The ‘elephant in the room’ in debates about universal jurisdiction: diasporas, duties of hospitality, and the constitution of the political

Abstract

Universal jurisdiction is typically understood by reference to the interstate world: for example, as a cosmopolitan institution transcending the limitations of sovereignty. This article highlights instead the concrete role of victim diasporas in bringing claims under universal jurisdiction. Transnational criminal law as a paradigm can also help one understand how the transnational movement of persons is shaping the prosecution of those responsible for atrocities. In addition to being a better descriptive theory of universal jurisdiction, transnationalism has the potential to provide a better normative theory. This article focuses on the extent to which the provision of universal jurisdiction can be understood as fulfilling a duty of hospitality towards those who have suffered harm abroad but are now on the territory of a new state. Universal jurisdiction is part of the constitution of political bonds in migrant societies and should be understood as a manifestation of forms of rooted cosmopolitanism.