I. General Challenges States Face When Applying Universal Jurisdiction

Despite speculation about the declining relevance of universal jurisdiction,2 data indicate that the exercise of universal jurisdiction is on the rise.3 Yet few states have the capacity to conduct effective investigations concerning the crimes set forth by Article 5 of the Rome Statute (Article 5 Crimes).4 Challenges arise in several forms.

First, states may simply lack the requisite national legislation authorizing the exercise of universal jurisdiction over a specific crime.5 And even when states have implemented legislation, many states, including States Parties to the Rome Statute, struggle to square international crimes with their domestic criminal codes.6 Moreover, to the extent that they have implemented legislation authorizing the exercise of universal jurisdiction over international crimes, the legislative definitions of the crimes may not comport with the definitions set forth by the Rome Statute or understood by international conventions.7

Second, states exercising universal jurisdiction must conduct investigations abroad, as key witnesses or evidence are likely to be within the jurisdiction of another state. They may find a lack of cooperation or outright obstruction from those states as they conduct the investigation, making it impossible to gather evidence and build an effective case.8 This may be especially true where the individual being accused of the crime is an active member of another state’s government.9 Further, conducting effective investigations abroad generally requires specialized personnel that can operate at an international level and effective diplomatic channels to engage with foreign police. Many states lack these resources.

Third, states often have little to no experience prosecuting Article 5 Crimes and may be unable to conduct an effective proceeding or one that would comport with international principles. This lack of institutional experience may serve to delegitimize the proceeding and lead the international community to speculate about whether justice was achieved. Assuming for the purposes of this comment that the exercise of universal jurisdiction is desirable, instances of mishandled prosecutions would sour international opinion in this area.

While the effective exercise of universal jurisdiction will require progress on all these fronts, this comment focuses on the second challenge identified above: state capacity to conduct effective investigations. Fundamentally, this requires international police cooperation between the prosecuting state and states that house evidence, witnesses, or defendants. I suggest that the ICC, in conjunction with Interpol, is well-positioned to facilitate this cooperation.

II. Proposal

I suggest that the ICC and the OTP establish a procedure to receive and evaluate requests from states to assist with the exercise of universal jurisdiction. This procedure would involve setting up a formal review board (Review Board) to hear state requests for assistance.10 Once a request is approved, then the OTP would refer the case to Interpol, which would work with the requesting country and engage police in the state or states where witnesses, evidence, or defendants are housed. I propose that the Rome Statute and the Cooperation Agreement between the ICC and Interpol serve as legal authorities for this proposal. Subsection A outlines the legal basis for the formation of a formal Review Board and identifies the policies that support it. Subsection B outlines the legal basis that allows the ICC to engage with Interpol. Subsection C proposes how this arrangement would operate in practice.

A. Legal Basis for the Establishment of a Formal Review Board to Process State Requests

Article 93(10)(a) of the Rome Statute enables the Court to cooperate with a States Party’s request for assistance with the investigation of a crime “which constitutes a serious crime under the national law of the requesting State.”11 The Court may also aid non-States Parties under Article 93(10)(c).12 Thus, there is a legal basis for any state, regardless of Rome Statute party status, to petition the Court for assistance. Likewise, there is a legal basis for the Court to hear and comply with these requests. A necessary implication of the power to receive a request is the power to evaluate the request. Since Article 93 does not prescribe a procedure for the evaluation of requests, the drafters imply that the Court may select its own method of review. Thus, a straightforward reading of Article 93 provides a legal basis for the creation of a formal review process, including the formation of a Review Board.

One wrinkle in this argument concerns where the Review Board would be housed. Of the ICC’s organs, the OTP seems best positioned to evaluate the merits of an external claim for assistance with an investigation. After all, the OTP’s sole focus is to evaluate and pursue Article 5 Crimes. But Article 42 of the Rome Statute explicitly states that “A member of the [OTP] shall not seek or act on instructions from any external source.”13 Thus, it seems that the OTP would not be able to directly receive requests under Article 93(10).

Article 15 and the rest of Article 93 are of little help. Article 15 outlines the Prosecutor’s power over crimes “within the jurisdiction of the Court.” While the crimes which states would seek assistance with are likely to be the kind of crimes that the Prosecutor generally has power over, they may have been committed in states where the Court lacks jurisdiction. Further, Article 93(10) states that the Court may provide assistance.14 It makes no mention of the Prosecutor—a fact made more troubling by other portions of Article 93 which explicitly state the Court or the Prosecutor.15 Thus, it seems that the drafters deliberately excluded the Prosecutor from Article 93(10).16 In any case, even if the Review Board needed to be housed elsewhere in the ICC, it is hard to imagine that Article 15 or any other provision of the Rome Statute would bar the OTP from consulting with the Review Board.

