The two “permanent criminal law enforcement regimes available” when a state has a tie to a recognized core international crime are universal jurisdiction by States and the ICC.10 For a state to try a crime under universal jurisdiction, there are essentially three pieces required

1. Specified grounds for exercise of jurisdiction,

2. A well-defined offense, and

3. Means for the nation to enforce the exercise of jurisdiction.11

The Rome Statute and the principle of complementarity gives express preference for domestically led prosecutions.12 Accordingly, there may be a preference to defer to a State to exercise universal jurisdiction, where possible, in line with goals set out by the Rome Statute. While cases may be deferred to states, the recent case for Rohingya demonstrates ICC investigations and State exercise of universal jurisdiction are not mutually exclusive.13 Additionally, while the principles set out in the Rome Statute promote working together, Article 90(3) of the Rome Statute currently outlines the hierarchy for extradition in the case that a state receives requests to extradite an individual from both the ICC and another state, that is a member or not, simultaneously.14 Under this Article, the ICC is given preference over competing requests. It is clear that to promote collaboration and make the ICC a more effective partner with states exercising universal jurisdiction, there are several changes that the ICC could make. These changes could include a multi-faceted approach including training and amending Article 90(3).

II. Exemplary State Exercise of Universal Jurisdiction

Scholars have expressed varying opinions on the history of states exercising universal jurisdiction. While some have described it as a “rise and fall” pattern with it being on the decline, others have disagreed asserting that states exercising universal jurisdiction has been quietly on the rise.15 Specifically, a recent study gathered data on universal jurisdiction and made several findings. First, “the sum total of cases initiated and the defendants tried on the basis of universal jurisdiction has continued to rise.”16 Additionally, each year in the last decade has had “at least one universal jurisdiction-based prosecution brought to trial, and […] there have been more such trials than in the prior two decades combined.”17 Moreover, the exercise of universal jurisdiction has grown to cover more geographic areas.18 As other researchers have asserted this motivation to increase universal jurisdiction-based cases has grown in part due to the shortcomings of the ICC, as a result of budget constraints and limited jurisdiction, the need for cooperative ICC efforts for universal jurisdiction-based cases is clear.

According to the study completed, prior to 1988 there were 286 universal jurisdiction cases tried, from 1988 to 1977 there were 342 cases, from 1998 to 2007 there were 503 cases, and from 2008 to 2017 there were 815 cases tried.19 Individual states that have tried universal jurisdiction cases have experienced different patterns and surges of cases depending on events that have impacted States in varying ways; however, looking to individual states with histories of completing trials can be informative. Specifically analyzing political conditions and enactments of laws that empowered states to try universal jurisdiction-based cases is significant.

A first state that can be analyzed is Sweden, who has tried nine cases between 2008 and 2017.20 Sweden and other Nordic states have taken on a greater role trying cases particularly due to Middle Eastern and Syrian related crimes.21 In July 2014, Sweden’s Parliament issued the Act on Criminal Responsibility for Genocide, Crimes against Humanity, and War Crimes.22 This Act models the Rome Statute. Furthermore, Sweden has a War Crime Unit which is “responsible for all investigations into genocides, crimes against humanity and war crimes.”23 This infrastructure has allowed Sweden to develop a system in which universal jurisdiction cases can be successfully brought and tried. As a positive consequence, NGOs have actively promoted Sweden as a potential option for trying crimes committed in Syria.24 For example, the Syria Justice and Accountability Center offers a “Guide to National Prosecutions in Sweden for Crimes Committed in Syria.”25 Accordingly, Sweden can be instructive in understanding how laws, infrastructure, and a focus tended towards certain crimes can develop a successful system for trying universal jurisdiction-based crimes.

