Introduction
Recent sanctions under the second Trump administration in February and June have exposed the International Criminal Court (ICC) to public attack of unprecedented magnitude. European states—usually among the Court’s most emphatic proponents—have expressed mixed reactions to the November 2024 arrest warrants for Netanyahu and Gallant, aggravating the ICC’s problems. Furthermore, many world powers have yet to ratify the Rome Statute, leaving their populations largely immune to the ICC’s prosecutorial jurisdiction, except where crimes were committed on the territory of another state party.
Against this backdrop, this Essay seeks to examine the extent to which domestic “universal jurisdiction” (UJ) cases could represent a viable alternative to ICC prosecution when the ICC cannot deliver justice. An outline of the hurdles faced by the Court in its mission to end impunity for “the most serious crimes of concern to the international community”makes for a prudent starting point. This appraisal begins by splitting the ICC’s limitations into two broad categories: (1) “jurisdictional” or “structural” issues and (2) “political” or “enforcement” issues. Thereafter, this Essay evaluates UJ at the domestic level to assess its potential to close the impunity gap left by the ICC due to each respective issue.
Jurisdictional Woes
First, jurisdictional constraints stem from the consent-based nature of the ICC. For the Court to exercise adjudicatory powers over a sovereign state’s nationals, the state must ratify the Rome Statute, the Court’s founding treaty. Notwithstanding a prior International Law Commission Draft to the contrary, the Rome Statute does not grant UJ to the Court. Article 12 stipulates that the ICC may only investigate international crimes that are committed by nationals of a state party or that occur on the territory of a state party. This shields the nationals of the approximately seventy non-party states from investigation by the Court unless they commit crimes within the territory of another member state. Among these non-party states are “big players” like Russia, the United States, China, India, and Israel. The consent-based nature of the ICC was a pragmatic and sensible concession during the drafting stage, intended to maintain state sovereignty and secure more widespread ratification. However, due to persistent non-ratification, a structural impunity gap emerged.
The only permissible exception to the consent requirement is provided for under Article 13(b), whereby the UN Security Council (UNSC) may refer any case to the Court, including those with no connection to a state party. However, this has only ever succeeded twice in the cases of Darfur and Libya. The Security Council veto is largely responsible for this sparse record, since strong ties with veto-holders can shield despots from investigation. For example, Russia and China vetoed a 2014 Security Council resolution seeking to refer the situation in non-state-party Syria to the ICC. Similarly, The Security Council never initiated investigations into situations in Chechnya, Gaza, Myanmar, and Sri Lanka, likely due to ties between countries involved and Permanent Council Members (Moss, p.11). Notably, even the two successful cases of UNSC referral contained controversial exemption clauses that precluded the relevant investigations from examining the conduct of nationals of non-members of the Rome Statute and insisted that ICC states or volunteers bear all costs arising from such investigations. Evidently, the Security Council referral mechanism is limited by UNSC members’ susceptibility to political influence and pressure.
Political Obstacles
Beyond these structural constraints, the Court’s effectiveness is further undermined by the political realities surrounding its operation, even where it has jurisdiction. The ICC’s opponents have repeatedly leveraged their political power to obstruct its investigations, particularly when those inquiries threaten their own interests. Such action against the Court is often retaliatory. Russia, for example, responded to the Court issuing arrest warrants for Putin and Lvova-Belova in 2023 by placing ICC leadership on a wanted list of its own. In a similar vein, Mossad began an extensive campaign of intimidation and surveillance of the Court’s prosecutor from 2015 onwards in response to the State of Palestine’s accession to the ICC. The United States has taken an even more bellicose and preemptive stance towards the Court. The Bush administration’s aggressively nicknamed “Hague Invasion Act” promptly followed the Court’s inception in 2002. It granted the President sweeping powers to do everything “necessary” to bring about the release of U.S. or U.S.-allied personnel detained by the Hague. Given the relatively consistent U.S. contempt for the Court over the past two decades, President Trump’s retaliatory sanctions in response to the ICC’s indictment of Israeli leaders came as little surprise. The real surprise arises from another pressing dilemma: the flagrant non-enforcement of arrest warrants by ICC member states.
