This raises the challenge that how can the domestic courts of the specific State in question that have no traditional delegation of the jurisdiction (fictive or real) initiate criminal proceedings over the crimes on behalf of the ICC. Unlike the definition of universal jurisdiction, the answer to this question is simpler. This is attributable to the principles of complementarity. As per the text of Article 17 of the Rome Statute,7 the ICC is statutorily permitted to initiate investigations and prosecute crimes under international humanitarian law either through ratione loci and/or ratione materiae.8 Despite this, provision of law, there continues to be a plethora of international criminal cases across continents that are beyond the admissibility and the jurisdictions of the ICC either because of its statutory limitations and/or because of logistical and financial feasibility.9 Thus, by the virtue of these inadequacies in relation to the complementarity principle, the ICC can encourage domestic courts to adopt the universality principle and commence criminal proceedings.

Before getting into greater depths of the application of the principle of universality under the regime of the ICC, the author of this comment would like to strongly assert that, this doctrine is one of the most complicated illustrations of a complex international framework hegemonizing the exercise of extra-territorial jurisdiction by the domestic judicial systems.10 Amongst the scholars of the international legal society, it is a common notion that universal jurisdiction especially that of the ICC, is invoked when the crimes committed by State leaders shock the conscience of humanity and it cannot be shunned away and most certainly cannot go unpunished.11 It is thus, an implicit obligation of the domestic criminal courts to hold perpetrators accountable for individual criminal responsibilities. Nonetheless, today’s practicality is nowhere in proximity to this idealism.

While it is not wrong to argue that justice remains undelivered for years to come especially in States where the State leaders are the prime perpetrators who escape criminal accountability by exercising either the principles of sovereignty or the unimpeachable frontiers of domestic jurisdiction.12 This is an incomplete portrayal of the real imagery. There is a good deal of assertions to make this statement. The primary justification is that there are no specific legal principles laid down to activate the universal jurisdiction of the ICC under international criminal and humanitarian law. Over and above that, the type of international crimes committed is not the same and simple as they were two decades ago. Therefore, it is often deliberated whether the Office of the Prosecutor (OTP) of the ICC while assisting the domestic courts under the complementarity principle while invoking the universal jurisdiction should prosecute only criminal cases or civil cases, or both. Simultaneously, the scope of the authority of the OTP while exercising universal jurisdiction must also be discussed. Furthermore, significant considerations have been given to whether the OTP should invoke universal jurisdiction on crimes that are not ratified under Article 5 of the Rome Statute13 but are internationally recognized as egregious crimes. This comment attempts to analyze and contribute to these postulations eclipsing the applicability of the universal jurisdiction of the ICC.

It is hotly debated by the academic minds of international law that it is toilsome to discern coherent principles concerning establishing universal jurisdiction.14 Despite there is no set of rules that automatically activate the universal jurisdiction over a class of offenses, efforts have been made by scholars to lay down comprehensive requisites for establishing universal jurisdiction. As a matter of general principle, to activate universal jurisdiction, the offense committed must be recognized as an international concern so as to be able to invoke either of the traditional theoretical rationales. The two rationales for universal jurisdiction are (i) the pragmatic rationale and (ii) the humanitarian rationale.15 The crux of the pragmatic rationale is that it “provides a basis for the jurisdiction when jurisdiction is hard to be found.”16 This theoretical rationale for universal jurisdiction is premised on the understanding that universal jurisdiction shall only be able to respond to the danger that neither of the States can and is willing to comply with the requirements of their traditional domestic criminal jurisdiction (such as subject matter jurisdiction of the offense(s) committed or territorial jurisdiction established between the prosecuting State(s) and the perpetrator(s) ).17 Furthermore, on the other hand, as the name suggests, under the humanitarian rationale if the crimes are considered to be unspeakably atrocious and sufficiently damaging to the larger international community, then any State of this community has the right to initiate prosecution proceedings against such crimes.18 This arises from the implicit obligation as members of the international community to ensure that the perpetrators hostis humani generis do not go unpunished while preserving peace and restoring justice.19 This theoretical rationale is free from the restrictions of principles of territoriality and primordially concerns itself with the nature and gravity of the committed crimes. Conceptually speaking, even though the two theoretical rationales seem independent of one another, in practice they are very much intertwined which would be evident while discussing the scope of application of the principle of universality for human trafficking.

