Universal jurisdiction: clarifying the basic concept

Academic analysis of the Arrest Warrant case in the International Court of Justice has tended to focus to date on the Court’s judgment on immunity. Comparatively little attention has been paid to the question of universal jurisdiction, as discussed in detail in most of the separate and dissenting opinions and declarations. The following article focuses less on the various judges' conclusions as to the international lawfulness of universal jurisdiction than on their treatment of the basic concept. The article argues that this treatment is open to question, reflecting, as it does, both a conceptual conflation of states’ jurisdiction to prescribe their criminal law with the manner of that law’s enforcement and an inattention to crucial temporal considerations. As well as fostering dubious terminology, these factors lead some judges to an unsatisfying conclusion regarding the permissibility of the enforcement in absentia of universal jurisdiction, and cause others to underestimate the degree of state practice in favour of universal jurisdiction over crimes under general international law.