last updated October 9, 2003

There are several enforcement mechanisms for women seeking remedies for human rights violations in the international realm. In the United Nations, she may submit communications to any of the six U.N. treaty bodies, Commission on the Status of Women, Human Rights Commission (1503 Procedure), or the relevant special rapporteur. In the European Union, she may bring an individual claim before the European Human Rights Court or a collective complaint before the European Committee of Social Rights. In addition to these international remedies, however, it is also possible for women to litigate violations of international law in domestic courts through universal jurisdiction.

Universal jurisdiction is an important means of ensuring justice where criminal prosecution would not be possible under ordinary rules of jurisdiction. It allows a court to prosecute perpetrators of human rights violations even where no direct link between the country and alleged violation exists. In other words, the court may exercise jurisdiction regardless of where the crime was committed or what nationality the victim or perpetrator holds. Generally, universal jurisdiction applies to violations of international humanitarian law, such as breaches of the Geneva Conventions, genocide, crimes against humanity and torture. Other instruments that establish the relevant humanitarian standards include the Hague Convention (IV) Respecting the Laws and Customs of War on Land and the annexed Hague Conventions Respecting the Laws and Customs of War on Land, the Nuremberg and Tokyo Charters, Allied Control Council Law No. 10, the Convention on the Prevention and Punishment of the Crime of Genocide, the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, the UN Principles on the Effective Prevention and Investigation of Extra-legal, Arbitrary and Summary Executions, UN Declaration on the Protection of All Persons from Enforced Disappearance, and the Draft Code of Crimes against the Peace and Security of Mankind and the Rome Statute of the International Criminal Court.

While the scope of universal jurisdiction varies across countries and institutions, there are several fiundamental standards. Both Amnesty International and the Princeton Project on Universal Jurisdiction have separately published fourteen principles on the exercise of universal jurisdiction. In general, these principles address:

• What crimes are covered by universal jurisdiction
• The elimination of official immunities
• The elimination of retrospective immunity
• The elimination of statutes of limitation
• Barring of certain defenses, such as duress, orders and necessity
• Ensuring jurisdiction over suspects shielded by other national laws
• Removing political interference
• The right to a fair trial 
• The elimination of requiring victim complaints for prosecution
• Double jeopardy
• Extradition
• Providing for public trials and international monitoring
• The interests of victims, witnesses and families
• The abolition of capital punishment or other cruel, inhuman or degrading punishment
• International cooperation
• Resolving conflicts between competing national jurisdictions
• National and international legal reform
• The effective training of judges, prosecutors, defense lawyers and investigators
• Strengthening accountability and universal jurisdiction
• The settlement of disputes

Universal jurisdiction may be available when a State has ratified a treaty conferring jurisdiction on States Parties. International treaties, such as the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT) and Geneva Conventions, confer universal jurisdiction on States Parties for specific crimes. For example, CAT grants States Parties jurisdiction over acts of torture, regardless where the act occurred. Article 5 requires State Parties to take necessary measures to establish jurisdiction when the violation is committed in its territory (territorial jurisdiction), when the alleged perpetrator is a national of that State (active personality jurisdiction); when the victim is a national of that State (passive personality jurisdiction); or when the perpetrator is present in its territory and the State Party does not extradite (aut dedere aut judicare).

Also, universal jurisdiction may be available in countries that have adopted laws that grant universal jurisdiction within their domestic legal systems. One of the most progressive examples was Belgium's 1993 law, as amended in 1999, Loi relative à la répression des infractions graves aux Conventions de Genève du 12 aout 1949 aux Protocoles I et II du 8 juin 1977 ("Anti-Atrocity law"). The law authorized Belgian courts to prosecute individuals accused of genocide, crimes against humanity or war crimes without any direct link to Belgium. Belgium's legislative history expressly states that its jurisdiction would extend to crimes of rape, defined as "willfully causing great suffering or serious damage to physical integrity or health" (Article 1 s.3 3) While the Belgian Parliament did not recognize rape as an example of torture (Article 1 s.3 2), other tribunals have since established rape as a form of torture. Importantly, victims had direct access to the Belgian courts and could file criminal complaints before the investigating judge.

