Nonetheless, as the ICC struggles to adequately combat international crimes, universal jurisdiction is a viable alternative for national authorities to take on some of the burden in prosecuting perpetrators of grievous human rights abuses. Further, considering the experience and institutional capacity of the ICC, the Court has the ability to provide valuable help and resources to national authorities exercising universal jurisdiction, to the benefit of both parties.

In this comment, I will discuss the obstacles that arise for national authorities exercising universal jurisdiction and how the ICC can help address them. In Part II, I provide a brief background on the legal basis for universal jurisdiction, the ICC, and the Rome Statute. In Part III, I highlight the primary challenges facing national authorities exercising universal jurisdiction, with an emphasis on those challenges which the ICC may be able to address. In Part IV, I outline the potential role for the ICC in assisting national authorities exercising universal jurisdiction to overcome these challenges. I conclude that the most realistic, impactful areas of assistance will likely be training and evidence sharing. While there are many challenges, increased cooperation between the ICC and national authorities exercising universal jurisdiction would greatly benefit the growing landscape of international justice.

II. Background: Universal Jurisdiction and the ICC

While universal jurisdiction is politically controversial, particularly for its infringement on state sovereignty, the concept is rooted in international law. It was first codified in the 1949 Geneva Conventions in relation to war crimes, which was ratified by 194 states.9 It’s also codified and obligatory in the 1973 Convention against Apartheid, the 1984 Convention against Torture, and the 2006 Convention against Enforced Disappearance.10 Further, universal jurisdiction is generally considered acceptable under international customary law for particularly heinous crimes, such as genocide and crimes against humanity.11

The ICC attempts to address many of the same grievous crimes as universal jurisdiction. The Rome Statute grants the ICC jurisdiction over the crime of genocide, crimes against humanity, war crimes, and the crime of aggression.12 However, the Court’s jurisdiction is limited to the territories of states which are a Party to its Statute (or states which accept jurisdiction), or where the matter was referred by the United Nations Security Council.13 Moreover, only 123 countries are States Parties to the Rome Statute.14 Universal jurisdiction presents an opportunity for national authorities to take international justice into their hands and alleviate some of the caseload for the ICC, as well as reach territories that the ICC would not normally be able to pursue under its limited jurisdiction. The ICC has the potential to help these national authorities as it has more experience in pursuing grave human rights crimes and can lend valuable resources and expertise.

III. Obstacles in Exercising Universal Jurisdiction

In assessing how the ICC may assist states exercising universal jurisdiction, I first examine the primary obstacles facing these states. While there are many obstacles facing national authorities, I will primarily focus on those which the ICC could potentially assist with.

A. Legal Obstacles

There are numerous legal challenges to asserting and carrying out prosecutions using universal jurisdiction. Many states lack adequate legislation to assert universal jurisdiction. While almost two-thirds of all states have legislation permitting universal jurisdiction over certain grave international crimes, such as war crimes, few have jurisdiction over all, and many lack adequate specified punishments.15 Additional important principles, such as the criminal responsibility of commanders and superiors are often absent from legislation.16 Even states with adequate legislation are often hindered by foreign amnesties and other measures of impunity, particularly immunities for heads of state and government officials.17 These impunities are inconsistent with the Rome Statute’s emphasis on preventing impunity regardless of official capacity.18

Domestic justice systems also struggle to exercise universal jurisdiction because there is a lack of mutual legal assistance in the international justice system. States where the crime occurred have no obligation to assist the forum state with an investigation, allow entry into crime scenes, provide evidence, or extradite suspects.19 Additionally, collaboration is not always possible when perpetrators are part of state governments or militaries due to conflicts of interest in carrying out fair investigations. There are few international treaties regarding mutual legal assistance and they have limited scope with broad grounds of refusal, such as double criminality requirements and statutes of limitation.20 Additionally, these grounds of refusal are typically evaluated by political officials rather than courts, creating questionable bias, particularly in the absence of international monitoring.21

B. Political Obstacles

National authorities also face political obstacles in exercising universal jurisdiction. Primarily, states often lack the political will to implement universal jurisdiction. International crimes committed abroad are typically not at the highest priority for national police, prosecutors, or political officials. The participation of political officials in judicial decision-making also often leads to political interference with exercising universal jurisdiction.22 In many countries, political officials must approve initiation of criminal investigation or prosecutions based on universal jurisdiction and decisions on whether to extradite or cooperate.23 This brings clear issues of bias and undermines the legitimacy and success of universal jurisdiction. The continued use of military courts for crimes under international law also creates concern about potential political interference.24

C. Practical Obstacles

States exercising universal jurisdiction also face major evidentiary challenges, as they are investigating crimes which did not occur within their own territory. Access to crime scenes is particularly difficult to achieve, especially with countries that are unwilling to cooperate or have political interference.25 Forensic evidence is lacking in many major international crimes, especially with the long delays that happen throughout the investigation and prosecution, and authorities are forced to over rely on witness testimony.26 Geographical distance also makes gathering this evidence or finding witnesses financially cumbersome.27 It’s particularly difficult when there are restrictions on exporting certain items or limited access to crime scenes such as grave sites.28 Because of these evidentiary issues, there is the potential for a power imbalance between the prosecution and defense in these cases.

