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Introduction
The Universal Jurisdiction Guiding Tree provides a practical framework for legal professionals to effectively navigate and apply basic concepts of International Criminal Law and universal jurisdiction.
By clarifying legal the legal foundations of universal jurisdiction, streamlining case assessment, and detailing procedural standards of International Criminal Law, this tool aims to strengthen capacity for a human-centred justice.
This framework integrates victim-focused, culturally sensitive, and gender-responsive approaches while addressing key challenges like statutory limitations and immunities - ultimately enhancing universal jurisdiction as a tool for accountability and reparations in international justice.
By clarifying legal the legal foundations of universal jurisdiction, streamlining case assessment, and detailing procedural standards of International Criminal Law, this tool aims to strengthen capacity for a human-centred justice.
This framework integrates victim-focused, culturally sensitive, and gender-responsive approaches while addressing key challenges like statutory limitations and immunities - ultimately enhancing universal jurisdiction as a tool for accountability and reparations in international justice.
🠟🠟 Definitions and scope 🠟🠟
• Concept of Universal Jurisdiction
Universal Jurisdiction is defined as “a legal principle allowing or requiring a State to bring criminal proceedings in respect to certain crimes irrespective of the location of the crimes and the nationality of the perpetrator or the victim”.
The rationale behind this principle is based on the notion that certain crimes are so harmful to international interests that States are obliged to bring proceedings against the perpetrator, regardless of the location of the crime and the nationality of the perpetrator or the victim.
It allows national courts in third countries to address international crimes occurring abroad, to hold perpetrators criminally liable, and to prevent impunity.
The rationale behind this principle is based on the notion that certain crimes are so harmful to international interests that States are obliged to bring proceedings against the perpetrator, regardless of the location of the crime and the nationality of the perpetrator or the victim.
It allows national courts in third countries to address international crimes occurring abroad, to hold perpetrators criminally liable, and to prevent impunity.
• Legal Basis
The legal foundation of universal jurisdiction stems from various international treaties and conventions and customary law, which were later codified in national legislations.
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Click on the boxes for more information 🠟🠟
International treaties and conventions
Key international treaties include:
- The Geneva Conventions (1949) and their Additional Protocols, which obligate State parties to prosecute or extradite those responsible for grave breaches of the Convention;
- The Convention Against Torture (1984), which requires States to exercise jurisdiction over torture offenses, even if committed abroad.
Customary law
Beyond international treaties, universal jurisdiction is supported by customary international law in certain cases.
The International Court of Justice (ICJ) has recognised that State have an erga omnes obligation (obligation to the international community) to prosecute genocide and, therefore, genocide is subject to universal jurisdiction.
The International Criminal Tribunal for the former Yugoslavia (ICTY) confirmed the same duty exists for grave breaches of humanitarian law.
The International Court of Justice (ICJ) has recognised that State have an erga omnes obligation (obligation to the international community) to prosecute genocide and, therefore, genocide is subject to universal jurisdiction.
The International Criminal Tribunal for the former Yugoslavia (ICTY) confirmed the same duty exists for grave breaches of humanitarian law.
National legislations
Many States have incorporated universal jurisdiction into their national legal frameworks, though with significant variations in scope, applicability, and willingness to prosecute.
Below is a summary of the national frameworks of universal jurisdiction in the countries of the NO-OBLIVION project:
Below is a summary of the national frameworks of universal jurisdiction in the countries of the NO-OBLIVION project:
Legal Basis |
Crimes covered |
|
Belgium |
- Act on grave breaches of international humanitarian law - Belgian Criminal Code - Code of Criminal Procedure |
Genocide, crimes against humanity, war crimes, torture, and enforced disappearance |
Bosnia and Herzegovina |
- Criminal Code - Criminal Procedure Act - Law on Implementation of the Rome Statute of the International Criminal Court and Cooperation with the International Criminal Court |
Genocide, crime of aggression, crime against humanity, war crimes, terrorism, preparation of criminal offenses against values protected by international law, torture and other cruel, inhuman or degrading treatment or punishment, slavery, human trafficking |
Croatia |
- Criminal Code - Criminal Procedure Act - Constitutional Act on the Cooperation of the Republic of Croatia with the International Criminal Court - Act on the Application of the Statute of the International Criminal Court and Prosecution of Criminal Offenses Against International Criminal Law |
Genocide, crime of aggression, crime against humanity, war crimes, terrorism, preparation of criminal offenses against values protected by international law, torture and other cruel, inhuman or degrading treatment or punishment, slavery, human trafficking, cloning and alteration of the human genome, prohibition of mixing human reproductive cells with animals |
Germany |
- Code of Crimes Against International Law (VStGB, 2002) - International Criminal Court Act of 21 June 2002 - Code of Criminal Procedure |
Genocide, crimes against humanity, war crimes, crime of aggression |
Kosovo |
- Constitution of the Republic of Kosovo - Criminal Code of Kosovo - Law on Specialist Chambers and Prosecutor’s Office |
Genocide, crimes against humanity, war crimes, torture and enforced disappearances |
Portugal |
- Portuguese Criminal Code - Law 144/99 on international judicial cooperation in criminal matters - Law 31/2004 on violation of international law |
Genocide, war crimes, crimes against humanity, torture and enforced disappearances, terrorism |
Romania |
- Criminal Code - Law No 137 of June 8, 2015 for accepting the compulsory jurisdiction of the International Court of Justice - Law No 44/2022 on judicial cooperation between Romania and the International Criminal Court |
Genocide, crimes against humanity, war crimes, torture, aircraft hijacking, piracy, international terrorist crime, trafficking in human beings, sexual exploitation of children, drugs and arms |
Serbia |
- Criminal Code (Republic of Serbia) - Criminal Procedure Code - Law on Organisation and Competence of State Authorities in War Crimes Proceedings - Law on the Protection Programme for Participants in Criminal Proceedings - Law on Cooperation with International Criminal Court - Law on International Legal Assistance in Criminal Matters - Law on Cooperation of Serbia and Montenegro with the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of Former Yugoslavia since 1991 |
Genocide, war crimes, crimes against humanity, torture and enforced disappearance |
• Scope
Universal Jurisdiction covers a number of international crimes.
Click on one of the crimes to see more detailed Information.
Click on one of the crimes to see more detailed Information.
Crimes
GenoCIDE
Genocide is the deliberate attempt to destroy, in whole or in part, a national, ethnic, racial, or religious group.
Established by the 1948 Genocide Convention and incorporated into the Rome Statute of the ICC, genocide holds jus cogens status - making it an absolute, non-derogable prohibition under international law. This creates universal obligations: all States must prevent and punish genocide, regardless of treaty ratification.
Established by the 1948 Genocide Convention and incorporated into the Rome Statute of the ICC, genocide holds jus cogens status - making it an absolute, non-derogable prohibition under international law. This creates universal obligations: all States must prevent and punish genocide, regardless of treaty ratification.
Material Elements
Perpetrators - the commission of the crime of genocide does not presuppose the holding of a certain position within a State or quasi-State organisational structure.
Protected groups – includes national, ethnic, racial or religious groups. The protected group does not need to be a minority within a State nor live within one defined territory.
Prohibited acts (actus reus) – killing, causing serious bodily or mental harm, deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part, imposing measures intended to prevent birth within the group, forcibly transferring children of the group to another group.
Perpetrators - the commission of the crime of genocide does not presuppose the holding of a certain position within a State or quasi-State organisational structure.
Protected groups – includes national, ethnic, racial or religious groups. The protected group does not need to be a minority within a State nor live within one defined territory.
Prohibited acts (actus reus) – killing, causing serious bodily or mental harm, deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part, imposing measures intended to prevent birth within the group, forcibly transferring children of the group to another group.
Mental Elements (mens rea)
Dolus Specialis – the perpetrator must act with the special intent “to destroy, in whole or in part, a national, ethnic, racial or religious group as such”. General hatred or discrimination is insufficient; the perpetrator must act within a proven plan or policy aimed at the group’s elimination.
Dolus Specialis – the perpetrator must act with the special intent “to destroy, in whole or in part, a national, ethnic, racial or religious group as such”. General hatred or discrimination is insufficient; the perpetrator must act within a proven plan or policy aimed at the group’s elimination.
Key legal precedents
• ICJ, Reservations to the Genocide Convention (1951): Confirmed genocide as a crime under international law, independent of the Convention, part of international customary law;
• ICJ, Bosnia and Herzegovina v. Serbia and Montenegro (2007): Confirmed that States can violate the Genocide Convention by failing to prevent or punish genocide;
• ICC, Al-Bashir Case: Established that even sitting heads of State are not immune from genocide charges.
• ICJ, Reservations to the Genocide Convention (1951): Confirmed genocide as a crime under international law, independent of the Convention, part of international customary law;
• ICJ, Bosnia and Herzegovina v. Serbia and Montenegro (2007): Confirmed that States can violate the Genocide Convention by failing to prevent or punish genocide;
• ICC, Al-Bashir Case: Established that even sitting heads of State are not immune from genocide charges.
