The first widespread exercise of universal jurisdiction occurred as a result of the crime of piracy, which is the act of attacking or robbing ships at sea.4 Every state has long had legislative, adjudicatory, and enforcement jurisdiction over all piratical acts on the high seas.5 Universal jurisdiction also has strong historical roots in the slave trade. The universality principle expanded in the postwar trials of individuals who had committed various wartime offenses, including war crimes and crimes against humanity.6 Specifically, it was brought against Nazis following World War Two. Universal jurisdiction was exercised against Adolph Eichmann, a Nazi official who was abducted by Israeli agents in Argentina and brought to Israel for trial due to his war crimes or crimes against humanity.7

B. Universal Jurisdiction and Victims

To exercise universal jurisdiction is to protect the interest and desires of the victims of heinous crimes. This is because any justification for exercising universal jurisdiction is based on the impact of the crime on the victim. Since universal jurisdiction cannot be justified through the place where the crime happened or the citizenship of the people to whom the crime happened, universal jurisdiction is justified based on the “underlying nature of the crime.”8 More specifically, universal jurisdiction is commonly “explained on grounds that certain international crimes are so heinous that they “shock the conscience of humanity.”9

This justification was used in the earliest form of universal jurisdiction in piracy. Universal jurisdiction was applied in part because “pirates were considered to have waged war [against]…all states,”10 were considered the enemies of all humanity, and involved “particularly heinous and wicked acts of violence or depredation.”11 Similarly, slave trade practices were subjected to universal jurisdiction because of the “gravity of the crime against a person’s liberty.”12 This justification can be seen again in the case of Nazi Germany, where the “shared abhorrence [was felt by] all civilized nations for the serious criminal activities committed in the course of the Second World War”13 and the crimes were believed to be “so monstrous”14 that they could not be condoned.

This justification can be seen clearly in an example Devika Hovell outlines in her paper examining the authority of universal jurisdiction:

For example, if Saudi Arabia, Pakistan, Somalia, Taiwan and the Philippines were to enter into a treaty agreeing to prosecute anyone found in their territory suspected of adultery regardless of the nationality of the offender or the state in which the conduct occurred, would the existence of the treaty obligation between these states render the prosecution of a UK citizen for adultery committed in the UK justifiable? One is tempted to answer “no”. However, the only basis upon which we can distinguish this from the torture example is by looking to the underlying nature of the crime. The source of jurisdiction does not derive ultimately from the treaty obligation but from a deeper sense that certain crimes are justifiably of broader concern such that third states are justified in prosecuting them.15

Devika’s example shows that it’s not just that certain territories agree to exercise jurisdiction over any crime and universal jurisdiction may magically apply. Rather, universal jurisdiction is based on an idea that there are certain kinds of crimes that intuitively feel ickier than others. I would argue that what makes piracy or the slave trade or crimes against humanity more despicable than something like adultery is how those crimes impact the victims. First, the impact lies in the number of victims. Where slave trade and piracy which may impact hundreds of thousands of people, adultery may impact a dozen or less. There is also a greater impact on what actually happens to the victims. Whereas slaves are brutalized, humiliated, raped, and physically beaten, pain resulting from adultery is almost certainly less severe.

This logic is spelled out explicitly in Miram Cohen’s paper describing the parallels between piracy and human trafficking in exercising universal jurisdiction. Cohen outlines two rationales for universal jurisdiction: (1) how widespread the effect of the crime and (2) the grave nature of the crime.16 Both of these rationales are directly connected to the protection of victims. The widespread nature of the crime relates to the sheer number of victims impacted. As Cohen points out, universal jurisdiction was exercised against pirates because their attacks were “made without regard to the vessel’s flag or the nationality of the victims.”17 The gravity justification relates to how serious the impact of the crime on the victim was. According to Cohen, these are crimes that are so harmful to victims that they endanger international peace and security.18 As such, universal jurisdiction envisages a responsibility on the part of the international community to protect people from human rights violations.

Universal jurisdiction is more than just protecting State interest. It’s about protecting people against states. It’s not about the States. It’s about people. It’s about victims. And in the eyes of exercising universal jurisdiction, it hardly matters who the victim is. Or where the victim lives. Or if the victim’s trauma has any economic impact on some occupied land. When all those factors are stripped away, all that’s left are the victims.

C. OTP and Victims

The OTP of the ICC cannot exercise universal jurisdiction without victims. First, victims are typically the ones alerting the ICC to the crimes. Victims also get the case off the ground by:

[I]nitiating the complaints and providing the authorities with essential information, including the location of the suspect, the nature of the accusations and the names of potential witnesses living in the host state or overseas.19

At the trial stage, victims also serve as key fact and emotional witnesses to the atrocities.