Witness testimony presents its own challenges, as it’s difficult to locate victims and witnesses, particularly for stigmatized crimes or those witnesses who have a fear of reprisal. Gaining the trust of witnesses and ensuring their safety and security in a trial in another country is particularly challenging.29 Once witnesses can be included, there is still a potential issue of memory loss given the long delays in universal jurisdiction proceedings and the chance of retraumatization.30 Witnesses may also be more intimidated in unfamiliar countries with court settings they are not typically accustomed to.31

Additionally, national authorities exercising universal jurisdiction are hindered by intercultural differences. Prosecutors and judges have a limited understanding of the cultural, social, and political contexts of the states where the crimes were committed, which makes it difficult to evaluate evidence and witnesses appropriately.32 States have differing understandings of justice, from appropriate forms of punishment to varying court procedures, and this disparity becomes apparent in exercising universal jurisdiction. These distinct contexts can hinder the achievement of justice in a form that is meaningful to the victims who actually suffered the crimes.

Finally, domestic justice systems face a major obstacle in that national authorities may have inadequate knowledge of the international criminal justice system. Many national authorities are unfamiliar with their own universal jurisdiction provisions, relevant international law, and the specialized knowledge and skills that are required for these particular types of crimes.33 In some countries, it may be difficult to obtain access to information on extradition or mutual legal assistance treaties, and this may lead prosecutors to not pursue universal jurisdiction.34 National authorities also often lack the specialized investigation and prosecution units that could lend expertise to crimes under universal jurisdiction.35 International law requires unique practical skills, such as evidence gathering abroad, interviewing victims of sexual violence, preserving confidentiality and witness protection, and dealing with intercultural differences.36 These types of skills are critical to successful prosecutions under universal jurisdiction and many countries lack the specialized knowledge or dedicated units to properly facilitate them.

IV. Potential Role for the ICC

The ICC is the first permanent international court with jurisdiction to prosecute individuals for genocide, crimes against humanity, war crimes, and the crime of aggression. Because it is the first and only court of its kind, the ICC possesses valuable institutional knowledge that can aid in international justice. The infrastructure of the ICC could be a valuable asset in filling the gap in specialized knowledge that many domestic justice systems face in terms of universal jurisdiction. The Court specializes in the very crimes that universal jurisdiction typically prosecutes, and the ICC could help close this knowledge gap in a variety of ways.

First, the ICC could potentially conduct training for national authorities seeking more expertise in grave international crimes. This could include training for investigators, prosecutors, and law enforcement. The ICC conducts virtual events on topics such as “witness protection and support” and could likely expand this method to a more robust program which is focused on the unique complications of universal jurisdiction.37 Training and sharing knowledge is increasingly easier to facilitate as institutions embrace remote options following the pandemic.38 Different organizations in the international justice system have embraced this approach, as seen in joint training across the European Judicial Training Network and training sessions from experts at the International Criminal Tribunal for the former Yugoslavia.39 The ICC itself has conducted training initiatives similar to this.40

The ICC could also help national authorities to establish specialized units within police and prosecution offices for investigating international crimes such as war crimes and crimes against humanity.41 The ICC could contribute training, expertise, and resources for best practices to these units. These kinds of units have been largely successful in Australia, Canada, Ethiopia, and the United Kingdom.42 This could help address many of the practical barriers regarding a lack of specialized knowledge in international crimes.