While it is unclear where the proposed Review Board would be housed, Article 93(10) provides an uncontroversial basis for the creation of a formal review process. Thus, there is a sound legal basis for the first step of this proposal.

B. Legal Basis for Referring Cases to Interpol

To authorize engagement between the Court-OTP and Interpol, the Court should leverage its cooperative agreement with Interpol as an implementing mechanism. Article 5(2) of the Cooperation Agreement states that the OTP may request the assistance of national teams, including war crime units.17 This provision is broad and could be interpreted to include assistance from Interpol to coordinate between the requesting state and the state where witnesses and evidence are housed.

If Article 5(2) is deemed insufficient to authorize this arrangement, we may also turn to Article 5(1), “Other Assistance from Interpol.” This provision states that “[t]he ICC-OTP may seek the expertise of the Interpol General Secretariat’s specialized staff” for “criminal analysis.”18 The language here is vague and leaves room for interpretation of what expertise from specialized staff would entail—I argue that this expertise could take the form of Interpol coordination efforts to assist with the investigation of Article 5 Crimes.

Interpol certainly has expertise in this area. Interpol has acknowledged that it:

[I]s in a unique position to lead and reinforce ongoing efforts to assist law enforcement authorities, international criminal tribunals and national prosecution services to fight genocide, war crimes and crimes against humanity.19

As a testament to that belief, Interpol created a specialized unit in 2014 to assist with the investigation and prosecution of war crimes.20 Interpol also hosts trainings for law enforcement on how to address these crimes—as of 2015, Interpol had trained some one hundred investigators from thirty countries and six international organizations.21 Thus, the expertise contemplated by the Cooperation Agreement plausibly includes Interpol’s expertise in investigating Article 5 Crimes.

One issue with this interpretation is that Article 5(1) of the Cooperation Agreement mentions expertise staff from Interpol’s General Secretariate, which acts as Interpol’s administrative and executive organ.22 While it is unclear how much overlap there is between General Secretariate Staff and Interpol’s specialized unit on addressing war crimes, scholars observe that the General Secretariate coordinates all policing actions within Interpol.23 Thus, it seems likely that the Secretariate has the authority to coordinate between members of Interpol’s war crimes team and other states.

If Article 5 of the Cooperation Agreement is insufficient to authorize this arrangement despite the arguments above, then the ICC could turn to Article 7(2), which states that the agreement may be modified by mutual consent.24 The ICC could negotiate to add an implementing mechanism to the agreement—one that would allow the OTP to refer the requesting state to Interpol and engage Interpol’s investigatory staff. While the suggestion that the OTP and Interpol negotiate a new provision carries its own political challenges, as any negotiation between international organizations would, it would be one way to ensure that Interpol buys into this arrangement.

The final legal obstacle is that the Cooperation Agreement authorizes engagement between the ICC and Interpol, but it says nothing about engagement between Interpol and a third-party state petitioning the ICC for assistance. This obstacle may be surmounted in one of two ways. First, the ICC could act as the facilitating party for engagement between the state and Interpol. In this way, the Court would remain directly involved—the cooperative agreement does not explicitly bar an arrangement between Interpol, the ICC, and a third-party state, so this solution may fit within the four corners of the agreement. However, this solution may be undesirable for the Court, as it would need to assign a staff member for this role and cover any expenses such as travel, security, etc., for the duration of the cooperation. Another solution would be to argue that the cooperation only requires that the ICC initiate cooperation and that the Court is not required to have any role after that point. This would likely be more desirable to the Court and only marginally more questionable from a legal perspective. Again, the Cooperation Agreement lacks specificity, so there seems to be wide latitude for creative interpretations.

Beyond the Cooperation Agreement, Article 87 of the Rome Statute may also have a role. Article 87(1)(b) states that “requests [for cooperation] may also be transmitted through the International Criminal Police Organization.”25 That said, this approach also runs into an issue of jurisdiction. Article 86 implies that states need only comply with requests to cooperate on matters related to the investigation and prosecution of a crime within the Court’s jurisdiction.26 Because many of the requests for assistance with the prosecution of crimes under universal jurisdiction would likely involve matters that are not within the Court’s jurisdiction, Article 87 may be of limited use.

