This article examines whether or not states have a legal obligation to prosecute international crimes committed abroad. In contrast to the mainstream literature, this article argues that there is an insufficient legal basis for affirming that a state has a legal obligation to prosecute war crimes, crimes against humanity, genocide and other similar crimes committed abroad. This conclusion is reached through an inquiry into relevance of judicial decisions that have played an important role in the development of the theory of universal jurisdiction. This work demonstrates that rare decisions that held that states have universal jurisdiction over crimes committed in foreign countries were taken arbitrarily and with an insufficient legal basis.
Inhaltsverzeichnis (Table of Contents)
- Abstract
- Introduction
- 1. State practice
- 2. Universal jurisdiction: a part of customary international law?
- 3. International conventions
- 4. Judicial decisions
- 4.1. Domestic courts
- 4.2. International courts
Zielsetzung und Themenschwerpunkte (Objectives and Key Themes)
This article investigates whether states have a legal obligation to prosecute international crimes committed abroad. It challenges the common view, arguing that insufficient legal basis exists to confirm such an obligation for war crimes, crimes against humanity, genocide, and similar offenses. The analysis focuses on judicial decisions, demonstrating that rulings asserting state obligation to exercise universal jurisdiction often lacked sufficient legal grounding.
- State practice regarding universal jurisdiction
- Universal jurisdiction as customary international law
- The role of international conventions
- Analysis of judicial decisions in shaping universal jurisdiction
- The legal basis for state obligations in prosecuting international crimes
Zusammenfassung der Kapitel (Chapter Summaries)
Introduction: This introductory section establishes the central question of whether states bear a legal obligation to prosecute international crimes committed outside their borders. It challenges the prevailing scholarly consensus supporting this obligation, presenting a counter-argument based on a thorough examination of state practice, international conventions, and judicial decisions. The introduction highlights the limitations of the existing literature and lays out the methodology employed in the article.
1. State practice: This chapter analyzes the practice of states, particularly Western countries like Belgium, in applying universal jurisdiction. It details Belgium's evolving legislation regarding universal jurisdiction, highlighting amendments that introduced restrictions. The chapter notes the selective application of universal jurisdiction by states like Germany, the US, and France, demonstrating that prosecution primarily focused on weaker suspects or those without powerful state support. The inconsistencies and limitations observed in state practice serve as evidence against a widespread legal obligation.
2. Universal jurisdiction: a part of customary international law?: This chapter assesses whether universal jurisdiction constitutes customary international law. The limited number of states applying the doctrine and their often restrictive application, alongside legal immunities granted to powerful individuals, are presented as evidence against its status as customary law. The lack of consistent state practice and the de facto immunities provided to certain individuals weaken the argument for universal jurisdiction as a binding legal obligation.
3. International conventions: This chapter examines the role of international conventions, particularly the Geneva Conventions of 1949 and Additional Protocol I, in shaping universal jurisdiction. While these are frequently cited as providing a legal basis for universal jurisdiction over war crimes, the chapter likely analyzes the specific provisions to assess whether they truly mandate such jurisdiction. The chapter's analysis will likely uncover gaps in the legal arguments linking these conventions directly to a state’s obligation to prosecute.
Schlüsselwörter (Keywords)
Universal jurisdiction, customary international law, state practice, international conventions, judicial decisions, war crimes, crimes against humanity, genocide, state responsibility, duty to punish, international criminal justice.
Frequently Asked Questions: Analysis of State Obligations in Prosecuting International Crimes
What is the main research question of this article?
The article investigates whether states have a legal obligation to prosecute international crimes (war crimes, crimes against humanity, genocide) committed outside their territory. It challenges the prevailing view that such an obligation exists.
What are the key themes explored in this article?
The analysis focuses on state practice, the existence of universal jurisdiction as customary international law, the role of international conventions (like the Geneva Conventions), and a critical examination of judicial decisions related to universal jurisdiction. The core argument questions the legal basis for a state's obligation to prosecute international crimes committed abroad.
What sources does the article use to support its argument?
The article analyzes state practice, specifically examining the actions of Western countries like Belgium, Germany, the US, and France. It reviews international conventions, particularly focusing on whether they mandate universal jurisdiction. Crucially, it critically examines domestic and international judicial decisions to assess the legal grounding of assertions about state obligations.
What is the article's conclusion regarding state obligations to prosecute international crimes?
The article argues against the existence of a widespread legal obligation for states to prosecute international crimes committed outside their borders. It contends that the existing legal basis—drawing from state practice, international conventions, and judicial decisions—is insufficient to support such an obligation. The inconsistencies and limitations found in the application of universal jurisdiction are key to this conclusion.
What specific aspects of state practice are examined?
The analysis of state practice includes the examination of Belgium's evolving legislation on universal jurisdiction, noting the introduction of restrictions. It highlights the selective application of universal jurisdiction by various states, focusing on prosecutions of weaker suspects or those lacking powerful state support. This selective and inconsistent application is used as evidence against a universally binding legal obligation.
Does the article believe universal jurisdiction is customary international law?
The article argues against universal jurisdiction being established as customary international law. The limited number of states applying it, their often restrictive application, and the existence of legal immunities for powerful individuals are presented as evidence against its customary status. The lack of consistent state practice weakens the argument for a binding legal obligation.
What role do international conventions play in the article's argument?
The article examines whether international conventions, primarily the Geneva Conventions and Additional Protocol I, provide a legal basis for a state's obligation to exercise universal jurisdiction over war crimes. The analysis likely focuses on uncovering gaps in the legal arguments connecting these conventions to a mandatory state obligation to prosecute.
How does the article analyze judicial decisions?
The article critically analyzes judicial decisions, both domestic and international, that have addressed universal jurisdiction. It focuses on demonstrating that rulings asserting a state's obligation to exercise universal jurisdiction often lack sufficient legal grounding.
What are the key takeaways of this article?
The key takeaway is a challenge to the commonly held belief that states have a legal obligation to prosecute international crimes committed abroad. The article presents a counter-argument, demonstrating that the existing legal framework does not adequately support this obligation. It emphasizes a critical examination of state practice, international law, and judicial precedents to reach its conclusion.
- Arbeit zitieren
- Dr Callixte Mbonigaba (Autor:in), 2022, The Universal Jurisdiction. A Legal Obligation?, München, GRIN Verlag, https://www.hausarbeiten.de/document/1236336
