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Universal jurisdiction : law out of context
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Hovell, Devika and Malagodi, Mara (2024) Universal jurisdiction : law out of context. Modern Law Review . ISSN 0026-7961. (In Press)
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Abstract
Universal jurisdiction enables the prosecution of international crimes by domestic courts in the absence of any nexus between the prosecuting state and the crime charged. While the temptation is for domestic judges to proceed with ‘business as usual’ in the conduct of such trials, difficulties in the practice of universal jurisdiction reflect the importance of developing a better understanding of the distinctive communities, interests, crimes and cultures these trials are intended to serve. This article seeks to develop this understanding and, in doing so, to advance a coherent theory of universal jurisdiction. It rejects the idea that universal jurisdiction is an aspect of sovereignty, as is the case with other accepted bases of jurisdiction (for example, jurisdiction exercised on territorial, nationality, passive personality or protective grounds). Universal jurisdiction is not an exercise of domestic jurisdiction but represents a form of ‘international jurisdiction’, exercised as part of a state’s contribution to the enforcement of international criminal law. In legal terms, universal jurisdiction should be understood as a licence by the inter-state community to universalize the right of access to justice for victim communities in relation to crimes of concern to the international community, albeit where this does not disproportionately affect the interests of the prosecuting state. This re-conceptualisation has implications for the way in which domestic courts engage with many of the challenges facing universal jurisdiction trials, including problems of community, case selection, proof and culture.
Item Type: | Journal Article | ||||||
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Divisions: | Faculty of Social Sciences > School of Law | ||||||
Journal or Publication Title: | Modern Law Review | ||||||
Publisher: | Wiley-Blackwell Publishing Ltd. | ||||||
ISSN: | 0026-7961 | ||||||
Official Date: | 2024 | ||||||
Dates: |
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Status: | Peer Reviewed | ||||||
Publication Status: | In Press | ||||||
Access rights to Published version: | Restricted or Subscription Access | ||||||
Date of first compliant deposit: | 22 February 2024 | ||||||
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