This article has been written by Ms.Ekta Bhardwaj, a 2nd year Ballb (H) student of National Law University , Delhi

Abstract -: This article delves into the complexities of international criminal law. I elucidated the pivotal role played by national jurisdictions in the realm of international criminal law. The concept of universal jurisdiction, which aims to hold accountable those responsible for crimes committed globally, is a relatively new development in international criminal justice. However, it encounters obstacles due to the absence of a clear definition and universally accepted catalogue of crimes. Consequently, this leads to confusion and inconsistency in its application, despite acknowledging certain international transgressions. Moreover, it has the potential to occasionally undermine the fairness of legal proceedings for the accused, resulting in unjust verdicts and a denial of justice. The objective of this paper is to offer a concise overview of the challenges posed by universal jurisdiction in terms of obtaining reliable evidence and ensuring a fair trial, primarily due to unfamiliarity with diverse legal systems and evidentiary standards.

 

Keywords-: Universal Jurisdiction, ICC 

 

Introduction -: International criminal law emerged as a response to the need for accountability and justice for grave offenses, including genocide, war crimes, crimes against humanity, and aggression. The development of international criminal law can be traced back to World War II, when the Nuremberg trials established individual criminal responsibility for international crimes and led to the establishment of the International Criminal Court (ICC) in 2002. However, the ICC’s jurisdiction is limited to states that are party to the Rome Statute, which has led to the concept of universal jurisdiction. This concept allows national courts to prosecute individuals for international crimes regardless of their location or nationality.

 

The principle of universal jurisdiction is recognized by various international treaties and has been incorporated into the domestic laws of many countries. However, there are challenges in its application and enforcement. National courts may face political pressure, lack necessary resources, and encounter conflicting judgments and interference from other states. Additionally, the principle raises questions about the relationship between national and international legal systems, as national courts are bound by their own laws and may not always align with international law.

 

In recent years, there has been a growing trend towards the exercise of universal jurisdiction, driven by a growing recognition of the importance of accountability for these crimes and the need to fill gaps in the international criminal justice system.

 

The development of international criminal law and the principle of universal jurisdiction have been significant advancements in the fight against the most serious crimes. It is crucial for national jurisdictions to collaborate with international bodies like the ICC to ensure that those responsible for these crimes are brought to justice.

 

Intricacies of International Criminal Law-:

 

Ancient civilizations established basic legal systems to address crimes committed outside their borders, laying the foundation for international criminal law. However, the modern concept of international criminal law emerged after World War II, with the creation of the Nuremberg and Tokyo tribunals. The primary goal of international criminal justice is to address the most serious crimes committed worldwide, including genocide, war crimes, and crimes against humanity. The definition of crimes against humanity may vary in different legal statutes due to their evolution over time. International criminal law encompasses a comprehensive set of rules that prohibit grave offenses and establish procedures for investigating, prosecuting, and punishing violations. Its main focus is on holding individuals accountable and covers various aspects such as liability, defenses, evidence, court procedures, penalties, victim participation, witness protection, mutual legal assistance, and collaboration. It consists of three key components: extradition and mutual legal assistance between legal systems, a coalition of nations or the global community that prohibits and punishes specific behaviors, and the functioning of independent international legal systems. The main sources of international criminal law include treaties, customary international law, general legal principles, judicial decisions, and the writings of respected legal scholars. General principles of international criminal law are applied when existing laws do not provide a solution, and judicial experience serves as the basis for these principles. Statutory limitations restrict the filing of criminal charges for major offenses, although war crimes and crimes against humanity are exempt from such limitations. International criminal law conventions regulate individual criminal responsibility and impose obligations on states to either prosecute or extradite individuals accused of committing international crimes.The Hague Regulation, established during the First Hague Peace Conference in 1899, and the Additional Protocols to the Geneva Conventions of 1949 are notable examples of these conventions. These conventions have a significant role in international humanitarian law as they aim to regulate armed conflicts and minimize their impact. They provide protection for civilians, health specialists, relief workers, and individuals who are no longer involved in the conflict. The International Criminal Court (ICC) is a global tribunal responsible for investigating severe international crimes such as genocide, war crimes, and crimes against humanity. Despite facing challenges from major countries like the US, China, and Russia, the court continues to operate and holds jurisdiction over four categories of offenses. It is worth mentioning that the ICC does not prosecute individuals under the age of 18. However, prosecutors are obligated to conduct a preliminary investigation, gather and disclose incriminating and exonerating evidence, and presume innocence until proven guilty.