The first notable instance involved the refusal of numerous member states to comply with the warrants for Sudanese President Omar al-Bashir, who was indicted on counts of war crimes, crimes against humanity, and genocide committed in Darfur. Given Sudan’s non-ratification of the Rome Statute, the case was referred by the UNSC and proved controversial due to disagreements surrounding head of state immunity. The ICC asserted, and continues to maintain, that heads of state are not immune from prosecution under customary international law. Staunch opposition and distrust from the African Union also played a part in the al-Bashir case. Critics labeled the Court a “political instrument targeting Africa and Africans”, a perception reinforced by its exclusively African portfolio of defendants at that stage. Blatant enforcement failures have again reared their head in more recent cases outside the African context. Mongolia went unpunished for Putin’s state visit in 2024 in violation of an arrest warrant, save for a public declaration referring it to the Assembly of State Parties for non-compliance. Moreover, Hungary recently hosted Netanyahu despite its arrest obligations, with Orbán using the occasion to announce plans to withdraw from the Court. Even for Europe’s typical champions of the Court, its unprecedented indictment of a “western ally” has cast serious doubts over the enforcement of warrants in the Israeli case. Germany’s new Chancellor Friedrich Merz has announced his desire to circumvent the warrants to welcome Netanyahu to Berlin, while former U.K. Foreign Secretary David Cameron even threatened the ICC with U.K. withdrawal and defunding to stall the Israel warrants. Given the considerable constraint posed by such political obstacles, in tandem with the structural issues, the subsequent paragraphs will analyze whether domestic UJ might prove more robust.
Universal Jurisdiction as a Domestic Alternative?
Domestic universal jurisdiction grants states jurisdiction over serious international crimes, even when they did not occur on that state’s territory and neither the victim nor the perpetrator is a national of that state. Originating from prosecution of piracy at sea, the doctrine expanded after the Second World War to facilitate prosecuting that era’s most egregious offenders—both in international tribunals, as in Nuremberg and Tokyo, and in domestic settings, as exemplified by the 1961 Israeli trial of Adolf Eichmann. Its legal foundation lies in the principle of aut dedere aut judicare (“extradite or prosecute”), enshrined, inter alia, in the Geneva Conventions and the Convention Against Torture. This enables domestic criminal trials of international offenders and, in theory, significantly reduces the impunity gap for grave offenses such as war crimes, genocide, and crimes against humanity. Though scholarship systematically comparing domestic proceedings with the ICC have been sparse, somesupport a division of responsibilities grounded in the complementarity principle: the ICC focuses on “big fish,” while simultaneously, where appropriate, supporting other states in prosecuting “small fry” under UJ. Others (e.g., here and here) have emphasized the central role often played by migrant communities in domestic UJ, and the opportunities it affords them. The sections to follow will draw on these arguments to indicate that although domestic UJ remains vulnerable to many of the political pitfalls faced by the ICC, it is less structurally restricted and may prove effective in some circumstances where the Court is constrained.
Domestic Universal Jurisdiction Against Issues of “Structural” Impunity?
Impunity arising from a dearth of jurisdiction is perhaps the dilemma for which domestic UJ might provide the most obvious solution. By integrating UJ for serious international crimes into domestic criminal law, states not only more convincingly pursue their Geneva obligations but also enable prosecution of perpetrators who otherwise might enjoy impunity. Since the seminal Al-Khatib convictions in Koblenz, Germany, in 2021 and 2022, the abuses of the recently toppled Assad regime have become a driving force behind a new wave of cases brought under domestic UJ in Europe. Notwithstanding the usual requirement that the accused be present in their territory for proceedings to begin (although states like Argentina and Ukraine exercise “absolute” UJ, allowing for prosecution in absentia), domestic UJ has shown promise in seeking justice for victims of atrocities who are precluded from relying on ICC action. TRIAL International’s interactive map gives insight into prominent UJ cases. Though a large majority of the prosecuting states are in Europe (particularly France, Germany, Spain, and Belgium), the data includes many cases where jurisdictional limitations would have precluded ICC charges. Documented suspects include seventy-three Syrians, fifty Rwandans, twenty Iraqis, eight Americans, three Israelis, and thirteen from China. Though cases do not always progress beyond their early stages, this nonetheless indicates a willingness among states to pursue UJ prosecutions, even where the suspect is not from an ICC party state. Moreover, a report by Amnesty International found that by 2011, 75 percent of UN member states had provided for UJ for at least one of the four major international crimes of genocide, torture, crimes against humanity, and war crimes—a greater percentage of states than have ratified the Rome Statute. However, despite facing ostensibly few structural limitations, exercise of UJ in practice is, much like the ICC, heavily influenced by political pressures and practical constraints.