Before we discuss the scope of applicability of the principle of universality for crimes that are not specified under the Rome Statute, it is crucial to deliberate upon whether this principle, when invoked by the OTP, should apply only to international criminal offenses or can the same rationale also be extended to international civil offenses? In order to extend the extraterritorial jurisdiction of the ICC, it is pivotal to establish that the varied types of international civil offenses satisfy the two traditional theoretical rationales mentioned above. The territorial jurisdiction for a majority of international civil offenses is generally easily established owing to where the contract was signed or where the transaction was completed, thereby satisfying the pragmatic theoretical rationale. However, on the offset, there may be some international civil offenses where establishing such jurisdiction may be complicated. To illustrate better, several jurisdictions of domestic courts of different States can be involved in offshore white-collar crimes or money laundering transactions wherein narrowing down the primary territorial jurisdiction of a domestic court of the law becomes laborious. As a result of which the pragmatic theoretical rationale may not be satisfied. Thereby, in such situations, it is rudimentary to also satisfy the elements of the humanitarian theoretical rationale. As per the language of this rationale, the particular international offense should be at odds with the fundamentals of the jus cogens norms while being of such gravity that it can shock the conscience of humanity while creating an obligation over the States to take legal actions.20 The same seems like an overestimation for international civil offenses, which is why the international civil offenses do not satisfy the two suggested theoretical rationales necessary to establish extraterritorial jurisdiction of the ICC under the principle of universality, in its entirety. Henceforth, it is advisable that the OTP should solely focus on applying universal jurisdiction to international criminal offenses and not international civil offenses.

Now that it has been laid down that the focus of the OTP should be limited to only crimes under international humanitarian law, the next question surfacing is whether the OTP should inculcate crimes that are not enshrined under Article 5 of the Rome Statute21 and extend its expertise and resources to such crimes under the universality principle? The answer to this hypothesis is positive. For this hypothesis, this comment only discusses one such international crime that is not a part of the Rome Statute but is very much a global concern against humanity, that is, human trafficking. In this section of the comment, the author addresses the preliminary questions of is universal jurisdiction over non-Rome Statute crimes such as human trafficking necessary under the pragmatic rationale. And is human trafficking a sufficiently dangerous crime that concerns all of humanity? Thus, whether universal jurisdiction can be extended to human trafficking?

Modern slavery has been a global concern for nearly a century now, especially crimes such as human trafficking wherein States have been unable to comply with their judicial obligations. But this is attributable to a multitude of reasons because of which either human traffickers have not been prosecuted or the victims have not received any kind of reparations. One such reason is States that are crippled by the terror and/or bribes of organized human trafficking groups due to which the national judiciary of such States is unable to enforce laws against human trafficking.22 Taking advantage of the inability and unwillingness of such States to prosecute, organized groups continue to take advantage of these incapacities and operate internationally. Another common reason is the ineffective extradition treaties between such a State where the human trafficker groups operate from and the State that wishes to initiate prosecution proceedings. Lastly, States that can prosecute are unable to owe to the lack of jurisdictional connections or because human traffickers are captured on high seas wherein no State can prosecute them. As a result of which, an abhorrent crime such as human trafficking is outside the realm of international criminal law and far beyond the prosecutor’s reach of the ICC.

Having said that, extending the application of extraterritorial jurisdiction of the ICC under the principle of universality by virtue of the principle of complementarity may become the efficacious solution to the concerns of human trafficking. The nature and gravity of human trafficking are such that the two theoretical rationales that are pragmatic rationale and humanitarian rationale are well satisfied. Since the universal jurisdiction can be extended to human trafficking, it will authorize domestic courts of States to initiate investigations and prosecute perpetrators of human trafficking which earlier was impossible. Even though it is amply evident that under pragmatic reasons States have a way to prosecute crimes related to human trafficking under the principle of universality, it is still not evident if there is an urgent need to do the same, leading us to believe that universal jurisdiction may only be exercised in the rarest of the rare situations.23 To avoid this, it is required to transform the theories of application of principles of universality for human trafficking into reality with the assistance of the OTP.

