Journal Article

Universal Jurisdiction — the Realistic Utopia

Fannie Lafontaine

in Journal of International Criminal Justice

Volume 10, issue 5, pages 1277-1302
Published in print December 2012 | ISSN: 1478-1387
Published online November 2012 | e-ISSN: 1478-1395 | DOI: http://dx.doi.org/10.1093/jicj/mqs066
Universal Jurisdiction — the Realistic Utopia

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This article addresses, in light of recent developments, two of Cassese’s proposed avenues for a sensible notion of universal jurisdiction: the requirement of the presence of the accused and the idea of subsidiarity. It argues that the debate on presence has essentially moved to the theoretical stage since most states now make it a requirement for prosecution and because the tendency is to ensure a level of political control over the decision to prosecute, which will not be forthcoming if the suspect has never entered the state’s territory. The article further argues that the exact timing of the presence (investigation, arrest warrant, trial) is irrelevant as far as international law may be concerned and belongs to domestic law or policy. The article then moves to whether subsidiarity is a principle of customary international law and highlights conceptual contradictions with the aut dedere aut judicare treaty obligations. It finally discusses the issue of who should determine and how whether the territorial or national state is able and willing to genuinely conduct the proceedings. It concludes that the existing legal regime of extradition — which it reviews — provides the necessary framework to allow such assessment, in full respect of the rationale behind the idea of subsidiarity.

Journal Article.  13804 words. 

Subjects: Criminal Law ; International Law

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