Replicated Political Pitfalls: Selectivity and Political Pressures
Cases brought under domestic UJ can indict individual persons for violating jus cogens norms. However, that does not mean that all such violations are pursued with equal fervor. Domestic UJ prosecutions face many of the same political pressures that constrain ICC prosecutors. Given that Europe remains the driving force behind UJ prosecutions, perpetrators from powerful Western-allied states are much less likely to come under scrutiny than those from countries with less diplomatic influence over the “forum” state. For example, whenever Belgium has attempted to turn its progressive UJ legislation towards American or Israeli nationals, both states have been swift to apply diplomatic pressure to put an end to investigations. Hovell and Malagodi highlighted that by 2020, seventy-five completed UJ trials had been carried out by eighteen states, of which sixteen were a part of the “Western European and Others” UN group. None of the defendants (excluding Nazis) were from Western states, and all of them came from states classified as developing economies. Likewise, Langer has explored the evident political cost-benefit analysis underlying states’ decisions regarding the pursuit of a UJ case—states tend to focus on those perpetrators of little or no diplomatic cost, primarily individuals from developing states for whom international consensus widely supports prosecution. Domestic prosecutions for international crimes thus remain just as sensitive to political and diplomatic realities—and just as reflective of global power structures and alliances—as those at the ICC level.
Promising Signs in Domestic Universal Jurisdiction Practice
Some recent scholarship suggests that migrant communities act as “agents of transitional justice” and play an important role in initiating and supporting UJ cases for crimes they have suffered in their homelands. In such contexts—Syria today or Rwanda previously—migrant and refugee communities are particularly well-placed to engage with UJ-based mechanisms in their host countries. Without such litigation, impunity for perpetrators would likely persist due to ICC inaction. For this reason, Mégret proposes a redefinition of UJ as an “integral part of the normal process of welcoming refugees and migrants”. Furthermore, Ryngaert has aptly highlighted that while the ICC is best equipped to deal with most senior officials, “rank and file” individuals are better suited as defendants for domestic UJ charges—this is all the more true where compatriot migrants in the territory might readily serve as witnesses. Such cases could certainly refute critiques of UJ as merely another “newfangled civilising mission” (Reynolds & Xavier, p. 961. Furthermore, several states in the Global South are beginning to exercise UJ themselves with increasing confidence. For example, Argentina has taken a leading role in developing the doctrine (e.g., here and here), bringing the world’s first UJ case relating to the Rohingya genocide in Myanmar. Senegal, South Africa, and Brazil have also each prosecuted cases under the doctrine. Given their shared goal of reducing safe havens for international criminals, increased cooperation between the ICC and states willing to prosecute lower-ranking officials could provide a way forward. Indeed, where investigations overlap, such cooperation could cut costs for states while guaranteeing the impact of ICC efforts in cases where the Court is unable to proceed. Crimes in Palestine may be well suited to this approach: with the ICC investigating but unlikely to receive accused leaders, cooperation with willing states prosecuting lesser ranking offenders could prove highly effective. Evidently, certain contexts arise where UJ serves as a vital gap filler for the ICC. Increasing its practice, particularly among states in the Global South, will continue to shrink the impunity gap, particularly for those “small fry” suspects less likely to cause diplomatic trouble when prosecuted where they enter a willing state.
Conclusion
In summary, domestic universal jurisdiction provisions can effectively sidestep the jurisdictional and structural barriers which often preclude ICC action. Yet, they are no panacea for the political issues that plague the ICC. Nevertheless, recent use of UJ in relation to atrocities from the Assad regime—enabled by the active involvement of migrant survivor communities present in the territory—serves as a laudable example of UJ preventing impunity where ICC action was barred. Yet, UJ cases currently still unmistakably reproduce global power inequities. Where possible, states in the Global South, and indeed all willing states, should seek to adopt the use of UJ. A focus on “small fry” criminals present in their territories could minimize negative diplomatic externalities. Overall, this Essay posits that a continued focus on migrant-led transitional justice through UJ, coupled with an uptick in Global South endorsement of the doctrine and possible cooperation with the ICC Prosecutor, could shrink the impunity gap for atrocity crimes, allowing for justice where it currently cannot be found.
Daniel Shields-Huemer is an L.L.M. Candidate in International Human Rights and Humanitarian Law at Europa Universität Viadrina, Frankfurt (Oder), Germany.