Justifying Extraterritorial War Crimes Trials

22 Pages Posted: 19 Aug 2016 Last revised: 28 Nov 2017

See all articles by Margaret M. deGuzman

Margaret M. deGuzman

Temple University - James E. Beasley School of Law

Date Written: August 17, 2016

Abstract

War crimes are increasingly being adjudicated in international courts and in national courts with no territory links to the crimes under the doctrine of universal jurisdiction. Such extraterritorial trials rely for their justification on the existence of an interest in accountability that is not based on the location of the crimes or the nationalities of the perpetrators or victims. Yet proponents of extraterritorial adjudication of war crimes rarely interrogate the nature of this justifying interest. This Article identifies three central justifying rationales for extraterritorial war crimes trials in the law and literature. It demonstrates that a tension exists among these rationales that creates confusion and dissonance in the legal doctrines and policies governing such trials. Finally, it suggests that proponents of extraterritorial war crimes trials should endorse the broadest of the rationales, which best expresses the global cosmopolitan ideal embedded in the human rights and humanitarian law regimes. At the same time, it argues for more robust principles to guide the exercise of extraterritorial jurisdiction over war crimes by balancing the global and national interests at stake.

Keywords: International Criminal Law, International Justice, War Crimes, International Criminal Law Philosophy

JEL Classification: K10, K14, K33

Suggested Citation

deGuzman, Margaret M., Justifying Extraterritorial War Crimes Trials (August 17, 2016). Temple University Legal Studies Research Paper No. 2016-43. Available at SSRN: https://ssrn.com/abstract=2825294 or http://dx.doi.org/10.2139/ssrn.2825294

Margaret M. DeGuzman (Contact Author)

Temple University - James E. Beasley School of Law ( email )

1719 N. Broad Street
Philadelphia, PA 19122
United States

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