority to his subordinate article 86 paragraph 2

The subordinate, is the person who follow orders or obey orders of their superiors. liability for
criminal action and the direct liability for criminal omission article 33 of the statutes of
International Criminal Crime states that if the International Crime is committed by the order of
the Government or superior weather military or civilian “does not exclude that person from
criminal responsibility” unless the person was under the legal obligation to obey orders, did not
know that the order was unlawful, the order was not manifest unlawful.
Direct liability for criminal omission, according to Geneva Convection of 1940 a person who
orders to committee or who committees one of these offense the criminal liability is not
excluded.

THE FOLLOWING ARE THE OBSTACLES IN THE APPLICATION OF UNIIVERSAL

JURISDICTION.

The aim was to turn the simple concept of Universal Jurisdiction to the Effective System there
were obstacles arises which hinder the absolute consecration and complete the principle of
Universal Jurisdiction. The ideal system it is difficult to establish proof and evidence for the
International Crime and lack of cooperation leads to the problem the to the prosecco of finding
evidence may be difficult by the principle of sovereignty this is the reason for the hindering the
effective exercise of Universal Jurisdiction. Also Universal Jurisdiction faces the material, legal
and political barriers from the outset difficult in providing justice existence of biasness in the
issue of trial difficult of judging based on material difficulties example material evidence,
obtaining testimonies ant to conduct proper investigation for facts committed abroad, lack of
cooperation of some statutes leads to difficulties in investigation. There are two kinds of
obstacles basing on theoretical and practical.

According to theoretical obstacles.

i: Sovereignty of the state, in the right to punish for the process of providing criminal justice and
a will to preserve sovereignty the judges might tend to use bias in the process of providing
justice to the victim in the issue of trial and tendering of evidence

ii: The Head of the State, comprise both Kings and Emperors President of Republic because of
his role the ninternational law traditionalgives him special protection from being sued in the
courts of others state for tax, civil or criminal matters this immunity does not apply in every case
theoretical but incase for any violations of International Law leads to the lifting of the immunity
of the head of the state.

According to practical obstacles.

i: Evidence and International Cooperation, the evidence appears as the safeguard against
arbitrariness of the judge every means and procedures specified by the law may be used without
restriction difficulties of proof the distance between the prosecution and the state of arrest arise
to difficulties in gathering proof lack of Universal police force.

ii: International cooperation, difficulties in a requested state to find the offense they choose to do
through International Letters Rogatory “ a request by the judicial authority of a state to a judicial
authority in another state to conduct on it is behalf and for it is account service of process and
taking of the evidence” where by this International letters Rogatory it is transmitted generally in
the ministers of justice of the state the request for execution of letters Rogatory may be sent
directly to the judicial authority of the requested party but the letters Rogatory must be sent by
the ministry of justice this procedures allows the state to verify the validity of the request also
communi9cationns of exhibits, files, documents and appearance of person lack of cooperation in
both laws and facts

iii: other difficulties example Amnesty, is the rights of the legislature that erase records of the
convictions of the offender. While Pardon, is an individual or collecting measures that only the
Head of the state can take to set free some criminals from executing the sentence but it does not
erase the conviction to exist in both courts and law enforcement files. While Immunities, is a
legal protection guarantees granted to an individual to protect him in the acts he performs in the
exercise of his function. and Costs, the Government should upgrade prisons or some prison cells
and it does not have the facilities or wish to incur the expenses the future budgets will take
Universal Jurisdiction into consideration.

THE CONCEPT OF UNIVERSAL PUBLIC ORDER.

It underlies the system of the Universality of the right to punish

i: The Domain of Universal Public Order, the International Community this differ from
Universal state it includes the expression of a natural desire inherent in human and based on
kinship and neighborhood. While International Society is the group of states conscious of
common interest and common value form a society in the sense that they conceive themselves to
be bound by a common set of rules in their relations with one another and share in the working
of common institutions this is because they are bound by certain rules in their dealings with one
another.
Humanity, the Universal Public Order appears as the International; Jurisdiction which govern the
offense that offend humanity is the interspatial and intertemporal concept made not only by those
to come the process of “JUDEX DEPREHENSIONIS means the courts of the state having
custody over the alleged offender” the states acts on behalf of humanity. Presence of two
concepts on content of Universal Public Order which are

A: The Universal Public Order a Juxta position of International Public Order the Universal
Jurisdiction gives authority only to the International Criminal Court having custody over the
alleged offender to prosecute the alleged offender the exception is that the prosecution will
depend on the seriousness of the offense example Genocide, Torture, Crime against Humanity
this crime affect the Universal Public Order.

B: The Universal Public Order Transcendence of Internal Public Orders, the Universal Public
includes the International Public Order

ii: The Interest of Universal Public Order, in the theory of Universal Solidarity in the fight
against crime in protection of Universal Public Order requires an effective enforcement but also
solidarity between states Universal Solidarity this built the system of Universal Jurisdiction the
serious crimes underlie Universal Public Order drives people to give mutual aid the Solidarity
involves the state.

CHANCES FOR UNIVERSAL PUBLIC ORDER.

It justifies measures which undermine individual freedom, it provides the Universal Jurisdiction
which is supported by the domestic law, for the Universal Public Order to be applied it depends
on the seriousness of the crime not every crime.

Resistance to the admission of Universal Jurisdiction done by the Legislature the Universal
Jurisdiction can be exercised after the duly approval and ratified the Universal Jurisdiction is
applicable in the benefits of Judex Reprehensions judges too have shown some resistance to the
acceptance of Universal Jurisdiction.

The Non Bis In Idem rule if the harm caused by the offender has been repaired at domestic level
then Unive5rsal Public Order has no reason to intervene this rule shown under section 21 of the
penal code Act, the non bis in idem is a judgment and not a decision the judgment should be
provide by the competent court having Jurisdiction to adjudicate the matter

RISKS FOR UNIVERSAL PUBLIC ORDER.

Frustration with certain general principles of criminal law and criminal procedure good
administration of justice the criminal law and Universal Public Order should be legal it should
have the Constitutional status.

Universal Public Order an instrument of hegemony of certain powers the Universal the progress
in law leads to the establishments of International Criminal Court deals with punishing the
offender with criminal behaviors who infringes the international law.

CONCLUSION.