This extraordinary role in prosecutions makes sense. Cases against perpetrators literally would not exist without the victims. Victims are the ones most impacted by the crimes. They suffer the primary harm—the harm of the crime.20 Victims and their families must deal with the lifelong ramification of those crimes. Thus, “criminal law does not perform its role adequately, if it does not pay attention to the needs of the victim.”21

II. How the OTP Take a Victim-Centric Approach When Trying Cases

A. How Much Should Victims Be Involved in the Trials?

Throughout criminal law, there is a wide spectrum regarding how involved victims should be in prosecutions with two opposite extremes. On one side is the theory that victims should be minimally involved. This practice is most common in adversarial systems that “pit prosecutor against defendant”22 and in common law jurisdictions. These systems envision the victim’s role as being limited to that of a witness, who “can only speak if called by the prosecution (or defense) and can only answer questions that are posed to him or her.”23 On the opposite end of the spectrum is one where victims have extensive participatory rights. This is more common in civil law jurisdictions. For example, victims in Argentina can have a victim prosecutor who can do anything from submitting declarations to reviewing and presenting evidence to examining witnesses.24

B. The ICC v. the Prosecutor—Opposite Sides of the Spectrum

The ICC chambers and the OTP have often fallen on opposite sides of the victim participation spectrum. The ICC consistently favors more participatory rights for victims rather than less. According to the Rome Statute:

[W]here the interests of the victims are affected, the Court shall permit their views and concerns to be presented and considered at stages of the proceedings determined to be appropriate by the Court and in a manner which is not prejudicial to or inconsistent with the rights of the accused and a fair and impartial trial.25

In practice, Pre-Trial Chamber II has interpreted this provision broadly, that is, in a way that allows for more victim participation. Pre-Trial Chamber II has held that Article 68(3) permits victims to participate in proceedings relating to the investigation of a situation and that victims are permitted to question witnesses and introduce evidence.26

On the other end of the spectrum is the Prosecutor. They have consistently opposed the Chamber’s liberal interpretation of the Rome Statute in favor of a narrower view that allows for limited victim participation. According to the OTP, “modalities of participation may not infringe upon the parties’ rights or overlap with the exclusive functions of the Prosecution.”27 This source of tension may be attributable to the fact that the Prosecutor’s express goals are to “hold perpetrators of grave crimes accountable for their actions.”28 As a result, the OTP is not so focused on doing what is best for the victims or ensuring victim participation, especially when doing so might mean sacrificing their case. In fact, to the Prosecutor, too much victim participation disrupts other important interests and functions, like getting a guilty verdict. The Prosecutor has opposed victim participation at the investigation and trial stage of a prosecution, on the basis that victims divert the focus of their investigation, frustrate the prosecution of the defendant, undermine the prosecutor’s trial strategy and potentially increase the cost of prosecution by prolonging proceedings.29

To be sure, it would be unfair to say that victims’ rights and desires do not influence the prosecutor in any way. At times, the prosecutor’s goals can be harmonious with victim’s interests. The first and former Prosecutor of the ICC Luis Moreno-Ocampo explicitly stated that he was “guided by the interests of the victims”30 in the 2004 Ugandan case. And even in instances where the prosecutor may be eager to get a conviction, victims are not doomed to be forgotten. In theory, aggressive prosecution policies, such as those guiding American domestic violence prosecutions, are grounded in the theory that they increase victim safety.31 However, there is a difference between having victims in mind when making decisions and prioritizing them. There is a difference between having goals to prosecute which may or may not happen to benefit victims and ensuring that victims are benefited. There is a difference between guided by the interest of victims and allowing those interests to dictate major decisions. I would argue that when attempting to exercise universal jurisdiction, the OTP should strive to do the latter.

C. What Should the OTP Do to Promote the Interest of the Victim?

Exercising universal jurisdiction may begin with a mental shift in the prosecutor. This could mean a shift in how the prosecutor conceptualizes the end goal of a trial. Rather than seeing the primary goal as imprisoning the perpetrator, the prosecutor could envision the primary goal is to make victims whole. Rather than seeing the trial as a pitched, two-sided battle,32 the prosecutor could see it as an opportunity to get justice for the victims. And rather than seeing victims as key witnesses or tools to accomplish the verdict, the prosecutor could see them as human beings with needs and feelings beyond the four corners of a courtroom.

