Mending the Web: Universal Jurisdiction, Humanitarian Intervention and the Abrogation of Immunity by the Security Council

Abstract

The sporadic but increasing exercise of universal jurisdiction by national criminal courts has inevitably created a tension between individual criminal responsibility for serious international crimes and claims of sovereign immunity. In Democratic Republic of Congo v Belgium, the International Court of Justice had the opportunity of resolving that tension. However, the Court's articulation of immunity for serving foreign ministers creates possibilities for abuse where ministers rely on their official positions to perpetrate serious international crimes and to insulate themselves from prosecution. This article reexamines the rationales for and objections to universal jurisdiction, and argues that where public officials perpetrate serious international crimes, the arguments for upholding immunity are weak. In such cases, the arguments for universal criminal jurisdiction as a less invasive form of humanitarian intervention may be compelling. The article contends that the Security Council should withdraw immunity in such cases and that although this would be novel, there is both legal authority and historical precedent to support such action. Although it will be a challenge for the Council to withdraw immunity on a principled basis, this challenge should not be insurmountable at least where the immunity of an official of a permanent member of the Council is not involved.