CRIMES AGAINST HUMANITY
Crimes against humanity encompass a range of inhumane acts committed as part of a widespread or systematic attack against any civilian population. Unlike genocide, they do not require intent to destroy a specific group and can occur during war or peacetime.
Material Elements
For an act to qualify as a crime against humanity, it must satisfy three core factual requirements:
• A prohibited act: murder, extermination, enslavement, deportation, torture, rape, sexual violence, persecution, enforced disappearance, apartheid, etc.
• Part of a widespread or systematic attack.
• “Widespread" – large-scale nature of the violence, which may involve numerous victims or a single act of extraordinary magnitude;
•"Systematic" – deliberate, organised pattern of conduct, often following a policy (explicit or implicit).
• Directed against a civilian population - the attack must be directed at a civilian population, the portion of the population that is not part of the military or armed forces
For an act to qualify as a crime against humanity, it must satisfy three core factual requirements:
• A prohibited act: murder, extermination, enslavement, deportation, torture, rape, sexual violence, persecution, enforced disappearance, apartheid, etc.
• Part of a widespread or systematic attack.
• “Widespread" – large-scale nature of the violence, which may involve numerous victims or a single act of extraordinary magnitude;
•"Systematic" – deliberate, organised pattern of conduct, often following a policy (explicit or implicit).
• Directed against a civilian population - the attack must be directed at a civilian population, the portion of the population that is not part of the military or armed forces
Mental Elements (mens rea)
The perpetrator’s mental state requires two layers of intent:
• Intent to commit the prohibited act (e.g., deliberately torturing someone);
• Knowledge that their actions fit within a widespread/systematic attack.
The perpetrator’s mental state requires two layers of intent:
• Intent to commit the prohibited act (e.g., deliberately torturing someone);
• Knowledge that their actions fit within a widespread/systematic attack.
Key Legal Precedents
• ICTY, Tadić case (1994): Confirmed crimes against humanity can occur outside of an armed conflict;
• ICJ, Bosnia v. Serbia case (2007): States have an obligation to the international community to prevent crimes against humanity – obligation erga omnes;
• ICTY, Kunarac et al case (1996): Recognised rape as a form of torture and sexual enslavement as a crime against humanity.
• ICTY, Tadić case (1994): Confirmed crimes against humanity can occur outside of an armed conflict;
• ICJ, Bosnia v. Serbia case (2007): States have an obligation to the international community to prevent crimes against humanity – obligation erga omnes;
• ICTY, Kunarac et al case (1996): Recognised rape as a form of torture and sexual enslavement as a crime against humanity.
WAR CRIMES
War crimes are serious violations international humanitarian law (Geneva Conventions) committed during armed conflicts, giving rise to criminal responsibility. Unlike crimes against humanity, there is no requirement of widespread or systematic commission, as a single act can constitute a war crime.
Material Elements
Prohibited acts – wilful killings, torture, unlawful deportation, attacks at civilian or prohibited targets (hospitals, schools), pillage;
Core principles:
• Principle of distinction: combatants must distinguish between military targets and civilians;
• Principle of proportionality: attacks must not cause severe excessive civilian harm relative to military advantage;
• Principle of sparing the civilian population: all feasible steps must be taken to minimise civilian casualties
• Nexus between conduct and conflict – a war crime must be committed in the context of (temporal and geographical) and associated with an armed conflict;
Types of Armed Conflict:
• International Armed Conflicts: Wars between States, including wars of national liberation (e.g., anti-colonial struggles);
• Non-International Armed Conflicts: Civil wars or conflicts between States and non-State armed groups (intense, prolonged violence);
• Proxy Wars: A seemingly internal conflict may become international if an external State controls local forces; (Tadić case, ICTY).
The perpetrator – a war crime may be committed by members of armed forces or groups and their leader, as well as civilians with awareness of the conflict;
The victim or object of the crime – war crimes must affect protected people or objects: civilians, prisoners of war, wounded/sick combatants.
Prohibited acts – wilful killings, torture, unlawful deportation, attacks at civilian or prohibited targets (hospitals, schools), pillage;
Core principles:
• Principle of distinction: combatants must distinguish between military targets and civilians;
• Principle of proportionality: attacks must not cause severe excessive civilian harm relative to military advantage;
• Principle of sparing the civilian population: all feasible steps must be taken to minimise civilian casualties
• Nexus between conduct and conflict – a war crime must be committed in the context of (temporal and geographical) and associated with an armed conflict;
Types of Armed Conflict:
• International Armed Conflicts: Wars between States, including wars of national liberation (e.g., anti-colonial struggles);
• Non-International Armed Conflicts: Civil wars or conflicts between States and non-State armed groups (intense, prolonged violence);
• Proxy Wars: A seemingly internal conflict may become international if an external State controls local forces; (Tadić case, ICTY).
The perpetrator – a war crime may be committed by members of armed forces or groups and their leader, as well as civilians with awareness of the conflict;
The victim or object of the crime – war crimes must affect protected people or objects: civilians, prisoners of war, wounded/sick combatants.
Mental Elements (mens rea)
The mental element war crimes varies slightly depending on the specific crime and legal framework (e.g., ICC Statute, or national laws), but the general principles are consistent.
According to Article 30 of the ICC Statute, the perpetrator must:
• Intend to commit the act; and
• Know that the act violates international humanitarian law (IHL) or occurs in an armed conflict (international or non-international);
• It is not required that the perpetrator had detailed knowledge of the attack or its characteristics.
The mental element war crimes varies slightly depending on the specific crime and legal framework (e.g., ICC Statute, or national laws), but the general principles are consistent.
According to Article 30 of the ICC Statute, the perpetrator must:
• Intend to commit the act; and
• Know that the act violates international humanitarian law (IHL) or occurs in an armed conflict (international or non-international);
• It is not required that the perpetrator had detailed knowledge of the attack or its characteristics.
Key Legal Precedents
• ICTY, Tadić Case (1994): Clarified the distinction between international and non-international armed conflicts;
• ICC, Bemba case (2016): Established key principles on command responsibility, defining when commanders can be held accountable for subordinates’ crimes;
• ICTY, Gotovina et al. Case (2011): Addressed indiscriminate attacks on civilians during military operations, setting standards for proportionality in warfare;
• ICC, Ongwen Case (2021): Highlighted the prosecution of a non-State armed group leader for war crimes and crimes against humanity.
• ICTY, Tadić Case (1994): Clarified the distinction between international and non-international armed conflicts;
• ICC, Bemba case (2016): Established key principles on command responsibility, defining when commanders can be held accountable for subordinates’ crimes;
• ICTY, Gotovina et al. Case (2011): Addressed indiscriminate attacks on civilians during military operations, setting standards for proportionality in warfare;
• ICC, Ongwen Case (2021): Highlighted the prosecution of a non-State armed group leader for war crimes and crimes against humanity.
AGGRESSION
The crime of aggression involves the unlawful use of armed force by one State against another, violation the jus ad bellum (rules governing when war is permissible). Unlike other international crimes, it can only be committed by high-ranking State officials as part of a State policy.
Defined under Article 8 bis of the International Criminal Court State, the crime of aggression covers acts such as invasion, occupation, bombardment, or sending armed groups to attack another State. However, the use of armed force is considered lawful in two situations (1) if the State acts in self-defence or (2) If the UN Security Council authorised the use of armed force.
A State may use force in self-defence only in response to an actual armed attack (Article 51 of the UN Charter). The response must be necessary, meaning no peaceful alternative exists, and proportionate. The defending State must immediately report its actions to the UN Security Council. “Preventive” self-defence is not considered lawful self-defence under international law.
The UN Security Council may authorise the use of force if it determines there is a threat to international peace and security. Such authorisation requires a resolution under Chapter VII of the UN Charter, supported by at least nine of the fifteen Council members, with no veto from the five permanent members. This exception allows for collective military action, such as peace enforcement operations or interventions to halt aggression.
Defined under Article 8 bis of the International Criminal Court State, the crime of aggression covers acts such as invasion, occupation, bombardment, or sending armed groups to attack another State. However, the use of armed force is considered lawful in two situations (1) if the State acts in self-defence or (2) If the UN Security Council authorised the use of armed force.
A State may use force in self-defence only in response to an actual armed attack (Article 51 of the UN Charter). The response must be necessary, meaning no peaceful alternative exists, and proportionate. The defending State must immediately report its actions to the UN Security Council. “Preventive” self-defence is not considered lawful self-defence under international law.
The UN Security Council may authorise the use of force if it determines there is a threat to international peace and security. Such authorisation requires a resolution under Chapter VII of the UN Charter, supported by at least nine of the fifteen Council members, with no veto from the five permanent members. This exception allows for collective military action, such as peace enforcement operations or interventions to halt aggression.
Prosecution of aggression in the ICC
The International Criminal Court's jurisdiction over the crime of aggression operates under strict limitations established by the 2010 Kampala Amendments. The Court can only exercise jurisdiction if:
• The aggressor State has ratified the Rome Statute and accepted the amendments; or
• If the United Nations Security Council refers the situation, in situations where the act of aggression was committed by or on the territory of States not parties to the Rome Statute.