C. Implementation

While the question of where to house the Review Board may be unresolved, it is useful to propose its form. A three-panel board, consisting of pre-trial judges and acting in consultation with a Deputy Prosecutor, would be an ideal arrangement. Pre-trail judges are accustomed to working in three-person panels and making expert decisions on whether a case has merit.27 Deputy prosecutors are likewise trained to identify whether a case has merit, but they have the advantage of pursuing their own cases. Thus, they are well-positioned to evaluate the likelihood of an investigation leading to an effective prosecution. The requesting state would present its case and the Review Board would decide by simple majority with no appellate review.28

Regarding what criteria would be used to evaluate a case, Article 53 provides a useful starting point. Article 53 outlines the process by which the ICC Prosecutor will initiate an investigation.29 The most notable feature of Article 53 is its reference to the “interests of justice.” Article 53(1) and Article 52(2) taken together provide that the Prosecutor should consider whether taking action would serve:

[The] interests of justice, taking into account all the circumstances, including the gravity of the crime, the interests of victims and the age or infirmity of the alleged perpetrator, and his or her role in the alleged crime.30

While the correct interpretation of the phrase interests of justice is the subject of much debate,31 it may nonetheless serve as a useful starting point for how the proposed Review Board would approve or deny an application.

Once a request is approved, the Review Board would refer the case and the requesting state to a dedicated point of contact at Interpol.32 The referral should contain all the relevant details from the application and act as a guiding document for Interpol. For its part, Interpol would engage its National Central Bureau(s)33 in the member state or states where the relevant witnesses or evidence is located and coordinate between the multiple parties. Further, Interpol could leverage its criminal databases on behalf of the requesting States Party. These databases contain roughly 124 million police records and include personal information on individuals, forensics data, travel documents, etc.34 Access to these records may prove to be a boon for requesting states as they exercise universal jurisdiction.

III. Why the ICC Should Leverage Its Relationship with Interpol

I advocate that to aid its member states, the ICC should utilize its relationship with Interpol to provide investigatory and prosecutorial assistance. An observer may note that this approach seems circuitous—the ICC has its own investigatory staff, prosecutors, and cooperation provisions, so why not engage those resources instead? I advocate for channeling these requests through Interpol for three reasons. First, and as a matter of political will, the ICC would be more likely to pursue this option if it can utilize external resources—here, an Interpol war crimes unit—rather than shift resources away from ongoing OTP investigations.

Second, this option would be less controversial. Were the ICC to engage its own investigative teams, critics may characterize this as an undue broadening of the Court’s powers. The drafters of the Rome Statute declined to grant the ICC universal jurisdiction. Thus, if OTP personnel were conducting investigations on behalf of States Parties—parties that are exercising universal jurisdiction based on their national laws—critics may argue that this would represent a de facto expansion of the Court into the realm of universal jurisdiction. While there is no room here to address the merits of these claims, the Court would be better served by avoiding controversy where possible.

Third, Interpol is likely better positioned to aid requesting states in their investigations than the ICC or OTP. As one scholar notes:

[Interpol] is the most important international entity involved in matters of transnational policing and international police cooperation with a global reach.35

As an institution, Interpol has had nearly an 80-year head start over the ICC to develop institutional strength and state partnerships. Each of Interpol’s 195 member states hosts an Interpol National Central Bureau (NCB). These NCBs give Interpol a direct connection to the national police force in each of its member states. Given Interpol’s activities in its member states regarding a variety of policing needs, it has built stronger on-the-ground relationships than the ICC. Interpol, by leveraging these relationships, would thus be a highly effective partner to requesting states as they conduct investigations abroad. Moreover, as mentioned above, Interpol has several databases that house sophisticated information on potential perpetrators of Article 5 Crimes. Being able to leverage those databases—on a limited basis and in accordance with any governing data protection law or policies—may prove to be a critical resource for the requesting state. For these reasons, Interpol would be a powerful partner to aid requesting states and facilitate police cooperation between states.

IV. Addressing Anticipated Critiques

The approach suggested here is by no means perfect. First, observers may argue that this approach adds an unnecessary layer given that most states have a direct channel to Interpol through NCBs—why channel requests through the ICC? Further, by adding an obstacle to engaging with Interpol, do we risk impeding justice by delaying assistance through bureaucratic channels? Finally, would this process act as a crutch for states and prevent them from developing their own mechanisms to investigate and prosecute crimes under universal jurisdiction?

