A Particular Universality: Universal Jurisdiction for Crimes Against Humanity in Domestic Courts (original) (raw)
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BiLD Law Journal 5(1), 2020
This study is critically analysing the lack of universal jurisdiction to the International Criminal Court (ICC) as to why the ICC is denied universal jurisdiction and what are the consequences resulting therefrom on realisation of international criminal justice. Findings show that, lack of universal jurisdiction to the ICC defeats the initial purpose of setting up a permanent ICC. Because, some nationals whose nations are not state parties to the ICC cannot be prosecuted. Meaning, an individual can commit an international crime and go unpunished by the sole reason that his state is not a party to the ICC. Seeing this threat, the Rome Statute provides for some referrals. Accordingly, cases to the ICC can be referred by state party to the Rome Statute, or by the United Nations Security Council (UNSC) when acting under Chapter VII of the Charter of the United Nations, or by non-state party when making declaration to accept the ICC jurisdiction in relation to a case, or by the prosecutor of the ICC by initiating investigations proprio motu. The important question to be asked is that are these referrals effective in obtaining international criminal justice? Evidently the issue is controversial. It is therefore important for the ICC to be accorded universal jurisdiction. This move is crucial in reducing often created ad hoc tribunals to serve the same purpose of which the ICC was created to serve. But also, the UNSC will be effective dealing with other matters of the international peace and security.
The Universal Duty to Establish Jurisdiction over and Investigate Crimes against Humanity
The International Law Commission's (ILC) draft articles on crimes against humanity contain some key provisions on the duty to establish national jurisdiction over crimes against humanity (draft Article 7) and on the duty to investigate the possible occurrence of crimes against humanity (draft Articles 8 and 9). This contribution analyses, first, the duty to establish national jurisdiction over crimes against humanity, focusing in particular on the identification of what constitutes 'territory under a state's jurisdiction' and on the principle of universal jurisdiction. Secondly, it delves into the general duty to investigate situations in which crimes against humanity may have been committed, clarifying the circumstances in which such duty may arise and the requirements that the related investigations should satisfy. Thirdly, this contribution deals with the specific duty to carry out a preliminary inquiry into allegations against suspects who are found on the state's territory, exploring in particular the extent to which the pertinent information should be shared with other states and the fair treatment guarantees that draft Article 11 accords to alleged offenders. In suggesting some improvements, this contribution considers that these articles — though representing a welcome development — constitute no more than the bare minimum to be done at the international level to prevent and punish crimes against humanity effectively.
DOI: 10.13189/sa.2015.030303 Objectives of International Criminal Law and Jurisdiction of ICC
2016
Although roots of criminal prosecutions are traced back in the 17th and 18th century but newly emerged discipline of international law namely international criminal law gained its scope after adoption Rome Statute. However, statute has not yet been universally accepted and various discrepancies have been raised by various states regarding the Jurisdiction and applicable procedure of International Criminal Court (ICC). Prior to the establishment of ICC, initially various international tribunals were established for the prosecutions of perpetrators of genocide, war crimes, crimes against humanity, and aggression, particularly after World War II. However, the prosecutions were subjected to serious criticism not only by the states representing the accused persons rather by the prosecuting states as well, on the grounds that all the prosecutions were partial in nature
2017
The aim of this thesis is to propose a comprehensive national legal framework for the effective and reasonable exercise of universal jurisdiction, which allows states to fulfill their international obligations to prosecute and punish the gravest human rights violations, while respecting other states' sovereignty and preserving the rights of each individual to a fair criminal prosecution and trial. The study is structured in three parts. Part I covers universal jurisdiction in international law. It responds to the question of what states are allowed – and/or obliged – to do under international law. Part II focuses on national legislation to identify if the universality principle is provided for and under what conditions. Our analysis of state legislation and practice has led to the identification of four potential preconditions to the assertion of universal criminal jurisdiction, which are developed in Part III, the main part of the thesis.
By analysing the mandate and the work of UN–related criminal courts and tribunals in investigating and prosecuting those most responsible for mass atrocity crimes and in supporting related domestic transitional justice efforts, this article aims at assessing whether these efforts are just fleeting mirages of transitional justice or a piecemeal approach towards building a cosmopolitan justice model. To that aim, the article evaluates the role and contribution of key UN–related criminal courts and tribunals towards developing a commonly shared concept and model of cosmopolitan justice which furthers peace and ensures the protection of populations from mass atrocity crimes, namely genocide, war crimes and crimes against humanity. The theoretical approach is based on Focarelli's argument that international law, seen as a social construct, can contribute in some measure to global justice. Ratner's standard of global justice, based on peace and human rights protection, is used as a general benchmark for the assessment of the activity of these international judicial institutions.
Analysis of international criminal tribunal regarding voilation of humantarian law
This research focuses on the problems of, and prospects for, the enforcement of international humanitarian law through the prosecution and punishment of Individuals accused of violations of International humanitarian law by international tribunals. The factors that historically prevented the development of International tribunals and then looks at recent events, namely the end of the Cold War and the subsequent unleashing of unparalleled forces of nationalism and fundamentalism in different parts of the world, which have created an increased willingness on the part of states to Institute mechanisms, both at the International and domestic levels, for international criminal justice. With the establishment of the ad hoc International Criminal Tribunals for the former Yugoslavia and for Rwanda, the enforcement of International humanitarian law has moved into a new and more effective phase. Yet, the clear merits of individual criminal prosecution by international tribunals cannot simply override the very real problems and obstacles they face. Nevertheless, I concludes that justice can be done at the international level and that international criminal tribunals are vital in the struggle to uphold the rule of law.