Once the OTP reframes how he thinks of trials and victims within them, the OTP should determine what victims actually need and want out of the prosecution. Following a warning made by Timothy Kuhner in his paper discussing victims in the ICC, the OTP should be mindful to distinguish what victims actually want from what they should want, as relying on assumptions can lead to an Office that is paternalistic.33 The prosecutor should also be mindful that not all victims want the same thing and victims’ interests can be expected to vary between cultures.34 Then, the OTP should ask detailed questions and listen closely to what the victims say. They may find that some victims want protection.”35 Others may want offenders to be prosecuted and punished.36 Others may simply want to tell their stories about what happened.37 And others may want the autonomy and power to make meaningful decisions about what happens to the perpetrators.38 Whatever the desires, it’s the Prosecutor’s responsibility to find out what they are and how to best try a case to further those goals.

And once the prosecutor gets to the trial stage, the focus should not move away from those identified interests. Rather than asking about the ideal trial strategy for the defendant’s prosecution, the OTP’s main question should be this: what should happen in this trial that will accomplish the victim’s goals? This means the prosecutor should determine not merely what the defendant did but how those actions harmed the victim and how a prosecution can best serve them.

This also means the degree of victim participation exercised in any given trial should turn on the impact that participation has on the victim. In cases where the victim needs therapy, to restore their dignity, to contribute to the reconciliation process, or simply to tell their story, victim’s participation should be paramount. This can mean allowing the victim the chance to give an opening statement that may or may not help the trial but will give the victims a public space to tell their story and be validated. This should be the case even when doing so would negatively impact the trial strategy. In cases where the victim needs to heal outside of the process, where retelling that story may lead to retraumatization, the prosecutor should remove the victim from the process as much as possible. This should be the case even if doing so would mean the Prosecutor loses a key witness. In essence, when the Prosecutor has to choose between the verdict and the victim, the Prosecutor should choose the victim.

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

1. 1.

   Kenneth C. Randall, Universal Jurisdiction Under International Law, 66 Tex. L. Rev. 785, 788 (1988), paywall. ↩

2. 2.

   Miriam Cohen, The Analogy Between Piracy and Human Trafficking: A Theoretical Framework for the Application of Universal Jurisdiction, 16 Buff. Hum. Rts. L. Rev. 201, 209–10 (2010), available online. ↩

3. 3.

   Gabriel Bottini, Universal Jurisdiction After the Creation of the International Criminal Court, 36 N.Y.U. J. Int’l L. & Pol. 503, 508 (Dec. 2004), paywall. ↩

4. 4.

   Randall, supra note 1, at 785. ↩

5. 5.

   Id. ↩

6. 6.

   Id. ↩

7. 7.

   Devika Hovell, The Authority of Universal Jurisdiction, 29 EJIL 427, 442 (May 2018), available online, doi. ↩

8. 8.

   Id. ↩

9. 9.

   Id. ↩

10. 10.

    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. ↩

11. 11.

    Randall, supra note 1, at 785. ↩

12. 12.

    Reynolds, supra note 10, at 387. ↩

13. 13.

    Hovell, supra note 7, at 440–41. ↩

14. 14.

    Id. ↩

15. 15.

    Id. at 427. ↩

16. 16.

    Cohen, supra note 2, at 216. ↩

17. 17.

    Id. at 217. ↩

18. 18.

    Bottini, supra note 3, at 547. ↩

19. 19.

    Hovell, supra note 7, at 450. ↩

20. 20.

    Douglas Evan Beloof, The Third Model of Criminal Process: The Victim Participation Model, 1999 Utah L. Rev. 289, 318 (1999), available online. ↩

21. 21.

    Timothy K. Kuhner, The Status of Victims in the Enforcement of International Criminal Law, 6 Or. Rev. Int’l L. 95, 134 (2004), available online. ↩

22. 22.

    Charles P. Trumbull IV, The Victims of Victim Participation in International Criminal Proceedings, 29 Mich. J. Int’l L. 777, 781 (2008), available online. ↩

23. 23.

    Id. ↩

24. 24.

    Id. ↩

25. 25.

    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. 68, available online. ↩

26. 26.

    Trumbull IV, supra note 22, at 795. ↩

27. 27.

    Id. at 796. ↩

28. 28.

    J. Alex Little, Balancing Accountability and Victim Autonomy at the International Criminal Court, 38 Geo. J. Int’l L. 363, 368 (2007), available online. ↩

29. 29.

    Trumbull IV, supra note 22, at 809. ↩

30. 30.

    Little, supra note 28, at 378. ↩

31. 31.

    Id. at 382. ↩

32. 32.

    William T. Pizzi & Walter Perron, Crime Victims in German Courtrooms: A Comparative Perspective on American Problems, 32 SJIL 37, 55 (1996), paywall. ↩

33. 33.

    Kuhner, supra note 21, at 139. ↩

34. 34.

    Id. at 133. ↩

35. 35.

    Id. at 134–35. ↩

36. 36.

    Id. at 135. ↩

37. 37.

    Id. at 137. ↩

38. 38.

    Id. at 138. ↩