This portion of this comment analyzes the debate between the supporters and critics of universal jurisdiction about when invoked by the ICC would be the right approach for prosecuting four core crimes beyond the statutory jurisdiction of the Court. Followed by determining the scope of authority of the OTP while extending its resources and skills to domestic courts by virtue of the principles of complementarity to assist domestic courts in effective and regular internal prosecutions in eliminating atrocities related to human trafficking.24

One of the bigger threats to successful commitment to universal jurisdiction is how the same is to be applied and upheld. Unlike the principle of complementarity, there are no clear steps or hierarchy to initiate investigations and prosecute perpetrators, first at the domestic courts of the State and upon its failure, second at the ICC. This leads to unprecedented discretion with the States opting for universal jurisdiction qualifying them “to prosecute international crimes independently from any link to their territory or nation.”25 As a result of this, multiple States may end up ascertaining territorial or subject-matter jurisdiction over the same case, infringing sovereignty and other principles of rule of law. Therefore, supporters of universal jurisdiction have mapped out a solution against the same “the priority of prosecution should be given to the states having a direct link to the crimes due to the territoriality or nationality of the perpetrator.”26 It is advisable that the vertical complementarity of the ICC and the State parties should be converted into horizontal complementarity, to enhance the coherent execution of the principle of universal jurisdiction.27 At the same time, as suggested by the supporters of universal jurisdiction, this does not prohibit bystander States who have no connection to the crime from exercising universal jurisdiction, however, this can only be invoked through universal jurisdiction when the nexus State is unable and/or unwilling to fulfill its judicial obligations.28 This amalgamation of the principle of complementarity with the principle of universality can be invoked against cases of human trafficking, allowing the OTP to bring such heinous cases under its jurisdiction.

On a similar note, the supporters argue that while being able to exercise universal jurisdiction, the ICC will also be able to investigate and prosecute state or quasi-state offenders who in the current regime escape criminal responsibility.29 This would most certainly be handy in holding such mid-level perpetrators of human trafficking accountable at the domestic as well as international level. Nonetheless, this will not be practical without cooperation between no nexus States, bystander States, and the incumbent official’s State of nationality. It is primordial to have harmonious cooperation between these States that are unable/unwilling to prosecute and the forum State to initiate preliminary investigations, assistance with evidence, compiling information and data, etc. to be able to fairly initiate proceedings.30 These modalities of inter-State judicial assistance can be brought forward for cases dealing with atrocities of human trafficking with the aid and encouragement of the OTP who shall overlook the responsibilities of such national proceedings to achieve the goal of narrowing the impunity gap.

However, there may be occasions wherein these States do not cooperate, thereby jeopardizing investigations and judicial proceedings. In such scenarios, what is the role of the OTP? Two solutions have been proposed in this regard. Above and all, the ICC must make a judicial determination where in the first scenario, it refers this to the Assembly of States Parties or the U.N. Security Council.31 And in the second scenario, it makes no such judicial determination is made, but there is sufficient reasonable belief of incoming non-cooperation that requires urgent attention of the Assembly of States Parties or the U.N. Security Council.32 Therefore, the normative procedures established by the Assembly of States Parties can be used as a point of reference by the ICC to develop an effective and efficient mechanism for promoting as well as preserving inter-state cooperation which could be extended to cases of human trafficking.

On the contrary, the debate, the critics of universal jurisdiction have a lot to offer to the debate against the intentions of the ICC in exercising universal jurisdiction for crimes enlisted within and beyond the Rome Statute. Some of the predictable arguments against universal jurisdiction are that it poses a strenuous impact on the limited funding of the ICC, interruptions, and possible impairment of political solutions to systemic violence, hostilities in international relations, etc. On the same note, the critics also ardently opine that the execution of universal jurisdiction is much possible only through the aid and assistance of human rights organizations in the domestic constituencies especially surrounding heinous crimes under human trafficking.33 Unlike the supporters of universal jurisdiction, the critics of universal jurisdiction, are not astray from the political considerations that this form of extra-territorial jurisdiction brings forward. To further elaborate, the majority of the mass atrocities are committed by the sovereign heads of State, thereby creating diplomatic pressure on forum States, potential reprisals from bystander States, and compulsion to offer immunities to incumbent quasi-state and/or state officials.34 Thus, the incentive to engage in trials of high-cost officials is extremely low, as the case may be for organized crime lords participating in activities towards human trafficking.

The same argument, however, does not extend to low-cost and mid-cost officials of States where neither the political branch nor the domestic judicial institution of the official’s State of nationality is hesitant in opening formal proceedings to escort such prosecutions to trial through universal jurisdiction.35 This is because such low-cost even mid-cost incumbent officials pose little to no economic cost of trials as well as the metaphorical cost of international relations.36 Whereas, if the universal jurisdiction regime were to extend to high-cost officials, the international relations costs would be much higher inherently creating hostilities with other States. Thus, the incentives of political branches to apply universal jurisdiction to low-cost as well as mid-cost officials, supersede the overall disincentives towards universal jurisdiction.

