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.