Notably, even State parties that have accepted the amendments retain the option to formally opt out of the Court's aggression jurisdiction regarding their own actions.
The International Criminal Court's jurisdiction over the crime of aggression operates under strict limitations established by the 2010 Kampala Amendments. The Court can only exercise jurisdiction if:
• The aggressor State has ratified the Rome Statute and accepted the amendments; or
• If the United Nations Security Council refers the situation, in situations where the act of aggression was committed by or on the territory of States not parties to the Rome Statute.
Notably, even State parties that have accepted the amendments retain the option to formally opt out of the Court's aggression jurisdiction regarding their own actions.
Material Elements
Perpetrator – the crime of aggression can only be committed by leaders and high-level policy-makers who exercise effective control over State actions;
Act of aggression – The use of armed force by a State against the sovereignty, territorial integrity or political independence of another State, or in any other manner inconsistent with the UN Charter (e.g. invasion, bombardment and annexation of another State’s territory);
Nexus to a State policy – the act of aggression must be part of a State’s plan or policy. The threat of aggression does not fall under the scope of the crime.
Perpetrator – the crime of aggression can only be committed by leaders and high-level policy-makers who exercise effective control over State actions;
Act of aggression – The use of armed force by a State against the sovereignty, territorial integrity or political independence of another State, or in any other manner inconsistent with the UN Charter (e.g. invasion, bombardment and annexation of another State’s territory);
Nexus to a State policy – the act of aggression must be part of a State’s plan or policy. The threat of aggression does not fall under the scope of the crime.
Mental Elements
• The leader or high-level policy maker must intent to participate in the aggressive act;
• The perpetrator must be aware that the act of aggression manifestly violates the UN Charter;
• No requirement to prove that the perpetrator understood its illegality or inconsistency with the Charter.
• The leader or high-level policy maker must intent to participate in the aggressive act;
• The perpetrator must be aware that the act of aggression manifestly violates the UN Charter;
• No requirement to prove that the perpetrator understood its illegality or inconsistency with the Charter.
TORTURE AND OTHER CRUEL, INHUMAN or DEGRADING TREATMENT
The crime of torture and other cruel, inhuman or degrading treatment or punishment is defined as the intentional infliction of severe physical and/or mental suffering, committed for a specific purpose (e.g., coercion, punishment, discrimination), by or with the consent of State or non-State authorities.
It is regulated in the UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. This Convention established a universal legal framework under which State parties are obliged to prosecute suspects of torture or extradite them to other States able and willing to do so or to surrender them to an International Criminal Court, other States may exercise universal jurisdiction over them as a matter of customary international law.
It is regulated in the UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. This Convention established a universal legal framework under which State parties are obliged to prosecute suspects of torture or extradite them to other States able and willing to do so or to surrender them to an International Criminal Court, other States may exercise universal jurisdiction over them as a matter of customary international law.
Key Legal Precedents
• ICJ, Nicaragua vs United States case (1986): Established that States can be held responsible for aiding and abetting abuses by paramilitary groups.
• ICTY, Furundžija case (1998): First conviction for rape as torture under war crimes and crimes against humanity. Defined torture as: (1) intentional infliction of severe pain/suffering, (2) for a purpose (e.g., coercion, discrimination), (3) by a state/non-state actor with official involvement or consent.
• ICTY, Čelebići case (1998): Defined cruel, inhuman, or degrading treatment or punishment as a war crime.
• ICC, Bemba case (2016): Held a militia leader accountable for systematic rape and torture by subordinates (command responsibility).
• ICJ, Nicaragua vs United States case (1986): Established that States can be held responsible for aiding and abetting abuses by paramilitary groups.
• ICTY, Furundžija case (1998): First conviction for rape as torture under war crimes and crimes against humanity. Defined torture as: (1) intentional infliction of severe pain/suffering, (2) for a purpose (e.g., coercion, discrimination), (3) by a state/non-state actor with official involvement or consent.
• ICTY, Čelebići case (1998): Defined cruel, inhuman, or degrading treatment or punishment as a war crime.
• ICC, Bemba case (2016): Held a militia leader accountable for systematic rape and torture by subordinates (command responsibility).
🠟🠟 Case assessment 🠟🠟
International Law prioritises domestic courts for prosecuting international crimes, upholding the principle of state sovereignty. National prosecutions are not only the primary vehicle for the enforcement of international crimes, they are also often considered a preferable option – in political, sociological, practical, and legitimacy terms – to international prosecutions. However, many international crimes still go unpunished, leading to the need for international criminal courts as a solution to impunity.
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Click on the boxes below to read more 🠟🠟
Universal jurisdiction enables national courts to prosecute serious international crimes regardless of where they occurred or the nationalities involved. This legal principle requires no connection between the prosecuting State and the crime's location, perpetrator, or victims.
• Normative frameworks
The prosecution of international crimes operates within two primary normative frameworks: treaty obligations and customary international law. These frameworks establish the legal basis for state action while revealing significant gaps in enforcement.
1. Treaty Obligations
International law establishes obligations for States regarding the prosecution of serious international crimes through the aut dedere aut judicare principle (extradite or prosecute). This foundational concept appears across multiple treaties, including:
2. Customary Obligations
Customary international law presents more complex questions regarding prosecutorial duties. While the prohibition of core international crimes is firmly established in custom, the existence of a corresponding duty to prosecute remains contested.
The International Law Commission's 1996 Draft Code and the ICTY's Blaškić decision suggested such a duty exists for grave breaches of humanitarian law. However, inconsistent State practice, including widespread use of amnesties, undermines claims of an established customary obligation.
More compelling arguments emerge when considering jus cogens norms, which the ICJ has recognised as creating erga omnes obligations in the context of genocide. The ICC Statute's preamble references State duties to exercise jurisdiction, but its non-binding nature limits normative impact.
Current evidence suggests an emerging but not yet crystallised customary duty to prosecute - strongest for territorial States and more tentative for third States exercising universal jurisdiction.
3. Domestic Legislation
The recognition of universal jurisdiction by the State as a principle is not sufficient to make it an operative legal norm.
Universal jurisdiction requires three elements:
A number of States have enacted special penal law on war crimes and genocide, either in a civil or a military penal system or both – e.g. France, Germany and the United Kingdom.
International law establishes obligations for States regarding the prosecution of serious international crimes through the aut dedere aut judicare principle (extradite or prosecute). This foundational concept appears across multiple treaties, including:
- Geneva Conventions (1949) – imposes strict obligations for State parties to prosecute or extradite perpetrators of "grave breaches" (e.g., willful killing, torture) regardless of nationality;
- Convention Against Torture (1984) – mandates State parties to prosecute or extradite perpetrators for torture offences.
2. Customary Obligations
Customary international law presents more complex questions regarding prosecutorial duties. While the prohibition of core international crimes is firmly established in custom, the existence of a corresponding duty to prosecute remains contested.
The International Law Commission's 1996 Draft Code and the ICTY's Blaškić decision suggested such a duty exists for grave breaches of humanitarian law. However, inconsistent State practice, including widespread use of amnesties, undermines claims of an established customary obligation.
More compelling arguments emerge when considering jus cogens norms, which the ICJ has recognised as creating erga omnes obligations in the context of genocide. The ICC Statute's preamble references State duties to exercise jurisdiction, but its non-binding nature limits normative impact.
Current evidence suggests an emerging but not yet crystallised customary duty to prosecute - strongest for territorial States and more tentative for third States exercising universal jurisdiction.
3. Domestic Legislation
The recognition of universal jurisdiction by the State as a principle is not sufficient to make it an operative legal norm.
Universal jurisdiction requires three elements:
- a legal basis for jurisdiction;
- clearly defined offences; and
- enforceable national mechanisms.
A number of States have enacted special penal law on war crimes and genocide, either in a civil or a military penal system or both – e.g. France, Germany and the United Kingdom.
• Absolute and Conditional Universal Jurisdiction
Two principal models of universal jurisdiction emerge in State practice:
Implementation challenges persist across both models, including difficulties in evidence collection, political resistance to sensitive cases, and variations in judicial capacity to handle complex international crimes. The development of specialised war crimes units in some jurisdictions (e.g., Germany's Federal Court of Justice) represents one response to these challenges, creating institutional expertise to support universal jurisdiction cases.
- Absolute universal jurisdiction – permits investigation and prosecution regardless of the suspect’s presence or territorial connection, and allows proceedings even when there is no likelihood of the accused entering the State’s territory;
- E.g. Germany, Belgium
- Conditional universal jurisdiction - requires the physical presence of the accused on the State's territory,
- E.g. Portugal, Croatia, Romania
- E.g. Portugal, Croatia, Romania
Implementation challenges persist across both models, including difficulties in evidence collection, political resistance to sensitive cases, and variations in judicial capacity to handle complex international crimes. The development of specialised war crimes units in some jurisdictions (e.g., Germany's Federal Court of Justice) represents one response to these challenges, creating institutional expertise to support universal jurisdiction cases.
