Evaluating the Practice of Universal Jurisdiction Through the Concept of Legitimacy

Abstract

Abstract This article examines the practice of universal criminal jurisdiction with respect to the core international crimes, namely war crimes, genocide, crimes against humanity and torture, while using the concept of legitimacy to analyse the grounds for compliance (viz. the implementation and application) with that principle, or lack thereof, particularly with the unconditional form of universal jurisdiction. The concept of legitimacy has been in the centre of the discourse on the effectiveness of public international law since the end of 1980s, and rests on the assumption that a rule that is perceived as legitimate exerts stronger pull for compliance and is subsequently likely to be exercised more effectively than a rule which is regarded as illegitimate. The added value of the article to the debate on universal jurisdiction lies with its methodical breaking down of legitimacy into three heads: legitimacy of source, legitimacy of process and legitimacy of outcome, which provides new insights and perspectives regarding the much-contested universal jurisdiction practice. The article starts with discussing different approaches to legitimacy and then moves to apply them to the principle of universal jurisdiction as generally practised over the last two decades, using the three-head-taxonomy of legitimacy of source, legitimacy of process and legitimacy of outcome, as well as the typology offered by Thomas Franck of the factors influencing a norm or an institution’s perception as legitimate.