The Archipelago and the Wheel. The Universal Jurisdiction and the International Criminal Court Regimes

Universal jurisdiction prosecutions by individual states and the International Criminal Court (ICC or the Court) are the only two permanent criminal law enforcement regimes available whenever a territorial state or other state with a relevant link to a core international crime - a crime against humanity, genocide or war crime — does not prosecute the crime in question,. This chapter — written for the book 'The First Global Prosecutor: Constraints and Promise' (Martha Minow, Cora True-Frost and Alex Whiting eds., forthcoming) — proposes a theoretical framework to analyze what the relationship between these two regimes should be. The core argument for this framework is that, everything else being equal, the Court has more state-consent, political, procedural, rational, and functional legitimacy than universal jurisdiction statutes and proceedings. The ICC is more legitimate in these respects because over 120 states have explicitly accepted its jurisdiction over their territory and nationals, it has allowed wider participation in the drafting of its basic instruments and is more accountable to the international community, a larger number of world viewpoints participate in making its decisions, and it better communicates to the defendant and the world that the core international crimes affect the community of states and all human beings. This chapter will argue that the ICC is more legitimate in these respects regardless of what conception of international law and international institutions (e.g., statist, cosmopolitan democratic, natural law, global administrative law or cosmopolitan constitutionalist) one adopts. Once this theoretical framework is articulated, I will analyze three central issues in the relationship between the two regimes. First, I maintain that although the ICC has more legitimacy, universal jurisdiction still has a significant role in prosecuting core international crimes, because it can advance the goals of international criminal law, is legal under customary international law, and a substantial portion of states and of global civil society have embraced universal jurisdiction claims over core international crimes. In addition, universal jurisdiction prosecutions typically meet international due process standards and are subject to informal accountability checks that prevent their abuse. Second, I analyze what the actual relationship between the two regimes has been. This chapter will assert that since the ICC Statute was adopted or came into effect, the number of universal jurisdiction statutes probably has increased while the number of universal jurisdiction complaints has not (substantially) diminished. I also show that the overwhelming majority of these universal jurisdiction complaints have concentrated on situations that were not or have not been investigated by the ICC. For this reason, I argue that universal jurisdiction has revealed possible shortcomings in its functional legitimacy by playing a very limited role in supplementing the Court’s investigations and prosecutions. This chapter will articulate possible reasons for this lack of cooperation and suggest measures that the ICC and its Prosecutor could take to encourage universal jurisdiction prosecutions that better supplement the Court’s work. Finally, the chapter analyzes whether the ICC’s principle of complementarity — which establishes that domestic prosecutions should take precedence over ICC proceedings — should regulate the relationship between the Court and universal jurisdiction prosecutions. Contrary to most commentators, I contend that the complementarity principle should not control that relationship, because none of the rationales for that principle favor its application in this area, and because the Court has greater legitimacy than universal jurisdiction statutes and proceedings. Rather, the ICC and its Prosecutor should adopt a weak primacy principle that acknowledges the greater legitimacy of the Court while remaining flexible enough to accommodate the factors that in many circumstances favor universal jurisdiction prosecutions over ICC prosecutions.