International society has recently witnessed the emergence of two interrelated trends: on the one hand, the significant rise in transnational crimes, which constitute a serious challenge to States’ traditional security capabilities, and the noticeable increase in the number of international instruments put in place to bring that challenge to acceptable levels, on the other hand. The great emphasis the international community has put on the principle “aut dedere aut judicare” to strengthen the universal legal regime against serious crimes and to deny safe haven to their perpetrators is challenged not only by political, legislative and practical considerations pertaining to the lack of ratification and incorporation of international conventions and the wide disparity between States as to their implementation capacity, but also by the inherent differences between States’ differing legal systems. This is an area that, despite its relevance to international cooperation and human rights, has long been ignored by criminal justice comparative studies. Based on actual cases such as the Ramda and El Guerbouzi cases, this article examines and assesses the impact of the differences between civil law and common law systems on the effectiveness of international cooperation and human rights. It argues that, unless these differences are acknowledged and properly dealt with, perpetrators of serious crime will continue to constitute a serious threat to our peace and security.

In the early 1990s, two former members of the Afghan secret service applied for a residence permit in the Netherlands. Their request was denied on the basis of the exclusion clause of Article 1F(a) of the Vienna Convention Relating to the Status of Refugees. There were serious reasons for suspecting that the men had committed war crimes during the Afghan civil war of 1979–92. In 2000, the immigration authorities transmitted the files of the two men to the public prosecution office, which initiated prosecutions in 2003. At the trial, defence counsel raised various preliminary challenges. They argued that the case should be declared inadmissible since relying on the immigration files would violate the nemo tenetur principle and the right against self-incrimination enshrined in Article 6 of the European Convention on Human Rights. Furthermore, the court had no universal jurisdiction over violations of Common Article 3 of the Geneva Conventions since there was no international rule mandating a right to universal jurisdiction over war crimes committed in non-international armed conflicts. The Hague District Court dismissed the defence challenges and eventually convicted the Afghan nationals to 9 and 12 years' imprisonment. The Hague Appeal Court endorsed most of the findings of the District Court and confirmed the convictions and sentences. The reasoning underlying the decisions, both at first instance and at appeal, raise questions particularly with regard to universal jurisdiction. In this article the defence arguments are explored and the reasoning of the courts is analysed.

The Chinese practice with regard to universal jurisdiction should not be ignored when examining its legal status under contemporary international law. Article 9 of the Chinese Criminal Code 1997 (CC 1997) provides the domestic legal basis for the PRC to exercise its criminal jurisdiction over those crimes stipulated in those concluded international treaties within the scope of obligations prescribed therein. This article explores the birth of the Chinese universal jurisdiction clause from a historical perspective, and makes a much-detailed interpretation of it in the combination of the jurisprudence and the most recent judicial practices. It is intended to clear up the misunderstanding widespread in the western world that the PRC never recognizes universal jurisdiction, and provides a picture of the Chinese understanding of universal jurisdiction in the CC 1997. However, due to the restrictions of the legal factors, such as the absence of certain international crimes and penalties in the CC 1997, the inability of applying the customary international criminal law in the Chinese courts, the requirement of the presence of the accused within the Chinese territory, as well as the respect of immunity for the persons with high official position, the effect of the Chinese universal jurisdiction clause is so restricted that it is almost impossible to play a role of suppressing international crimes, in particular those core crimes within the Rome Statute, in the international level.