• Statutory Limitations
The question of statutory limitations for international crimes represents a critical tension where domestic systems confront international crimes. While most legal systems provide time limits for prosecuting crimes, the exceptional gravity of genocide, crimes against humanity, and war crimes has prompted significant legal evolution toward eliminating such limitations.
International law has developed a clear trend toward rejecting time limits for prosecuting genocide, crimes against humanity, and war crimes, recognising that these offences constitute violations of jus cogens norms that cannot be rendered permissible by mere passage of time.
This position has been codified in the 1968 UN Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes Against Humanity, and is explicitly affirmed in Article 29 of the Rome Statute of the International Criminal Court, acknowledging that the gravity of these offences warrants permanent accountability.
At the national level, implementation remains inconsistent. While many States have reformed their domestic legislation to eliminate statutory limitations for international crimes, others maintain traditional limitation periods or apply them selectively. This patchwork of approaches creates disparities in accountability, with some perpetrators facing prosecution while others benefit from expired limitation periods depending on the jurisdiction.
The incomplete harmonisation of this principle across domestic legal systems indicates that while an international norm is clearly emerging, it has not yet achieved universal acceptance as binding customary law.
International law has developed a clear trend toward rejecting time limits for prosecuting genocide, crimes against humanity, and war crimes, recognising that these offences constitute violations of jus cogens norms that cannot be rendered permissible by mere passage of time.
This position has been codified in the 1968 UN Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes Against Humanity, and is explicitly affirmed in Article 29 of the Rome Statute of the International Criminal Court, acknowledging that the gravity of these offences warrants permanent accountability.
At the national level, implementation remains inconsistent. While many States have reformed their domestic legislation to eliminate statutory limitations for international crimes, others maintain traditional limitation periods or apply them selectively. This patchwork of approaches creates disparities in accountability, with some perpetrators facing prosecution while others benefit from expired limitation periods depending on the jurisdiction.
The incomplete harmonisation of this principle across domestic legal systems indicates that while an international norm is clearly emerging, it has not yet achieved universal acceptance as binding customary law.
■ Complementarity Principle and Case Admissibility
The International Criminal Court serves as a judicial mechanism of last resort, intervening only when domestic legal systems fail to prosecute international crimes.
This foundational principle of complementarity, enshrined in Article 17 of the Rome Statute, establishes three scenarios where cases become inadmissible before the Court:
This deference is waived only in cases demonstrating state unwillingness or inability:
This foundational principle of complementarity, enshrined in Article 17 of the Rome Statute, establishes three scenarios where cases become inadmissible before the Court:
- when national authorities are actively handling the matter;
- when they have completed investigations but decided against prosecution; or
- when the case has already been adjudicated domestically under the ne bis in idem principle.
This deference is waived only in cases demonstrating state unwillingness or inability:
- Unwillingness - State’s deliberate attempt to shield individuals from criminal responsibility, often through unjustified delays or lack of impartial proceedings;
- Inability - State’s lack of capacity to carry out investigations or prosecutions, potentially due to a total or substantial collapse or unavailability of its national judicial system.
■ Jurisdictional Parameters and State Engagement
Article 12 of the Rome Statute delineates the Court's jurisdictional reach, extending to crimes committed either on the territory of State Parties or by their nationals. States may accept this jurisdiction through multiple pathways:
- full ratification of the Rome Statute;
- special declarations under Article 13;
- or with specific limitations - notably the Article 124 provision allowing seven-year exemptions for war crimes jurisdiction.
🠟🠟 International Criminal Procedure 🠟🠟
The International Criminal Court (ICC) has developed a sophisticated procedural system that synthesizes elements from major legal traditions while addressing the unique challenges of prosecuting mass atrocities. This framework governs all stages from preliminary investigations through final appeals, balancing competing interests of justice, efficiency, and fairness. This procedure has a number of principles that need be respected.
• Principles of International Criminal Law
International criminal jurisdictions are bound to uphold fundamental fair trial rights, though their application differs from domestic systems. These rights derive from three primary sources: tribunal statutes and rules, customary international law, and general principles of law recognised globally. While international courts are not parties to human rights treaties, they apply these standards, with the UN International Covenant on Civil and Political Rights serving as a particularly influential model.
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Judicial Independence and Impartiality
The right to an independent and impartial tribunal presents challenges for international courts. Their establishment by political bodies like the UN Security Council and dependence on State cooperation for evidence and arrests have raised concerns. However, jurisprudence confirms their functional independence, as demonstrated when tribunals have ruled on the legality of their own creation.
The impartiality standard requires judges to be free from actual bias or any appearance of bias that would cause a reasonable observer to doubt their neutrality. The ICC's fixed judicial terms and prosecutorial independence provisions strengthen these guarantees.
The impartiality standard requires judges to be free from actual bias or any appearance of bias that would cause a reasonable observer to doubt their neutrality. The ICC's fixed judicial terms and prosecutorial independence provisions strengthen these guarantees.
Presumption of Innocence
This right extends throughout proceedings, including the investigative phase. It entails several concrete protections:
- The right to remain silent without adverse inferences;
- The prosecution's exclusive burden to prove guilt beyond reasonable doubt;
- Prohibition against compelled self-incrimination;
- Automatic entry of not guilty pleas when defendants decline to plead.
Fair and Expeditious Proceedings
While public hearings are the norm, exceptions exist for witness protection and national security concerns. The equality of arms principle requires that defendants have meaningful opportunities to:
• Access prosecution evidence;
• Prepare an adequate defence;
• Examine witnesses;
• Present their case.
However, the quality of arms does not mandate resource parity between defence and prosecution.
Lengthy proceedings remain an ongoing challenge, attributable to case complexity, evidentiary challenges, and the need to balance thoroughness with efficiency.
• Access prosecution evidence;
• Prepare an adequate defence;
• Examine witnesses;
• Present their case.
However, the quality of arms does not mandate resource parity between defence and prosecution.
Lengthy proceedings remain an ongoing challenge, attributable to case complexity, evidentiary challenges, and the need to balance thoroughness with efficiency.
Principle of Non-Retroactivity
The prohibition against retroactive criminal law, enshrined in both domestic and international law, requires that a conduct cannot be punished unless it was clearly criminal at the time of commission.
However, a fundamental exception to the prohibition on retroactive prosecution exists for crimes that were already recognised under customary international law at the time they were committed (e.g., genocide, crimes against humanity, war crimes). This exception acknowledges that certain acts were universally condemned as criminal even before their formal codification in treaties or statutes.
However, a fundamental exception to the prohibition on retroactive prosecution exists for crimes that were already recognised under customary international law at the time they were committed (e.g., genocide, crimes against humanity, war crimes). This exception acknowledges that certain acts were universally condemned as criminal even before their formal codification in treaties or statutes.
Principle of ne bis in idem (or double jeopardy)
The ne bis in idem principle, prohibiting multiple prosecutions for the same offence, represents a fundamental protection in criminal justice systems. While universally recognised within domestic legal orders, its cross-border application remains inconsistent, due to the absence of an established customary rule governing the international application of ne bis in idem.
While some regional systems like the European Union are developing mechanisms to prioritise national jurisdictions, no universal framework exists to resolve conflicts between national prosecutions. This gap becomes particularly problematic for international crimes, where multiple States may proclaim jurisdiction. Limited recognition of foreign judgments means that individuals may face successive prosecutions in different countries for substantially the same conduct, with only some legal systems crediting time served abroad.
The International Criminal Court has a complementary jurisdiction, barring subsequent national prosecutions for the same crimes tried by the ICC, but not necessarily domestic offences arising from identical conduct. This approach attempts to balance finality with the need to prevent impunity through national proceedings. However, its provisions allowing parallel domestic prosecutions for ordinary crimes create potential loopholes that could undermine the principle's protective purpose.
While some regional systems like the European Union are developing mechanisms to prioritise national jurisdictions, no universal framework exists to resolve conflicts between national prosecutions. This gap becomes particularly problematic for international crimes, where multiple States may proclaim jurisdiction. Limited recognition of foreign judgments means that individuals may face successive prosecutions in different countries for substantially the same conduct, with only some legal systems crediting time served abroad.
The International Criminal Court has a complementary jurisdiction, barring subsequent national prosecutions for the same crimes tried by the ICC, but not necessarily domestic offences arising from identical conduct. This approach attempts to balance finality with the need to prevent impunity through national proceedings. However, its provisions allowing parallel domestic prosecutions for ordinary crimes create potential loopholes that could undermine the principle's protective purpose.
• Phases of the International Criminal Procedure
The prosecution of international crimes follows a defined procedural trajectory, balancing judicial efficiency with the rights of defendants and victims. Focusing on the Criminal Procedure of the ICC, this section analyses the procedural phases of the criminal procedure at the ICC, immunities and substantive elements (mens rea, liability doctrines).
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Preliminary Examination
International criminal cases begin with preliminary examinations, where the Office of the Prosecutor conducts a comprehensive assessment of three key elements:
The ICC retains authority to self-determine jurisdiction, a safeguard for judicial independence. Challenges to jurisdiction or admissibility - raised by accused persons, States, or other stakeholders - must be presented early to avoid procedural delays. The Court balances these challenges with the need for investigative progress, allowing the Prosecutor to continue limited inquiries pending resolution.
