Communications in Humanities Research
- The Open Access Proceedings Series for Conferences
Communications in Humanities Research
Vol. 13, 20 November 2023
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The Legitimacy and Rationality of Universal Jurisdiction
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Abstract
In March, the ICC issued an arrest warrant for Putin, meaning that International Criminal Court (ICC) member states, including South Africa, are obliged to arrest him and transfer him to The Hague for trial if he sets foot on any of their territories. But the recent indictment of the South African government for its public refusal to execute an arrest warrant as a member of the International Court of Justice has again raised questions about international crime and the willingness of states to get involved in it. This paper attempts to discuss the relevant issues of universal jurisdiction from the perspective of case studies, normative analysis and social effects of legal norms, and finally concludes that universal jurisdiction lacks the necessary elements to form customary international law at the level of legal norms, and universal jurisdiction fails to achieve its purpose at the level of practical effects, and lacks the rationality of existence. At the same time, given the current reality of the exercise of universal jurisdiction, this paper suggests that the types of international crimes should be strictly limited, the universal jurisdiction should be separated from states, and the authority of the exclusive jurisdiction of the international court for international crimes should be established.
Keywords
universal jurisdiction, opinio juris, positivist hermeneutics, enforcement jurisdiction
References
1. Neff, S. C. (ed.) (2012). “Note on the text,” in Hugo Grotius on the Law of War and Peace: Student Edition. Cambridge: Cambridge University Press, 36-38.
2. Randall, K. C. (1988). Universal jurisdiction under international law. Texas Law Review, 66, 785-841.
3. Amnesty International.(2001). Universal Jurisdiction:the Duty of States to Enact and Enforce Legislation, 1, 13.
4. Teacher, Law. (2013). Universal Jurisdiction in International Law. Retrieved from https://www.lawteacher.net/free-law-essays/international-law/universal-jurisdiction-in-international-law.php?vref=1
5. Gerig, O. (2022). 2021 Highlights in the Universal Jurisdiction Annual Report. Retrieved from https://trialinternational.org/latest-post/2021-highlights-in-the-universal-jurisdiction-annual-review-ujar-released-today/
6. Ley Organica del Poder Judicial (LOPJ) or the Judicial Branch Act of 1985. Retrieved from https://www.uv.es/ivasp/LOPJ
7. Smis, S. and Van der Borght, K. (1999). Belgium: Act Concerning the Punishment of Grave Breaches of International Humanitarian Law. International Legal Materials. Cambridge University Press, 38, 918-925.
8. Kraytman, Y. S. (2005). Universal Jurisdiction-Historical Roots and Modern Implications. BSIS Journal of International Studies, 2, 94-95.
9. Tullio, T. (1958). Geneva Convention on the High Seas. Retrieved from https://legal.un.org/avl/ha/gclos/gclos.html
10. Orakhelashvili, A. (2002). Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo V. Belgium). The American Journal of International Law, 96, 677-684.
11. Kramer, M. H. (2015). H. L. A. Hart, The Concept of Law, in Jacob T. Levy (ed.), The Oxford Handbook of Classics in Contemporary Political Theory.
12. Roger O. K. (2004). Universal Jurisdiction: Clarifying the Basic Concept. Journal of International Criminal Justice, 2, 735-760.
13. Cranston, M. (2023). The Social Contract. Encyclopedia Britannica. Retrived from https://www.britannica.com/topic/The-Social-Contract
14. Ratner, S. R. (2003). Belgium’s War Crimes Statute: A Postmortem. American Journal of International Law, 97, 888-897.
Data Availability
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- Volume Title
- Proceedings of the International Conference on Global Politics and Socio-Humanities
- ISBN (Print)
- 978-1-83558-115-5
- ISBN (Online)
- 978-1-83558-116-2
- Published Date
- 20 November 2023
- Series
- Communications in Humanities Research
- ISSN (Print)
- 2753-7064
- ISSN (Online)
- 2753-7072
- DOI
- 10.54254/2753-7064/13/20230187
- Copyright
- 20 November 2023
- Open Access
- This article is an open access article distributed under the terms and conditions of the Creative Commons Attribution (CC BY) license, which permits unrestricted use, distribution, and reproduction in any medium, provided the original work is properly cited