Some EU Member States allow their courts to prosecute certain crimes, despite the absence of international treaty obligations. For the purposes of this guide, these offences are divided into two categories:
- Serious violations of international humanitarian law other than war crimes (for which there exists an obligation to prosecute under the Geneva Conventions, see above): crimes against humanity and genocide, and
- Serious crimes usually of an international dimension, such as the development and proliferation of weapons of mass destruction, money laundering, sexual abuse, human trafficking, bribery, etc.
In particular, austria, Belgium, Greece, Luxembourg and Portugal 1 have such provisions in their criminal legislation. Their legitimacy lies in the nature of the crimes prosecuted. In most cases, the accused must be present on the soil of the prosecuting State.
It should be noted that although crimes against humanity and genocide have no equivalent to the Geneva Conventions on war crimes, 2 the use of universal jurisdiction to prosecute these offences is now widespread. Many States have created identical prosecutorial regimes for all serious violations of international humanitarian law. See infra on universal jurisdiction.
German law provides for universal jurisdiction in crimes against humanity and genocide (similar to the jurisdiction rules for war crimes). The same is true in the Netherlands and Spain. Italy, Finland, Luxembourg, Portugal and Sweden grant universal jurisdiction only for the crime of genocide, and Greece only for crimes against humanity. 3
In France, universal jurisdiction for serious violations of international humanitarian law is grounded in the laws governing the country’s co-operation with the ICTY and ICTR 4 as well as the law incorporating the Rome Statute with regard to the crimes of genocide, crimes against humanity and war crimes. Finally, in Belgium, unlike the Law of 16 June 1993 which it repealed, the Law of 5 August 2003 on serious violations of international humanitarian law no longer grants explicit universal jurisdiction for genocide and crimes against humanity. An expansion of the active and passive personality jurisdiction regime was introduced for the abovementioned crimes, but Belgium ignored its obligations to exercise universal jurisdiction under treaties the country has signed.