- Jurisdictional foundations;
- Admissibility requirements (including complementarity and gravity); and
- Broader justice considerations.
The ICC retains authority to self-determine jurisdiction, a safeguard for judicial independence. Challenges to jurisdiction or admissibility - raised by accused persons, States, or other stakeholders - must be presented early to avoid procedural delays. The Court balances these challenges with the need for investigative progress, allowing the Prosecutor to continue limited inquiries pending resolution.
INVESTIGATION
The ICC's investigative process follows a structured yet flexible framework that blends adversarial and inquisitorial elements to address the unique challenges of international crimes.
The Prosecutor's investigative authority originates through three pathways:
The Prosecutor's investigative authority originates through three pathways:
- UN State Party referrals or UN Security Council referrals, which grants immediate investigate authority (subject to Pre-Trial Chamber review for non-investigation decisions);
- Security Council referrals, granting immediate authority to investigate;
- Independent action of the Prosecutor (proprio motu), requiring Pre-Trial Chamber authorisation.
- Jurisdictional assessment (subject-matter, temporal, and territorial competence);
- Admissibility review (complementarity and gravity thresholds);
- Practical considerations (resource availability, political constraints, and potential impact on victims).
Investigative Methodology
International investigations employ specialised techniques to document large-scale crimes:
A defining feature of ICC investigations is the principle of objectivity, requiring equal consideration of exculpatory and inculpatory evidence. Judicial oversight mechanisms, particularly the ICC's Pre-Trial Chamber system, provide continuous supervision of investigative measures while respecting prosecutorial independence. The confirmation of charges process serves as a critical evidentiary filter before trial.
International investigations employ specialised techniques to document large-scale crimes:
- Forensic investigations (e.g., exhumations, crime scene documentation);
- Open-source intelligence (e.g., satellite imagery);
- Witness and victim testimonies (e.g., interviews with trauma-informed approaches);
- Financial and digital evidence (following money trails, communications records).
A defining feature of ICC investigations is the principle of objectivity, requiring equal consideration of exculpatory and inculpatory evidence. Judicial oversight mechanisms, particularly the ICC's Pre-Trial Chamber system, provide continuous supervision of investigative measures while respecting prosecutorial independence. The confirmation of charges process serves as a critical evidentiary filter before trial.
Pre-Trial Phase
Prosecution Case Preparation
The prosecution finalises its case during pre-trial by drafting indictments that must clearly articulate charges and supporting material facts while fulfilling disclosure obligations to share all evidence with the defence, including potentially exculpatory material.
The indictment must include sufficiently detailed material facts to inform the accused of the charges and enable a proper defence, with the required level of specificity depending on the alleged criminal conduct.
The prosecution finalises its case during pre-trial by drafting indictments that must clearly articulate charges and supporting material facts while fulfilling disclosure obligations to share all evidence with the defence, including potentially exculpatory material.
The indictment must include sufficiently detailed material facts to inform the accused of the charges and enable a proper defence, with the required level of specificity depending on the alleged criminal conduct.
Indictment Requirements and Scope
The indictment defines the trial's scope, meaning convictions cannot exceed the charged facts. The ICC allows Chambers to modify legal characterizations (iura novit curia), reducing reliance on overly technical indictments. International crimes often overlap, raising complex questions about cumulative convictions and alternative charges that the ICC continues to address through evolving jurisprudence.
The indictment defines the trial's scope, meaning convictions cannot exceed the charged facts. The ICC allows Chambers to modify legal characterizations (iura novit curia), reducing reliance on overly technical indictments. International crimes often overlap, raising complex questions about cumulative convictions and alternative charges that the ICC continues to address through evolving jurisprudence.
Pre-Trial Coercive Measures and Detention
International courts depend on State cooperation for executing pre-trial coercive measures.
The ICC system establishes strict safeguards including judicial review before arrest warrant issuance, alternative summons procedures, periodic detention reviews, and compensation for wrongful detention. Jurisprudence recognizes inherent judicial power to review detention legality while balancing individual rights against prosecutorial imperatives.
International courts depend on State cooperation for executing pre-trial coercive measures.
The ICC system establishes strict safeguards including judicial review before arrest warrant issuance, alternative summons procedures, periodic detention reviews, and compensation for wrongful detention. Jurisprudence recognizes inherent judicial power to review detention legality while balancing individual rights against prosecutorial imperatives.
Initial Proceedings
The first appearance hearing serves as a fundamental safeguard to ensure the accused understands the charges and rights. The ICC uses this stage to schedule confirmation hearings while verifying defendant rights, reflecting its more measured charging process.
The judicial confirmation of charges requires the Pre-Trial Chamber to find "substantial grounds to believe" in the accused's guilt through an adversarial hearing that prevents unfounded prosecutions.
The first appearance hearing serves as a fundamental safeguard to ensure the accused understands the charges and rights. The ICC uses this stage to schedule confirmation hearings while verifying defendant rights, reflecting its more measured charging process.
The judicial confirmation of charges requires the Pre-Trial Chamber to find "substantial grounds to believe" in the accused's guilt through an adversarial hearing that prevents unfounded prosecutions.
Evidentiary Framework and Procedures
The ICC employs a flexible evidentiary approach prioritising reliability over technical rules, with professional judges evaluate all relevant evidence while excluding improperly obtained material.
Special protections apply in sexual violence cases, and while written evidence is increasingly used, oral testimony remains preferred when feasible.
Guilty pleas are treated cautiously as evidentiary elements subject to judicial verification, with plea bargaining mechanisms requiring careful safeguards.
The ICC employs a flexible evidentiary approach prioritising reliability over technical rules, with professional judges evaluate all relevant evidence while excluding improperly obtained material.
Special protections apply in sexual violence cases, and while written evidence is increasingly used, oral testimony remains preferred when feasible.
Guilty pleas are treated cautiously as evidentiary elements subject to judicial verification, with plea bargaining mechanisms requiring careful safeguards.
Trial Phase
The ICC employs a hybrid procedural framework that combines adversarial and inquisitorial elements to ensure both fairness and efficiency in its proceedings.
Proceedings typically follow a structured yet flexible sequence:
The ICC has developed specialised techniques to protect vulnerable witnesses while maintaining the accused’s fair trial rights, including anonymous testimony, voice distortion and testimony via video link.
The ICC prohibits trials in absentia for main proceedings, requiring the accused's presence. While confirmation hearings may proceed without the accused, substantive trials cannot, reflecting the paramount importance of direct confrontation rights.
Proceedings typically follow a structured yet flexible sequence:
- Opening statements from prosecution and defence;
- Presentation of evidence (witness testimony, documents);
- Closing arguments;
- Judicial deliberations; and
- Final judgment.
The ICC has developed specialised techniques to protect vulnerable witnesses while maintaining the accused’s fair trial rights, including anonymous testimony, voice distortion and testimony via video link.
The ICC prohibits trials in absentia for main proceedings, requiring the accused's presence. While confirmation hearings may proceed without the accused, substantive trials cannot, reflecting the paramount importance of direct confrontation rights.
Immunities
Immunity serves as a fundamental principle of international law, designed to facilitate diplomatic engagement and prevent conflicts by guaranteeing safe passage and non-interference for official representatives of foreign jurisdictions.
Personal Immunity (immunity ratione personae)
Personal immunity provides complete jurisdictional to a limited category of high-ranking officials, such as heads of State, heads of government, and foreign ministers. It applies to all acts, whether public or private, and endures only during the official’s term in office. Its purpose is not to protect the individual per se, but to enable unimpeded international relations.
Once the official leaves office, only functional immunity remains for their prior official acts. Personal immunity cannot be claimed for private acts committed before, during, or after the term of office once it ends.
Functional Immunity (immunity ratione materiae)
Functional immunity protects official acts performed on behalf of a State, regardless of the individual’s rank. It is grounded in the principle that a State cannot sit in judgment over the sovereign acts of another. This protection persists even after the individual leaves office, since the protection attaches to the act, not the person.
However, this immunity is not absolute. Courts may examine whether the conduct in question genuinely qualifies as an official act. Activities of a private or criminal nature, even if committed by a public official, do not fall under this protection.
The Pinochet case established that functional immunity does not shield former officials from prosecution for acts like torture that violate jus cogens norms.
Special Categories of Immunity
The Vienna Convention on Diplomatic Relations (1961) establishes the most comprehensive framework for diplomatic immunity, granting personal inviolability and criminal jurisdiction immunity to accredited diplomats. Similar protections extend to consular officials and special mission envoys, though typically with more limited scope.
After a diplomat’s mission ends, functional immunity remains for official acts. Serious crimes committed in a personal capacity can be prosecuted if immunity is waived or once the person returns to private life.
