This article examines whether or not states have a legal obligation to prosecute international crimes committed abroad. In contrast to the mainstream literature, this article argues that there is an insufficient legal basis for affirming that a state has a legal obligation to prosecute war crimes, crimes against humanity, genocide and other similar crimes committed abroad. This conclusion is reached through an inquiry into relevance of judicial decisions that have played an important role in the development of the theory of universal jurisdiction. This work demonstrates that rare decisions that held that states have universal jurisdiction over crimes committed in foreign countries were taken arbitrarily and with an insufficient legal basis.
Table of Contents
1. State practice
2. Universal jurisdiction: a part of customary international law?
3. International conventions
4. Judicial decisions
4.1. Domestic courts
4.2. International courts
Research Objectives and Themes
The primary objective of this article is to critically examine whether states possess a legal obligation under international law to exercise universal jurisdiction over serious international crimes committed abroad, such as genocide, war crimes, and crimes against humanity. The author challenges the prevailing literature by arguing that there is an insufficient legal basis for such an obligation, positing that state actions are often selective and driven by specific political interests rather than a mandatory legal duty.
- Analysis of state practice and its inconsistency regarding the application of universal jurisdiction.
- Evaluation of international conventions and their role in establishing a legal duty to prosecute.
- Critical review of domestic and international judicial decisions, including the impact of immunity doctrines.
- Distinction between universal jurisdiction and alternative legal bases such as passive personality jurisdiction.
Excerpt from the Book
1. State practice
As noted above, most if not all states which were interested in the application of universal jurisdiction were Western countries. Belgium was among them. It did so pursuant to its legislation that authorised its courts to exercise jurisdiction over international crimes committed outside Belgium. Among crimes that that country prosecuted under the umbrella of universal jurisdiction, there were war crimes, crimes against humanity and genocide. But, its legislations related to the universal jurisdiction were amended several times and this resulted in the restrictions on such jurisdiction.
The first legislation on which Belgium was based to prosecute international crimes committed abroad was Law of 16 June 1993 Relative to the Punishment of Grave Breaches to Geneva Conventions of 12 August 1949 and their Additional Protocols I and II of 8 June 1977. Article 1 of that law enumerated specific acts that had to be prosecuted, namely intentional homicide, torture or other inhuman treatments, taking of hostages, and other similar acts. Its Article 7 expressly provided for universal jurisdiction. It stated: “Belgian courts have jurisdiction to try crimes provided by this law, regardless of the place where those crimes will have been committed.” However, under the same law, universal jurisdiction could not be exercised over acts of genocide and crimes against humanity. It was restricted only to war crimes.
Summary of Chapters
1. State practice: This chapter reviews domestic legislation in various countries, specifically focusing on Belgium and Germany, to demonstrate that state practice regarding universal jurisdiction is inconsistent and limited.
2. Universal jurisdiction: a part of customary international law?: This chapter argues that the claim of universal jurisdiction as a component of customary international law lacks a strong legal foundation due to insufficient and restrained state practice.
3. International conventions: This analysis illustrates that major international conventions often do not mandate universal jurisdiction, as provisions are frequently interpreted through the lenses of territoriality or passive personality jurisdiction.
4. Judicial decisions: This section investigates how both national and international courts have grappled with the scope of universal jurisdiction, highlighting frequent reliance on immunity defenses that prevent prosecutions.
Keywords
civil war, state responsibility, duty to punish, universal jurisdiction, international crimes, genocide, war crimes, crimes against humanity, immunity, customary international law, Geneva Conventions, territoriality jurisdiction, passive personality jurisdiction, international conventions, prosecution
Frequently Asked Questions
What is the core focus of this research?
The research explores the validity of the doctrine of universal jurisdiction and investigates whether states actually have a legally binding obligation to prosecute international crimes committed outside their borders.
What are the primary themes treated in this paper?
The work focuses on state practice, the role of international conventions, the analysis of judicial precedents from both national and international courts, and the influence of sovereign immunity on international criminal justice.
What is the author's main research question?
The author questions whether a genuine legal obligation exists for states to exercise universal jurisdiction over war crimes, genocide, and crimes against humanity, or if such efforts are merely selective and politically motivated.
Which scientific methodology is applied?
The author employs a legal research methodology, conducting an inquiry into primary legal sources including national statutes, international conventions, and landmark case law from domestic and international tribunals.
What is addressed in the main body of the work?
The main body examines empirical state practice, critiques the interpretation of international treaties, and analyzes specific case examples—such as the Pinochet, Scilingo, and Habré cases—to evaluate their classification under universal versus passive personality jurisdiction.
How would you describe the key terminology?
The work is defined by terms such as universal jurisdiction, state responsibility, duty to punish, and immunity, reflecting the tension between accountability for grave international crimes and state sovereignty.
What is the significance of the distinction between universal and passive personality jurisdiction in this text?
The author argues that many cases historically labeled as "universal jurisdiction" were actually instances of passive personality jurisdiction, which occurs when a state prosecutes a crime because the victims were its own nationals.
How does the author characterize the impact of sovereign immunity?
The author concludes that immunity serves as a significant legal barrier that often results in the dismissal of cases, especially when high-ranking officials or ministers of foreign affairs are involved.
What is the conclusion regarding immunity for state officials?
The author observes that even for grave crimes like war crimes or torture, courts continue to uphold immunity for state officials, thereby undermining the practical application of universal jurisdiction.
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- Dr Callixte Mbonigaba (Autor:in), 2022, The Universal Jurisdiction. A Legal Obligation?, München, GRIN Verlag, https://www.grin.com/document/1236336
