Searching for Common Ground on Universal Jurisdiction: The Clash between Formalism and Soft Law

in International Community Law Review
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Abstract

The possibility of prosecuting serious international crimes before domestic foreign courts when territorial courts are unwilling and unable to perform this function and international criminal tribunals with suitable competences are unavailable has been intensively debated since the time of the Spanish arrest warrants against Pinochet. The African disapproval of decisions by European courts to exercise universal jurisdiction over serious crimes allegedly perpetrated by former African leaders indicates the absence of common ground on where and how such jurisdiction is to be utilized. The recent judgment of the International Court of Justice in the dispute between Belgium and Senegal sheds new light on how consensus on these issues might be forged. The Court’s commitment to formalism in the ascertainment and application of international law together with its ends-focused reasoning on the substance of that law reinforces the view that the UN Convention against Torture offers a non-controversial legal basis for upholding universal jurisdiction competences in these cases. However, the conclusions reached in the judgment can also be criticized for clashing with soft law recommendations in the field, pointing to the advantages of the organization of high-profile trials located in Africa in spite of the practical difficulties involved.

Searching for Common Ground on Universal Jurisdiction: The Clash between Formalism and Soft Law

in International Community Law Review

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References

9)

UNGA Res 66/103 of 13 January 2012para. 2.

30)

UNGA Res. 66/103 of 13 January 2012.

37)

See Jean D’Aspremontsupra note 17 pp. 18ff. But note however that formalism is often equated with a law-ascertainment mechanism that is exclusively based on state consent. Ibid. p. 21. For such equation see Anthony Carty “Conservative and Progressive Visions in French International Legal Doctrine” 16 European Journal of International Law (2005) p. 525.

56)

See Martti Koskenniemisupra footnote 21.

82)

Cath Collins“Prosecuting Pinochet: Late Accountability in Chile and the Role of the ‘Pinochet Case’ ” Human Rights Global Justice and Democracy Working Paper No. 5Centre for Global Studies (2009) available at: http://cgs.gmu.edu/publications/hjd/hjd_wp_5.pdf.

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