Prosecutions Across Borders

Abstract

Abstract The practice of universal jurisdiction (UJ), meaning the prosecutions of international crimes before national courts regardless of where the crimes took place, who committed the crimes and against whom these crimes were committed, has been facing critique and praise alike. This article analyses the practice of UJ from the perspective of the Third World Approaches to International Law (TWAIL). It has been argued that over the years, UJ practice has also reflected the double standards that characterize the practice of international criminal law (ICL) more broadly. The reasons for this are manifold. UJ, like international (criminal) law in general, comes with certain foundational challenges, systematically and substantively. On the one hand, the modern practice of ICL is often critiqued for its selective and uneven enforcement, both in international and national courtrooms. On the other hand, we encounter systemic and doctrinal obstacles to the prosecution of Western actors, including most importantly Western corporations. There are only limited grounds within the UJ system for addressing the root causes of the structural violence that inform a hegemonic ‘dynamic of difference’ between the ‘Third World’ peoples and Western states and corporations. This article explores the duality of this system and practice as it unfolds in Germany under the Code of Crimes Against International Law (‘V ölkerstrafgesetzbuch’, VStGB), using a TWAIL lens. We argue that the practice of UJ needs to be viewed in a nuanced manner: while there is a risk of furthering Eurocentrism, with Western European states selectively pursuing low- to mid-level perpetrators predominantly from countries of the so-called Global South, while Western actors enjoy impunity, this practice is also the result of mobilization and efforts of victims/non-state actors who see UJ processes as an important avenue for accountability, empowerment and agency.