Unfortunately, international challenges have severely curtailed the scope of Belgium's universal jurisdiction. Belgium's 1999 amendment did not recognize state immunity, but the International Court of Justice disagreed. In Democratic Republic of the Congo v. Belgium, the International Court of Justice determined that Belgium's jurisdiction did not extend to incumbent officials under diplomatic immunity. In addition, pressure from the U.S. government forced Belgium to twice amend its law in April 2003 and August 2003. According to Human Rights Watch, Belgium's jurisdiction is now similar to or more restrictive than other European countries. Under the new law, Belgian courts will only have jurisdiction if the accused is Belgian or has his or her primary residence in Belgium; if the victim is Belgian or has lived in Belgium for at least three years at the time the crimes were committed; or if a treaty requires Belgium to exercise jurisdiction over the case. In addition, the new law restricts victims from directly accessing the courts. Unless the accused has Belgian nationality or a primary residence in Belgium, the final decision whether to proceed with a complaint rests with the prosecutor.

Another example of universal jurisdiction is Spain's 1985 Organic Law. According to the Universal Jurisdiction Information Network, Article 23(4) provided universal jurisdiction over several crimes, including genocide, terrorism, offenses related to prostitution, crimes related to the corruption of minors and handicapped, and other crimes that Spain has a duty to prosecute under international treaties. In 2003, however, the Rios Montt Supreme Court decision stated that Article 23(4) was too general to "allow criminal proceedings to be instituted" based on universal jurisdiction. Because of restrictions imposed by the principles of state sovereignty and non-intervention, Spanish courts would only have jurisdiction over genocide where there was a "point of connection" with Spain. According to the Universal Jurisdiction Information Network, it is too early to determine what effect this decision will have on Spain's jurisdiction over other crimes.

While the curtailment of both Belgium and Spain's laws are a setback, the recent entry into force of the Rome Statute of the International Criminal Court (ICC) may facilitate progressive changes in other countries' jurisdiction laws. The ICC, which has complementary jurisdiction to the domestic legal systems, may act only when national courts are unable or unwilling to prosecute suspects. However, the jurisdiction of the ICC is limited. Victims may not initiate cases at the ICC, and only a State Party, the Security Council or the Prosecutor may initiate cases. Also, the ICC's jurisdiction does not apply retrospectively to crimes committed before the Rome Statute entered into force on 1 July 2002. In addition, unless the Security Council refers a case to the Prosecutor, the ICC lacks jurisdiction unless the state where the crimes were committed or the state of the accused's nationality gives consent. Finally, the number of cases that the ICC will be able to accept is limited.

Several countries have adopted or are in the process of adopting legislation to implement the Rome Statute and provide jurisdiction over ICC crimes, namely genocide, war crimes and crimes against humanity. Crimes against humanity include rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization and sexual violence. When implementing the Rome Statute, States Parties may expand the ICC's jurisdiction to grant broader universal jurisdiction. Therefore, domestic legal reforms are important not only to ensure the minimal jurisdiction over ICC crimes, but also for their potential in creating broader jurisdiction where the ICC cannot apply. Indeed, Spain's implementing ICC legislation, Organic Law 6/2000, states in its purpose: "This accumulation of doctrinal, legislative and jurisprudential efforts established the bases for the effective protection of human rights in the international arena, breaking with old dogmas of criminal law, such as the principle of territoriality, based on the idea of national sovereignty, making way for a new principle of universal jurisdiction." The status of all States Parties' implementing legislation is available at the ICC website.

Litigation in national courts also means that victims of international human rights violations may be able to seek compensation through their domestic legal system. Some countries that exercise jurisdiction over international crimes provide that the victim may join a civil claim to the criminal claim and seek damages. France, for example, provides jurisdiction whenever French law is applicable to crimes committed outside of France or France has ratified a relevant treaty conferring jurisdiction (Article 689), Article 3 of the French Criminal Code provides that victims may litigate a civil claim for any cause of damage at the same time as the criminal prosecution. Article 2 provides that victims may seek compensation for damages suffered as a result of crimes under French law. Articles 4 and 5 allow victims to bring a separate civil action. Doing so, however, will prevent the victim from initiating a criminal action, except in cases where the criminal case was initiated by the public prosecutor prior to a judgment by the civil court.