The Legality and Scope of Universal Jurisdiction in Criminal Matters: Is There Any Question to Answer?

Abstract

Universal jurisdiction in criminal matters has been a hot topic for many decades already. In discussions on its legality and scope, waters are usually muddied by the inclusion of unrelated issues or by the use of inappropriate methodologies. The purpose of this article is to discuss the legality and scope of universal jurisdiction, mainly by clarifying the concept and addressing the main misunderstandings characterising the discussions on its legality. The main claim is that objections to the legality and to the extended (unlimited) scope of universal jurisdiction in criminal matters are based on two confusions/conflations of notions. Firstly, this paper demonstrates that the so-called conflicts between the exercise of universal jurisdiction and general norms of international law are only imaginable in a framework that misrepresents/misunderstands the concept of jurisdiction itself by conflating the notions of jurisdiction to prescribe and jurisdiction to enforce. Secondly, it argues that the view which limits the scope of universal jurisdiction to a few crimes fails to clearly distinguish states’ international duties and rights in criminal law matters. In terms of methods, the paper takes the (traditional) view that states are allowed to do everything international law does not prohibit.