The ICC could also contribute knowledge by providing prosecutorial policies, strategies and guidelines. For example, the ICC has extensive experience in the protection of witnesses and faces the same issues of retraumatization, confidentiality, and intercultural differences that are seen in universal jurisdiction.43 The Court’s familiarity with these issues could help states trying to build these new skills. Although the ICC may not be the ultimate success in many of these challenging areas, simply sharing resources and network connections can be a valuable resource for national authorities. Sharing knowledge and connecting experts within the international justice field could help advance both the ICC and national authorities exercising universal jurisdiction. The Court could even help create a global resource of information regarding universal jurisdictions and the crimes it involves, with guidelines for best practices and policies.44

The ICC network is also useful for promoting collaboration. The Court could use its relationships with the Assembly of States Parties to encourage or propose guidelines on practical steps to make the practice of universal jurisdiction more feasible for national authorities. This could come in the form of treaties regarding mutual legal assistance in the case of universal jurisdiction, treaties on extradition and arrest procedures for these crimes, or even a form of international monitoring for this process.45 As some of the inadequate universal jurisdiction legislation conflicts with the Rome Statute, collaboration with the ICC could lead to improved legislation which is more reflective of the standards within the Rome Statute. For example, national authorities could be encouraged to remove immunities for heads of state or government officials.46

Advocacy from the ICC can also help spur action from national authorities in exercising universal jurisdiction. This occurred in 2003, when the ICC Prosecutor encouraged states to investigate criminal business and inspired the Netherlands’ investigation of Guus Kouwenhoven.47 In this way, ICC encouragement and support could help divide labor across jurisdictions to prosecute human rights violations abroad. The ICC and national jurisdictions could also collaborate with NGOs to increase advocacy efforts, particularly because NGOs have extensive knowledge of different cultural contexts where crimes may be committed.48

Finally, the ICC could assist with the provision of evidence to national authorities asserting universal jurisdiction. The ICC may conduct preliminary investigations into situations which overlap with universal jurisdiction prosecutions in other states and could provide recommendations or evidence. Provision of evidence may likely be the most helpful assistance the ICC can provide, as national authorities exercising universal jurisdiction face substantial barriers in being unable to access crime scenes and lacking forensic evidence.

Article 93 of the Rome Statute allows the Court to cooperate with and provide assistance to a State Party conducting an investigation or trial for:

[C]onduct which constitutes a crime within the jurisdiction of the ICC or a serious crime under the national law of the requesting State.49

This form of assistance includes, inter alia, the transmission of statements, documents, other types of evidence, and the questioning of witnesses.50 This leaves open the possibility of widespread assistance in providing evidence or other resources for a State Party asserting universal jurisdiction. Additionally, the Statute allows for assistance to be granted to a State which is not a State Party.51 This provides the possibility for ample evidentiary assistance to states asserting universal jurisdiction and opens the possibilities for more widespread pursuit of international justice.

Naturally there are also barriers for the ICC in providing this type of assistance. The Rome Statute places great importance on the confidentiality of witnesses.52 Sharing evidence with other jurisdictions could present difficult issues of confidentiality and witness security. Additionally, under Article 93, if the evidence was obtained with the assistance of a State, the transmission of evidence requires the consent of that state.53 This may present issues where there is political interference or conflicts of interest. However, given the Court’s experience in preserving the confidentiality of witnesses, this challenge is not unduly burdensome. The ICC is familiar with preserving the security and confidentiality of evidence and is likely capable of ensuring national authorities receive evidence have independent, trustworthy judiciaries.54

V. Conclusion

The ICC has valuable expertise, knowledge, and resources to offer national authorities exercising universal jurisdiction. The most beneficial forms of assistance would likely be the provision of evidence and the sharing of expertise through training. While helping to negotiate or develop new treaties establishing mutual legal assistance would be advantageous, this is less likely given the ever-present concerns about state sovereignty.

The question remains whether any type of assistance would be feasible for the ICC, which is already struggling with its own prosecutions. In fact, given the accusations of bias and inefficiency against the Court, some may argue that the ICC should not be teaching other jurisdictions how to prosecute. However, the benefits of potentially delegating some prosecutions to national authorities would alleviate part of the burden on the ICC and redistribute potential for justice to more diverse forums. Different national authorities prosecuting international crimes could help even out the landscape of international justice and prevent Western bias. This is arguably the best bet for a more successful ICC and a more powerful international justice system more broadly, as it divides labor in a more effective way.55

Despite the challenges, cooperation between the ICC and national authorities exercising universal jurisdiction has the potential to greatly benefit the growing landscape of international justice and provide new avenues to fight against impunity.

Endnotes — (click the footnote reference number, or ↩ symbol, to return to location in text).

1. 1.

   About the Court, ICC, available online (last visited Aug. 28, 2023). ↩

2. 2.

   To What Extent has the ICC Under-Represented Non-Western Laws, Principles, Rules, Procedures, Practices, or Traditions in its Legal Structure and System?, ICC Forum (Jul. 25, 2022), available online; Is the International Criminal Court Targeting Africa Inappropriately?, ICC Forum (Mar. 17, 2013), available online. ↩

3. 3.

