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universal jurisdiction

No citations this time, just ruminations. I read a story about how some nations are using universal jurisdiction to prosecute war crimes. Universal jurisdiction is an awkward concept to me. It allows a nation with absolutely no connection to a crime to prosecute the perpetrator of that crime. The nation has no interest in it except a moral one. While morality does have a place in law, and especially in criminal law, it cannot be the sole reason for bringing someone to justice. There should be some other connection. While universal jurisdiction might be used to prosecute only the most egregious of war crimes, it sets an alarming precedent. If a homosexual were to travel to a nation where sodomy was criminalized and the law was enforced, even if the person did not engage in sex while there, the government could theoretically prosecute by using universal jurisdiction.

The point of international law is to create treaties between nations. Nations have to agree to be bound (however, if a law is so fundamental as to be jus cogens, then every nation is bound regardless of whether or not the nation agrees). Hence, for individuals to be prosecuted by the International Criminal Court, that individual’s nation must be a party to the Rome Treaty. Beyond that, there are the tribunals set up by the UN to prosecute individuals for crimes committed during conflicts in certain areas, like Yugoslavia and Sierra Leone. Granted, universal jurisdiction only comes into play if the individual cannot be brought to justice under the Rome Treaty or under one of the special tribunals, but if the UN is unwilling to create a tribunal, why should individual nations be able to prosecute those people?

This may be rather incoherent. I apologize.

One thought on “universal jurisdiction

  1. Dani

    In practice, universal jurisdiction is reserved only for the most heinous crimes such as genocide, torture and war crimes. The idea isn’t just that countries have a moral authority for jurisdiction but that these crimes are so heinous that they are a crime against the entire world, an affront to humanity if you will. It’s also a handy thing to have considering most countries where these things happen are ill-equipped to prosecute.

    That said, universal jurisdiction is very rarely used and the only time it has ever successfully been used against a leader is Pinochet.

    Anyway, yeah, those are my limited thoughts on universal jurisdiction.

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