Another state that can be instructive is Germany, who has tried five universal jurisdiction cases between 2008 and 2017.26 Similar to Sweden, Germany has laws aimed to ICC eligible crimes modeled after the Rome Statute. Specifically, their Code of Crimes against International Law (CCAIL) that was enacted in 2002 and revised in 2016.27 Germany has recently tried cases trying crimes committed in a variety of geographic ranges. For example, they tried cases for both crimes against humanity and war crimes committed in Syria.28 They even made history for the first criminal trial for governmental torture committed in Syria.29 Additionally, they have tried cases outside Syria such as the case against militia leaders in Congo.30 Notably, the German delegation at a United Nations General Assembly made their commitment to trying universal jurisdiction-based crimes known stating:

The message is clear: those who commit atrocities cannot feel safe. They will eventually be held accountable. There is no safe haven for perpetrators of international crimes against criminal prosecution in Germany.31

Furthermore, the German government has highlighted their hope that the universal jurisdiction-based trials will have “symbolic power” and be “pioneering work” for other states.32 This demonstrates their willingness to be leaders and teach other states how to successfully try universal jurisdiction-based crimes.

In addition to Germany and Sweden, Finland can serve as another informative example of a state that has success trying universal jurisdiction cases. From 2008 to 2017, Finland has had five universal jurisdiction trials.33 Finland has adopted the Finish Criminal Code and the Decree on the Application of Chapter 1, Section 7 of the Criminal Code (Decree) which covers international crimes that fall under their universal jurisdiction.34 The crimes include genocide, crimes against humanity, war crimes, and torture, in line with crimes outlined by the Rome Statute. Moreover, the Decree covers modes of liability and temporal application.35 Lastly, they have outlined universal jurisdiction requirements.36 In addition to the Finish Criminal Code, the Criminal Investigation Act outlines investigations and appoints the Head Investigator who works with the Finnish Police of the National Bureau of Investigation (NBI). Furthermore, it outlines the Homicide/Serious Crimes Unit of the NBI oversees the investigations.37 The legal framework and corresponding infrastructure has enabled Finland to successfully try universal jurisdiction cases such as those against Iraqi nationals, Hadi Habeeb Hilal and Jebbar Salman Ammar for war crimes.38 Despite its success, Finland has previously highlighted the need for a more well-defined notion for the principle of universal jurisdiction. In its statement to the U.N. in 2013, Finland noted:

The principle of universal jurisdiction is not a novelty in criminal law. It is generally agreed that international customary law allows the use of universal jurisdiction with regard to certain international crimes but views are divergent as to the exact scope of the principle. Underlying notions of universal jurisdiction may also be contained in conventions which oblige their states parties to either extradite or prosecute suspects of acts prohibited by such conventions, although the two concepts are separate and distinct from each other.39

This observation can help to be a guiding point for solution proposals for how the ICC can be a more effective partner.

France is another state that has had a recent history of successful universal jurisdiction-based trials. Of note, from 2008 to 2017 France has had four universal jurisdiction trials.40 In 2010, the French Code of Criminal Procedure was amended to model the Rome Statute.41 It gave French courts universal jurisdiction over genocide, crimes against humanity, and war crimes. Notably, in addition to the commonly recognized crimes under the Rome Statute, the Code of Criminal Procedure criminalizes enforced disappearance and torture under war crimes and crimes against humanity. While courts were given expanded rights under this Code, France defined the standard for courts to exercise universal jurisdiction, where the standard changes subject to the type of crime committed. Specifically, two frameworks were created:

[O]ne that applies to cases involving torture, enforced disappearance, and crimes committed in the former Yugoslavia and Rwanda, and another for all other grave international crimes cases.42

Furthermore, French law provides the framework for criminal proceedings, allowing them to be brought by either prosecutors or private parties.43 France’s framework has resulted in the capability of trying a range of crimes such and leading structural investigations such as those in Syria.44

While other states discussed above have been informative on demonstrating how implementing laws for universal jurisdiction can be a game changer for success, Spain’s history shows the impact of narrowing laws. Specifically, how amending laws to reduce the universal jurisdiction capacity can be detrimental for trials. While Spain had played a critical role in early implementation of universal jurisdiction cases, amendments in 2009 to their legislation limited Spanish courts’ ability to exercise jurisdiction.45 As a result, there was a dramatic drop in cases tried. This outcome furthers the idea that nations need solid and robust legislation to permit successful universal jurisdiction-based case trials.

