Universal Jurisdiction and International Crimes: Contemporary Challenges in Prosecuting Genocide, Crimes against Humanity and War Crimes

Abstract

The article looks at the legal and practical limits of universal jurisdiction in relation to genocide, crimes against humanity and war crimes. Universal jurisdiction enables a State in certain situations to prosecute very serious international crimes, even if the conduct took place outside its territory and the parties have no ordinary nationality connection to the forum. The article discusses the main legal basis for the principle in terms of the Geneva Conventions, treaty obligations to prosecute or extradite the violator, and customary international law. It then considers the main legal limits, particularly personal immunity of some sitting senior officials, the continuing dispute about functional immunity, presence or residence requirements, prosecutorial or governmental consent and fair-trial requirements. The article covers practical limits in that it is unable to access foreign evidence, witness protection, cost, translation and selectivity. Germany, the United Kingdom, Canada and Australia are the main comparative examples with India and Pakistan being South Asian examples. The article argues that universal jurisdiction is still a useful but limited tool. In practice, universal jurisdiction is not about the broad wording of a statute but about whether the State has specialist prosecutors, access to evidence, witness-support systems and clear procedural rules. In the end the article argues that universal jurisdiction will develop with the pace of national reforms in place and cooperation rather than through a one-size-fits-all universal system.