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.


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