Immunities before the ICC
The Rome Statute of the ICC fundamentally altered the immunity protections in international criminal law. Article 27 explicitly nullifies both personal and functional immunities for officials of State parties, affirming that official position cannot bar prosecution for international crimes. However, Article 98(1) preserves immunity protections for officials of non-party states unless waived or overridden by Security Council referral. This framework creates a dual regime where immunities remain viable for some officials while being waived for others.
Modern jurisprudence reveals the ongoing tensions between immunity doctrines and accountability for international crimes. The ICJ’s Arrest Warrant decision (2002) upheld personal immunity for sitting officials, while subsequent rulings—such as those addressing torture or genocide—have narrowed functional immunity’s scope. The courts continue to grapple with reconciling immunity protections with the imperative to prosecute grave violations of international law, particularly when jus cogens norms are implicated.
Immunity serves as a fundamental principle of international law, designed to facilitate diplomatic engagement and prevent conflicts by guaranteeing safe passage and non-interference for official representatives of foreign jurisdictions.
Personal Immunity (immunity ratione personae)
Personal immunity provides complete jurisdictional to a limited category of high-ranking officials, such as heads of State, heads of government, and foreign ministers. It applies to all acts, whether public or private, and endures only during the official’s term in office. Its purpose is not to protect the individual per se, but to enable unimpeded international relations.
Once the official leaves office, only functional immunity remains for their prior official acts. Personal immunity cannot be claimed for private acts committed before, during, or after the term of office once it ends.
Functional Immunity (immunity ratione materiae)
Functional immunity protects official acts performed on behalf of a State, regardless of the individual’s rank. It is grounded in the principle that a State cannot sit in judgment over the sovereign acts of another. This protection persists even after the individual leaves office, since the protection attaches to the act, not the person.
However, this immunity is not absolute. Courts may examine whether the conduct in question genuinely qualifies as an official act. Activities of a private or criminal nature, even if committed by a public official, do not fall under this protection.
The Pinochet case established that functional immunity does not shield former officials from prosecution for acts like torture that violate jus cogens norms.
Special Categories of Immunity
The Vienna Convention on Diplomatic Relations (1961) establishes the most comprehensive framework for diplomatic immunity, granting personal inviolability and criminal jurisdiction immunity to accredited diplomats. Similar protections extend to consular officials and special mission envoys, though typically with more limited scope.
After a diplomat’s mission ends, functional immunity remains for official acts. Serious crimes committed in a personal capacity can be prosecuted if immunity is waived or once the person returns to private life.
Immunities before the ICC
The Rome Statute of the ICC fundamentally altered the immunity protections in international criminal law. Article 27 explicitly nullifies both personal and functional immunities for officials of State parties, affirming that official position cannot bar prosecution for international crimes. However, Article 98(1) preserves immunity protections for officials of non-party states unless waived or overridden by Security Council referral. This framework creates a dual regime where immunities remain viable for some officials while being waived for others.
Modern jurisprudence reveals the ongoing tensions between immunity doctrines and accountability for international crimes. The ICJ’s Arrest Warrant decision (2002) upheld personal immunity for sitting officials, while subsequent rulings—such as those addressing torture or genocide—have narrowed functional immunity’s scope. The courts continue to grapple with reconciling immunity protections with the imperative to prosecute grave violations of international law, particularly when jus cogens norms are implicated.
Mental Elements of the Crime (mens rea)
There are various forms of mental element that apply to international crimes, from intention, through recklessness to (arguably) negligence. Different offences, and different forms of liability require different forms of mens rea.
The ICC Statute's Article 30 establishes the following:
There are various forms of mental element that apply to international crimes, from intention, through recklessness to (arguably) negligence. Different offences, and different forms of liability require different forms of mens rea.
The ICC Statute's Article 30 establishes the following:
- Unless otherwise provided, a person shall be criminally responsible and liable for punishment for a crime within the jurisdiction of the Court only if the material elements are committed with intent and knowledge.
- For the purposes of this article, a person has intent where:
- In relation to conduct, that person means to engage in the conduct;
- In relation to a consequence, that person means to cause that consequence or is aware that it will occur in the ordinary course of events.
- For the purposes of this Article, ‘knowledge’ means awareness that a circumstance exists or a consequence will occur in the ordinary course of events. ‘Know’ and ‘knowingly’ shall be construed accordingly.
Modes of liability
Perpetration / Commission
The principle of individual criminal responsibility for directly committing crimes forms the foundation of international criminal justice.
This mode of liability encompasses several key dimensions:
Co-perpetration
Co-perpetration refers to the joint commission of a crime by two or more individuals who share control over its execution.
The ICC’s jurisprudence emphasises that co-perpetrators must:
The ICC recognises two forms of co-perpetration:
Joint Criminal Enterprise (JCE)
Joint Criminal Enterprise addresses the collective nature of mass atrocities by holding participants responsible for crimes committed as part of a common plan.
The Appeals Chamber of the ICTY, in the Tadić case (1999), determined that there was a customary basis for JCE in three distinct categories:
Aiding and abetting
This form of liability holds accountable those who knowingly assist crimes without being direct perpetrators.
The physical element requires substantial assistance to a specific crime through acts (e.g., providing weapons) or omissions (when there's a duty to act). The mental element demands knowledge that one's conduct supports criminal acts.
Ordering Crimes
International law recognises liability for those in positions of authority who order the commission of crimes. This requires three elements:
Instigation and Incitement
Instigation occurs when an individual prompts, encourages, or influences another to commit a crime through direct or indirect means, requiring a casual link to the crime. The mental element for instigation requires awareness of the substantial likelihood that crimes would result from one's actions.
Unlike instigation (which depends on the actual commission or the underlying crime), incitement to genocide constitutes a standalone offense under Article III(c) of the Genocide Convention, requiring specific intent to destroy a protected group. This higher threshold reflects the gravity of genocide as the "crime of crimes" under international law.
Planning and Preparation
Planning constitutes a distinct form of liability when individuals actively design or organise the commission of international crimes that are subsequently executed.
Attempt liability under the Rome Statute requires substantial steps toward crime completion that ultimately fail due to external circumstances, excluding voluntary abandonment.
Command/Superior Responsibility
Command/superior responsibility imposes liability on superiors for subordinates’ crimes when:
Perpetration / Commission
The principle of individual criminal responsibility for directly committing crimes forms the foundation of international criminal justice.
This mode of liability encompasses several key dimensions:
- Direct physical commission of the crime;
- Liability extends to omissions when a legal duty to act exists;
Co-perpetration
Co-perpetration refers to the joint commission of a crime by two or more individuals who share control over its execution.
The ICC’s jurisprudence emphasises that co-perpetrators must:
- Share a common plan to commit the crime;
- Make essential contributions to its execution;
- Possess the ability to frustrate the crime’s commission by withholding their participation.
The ICC recognises two forms of co-perpetration:
- Direct co-perpetration: Applies when individuals jointly execute the crime through their own actions (e.g., leaders coordinating a massacre);
- Indirect co-perpetration: Involves hierarchical structures where high-ranking officials use subordinates to carry out crimes (e.g., military commanders deploying troops to commit atrocities).
Joint Criminal Enterprise (JCE)
Joint Criminal Enterprise addresses the collective nature of mass atrocities by holding participants responsible for crimes committed as part of a common plan.
The Appeals Chamber of the ICTY, in the Tadić case (1999), determined that there was a customary basis for JCE in three distinct categories:
- Basic JCE applies when all members share intent to commit the core crime;
- Systemic JCE covers institutionalised criminal systems like concentration camps, requiring knowledge of the system and intent to further it;
- Extended JCE imposes liability for foreseeable crimes outside the original plan, provided the accused willingly took the risk.
Aiding and abetting
This form of liability holds accountable those who knowingly assist crimes without being direct perpetrators.
The physical element requires substantial assistance to a specific crime through acts (e.g., providing weapons) or omissions (when there's a duty to act). The mental element demands knowledge that one's conduct supports criminal acts.
Ordering Crimes
International law recognises liability for those in positions of authority who order the commission of crimes. This requires three elements:
- A superior/subordinate relationship (whether formal or de facto);
- The transmission of an order (which may be proven through circumstantial evidence); and
- The mental state of being aware there was a substantial likelihood crimes would result.
Instigation and Incitement
Instigation occurs when an individual prompts, encourages, or influences another to commit a crime through direct or indirect means, requiring a casual link to the crime. The mental element for instigation requires awareness of the substantial likelihood that crimes would result from one's actions.
Unlike instigation (which depends on the actual commission or the underlying crime), incitement to genocide constitutes a standalone offense under Article III(c) of the Genocide Convention, requiring specific intent to destroy a protected group. This higher threshold reflects the gravity of genocide as the "crime of crimes" under international law.
Planning and Preparation
Planning constitutes a distinct form of liability when individuals actively design or organise the commission of international crimes that are subsequently executed.
Attempt liability under the Rome Statute requires substantial steps toward crime completion that ultimately fail due to external circumstances, excluding voluntary abandonment.
Command/Superior Responsibility
Command/superior responsibility imposes liability on superiors for subordinates’ crimes when:
- An effective command relationship existed;
- The superior knew or should have known of the crimes committed; and
- They failed to take reasonable preventive or punitive measures.