Channeling requests through Interpol serves two functions. First, it may be the preferred approach by Interpol. Most international organizations desire to remain politically neutral, even if only superficially. The approach suggested here allows Interpol to defer requests from states that may be politically motivated and lack merit—requests that would be denied by the Review Board. Further, this would allow Interpol to preserve its resources for only those matters that have merit and are legitimate. Second, this process would strengthen the ICC as an institution. By making it the conduit for this assistance, the Court would have a new role on the global stage, and one that furthers its institutional goal of ending impunity for perpetrators of Article 5 Crimes. Further, this would help legitimize the exercise of universal jurisdiction—an exercise that has long been the subject of controversy—by ensuring that these cases have merit and serve the interests of justice.

To the question of impeding justice, I have three responses. First, the Court would need to ensure that the review process it establishes is timely, efficient, and transparent. It would also need to establish institutional goals and performance indicators for the Review Board that it reviews along with its other internal evaluations. Second, even if the suggested approval process is inefficient in practice, this would leave states no worse than they are without the process. They would still be able to exercise universal jurisdiction, they would simply not have the added external assistance to do so. Further, this process has the potential to facilitate justice, not impede it. When considering whether to exercise universal jurisdiction, states may elect to proceed or not based on their evaluation of their own capacity to conduct an effective investigation. If states feel that they can obtain external assistance from the ICC and Interpol, this may incentivize them to bring a claim that they otherwise would not due to a lack of institutional capacity. In this way, this process may increase the number of legitimate exercises of universal jurisdiction.

Another anticipated critique is the idea that relying on external aid rather than internal capacity building would leave nations in a weakened state and reliant on this process for future cases. This argument is unpersuasive for several reasons. First, data indicate that a handful of states are responsible for the overwhelming majority of instances where universal jurisdiction has been implemented.36 These states, including Germany, Finland, and Sweden, have developed the requisite institutional knowledge and policing units to carry out effective investigations and prosecutions of Article 5 Crimes. Thus, they have little to no need for external assistance or training from the ICC or Interpol. The process for external assistance recommended by this comment would primarily help those states that rarely exercise universal jurisdiction—states like South Korea37 and Poland.38 Where a state pursues cases under universal jurisdiction only one or two times over the course of decades, or where a state does not have an established policy for pursuing these cases, there is no reason to think that training or capacity building would be effective. If a state requests training without an ongoing case, it may be that those individuals who are trained leave their positions without having ever pursued a case and thereby deprive the institution of that training experience. This would mean that the training had no practical relevance. Further, providing training rather than assistance on an ad hoc basis for ongoing cases would only be useful in the context of that specific case given the likelihood that the state may not exercise universal jurisdiction for another decade or more. Third, pursuing a training or capacity-building program would likely be no more effective than the type of institutional learning that would occur while national authorities work closely with outside experts, police, or consultants—activities that would occur when a state requests and receives external assistance through the process proposed by this comment.

Conclusion

Cooperation among states and a lack of state capacity to pursue cases related to Article 5 Crimes present substantial obstacles to the exercise of universal jurisdiction. The Court and the OTP can act as better partners to these states by creating a formal assistance program under Article 93(10). Interpol would be the ideal international organization to partner with for this program given its broad ties to its member states. While there is a sound legal basis for portions of this program, several legal questions remain. A suggested area of future research would be to understand the legal limitations of the ICC Cooperation Agreement with Interpol. In addition, future research aimed at better understanding how Interpol engages with the global community would illuminate this proposal. As one scholar notes, Interpol, despite being one of the largest international organizations in the world, is “extremely under-researched.”39

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

1. 1.

   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. 93(10), available online. ↩

2. 2.

   See, e.g., Rephael Ben-Ari, Universal Jurisdiction: Chronicle of a Death Foretold?, 43 Denv. J. Int’l L. & Pol’y 165 (2015), available online; Ignacio de la Rasilla del Moral, The Swan Song of Universal Jurisdiction in Spain, 9 Int’l Crim. L. Rev. 777 (2009), available online, doi. ↩

3. 3.

   Máximo Langer & Mackenzie Eason, The Quiet Expansion of Universal Jurisdiction, 30 EJIL 779, 784 (Dec. 11, 2019), available online, doi. ↩

4. 4.

   See Bruce Broomhall, Towards the Development of an Effective System of Universal Jurisdiction for Crimes Under International Law, 35 New Eng. L. Rev. 399, 410 (2001), available online. ↩

5. 5.