III. Proposal for Strengthening ICC Partnership for Universal Jurisdiction

A. Legislation and Infrastructure Commonalities in Successful States

The state examples above are instructive in showing common themes for nations that have been able to successfully exercise universal jurisdiction. Notably, Sweden, Germany, Finland, and France all have adopted legislation that models the Rome Statute. While every state has slight variances in the specifics of the framework, they all enable their respective judiciaries to exercise universal jurisdiction with clear and defined boundaries, outline who can bring cases, and explain other procedures such as appeals and immunities. Additionally, these nations have infrastructure that is set up to handle the investigations of these crimes, such as Sweden’s War Crime unit.

B. Observations from States that Repeatedly Try Cases

In explaining the driving factors for the “quiet” growth of universal jurisdiction, researchers pointed out the impact of institutional learning.46 Institutional learning is a theory that an institution has the “capability” to “learn about, adapt and change” operational strategies and institutional frameworks.47 This can be accomplished through learning by doing, using, or interacting.48 A notable trend based on the data of states who try universal jurisdiction cases is that:

[A] majority of states that have held one or more universal jurisdiction trials in the last decade did so after having held at least one such trial in the previous decade. And, among those states that had no trials held before 2008, all but one conducted more than one trial in the years between 2008 and 2017.49

The researchers asserted this pattern correlates to the argument that states that have exercised universal jurisdiction are more likely to exercise it again in the future as a result of the gained “institutional knowledge.”50 Accordingly, it is arguable that legislation, infrastructure, and institutional knowledge form the basis for successfully trying universal jurisdiction-based cases. It can be asserted the ICC could become a more effective partner through orchestrating training other nations that do not yet have the infrastructure or institutional knowledge.

C. Using the Hague

Article 112 of the Rome Statute outlines the requirement for the Assembly of States Parties to meet “as often as necessary, but at least once a year.”51 Every State Party has a single representative in the Assembly. The Assembly provides oversight to the Presidency, the Prosecutor and the Registrar, along with adopting the Rules of Procedure and Evidence and Elements of Crime.52 While Assembly meetings may be held in New York at the U.N. headquarters, they are often held at the Hague, which additionally serves as the ICC headquarters.53 Accordingly, the Assembly of States Parties at the Hague, may pose a unique opportunity for the ICC to make itself a more effective partner to states exercising universal jurisdiction. This could be accomplished through a multi-part approach of teaching, discussion to narrow core principles of universal jurisdiction, and amend Article 90(3) as needed at a Hague Assembly of States Parties.

First, the Hague Assembly of States Parties could be utilized as a training ground for states that need help successfully trying or have not yet tried universal jurisdiction cases. Member states such as those analyzed above could discuss implementation of legal framework to support universal jurisdiction. While each member state would need to develop and implement their own laws for their specific needs, this would at least help guide member states for what may or may not work. Additionally, successful member states could teach what infrastructure is needed to investigate cases, such as crime units. Finally, member states that have tried universal jurisdiction could help walk other states through successful and unsuccessful trials step-by-step. This teaching process could arguably serve as a method of institutional learning, which has been demonstrated to equate to continued success for trying universal jurisdiction-based cases.

Next, during the Assembly, the States parties could work together to discuss and recognize more defined principles of universal jurisdiction. Ideally, this would help address the issues with the overall rule of law capacity, as this was a problem highlighted by Finland above. Though states do not need to adopt the exact same legal framework and understanding of universal jurisdiction principles, having more similar or common understanding would help guide what crimes fall under universal jurisdiction. Further, it could help guide extradition or prosecution of suspected criminal actors.

Lastly, in addition to orchestrating training of member states, the ICC could use these discussions to inform potential amendments to Rome Statute Article 90(3). Member states that have tried universal jurisdiction-based cases are critical in helping to identify what evidence and assistance may be most beneficial for the ICC to provide where available. Ideally, through the process of training other member states, states that have tried crimes could point to instances in which evidence or other assistance may have been dispositive, which could help guide the amendments needed.