 

Crucial Role of National Jurisdictions in International Criminal Law-:

 

National jurisdictions are the legal systems of individual countries that possess the authority to hold individuals accountable for international crimes. They have a crucial role in international criminal law by maintaining justice within their borders and facilitating improved access to the judicial system for victims and witnesses. To effectively prosecute international crimes, national jurisdictions must establish a comprehensive legal framework that integrates international crimes into domestic laws and covers investigation, prosecution, and punishment. Moreover, they require well-trained prosecutors, judges, and investigators who possess a deep understanding of international criminal law, along with the necessary resources and infrastructure. National jurisdictions also bear the responsibility of collaborating with international bodies like the International Criminal Court (ICC) to ensure justice is served for the victims. However, conflicts over jurisdiction can arise when international crimes involve multiple countries and individuals of different nationalities.

 

Universal Jurisdiction-: 

 

It is a fundamental concept in international law that grants states the authority to exercise jurisdiction over individuals accused of committing particular crimes, regardless of their nationality or location at the time of the alleged offense. This principle serves to guarantee that individuals who are responsible for serious offenses such as war crimes, genocide, and crimes against humanity are held responsible when their own countries are unable or unwilling to prosecute them.

 

Challenges of Universal Jurisdiction-:

 

1.Universal jurisdiction faces challenges due to the lack of a clear definition and universally accepted list of crimes, leading to confusion and inconsistency in its application, despite recognizing certain international violations.

 

2.Universal jurisdiction cases pose a significant challenge in obtaining reliable evidence and ensuring a fair trial due to the lack of familiarity with legal systems and evidentiary standards involved.

 

3.Determining the appropriate jurisdiction for prosecuting crimes becomes challenging under universal jurisdiction, particularly when crimes occur in multiple countries or the accused is a citizen of another state. These situations can lead to conflicts and the potential for double jeopardy. Additionally, the concept of sovereign immunity, which grants immunity to foreign heads of state and government officials, can create diplomatic tensions if a nation decides to prosecute a foreign official.

 

4.The principle of complementarity, enshrined in the Rome Statute, limits the jurisdiction of the International Criminal Court (ICC) to situations where states are unable or unwilling to prosecute. This principle highlights the importance of cooperation between states in the application of universal jurisdiction, emphasizing the need for trust and collaboration to ensure the prosecution of international crimes committed within their borders.

 

5.Universal jurisdiction has faced criticism for its ability to undermine state sovereignty. This is because it permits one state to prosecute crimes that take place within the borders of another state, thus violating the principle of non-interference in a nation’s internal affairs. Additionally, this practice can heighten tensions and conflicts, especially when influential individuals are accused of wrongdoing.

 

6.Universal jurisdiction has faced criticism for its ability to undermine state sovereignty. This is because it permits one state to prosecute crimes that take place within the borders of another state, thus violating the principle of non-interference in a nation’s internal affairs. Additionally, this practice can heighten tensions and conflicts, especially when influential individuals are accused of wrongdoing.

 

7.Universal jurisdiction can be easily influenced by politics, as states might exploit it to advance their own agendas instead of seeking justice. This can result in unfair targeting of specific countries or political groups, while ignoring the crimes committed by their own citizens. It can also be misused as a means of seeking revenge or settling political scores. Critics argue that powerful nations have the ability to manipulate and misuse this principle, which highlights the need for stricter guidelines and criteria to govern its application.

 

8.Enforcing judgments in cases of universal jurisdiction presents numerous challenges, including the need for international cooperation, robust support systems, complexities in extradition, and sentence enforcement. These factors frequently result in a lack of accountability for offenders and frustration for victims. Additionally, the limited universal acceptance and enforcement of this principle make it arduous to hold perpetrators responsible, raising doubts about the credibility of trials and sentences. Moreover, practical concerns such as extradition and sentence enforcement further complicate the matter.

