Reconciling Universal Jurisdiction with Equality Before the Law

Abstract

This Article concerns the relationship between the doctrine of universal jurisdiction and the principle of equality before the law. While inequality before the law always presents a challenge to the legitimacy of a criminal justice system, it has an especially devastating effect on universal jurisdiction’s claim to legitimacy. At the same time, the exercise of universal jurisdiction lends itself to discrimination and arbitrariness far more readily than regular domestic prosecutions.

This Article proposes a reform in the international law of universal jurisdiction that would ameliorate, as far as possible, the problem of inequality before the law in the exercise of universal jurisdiction. This reform introduces limitations on the liberty of states to “choose their battles” in the enforcement of international criminal law. The proposed reform assigns a pivotal role to the International Criminal Court (“ICC”). It sets forth a mechanism by which the ICC would designate particular states to exercise universal jurisdiction over crimes relating to a particular situation. Such designation would be a precondition for a state’s liberty to exercise universal jurisdiction. The legal regime advocated here would thus replace the existing norm of international law that allows any state to exercise universal jurisdiction over core international crimes. This Article demonstrates that the proposed designation mechanism would constitute, in and of itself, a substantial guarantee of equality before the law in the exercise of universal jurisdiction.

This Article then proceeds to propose prosecutorial guidelines that, under the proposed reform, a state would be required to apply in its exercise of universal jurisdiction. Finally, it sets forth a mechanism that would allow the ICC Prosecutor to monitor the compatibility of a state’s exercise of universal jurisdiction with the principle of equality before the law. This international oversight mechanism is tailored with a view to minimizing, as far as possible, both sovereignty and economic costs for the state exercising universal jurisdiction.

Far from limiting the reach of universal jurisdiction, the proposed reform would enhance the fight against impunity by diffusing current objections to the exercise of universal jurisdiction in absentia, thereby facilitating the assertion of such jurisdiction by states.

Keywords: universal jurisdiction, equality