   Dalila V. Hoover, Universal Jurisdiction Not So Universal: Time to Delegate to the International Criminal Court, 8 Eyes on the ICC 73, 89 (Jun. 4, 2011), available paywall. ↩

6. 6.

   Id.

   (providing as an example that “prosecutors in states such as Denmark and Norway […] can only interpret international crimes in terms of national crimes that generally amount to murder or assault”). ↩

7. 7.

   Id. at 91. ↩

8. 8.

   Broomhall, supra note 4, at 412–15. ↩

9. 9.

   Id. ↩

10. 10.

    See Hoover, supra note 5, at 102–05

    (suggesting the creation of an ICC Review Board primarily as a means of safeguarding against politically motivated exercises of universal jurisdiction). ↩

11. 11.

    Rome Statute, supra note 1, at Art. 93(10)(a). ↩

12. 12.

    Id. Art. 93(10)(c). ↩

13. 13.

    Id. Art. 42. ↩

14. 14.

    Id. Art. 93(10). ↩

15. 15.

    See, e.g., Id. Art. 93(10)(5). ↩

16. 16.

    See generally M. Cherif Bassiouni & William A. Schabas eds., The Legislative History of the International Criminal Court (Oct. 5, 2016), paywall

    (providing a comprehensive record of the legislative history of the Rome Statute, a discussion of which is beyond the scope of this comment). ↩

17. 17.

    Cooperation Agreement Between the Office of the Prosecutor of the International Criminal Court and the International Criminal Police Organization, Art. 5(2) (Dec. 22, 2004, in force Mar. 22, 2005) [hereinafter Cooperation Agreement], available online, archived. ↩

18. 18.

    Id. Art. 5(1). ↩

19. 19.

    Interpol, War Crimes and Genocide Sub-Directorate, Interpol’s Support to the Investigation and Prosecution of Genocide, War Crimes and Crimes Against Humanity (2015), available as download (last visited Aug. 28, 2023). ↩

20. 20.

    Id. ↩

21. 21.

    War Crimes, Interpol, available online (last visited Aug. 28, 2023). ↩

22. 22.

    Cooperation Agreement, supra note 17, at Art. 5(1). ↩

23. 23.

    Giulio Calcara, Balancing International Police Cooperation: Interpol and the Undesirable Trade-off Between Rights of Individuals and Global Security, 42 Liverpool L. Rev. 111, 118 (2021), available online, doi. ↩

24. 24.

    Cooperation Agreement, supra note 17, at Art. 7(2). ↩

25. 25.

    Rome Statute, supra note 1, at Art. 87(1)(b). ↩

26. 26.

    See id. Art. 86. ↩

27. 27.

    Judicial Divisions, ICC, available online (last visited Aug. 28, 2023). ↩

28. 28.

    Given that the ICC will likely want to limit its personnel investment and that this Review Board would not be making a final binding legal decision, there is no need for appellate review. ↩

29. 29.

    Rome Statute, supra note 1, at Art. 53. ↩

30. 30.

    Id. Art. 53(1), Art. 53(2). ↩

31. 31.

    See generally Philippa Webb, The ICC Prosecutor’s Discretion Not to Proceed in the “Interests of Justice,” 50 Crim. L. Q. 305 (2005), available online. ↩

32. 32.

    See Cooperation Agreement, supra note 17, at Art. 3(1)

    (“The Parties shall each designate a point of contact with a view to ensuring implementation of the provisions of the present Cooperation Agreement”). ↩

33. 33.

    See generally National Central Bureaus, Interpol, available online (last visited Aug. 28, 2023)

    (explaining that NCBs are offices that act as Interpol’s point of contact in each of its member states). ↩

34. 34.

    Databases, Interpol, available online (last visited Aug. 28, 2023). ↩

35. 35.

    Calcara supra note 23, at 113. ↩

36. 36.

    Langer & Eason, supra note 3, figs.1 & 2. ↩

37. 37.

    Korean Falun Gong Practitioners File Lawsuit Charging Jiang Zemin and “610 Office” Head Luo Gan with Genocide, Minghui.org (Dec. 29, 2003), available online. ↩

38. 38.

    Summary of European Lawsuits Against Jiang Zemin and his Accomplices from the Chinese Communist Party, Clearharmony.net (Mar. 16, 2005), available online. ↩

39. 39.

    Calcara, supra note 23, at 113. ↩