 

9.Universal jurisdiction has the potential to occasionally undermine the fairness of legal proceedings for the accused, leading to unjust verdicts and a denial of justice. The complexity of cases and the fast-tracked legal procedures can further exacerbate the likelihood of erroneous judgments. Moreover, the scarcity of resources and expertise within national courts can further complicate the process, resulting in prolonged and costly trials. Furthermore, the interference of political influences from governments can also significantly impact the trial process.

 

Conclusion -: The field of international criminal law emerged in the aftermath of World War II to tackle transnational offenses such as genocide and war crimes. This legal framework encompasses regulations pertaining to the investigation, prosecution, and punishment of these violations, with a primary focus on ensuring accountability. It involves various mechanisms such as extradition, mutual legal assistance, and the establishment of a global community committed to upholding justice. Additionally, independent legal systems play a crucial role in this process. The International Criminal Court, as a key institution, assumes the responsibility of investigating and addressing grave crimes. 

 

Within individual nations, national jurisdictions serve as legal systems that hold individuals accountable for international crimes. These jurisdictions are responsible for maintaining justice within their respective borders and enhancing access to the judicial system. To effectively carry out this role, they require a comprehensive legal framework, as well as well-trained prosecutors, judges, and investigators. Collaboration with international bodies, such as the International Criminal Court, is also essential in ensuring the successful prosecution of international crimes.

 

Universal jurisdiction is a fundamental concept in international law that empowers states to bring charges against individuals accused of crimes, regardless of their nationality or location. This principle guarantees that those responsible for serious offenses are held responsible, even when their own countries are unable or unwilling to take legal action. However, it encounters difficulties due to the lack of a clear definition and universally accepted list of crimes, resulting in confusion and inconsistency in its application. Additionally, gathering reliable evidence and ensuring a fair trial can be challenging due to unfamiliarity with different legal systems and standards of proof. The principle of complementarity, as outlined in the Rome Statute, limits the jurisdiction of the International Criminal Court (ICC) to cases where states are unable or unwilling to prosecute. Critics argue that universal jurisdiction can undermine state sovereignty, be vulnerable to political manipulation, and lead to a lack of accountability for perpetrators and frustration for victims.

 

References-:

 

1.The Principles of ‘Complementarity’ and  Universal Jurisdiction in International  Criminal Law: Antagonists or Perfect Match? (2012). Goettingen Journal of International Law 4 (2012) 3, 737-763.

 

2.Tallgren, I. (2002). The sensibility and sense of international criminal law. European Journal of International Law, 13(3), 561–595. https://doi.org/10.1093/ejil/13.3.561

 

3.Douglas Stringer & Diane Marie Amann, International Criminal Law, 31 INT’L L. 611 (1997)

https://scholar.smu.edu/til/vol31/iss2/40

 

4.David Stoelting, Enforcement of International Criminal Law, 34 INT’L L. 669 (2000)

https://scholar.smu.edu/til/vol34/iss2/23

 

5.Anthony J. Colangelo, The Legal Limits of Universal Jurisdiction, 47 Va. J. Int’l L. 149 (2006)

 

6.Hoover, Dalila V., “Universal Jurisdiction not so Universal: A Time to Delegate to the International Criminal Court” (2011). Cornell

Law School Inter-University Graduate Student Conference Papers. Paper 52.

http://scholarship.law.cornell.edu/lps_clacp/5

 

7.Kontorovich, Eugene, “The “Define and Punish” Clause and the Limit of Universal Jurisdiction” (2009). Faculty Working Papers. Paper

181.

http://scholarlycommons.law.northwestern.edu/facultyworkingpapers/181

 

8.Kissinger, H. A. (2001). Pitfalls of universal jurisdiction, the Foreign Affairs,

80(4), 86-96

 

9.Boyle, Andrew, Farmer, Beth, Franklin, Timothy, Ginsberg, Melissa, & Sadat, Leila.

International Criminal Law. Year in Review: An Annual Survey of International Legal

Developments and Publications of the ABA Section of International Law, 55, 293-310.

 

10.Arnell, Paul. (1999). International criminal law and universal jurisdiction.

International Legal Perspectives, 11(1), 53-64.