IV. Conclusion

The ICC has the unique opportunity to use the expertise of states that have tried universal jurisdiction-based cases to train other states on trying cases. States that are trying universal jurisdiction-based cases can be instrumental in the ICC being a better partner for states trying universal jurisdiction-based cases. Analyzing states that have been previously successful in repeatedly trying cases highlights the need for laws and infrastructure in order to tackle universal jurisdiction-based cases. In addition, researchers have demonstrated that institutional knowledge is a key component for nations trying and continuing to try universal jurisdiction-based cases. The ICC at the States Parties Assembly at the Hague has the opportunity to coordinate and manage training of states that are not yet trying cases or have not successfully tried a case. The ICC could organize state representatives from nations such as Sweden, Germany, Finland, and France to train other nations in their implementation of laws that model the Rome Statute and their respective infrastructures such as appointing head investigators or developing crime units. Additionally, the ICC can use the feedback and training during these meetings to develop ideas on what amendments may be helpful for Rome Statute Article 90(3).

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], Article 5, available online. ↩

2. 2.

   Anthony D’Amato, The Concept of Human Rights in International Law, 82 Colum. L. Rev. 1110, 1113 (Oct. 1982), paywall, doi. ↩

3. 3.

   Anthony J. Colangelo, Universal Jurisdiction as an International “False Conflict” of Laws, 30 Mich. J. Int’l L. 881 (2009), available online. ↩

4. 4.

   Restatement (Third) of The Foreign Relations Law of the United States § 402(1)(a) (1987), [hereinafter U.S. Foreign Relations Law Restatement], available online. ↩

5. 5.

   Id. § 402(3). ↩

6. 6.

   Colangelo, supra note 3, at 887. ↩

7. 7.

   Xavier Philippe, The Principles of Universal Jurisdiction and Complementarity: How do the Two Principles Intermesh?, 88 Int’l Rev. Red Cross 377 (Jun. 2006), available online. ↩

8. 8.

   U.S. Foreign Relations Law Restatement, supra note 4, at § 404; Leila Nadya Sadat, Redefining Universal Jurisdiction, 35 New Eng. L. Rev. 241, 246 (2001), available online. ↩

9. 9.

   International Criminal Court, Elements of Crimes, ICC-ASP/1/3, Adopted and Entry into Force 9 September 2002, updated at Kampala, 31 May-11 June 2010 (Jun. 11, 2011), available online. ↩

10. 10.

    See, e.g., Máximo Langer, The Archipelago and the Wheel: The Universal Jurisdiction and the International Criminal Court Regimes, in The First Global Prosecutor: Promise and Constraints 204 (Martha Minow, Cora True-Frost & Alex Whiting eds., 2015), available online. ↩

11. 11.

    Philippe, supra note 7, at 379. ↩

12. 12.

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

13. 13.

    Kanishka Kewlani, Three Avenues to Justice for the Rohingya, Bulletin (Feb. 17, 2022), available online.

    (In this case, the Rohingya people allegedly suffered persecution at the hands of the Myanmar government. While Myanmar is not a party to the ICC, the ICC authorized the ICC Prosecutor in 2019 to investigate due to the crimes taking place on the boarder of Myanmar-Bangladesh and Bangladesh is a state party. Additionally, in 2019 the Burmese Rohingya Organization UK filed a complaint with the Argentinian national criminal court against Myanmar pursuant to the principle of universal jurisdiction). ↩

14. 14.

    Rome Statute, supra note 1, at Art. 90. ↩

15. 15.

    Máximo Langer, Universal Jurisdiction is Not Disappearing: The Shift from “Global Enforcer” to “No Safe Haven” Universal Jurisdiction, 13 J. Int’l Crim. Just., 245 (May 2015), paywall, earlier version, doi. ↩

16. 16.

    Máximo Langer & Mackenzie Eason, The Quiet Expansion of Universal Jurisdiction, 30 EJIL No. 3, 779, 781 (Aug. 2019), available online, doi. ↩

17. 17.