   About the Court, supra note 1; What More Can be Done to Secure Arrests?, ICC Forum (Feb. 13, 2014), available online. ↩

4. 4.

   Kiran Mohandas Mehon, Asia and the ICC: 20 Years Later, The Diplomat (Oct. 13, 2018), available online. ↩

5. 5.

   Trial International, Universal Jurisdiction Annual Review 2022 (Apr. 4, 2022), available online. ↩

6. 6.

   Human Rights Watch, Facts on Universal Jurisdiction (Oct. 19, 2009), available online. ↩

7. 7.

   Id.; Henry A. Kissinger, The Pitfalls of Universal Jurisdiction, Foreign Aff. (Jul. 2001), paywall, archived. ↩

8. 8.

   Trial International, Universal Jurisdiction Annual Review 2019 (Mar. 1, 2019), available online. ↩

9. 9.

   Facts on Universal Jurisdiction, supra note 6. ↩

10. 10.

    Id. ↩

11. 11.

    Id. ↩

12. 12.

    Rome Statute of the International Criminal Court, Adopted by the United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court, Jul. 17, 1998, U.N. Doc. A/CONF.183/9 [hereinafter Rome Statute], Art. 5, available online. ↩

13. 13.

    Id. Art. 12; Id. Art. 13. ↩

14. 14.

    The States Parties to the Rome Statute, ICC, available online (last visited Aug. 28, 2023). ↩

15. 15.

    Christopher Keith Hall, Amnesty Int’l, Universal Jurisdiction: The Challenges for Police and Prosecuting Authorities 4 (Jun. 13, 2007), available online. ↩

16. 16.

    Id. ↩

17. 17.

    Id. at 5. ↩

18. 18.

    Rome Statute, supra note 12, at Art. 27. ↩

19. 19.

    Howard Varney & Katarzyna Zduńczyk, ICTJ, Advancing Global Accountability: The Role of Universal Jurisdiction in Prosecuting International Crimes (Dec. 2020) [hereinafter Global Accountability], available online. ↩

20. 20.

    Hall, supra note 15, at 11. ↩

21. 21.

    Id. ↩

22. 22.

    Id. at 19. ↩

23. 23.

    Id. ↩

24. 24.

    Id. ↩

25. 25.

    Universal Jurisdiction Annual Review 2019, supra note 8, at 9. ↩

26. 26.

    Id. ↩

27. 27.

    Id. ↩

28. 28.

    Hall, supra note 15, at 16. ↩

29. 29.

    Universal Jurisdiction Annual Review 2019, supra note 8, at 9. ↩

30. 30.

    Global Accountability, supra note 18. ↩

31. 31.

    Id. ↩

32. 32.

    Id. at 25. ↩

33. 33.

    Hall, supra note 15, at 18. ↩

34. 34.

    Id. ↩

35. 35.

    Id. ↩

36. 36.

    Id. ↩

37. 37.

    20th Anniversary of Entry into Force of the Rome Statute, ASP, available online (last visited Aug. 28, 2023). ↩

38. 38.

    Trial International, Universal Jurisdiction Annual Review 2021 (Apr. 12, 2021), available online. ↩

39. 39.

    European Judicial Training Network, EJTN-GNS Joint Training on the Investigation and Prosecution of Core International Crimes (Sep. 2022), available online; Press Release, ICTY, President Pocar Participates in Expert Meeting on Inter-State Judicial Cooperation in War Crimes Proceedings (Jun. 13, 2007), available online. ↩

40. 40.

    Press Release, Office of the Prosecutor, ICC, Office of the Prosecutor Participates in Training Initiative in Uganda: Collaboration is Key to Closing the Impunity Gap (Mar. 13, 2018), available online. ↩

41. 41.

    Hall, supra note 15, at 18. ↩

42. 42.

    Id. ↩

43. 43.

    Id. ↩

44. 44.

    Global Accountability, supra note 18. ↩

45. 45.

    Hall, supra note 15. ↩

46. 46.

    Id. ↩

47. 47.

    William W. Burke-White, Proactive Complementarity: The International Criminal Court and National Courts in the Rome System of Justice, 49 Harv. Int’l L.J. 53 (2008), available online. ↩

48. 48.

    Global Accountability, supra note 18. ↩

49. 49.

    Rome Statute, supra note 12, at Art. 93. ↩

50. 50.

    Id. ↩

51. 51.

    Id. ↩

52. 52.

    Id. Art. 68. ↩

53. 53.

    Id. Art. 93. ↩

54. 54.

    Burke-White, supra note 47. ↩

55. 55.

    Id. ↩