Revisiting Universal Jurisdiction: The Application of the Complementarity Principle by National Courts and Implications for Ex-Post Justice in the Syrian Civil War
51 Pages Posted: 25 Jun 2019
Date Written: March 16, 2015
In this article I revisit the concept of universal jurisdiction in making a case for the application of mitigated universal jurisdiction in general and in the Syrian civil war case in particular, through the jurisdiction of sovereign states and their national courts. I argue that the international community will sooner or later demand that the perpetrators of the heinous war crimes and crimes against humanity be held accountable. However, since the jurisdiction of the International Criminal Court (ICC) will probably be impeded by the United Nations Security Council's veto, the international community might use another trajectory for prosecuting the perpetrators of the alleged crimes. One possibility is to rely on the principle of universal jurisdiction, in its mitigated form, according to which Syrian leaders can be prosecuted under the jurisdictions of foreign states.
I claim that mitigated universal jurisdiction, dependent mainly on its subordination to the principle of complementarity (also referred to as "subsidiarity" in the national legislation of some states), is still the best legal tool for doing ex-post facto justice with perpetrators of international core crimes in general and in the Syrian case in particular. This conclusion results from an analysis of the Syrian society, made in Section E of the article, according to which the chances are high that post-conflict Syrian society would have great difficulty undertaking the legal trials of perpetrators of international core crimes in good faith. Therefore, universal jurisdiction could serve as a practical tool for prosecuting those perpetrators of crimes in other states.
Keywords: Syria, international criminal law, complementarity, national courts, universal jurisdiction, civil war
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