    Id. ↩

18. 18.

    Id. ↩

19. 19.

    Id. at 785. ↩

20. 20.

    Id. at 794. ↩

21. 21.

    Id. at 787. ↩

22. 22.

    Act on Criminal Responsibility for Genocide, Crimes, Against Humanity and War Crimes, SFS 2014:406 (Jun. 11, 2014), available online. ↩

23. 23.

    War Crime—Swedish Police Efforts, Polisen, available online (last visited Aug. 29, 2023). ↩

24. 24.

    Syria Justice and Accountability Centre, A Guide to National Prosecutions in Sweden for Crimes Committed in Syria (Sep. 2, 2019), available online. ↩

25. 25.

    Id. at 1. ↩

26. 26.

    Langer, supra note 15, at 794. ↩

27. 27.

    Code of Crimes Against International Law (Germany), Fed. L. Gazette vol. 1 at 2254 (Jun. 26, 2002, as last amended Dec. 22, 2016), available online. ↩

28. 28.

    Human Rights Watch, Germany: Conviction for State Torture in Syria (Jan. 13, 2022), available online. ↩

29. 29.

    Verdict Based on Principle of Universal Jurisdiction, Deutschland.de (Jan. 14, 2022), available online. ↩

30. 30.

    Cristian González Cabrera & Patrick Kroker, A Congo War Crimes Decision: What It Means for Universal Jurisdiction Litigation in Germany and Beyond, Just Security (Jan. 11, 2019), available online. ↩

31. 31.

    Statement, Federal Republic of Germany, The Scope and Application of the Principle of Universal Jurisdiction U.N. Sixth Committee (Oct. 12, 2022), available online. ↩

32. 32.

    Jenny Gesley, FALQs: The Exercise of Universal Jurisdiction in Germany, Lib. Cong. Blogs, § 4 (Jun. 30, 2022), available online. ↩

33. 33.

    Langer, supra note 16, at 794. ↩

34. 34.

    Criminal Code (Finland), 626/1996, International Offence Ch. 1, § 7, (as amended 2015), available online (trans.); Decree on the Scope of Application of the Criminal Code (Finland), International Offence Ch. 1, § 7 (Aug. 16, 1996), available online. ↩

35. 35.

    Open Society Justice Initiative & Trial International, Universal Jurisdiction Law and Practice in Finland (Feb. 2020), available online. ↩

36. 36.

    Id. at 12. ↩

37. 37.

    Id. ↩

38. 38.

    Second Iraqi Fighter Found Guilty of War Crimes in Finland, Radio Free Europe, Mar. 23, 2016, available online. ↩

39. 39.

    Statement, Sari Mäkelä, Permanent Mission of Finland, The Scope and Application of the Principle of Universal Jurisdiction, U.N. Sixth Committee (Oct. 17, 2013), available online. ↩

40. 40.

    Langer, supra note 16, at 794. ↩

41. 41.

    Code de Procédure Pénale, Arts. 689–2, 689–13 (in force Mar. 2, 1959) (fr.), available online. ↩

42. 42.

    Human Rights Watch, The Legal Framework for Universal Jurisdiction in France (2014), available online. ↩

43. 43.

    Id. at 4. ↩

44. 44.

    Langer, supra note 16, at 787. ↩

45. 45.

    Id. ↩

46. 46.

    Id. at 792. ↩

47. 47.

    Björn Johnson, Institutional Learning, in National Systems of Innovation: Toward a Theory of Innovation and Interactive Learning 20, 23 (Bengt-Åke Lundvall ed., 2010), paywall, doi. ↩

48. 48.

    Id. ↩

49. 49.

    Langer, supra note 16, at 793. ↩

50. 50.

    Id. ↩

51. 51.

    Rome Statute, supra note 1, at Art. 112. ↩

52. 52.

    Id.; see also Assembly of States Parties, ICC, available online (last visited Aug. 29, 2023). ↩

53. 53.

    Id. ↩