Sentencing
International criminal tribunals operate without rigid sentencing guidelines, granting judges substantial discretion while requiring consistency in application.
The sentencing process rests on two pillars:
The sentencing process rests on two pillars:
- The objective gravity of the crimes committed; and
- The subjective culpability of the convicted individual.
Determinants of Sentence Severity
The ICC employs a multi-factor analysis when determining appropriate sentences, in a case-by-case approach. The sentencing process evaluates both objective crime characteristics (e.g., nature of the offence, scale of criminal conduct, victim vulnerability and number of affected persons) and the subjective perpetrator circumstances (e.g., level of participation, motives including ethnic, religious or political discrimination).
The principle of proportionality guides this analysis, requiring careful calibration between the gravity of crimes and individual culpability.
The ICC employs a multi-factor analysis when determining appropriate sentences, in a case-by-case approach. The sentencing process evaluates both objective crime characteristics (e.g., nature of the offence, scale of criminal conduct, victim vulnerability and number of affected persons) and the subjective perpetrator circumstances (e.g., level of participation, motives including ethnic, religious or political discrimination).
The principle of proportionality guides this analysis, requiring careful calibration between the gravity of crimes and individual culpability.
Aggravating and Mitigating Circumstances
Aggravating circumstances that typically enhance sentences include particularly heinous methods, abuse of official position, targeting of vulnerable groups, large-scale victimization, and demonstrated lack of remorse.
Mitigating factors that may reduce sentences comprise substantial cooperation with prosecutors, genuine remorse, voluntary surrender, previous good character, and exceptional personal circumstances.
The balancing of these factors remains a discretionary judicial function aimed at achieving individualized justice.
Aggravating circumstances that typically enhance sentences include particularly heinous methods, abuse of official position, targeting of vulnerable groups, large-scale victimization, and demonstrated lack of remorse.
Mitigating factors that may reduce sentences comprise substantial cooperation with prosecutors, genuine remorse, voluntary surrender, previous good character, and exceptional personal circumstances.
The balancing of these factors remains a discretionary judicial function aimed at achieving individualized justice.
Reparations to Victims
The ICC's reparations system represents a groundbreaking development in international justice, moving beyond purely retributive approaches. The Court may order various forms of redress including:
Key features include case-specific determination of reparations principles, separate post-conviction proceedings, and appellate review mechanisms. The system faces ongoing challenges in developing consistent standards for harm valuation and coordinating with national compensation programs while maintaining realistic expectations about the Court's restorative capacities.
The ICC's reparations system represents a groundbreaking development in international justice, moving beyond purely retributive approaches. The Court may order various forms of redress including:
- Restitution: Returning victims to their original situation before the crimes occurred;
- Compensation: Monetary awards for quantifiable losses;
- Rehabilitation: Psychological, medical and social support services.
Key features include case-specific determination of reparations principles, separate post-conviction proceedings, and appellate review mechanisms. The system faces ongoing challenges in developing consistent standards for harm valuation and coordinating with national compensation programs while maintaining realistic expectations about the Court's restorative capacities.
Sentencing Procedures
The ICC employs flexible sentencing procedures adapted to case complexities. The framework permits bifurcated proceedings when requested, allowing separate consideration of guilt and sentencing. Admissions of guilt may lead directly to sentencing determinations, subject to judicial verification.
Appellate review includes substantive proportionality assessment, examining whether sentences properly reflect the convicted conduct. This review respects trial chambers' primary fact-finding role while ensuring consistency in sentencing outcomes.
The ICC employs flexible sentencing procedures adapted to case complexities. The framework permits bifurcated proceedings when requested, allowing separate consideration of guilt and sentencing. Admissions of guilt may lead directly to sentencing determinations, subject to judicial verification.
Appellate review includes substantive proportionality assessment, examining whether sentences properly reflect the convicted conduct. This review respects trial chambers' primary fact-finding role while ensuring consistency in sentencing outcomes.
Post-Conviction Review
The Rome Statute establishes an automatic sentence review system with mandatory reassessment points. For determinate sentences, review occurs at two-thirds completion; for life imprisonment, after twenty-five years. Subsequent periodic reviews follow if initial reduction requests are denied.
Review criteria emphasize demonstrated rehabilitation, cooperation with authorities, and humanitarian considerations. The original sentencing court retains authority over modifications, ensuring consistent application of standards. Procedural safeguards include victim participation rights and reasoned decision requirements, balancing finality with recognition of changed circumstances.
The Rome Statute establishes an automatic sentence review system with mandatory reassessment points. For determinate sentences, review occurs at two-thirds completion; for life imprisonment, after twenty-five years. Subsequent periodic reviews follow if initial reduction requests are denied.
Review criteria emphasize demonstrated rehabilitation, cooperation with authorities, and humanitarian considerations. The original sentencing court retains authority over modifications, ensuring consistent application of standards. Procedural safeguards include victim participation rights and reasoned decision requirements, balancing finality with recognition of changed circumstances.
Appeals
The ICC provides comprehensive appellate review mechanisms that prioritize substantive justice over procedural finality.
The Appellate Chambers possess broad remedial powers - they may affirm, reverse, or modify judgments, or order retrials before new panels. Notably, the ICC incorporates the civil law principle of reformatio in peius, prohibiting unfavourable modifications when only the defendant appeals, while the ad hoc tribunals have developed similar protections through jurisprudence.
The Appellate Chambers possess broad remedial powers - they may affirm, reverse, or modify judgments, or order retrials before new panels. Notably, the ICC incorporates the civil law principle of reformatio in peius, prohibiting unfavourable modifications when only the defendant appeals, while the ad hoc tribunals have developed similar protections through jurisprudence.
Standards of Appellate Review
Appellate review operates primarily as a corrective rather than de novo process, with stringent thresholds for intervention. The ICC permits appeals for any procedural or substantive error affecting the verdict's integrity, granting its appellate chamber significant authority that includes limited fact-finding powers.
Appellate review operates primarily as a corrective rather than de novo process, with stringent thresholds for intervention. The ICC permits appeals for any procedural or substantive error affecting the verdict's integrity, granting its appellate chamber significant authority that includes limited fact-finding powers.
Interlocutory Appeals
Pre-trial appeals are tightly circumscribed to balance due process against efficiency. Only certain fundamental issues - like jurisdiction or admissibility - qualify as of right. Other decisions require leave showing that immediate resolution would materially advance proceedings. The Court generally defers to trial chambers' discretionary rulings, intervening only for clear abuses that threaten substantial justice. This restrained approach prevents fragmentation of trials through excessive interim appeals.
Pre-trial appeals are tightly circumscribed to balance due process against efficiency. Only certain fundamental issues - like jurisdiction or admissibility - qualify as of right. Other decisions require leave showing that immediate resolution would materially advance proceedings. The Court generally defers to trial chambers' discretionary rulings, intervening only for clear abuses that threaten substantial justice. This restrained approach prevents fragmentation of trials through excessive interim appeals.
Extraordinary Review Mechanism
The ICC provides for exceptional revision procedures when new evidence emerges that likely would have changed the original outcome. It requires showing that the new facts were previously undiscoverable despite due diligence, though reserve authority to prevent manifest injustices.
It also uniquely allows revision for procedural irregularities involving tainted evidence or judicial misconduct.
The ICC provides for exceptional revision procedures when new evidence emerges that likely would have changed the original outcome. It requires showing that the new facts were previously undiscoverable despite due diligence, though reserve authority to prevent manifest injustices.
It also uniquely allows revision for procedural irregularities involving tainted evidence or judicial misconduct.
Intersectional Approaches in
International Criminal Law 🠟🠟
The most effective universal jurisdiction cases should integrate victim-centred, culturally-sensitive and gender-based approaches throughout the justice process. These three frameworks work synergistically to address critical shortcomings in traditional legal processes when handling crimes that transcend borders and cultures.
This integrated approach transforms universal jurisdiction from a purely legal mechanism into a comprehensive justice process that is both legally rigorous and culturally legitimate. By centring victims while respecting cultural contexts, legal systems can deliver accountability that is meaningful to those most affected by international crimes.
This integrated approach transforms universal jurisdiction from a purely legal mechanism into a comprehensive justice process that is both legally rigorous and culturally legitimate. By centring victims while respecting cultural contexts, legal systems can deliver accountability that is meaningful to those most affected by international crimes.
Approaches
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International crimes inflict profound trauma on victims and communities, often leaving survivors without meaningful recourse in their home countries. A victim-centred approach recognizes victims as rights-holders rather than mere witnesses, ensuring their meaningful participation in proceedings while providing protection and comprehensive reparations.
Key elements include:
Key elements include:
- Recognition: Acknowledging victims as rights-holders, not just witnesses;
- Participation: Ensuring victims have meaningful opportunities to engage in proceedings;
- Protection: Safeguarding victims from re-traumatisation and retaliation;
- Reparation: Providing access to compensation, restitution, and rehabilitation.
