Unraveling the Confused Relationship Between Treaty Obligations to Extradite or Prosecute and “Universal Jurisdiction” in the Light of the Habr´e Case

• Matthew Garrod ^[1]
  1. [1] University of Sussex

     University of Sussex

     Reino Unido

     
• Localización: Harvard international law journal, ISSN 0017-8063, Vol. 59, Nº 1, 2018, págs. 125-196
• Idioma: inglés
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• Resumen

  • Since the 1980s, the idea that treaty obligations to extradite or prosecute embody, or even mandate, a principle of universal jurisdiction has increasingly been supported by weighty scholarship. Although this view has not gone unchallenged, especially in the wake of the ICJ’s judgment in the Habr´e Case, it is gaining ground among various actors in the field of international law. Indeed, this case is increasingly discussed to support the argument that the ICJ affirmed the existence of the principle of universal jurisdiction and provided meaningful guidance on its relationship with the obligation to extradite or prosecute.

    Informed by a wide range of primary sources, including an original empirical analysis of state practice since the end of World War II to the present and actual prosecutions purporting to be based on universal jurisdiction, this Article brings new insight and much needed conceptual and legal clarification to the meaning of “universal jurisdiction” and its relationship with jurisdiction in treaty obligations. Its central argument is that treaty obligations to extradite or prosecute should not be conceptualized as, or used to infer the existence of, universal jurisdiction. Rather, the type of jurisdiction arising out of these obligations is more accurately termed “treaty-based jurisdiction,” which is antithetical to universal jurisdiction and at variance with its underlying rationale. Universal jurisdiction does not exist under customary international law and common examples of universal jurisdiction in state practice are actually different types of treaty-based jurisdiction.

    The Article concludes that universal jurisdiction is a hollow concept without state practice and is in urgent need of both substantial revision and more accurate definition. Clarifying the basic concept could help avoid excessive—and unlawful—claims of jurisdiction that breach other rules of international law and cause further tension and disputes.