While it may seem like there are greater demerits to invoking extra-territorial jurisdiction of the ICC by reason of the principle of universality, however, the same would be an incorrect postulation. With more States exercising universal jurisdiction, there are multiple avenues through which the OTP can make themselves an effective partner of regional judicial institutions pursuant to Article 90(3) of the Rome Statute,37 which could also be extended to crimes beyond the jurisdiction of the ICC such as human trafficking.

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

1. 1.

   Louise Arbour, Will the ICC Have an Impact on Universal Jurisdiction?, 1 J. Int’l Crim. Just. 585, 585 (2003), paywall doi. ↩

2. 2.

   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. 17, available online. ↩

3. 3.

   Allyson Bennett, That Sinking Feeling: Stateless Ships, Universal Jurisdiction, and the Drug Trafficking Vessel Interdiction Act, 37 Yale J. Int’l L. 433, 433 (2012), available online. ↩

4. 4.

   John Reynolds, Universal Jurisdiction to Prosecute Human Trafficking: Analyzing the Practical Impact of a Jurisdictional Change in Federal Law, 34 Hastings Int’l & Comp. L. Rev. 387, 392 (2011), available online. ↩

5. 5.

   Nicolaos Strapatsas, Universal Jurisdiction and the International Criminal Court, 29 MLJ 1, 3 (2002), available as download. ↩

6. 6.

   Reynolds, supra note 3, at 391. ↩

7. 7.

   Rome Statute, supra note 2. ↩

8. 8.

   Id. ↩

9. 9.

   Cedric Ryngaert, Universal Jurisdiction in an ICC Era, 14 Eur. J. Crim., Crim. L. & Crim. Just. 46, 49 (2006), paywall. ↩

10. 10.

    A. Hays Butler, The Doctrine of Universal Jurisdiction: A Review of the Literature, 11 Crim. L. Forum 353, 354 (2000), paywall, doi. ↩

11. 11.

    Shuvra Dey, Universal Jurisdiction and Cooperation between ICC Member States in Prosecuting Nationals of non-Member States, 3 Trento Student L. Rev. 61, 63 (2021), available online. ↩

12. 12.

    Henry A. Kissinger, The Pitfalls of Universal Jurisdiction, 80 Foreign Aff. 86, 86 (Jul. 2001), paywall, archived. ↩

13. 13.

    Rome Statute, supra note 2, at Art. 5. ↩

14. 14.

    Anne H. Geraghty, Universal Jurisdiction and Drug Trafficking: A Tool for Fighting One of the World’s Most Pervasive Problems, 16 Fla. J. Int’l L. 371, 379 (2004), available online. ↩

15. 15.

    Id. ↩

16. 16.

    Id. ↩

17. 17.

    Id. ↩

18. 18.

    Id. at 380. ↩

19. 19.

    Id. ↩

20. 20.

    Butler, supra note 10, at 356. ↩

21. 21.

    Rome Statute, supra note 2, at Art. 5. ↩

22. 22.

    Geraghty, supra note 14, at 387. ↩

23. 23.

    Id. at 389. ↩

24. 24.

    Juan Carlos Sainz-Borgo, The International Criminal Court, Drug Trafficking and Crimes against Humanity: A Local Interpretation of the Rome Statute, 15 J. Juris. 373, 379 (2012), available online. ↩

25. 25.

    Dey, supra note 11, at 69. ↩

26. 26.

    Id. at 70. ↩

27. 27.

    Id. at 71. ↩

28. 28.

    Id. at 72. ↩

29. 29.

    Harmen van der Wilt, Universal Jurisdiction under Attack: An Assessment of African Misgivings towards International Criminal Justice as Administered by Western States, 9 J. Int’l Crim. Just. 1043, 1054 (2011), available online, doi. ↩

30. 30.

    Dey, supra note 11, at 67. ↩

31. 31.

    Id. at 82. ↩

32. 32.

    Id. at 83. ↩

33. 33.

    Máximo Langer, The Diplomacy of Universal Jurisdiction: The Political Branches and the Transnational Prosecution of International Crimes, 105 Am. J. Int’l L. 1, 1–6 (Jan. 2011), online, earlier version, doi. ↩

34. 34.

    Id. at 5. ↩

35. 35.

    Id. at 4. ↩

36. 36.

    Id. at 3. ↩

37. 37.

    Rome Statute, supra note 2, at Art. 90(3). ↩