The Diplomacy of Universal Jurisdiction: The Political Branches and the Transnational Prosecution of International Crimes

Abstract

Under universal jurisdiction, any state in the world may prosecute and try the core international crimes— crimes against humanity, genocide, torture, and war crimes—without any territorial, personal, or national-interest link to the crime in question whenit was committed.The jurisdictional claim is predicated on the atrocious nature of the crime and legally based on treaties or customary international law. Unlike the regime of international criminal tribunals created by the United Nations Security Council and the enforcement regime of the International Criminal Court (ICC), the regime of universal jurisdiction is completely decentralized.

International Prosecution and National Bureaucracy: The Contest to Define International Practices Within the Danish Prosecution Service

“…Concerning core crimes, the Danish case was briefly outlined in regard to the use of universal jurisdiction (Reydams 2003). However, as Maximo Langer has pointed out, only a small minority of core crime cases investigated in national jurisdictions have led to convictions (Langer 2011). The findings of this article demonstrate how the resistance to cases involving core crimes, as well as to European cooperation, is not merely financial or political as indicated by Langer, but is embedded in the professional power balances and systemic functionality of law enforcement and the judiciary.…”

Migration and the Demand for Transnational Justice

“…P rivate P rosecutions , coded by Michel and Sikkink (2013), is a measure of whether an individual or organization can be a party in the criminal process and, as such, open an investigation and formal proceedings, plead before the judge, request the production of evidence, interrogate witnesses and appoint its own expert witnesses, appeal judicial decisions, etc. States that have private prosecution should be more responsive to universal jurisdiction cases because alleged victims and NGOs have more legal tools to press charges and to move these proceedings forward toward trial (Langer 2011). In contrast, we would expect British Legal Origin to be associated with fewer universal jurisdiction cases because in British Legal Origin systems the decision on whether a case should be opened or move forward to trial is typically exclusively made by public prosecutors that may be affiliated with the Executive Branch and thus be more responsive to the costs that universal jurisdiction prosecutions may entail (Langer 2011).…”

“…We overcome this difficulty by using the new data that significantly expand on data published in Langer (2011) and subsequently updated in Langer and Eason (2019) and in 2020–2021. Our universal jurisdiction data contain information on every known criminal complaint (or case considered by public authorities on their own motion) that involved the alleged commission of one or more of the four core international crimes—crimes against humanity, genocide, torture, and war crimes—by physical individuals; was filed or initiated between 1957 and 2019; and fully or partially relied on universal jurisdiction.…”

Domestic courts, transnational law, and international order

“…In some cases, the executive can directly suggest specific interpretations of international laws for domestic courts (d'Aspremont, 2014: 145;Rogoff, 1996). Langer (2011), similarly, finds that the incentives provided by the political branches affect European judges' willingness to exercise universal jurisdiction on international crimes. Second, judges shape transnational law through dialogical lawmaking with their peers sitting at other domestic courts.…”