Langer: The Archipelago and the Hub: Universal Jurisdiction and the International Criminal Court

Maximo Langer (Univ. of California, Los Angeles - Law) has posted The Archipelago and the Hub: Universal Jurisdiction and the International Criminal Court (in The First Global Prosecutor: Constraints and Promise, Martha Minow & Alex Whiting eds., forthcoming). Here's the abstract:

Whenever a territorial state or other state with a relevant link to a core international crime - a crime against humanity, genocide or war crime - does not prosecute the crime in question, universal jurisdiction prosecutions by individual states and the International Criminal Court (ICC or the Court) are the only two permanent criminal law enforcement regimes available. This chapter - written for the book 'The First Global Prosecutor: Constraints and Promise' (Martha Minow and Alex Whiting eds., The University of Michigan Press, forthcoming 2012) - proposes a theoretical framework to analyze what the relationship between these two regimes should be and has actually been. The core argument for this framework is that the International Criminal Court and its Prosecutor have more legitimacy than universal jurisdiction prosecutions because they are more representative, accountable and transparent to humanity, and more respectful of state sovereignty.

This theoretical framework enables the chapter to analyze three central issues in the relationship between the two regimes. The first of these issues is whether universal jurisdiction prosecutions have any role to play after the creation of the ICC. The chapter argues that although the ICC has more legitimacy, universal jurisdiction still has a role to play in the prosecution of core international crimes given the substantial jurisdictional gaps, institutional and political constraints, and limited capacity of the ICC. Secondly, based on a global survey of universal jurisdiction cases, the chapter demonstrates that universal jurisdiction has played a very limited role in supplementing the work of the Court and its Prosecutor, and articulates possible reasons for this lack of collaboration. Finally, the chapter contends that the ICC’s principle of complementarity that regulates the relationship between the ICC and domestic prosecutions should not regulate the relationship between the ICC and universal jurisdiction. Rather, the ICC and its Prosecutor should adopt a more flexible approach in this area that acknowledges the higher legitimacy of the Court while also encouraging universal jurisdiction prosecutions that supplement the Court’s work.