Universal Jurisdiction: Law out of Context

Abstract

Universal jurisdiction enables the prosecution of international crimes by domestic courts in the absence of any nexus between the prosecuting state and the crime charged. While the temptation is for domestic judges to proceed with ‘business as usual’ in the conduct of such trials, difficulties in the practice of universal jurisdiction reflect the importance of developing a better understanding of the distinctive communities, interests, crimes and cultures these trials are intended to serve. The exercise of universal jurisdiction is commonly regarded as a form of domestic jurisdiction exercised pursuant to a sovereign right under international law. This article invites a re‐conceptualisation of the concept of universal jurisdiction, explaining that it is not a form of domestic jurisdiction acquired based on sovereign nexus between the crime charged and the prosecuting state. Instead, it should be recognised as a form of decentralised ‘international jurisdiction’, exercised as part of a state's contribution to the enforcement of international criminal law. This re‐conceptualisation has implications for the way in which domestic courts engage with many of the challenges facing universal jurisdiction trials, including problems of community, case selection, proof and translation.