Good Practices
To effectively implement a victim-centred approach in universal jurisdiction cases, legal practitioners should:
To effectively implement a victim-centred approach in universal jurisdiction cases, legal practitioners should:
- Adopt trauma-informed techniques (e.g., collaborate with psychologists to support vulnerable witnesses);
- Ensure victim participation in the proceedings (e.g., allow victims to submit impact statements in sentencing phases, facilitate their involvement in restorative justice processes where appropriate);
- Leverage technology (e.g., use secure video testimony for witnesses in conflict zones, use video and voice distortion tools for testimonies);
- Partner with local organisations to identify and support victims;
- Advocate for reparations and ensure victims receive medical, psychological, and financial support.
Universal jurisdiction cases present unique challenges when prosecuting international crimes across cultural boundaries. These cases often involve victims, witnesses, and defendants from diverse cultural backgrounds, where misunderstandings can compromise the fairness and effectiveness of judicial processes. A culturally sensitive approach addresses these challenges by fundamentally integrating cultural awareness throughout all stages of judicial processes.
Good Practices
Effective implementation requires specific adaptations at each procedural stage:
Effective implementation requires specific adaptations at each procedural stage:
- During the investigation phase:
- Conduct cultural mapping exercises before evidence collection;
- Engage local anthropologists as investigative consultants;
- Adapt interview techniques to cultural communication norms.
- During the trial phase:
- Incorporate cultural experts to explain contextual factors;
- Allow alternative testimony formats respecting cultural norms;
- Provide culturally-appropriate court facilities and scheduling.
- For reparations:
- Combine material compensation with symbolic measures;
- Involve community leaders in reparations design;
- Support traditional healing practices alongside Western therapies.
Effective justice requires recognizing how gender and intersecting identities shape experiences of victimization. Women, girls, and LGBTQ+ individuals often face unique forms of harm, including sexual violence and systemic marginalization. An intersectional lens acknowledges compounded discrimination based on race, ethnicity, class, and displacement status.
Good Practices
Effective strategies include:
Effective strategies include:
- Specialised Investigative Protocols: Ensuring sexual and gender-based violence cases are handled by trained professionals using trauma-informed, non-stigmatising methods;
- Inclusive Participation: Facilitating testimony through gender-sensitive procedures, such as female interviewers for survivors of sexual violence or private hearings to reduce social stigma;
- Targeted Reparations: Addressing gendered harms through measures like psychosocial support for survivors, economic empowerment programs, and public acknowledgment of gendered crimes.
Glossary 🠟🠟
Consult the official document here!
|
National Legal Frameworks 🠟🠟
Consult the official document here!
|
Useful Links 🠟🠟
Victim support organisations
in the NO-OBLIVION countries
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Bosnia and Herzegovina
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Useful Links
Amnesty International, Universal jurisdiction: Strengthening this essential tool of international justice -https://www.amnesty.org/en/documents/ior53/020/2012/en/
European Center for Constitutional and Human Rights - https://www.ecchr.eu/fileadmin/user_upload/20241213_List_of_resources_for_UJ_videos.pdf
Universal Jurisdiction in Practice - https://www.ecchr.eu/en/case/universal-jurisdiction-in-practice/
Human Rights Watch, Basic Facts on Universal Jurisdiction - https://www.hrw.org/news/2009/10/19/basic-facts-universal-jurisdiction
International Committee of the Red Cross (ICRC), technical documents - https://www.icrc.org/en/geneva-conventions-and-law
International Criminal Court - https://www.icc-cpi.int/
International Criminal Tribunal for the Former Yugoslavia - https://www.icty.org/
International Criminal Tribunal for Rwanda - https://unictr.irmct.org/
TRIAL International - https://trialinternational.org/
Universal Jurisdiction Interactive Map - https://trialinternational.org/resources/universal-jurisdiction-tools/universal-jurisdiction-interactive-map/
Universal Jurisdiction Annual Review - https://trialinternational.org/resources/universal-jurisdiction-tools/universal-jurisdiction-annual-review-ujar/
Universal Jurisdiction Briefing Papers - https://trialinternational.org/universal-jurisdiction-tools/universal-jurisdiction-law-and-practice-briefing-papers/
European Center for Constitutional and Human Rights - https://www.ecchr.eu/fileadmin/user_upload/20241213_List_of_resources_for_UJ_videos.pdf
Universal Jurisdiction in Practice - https://www.ecchr.eu/en/case/universal-jurisdiction-in-practice/
Human Rights Watch, Basic Facts on Universal Jurisdiction - https://www.hrw.org/news/2009/10/19/basic-facts-universal-jurisdiction
International Committee of the Red Cross (ICRC), technical documents - https://www.icrc.org/en/geneva-conventions-and-law
International Criminal Court - https://www.icc-cpi.int/
International Criminal Tribunal for the Former Yugoslavia - https://www.icty.org/
International Criminal Tribunal for Rwanda - https://unictr.irmct.org/
TRIAL International - https://trialinternational.org/
Universal Jurisdiction Interactive Map - https://trialinternational.org/resources/universal-jurisdiction-tools/universal-jurisdiction-interactive-map/
Universal Jurisdiction Annual Review - https://trialinternational.org/resources/universal-jurisdiction-tools/universal-jurisdiction-annual-review-ujar/
Universal Jurisdiction Briefing Papers - https://trialinternational.org/universal-jurisdiction-tools/universal-jurisdiction-law-and-practice-briefing-papers/
References 🠟🠟
Akpotue, I. (2021, December). The Role of Domestic Court and International Criminal Court in Investigating and Prosecuting International Crimes: The Principle of Complementarity. https://ssrn.com/abstract=4024270
Cryer, R., Robinson, D., & Vasiliev, S. (2019). An Introduction to International Criminal Law and Procedure (4th ed.). Cambridge: Cambridge University Press.
Justice Beyond Borders. Glossary. https://justicebeyondborders.com/page/glossary/
Hague Institute for the Internacionalisation of Law. (2011, October). General Rules and principles of International Criminal Procedure and Recommendations of Expert Framework. https://www.legal-tools.org/doc/ee4de3/
Heller, K. J., Mégret, F., Nouwen, S. M. H., Ohlin, J. D., & Robinson, D. (2020). The Oxford Handbook of International Criminal Law.
International Criminal Court (2011). Elements of crimes. https://www.icc-cpi.int/sites/default/files/Publications/Elements-of-Crimes.pdf
Jackson, M. (2007). The Customary International Law duty to Prosecute Crimes Against Humanity: a new framework. https://journals.tulane.edu/jicl/article/view/3361
Kreß, C. (2006). The Crime of Genocide under International Law. International Criminal Law Review, 6(4), 461–502. https://doi.org/10.1163/157181206778992287
Letschert, R., & Van Dijk, J. (2014). Reconstructing Victim-Centered Justice on a global scale. Global Justice Series. https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2445877
Maucec, G. (2020). The Power of Culture and Judicial Decision-Making at the International Criminal Court. SSRN Electronic Journal. https://doi.org/10.2139/ssrn.3535418
Rauschenbach, M., & Scalia, D. (2008). Victims and international criminal justice: a vexed question? International Review of the Red Cross, 90(870), 441–459. https://doi.org/10.1017/s1816383108000398
Universal jurisdiction in Europe: The State of the art: III. Continuing obstacles to universal jurisdiction. (n.d.). https://www.hrw.org/reports/2006/ij0606/3.htm
Cryer, R., Robinson, D., & Vasiliev, S. (2019). An Introduction to International Criminal Law and Procedure (4th ed.). Cambridge: Cambridge University Press.
Justice Beyond Borders. Glossary. https://justicebeyondborders.com/page/glossary/
Hague Institute for the Internacionalisation of Law. (2011, October). General Rules and principles of International Criminal Procedure and Recommendations of Expert Framework. https://www.legal-tools.org/doc/ee4de3/
Heller, K. J., Mégret, F., Nouwen, S. M. H., Ohlin, J. D., & Robinson, D. (2020). The Oxford Handbook of International Criminal Law.
International Criminal Court (2011). Elements of crimes. https://www.icc-cpi.int/sites/default/files/Publications/Elements-of-Crimes.pdf
Jackson, M. (2007). The Customary International Law duty to Prosecute Crimes Against Humanity: a new framework. https://journals.tulane.edu/jicl/article/view/3361
Kreß, C. (2006). The Crime of Genocide under International Law. International Criminal Law Review, 6(4), 461–502. https://doi.org/10.1163/157181206778992287
Letschert, R., & Van Dijk, J. (2014). Reconstructing Victim-Centered Justice on a global scale. Global Justice Series. https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2445877
Maucec, G. (2020). The Power of Culture and Judicial Decision-Making at the International Criminal Court. SSRN Electronic Journal. https://doi.org/10.2139/ssrn.3535418
Rauschenbach, M., & Scalia, D. (2008). Victims and international criminal justice: a vexed question? International Review of the Red Cross, 90(870), 441–459. https://doi.org/10.1017/s1816383108000398
Universal jurisdiction in Europe: The State of the art: III. Continuing obstacles to universal jurisdiction. (n.d.). https://www.hrw.org/reports/2006/ij0606/3.htm
