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Vaulting ambition : the case against universal criminal jurisdiction
thesisposted on 2023-05-26, 18:38 authored by Mora, Jennifer Dorothy
This thesis constitutes an historical and conceptual critique of universal criminal jurisdiction, with focus on the \core\" international crimes. It comprises an evolutionary analysis of the concepts that the term \"universal jurisdiction\" encompasses and how their \"legitimacy\" can be assessed. It calls into question the exercise by states of universal jurisdiction over international crimes. Although universal jurisdiction has recently been the focus of considerable academic and some judicial attention its treatment remains unsatisfactory on a number of levels. Insufficient attention is paid to the fact that the term itself does not reflect a unitary concept. In common law states the source of universal jurisdiction over post-WWII crimes was a legal argument based on an analogy with the crime of piracy which emerged from American legal scholarship prior to the Trial of the Major War Criminals at Nuremberg. This argument was flawed and it is argued unsustainable. The civil law concept of universal jurisdiction is much older entirely doctrinal in origin and is embodied in the theory of aut dedere aut judicare (extradite or prosecute). A third source of universal jurisdiction is associated with the notion of jus cogens whose uncertain nature and unknown content have served to further obscure a difficult concept. A further source of so-called universal jurisdiction are the so-called \"terrorism treaties\" which embody a consensual variant of the aut dedere aut judicare principle. It is contended that this last source alone is unproblematic. All extraterritorial jurisdictional principles have an objectively ascertainable link with the crime in the sense that it has affected the interest of the prosecuting state. It is argued that universal jurisdiction is the exception. It is asserted that every criminal justice system requires identifiable and consistent jurisdictional parameters and that their absence undermines the concept of \"jurisdiction\" and has a detrimental effect on the system itself. The issue can also be framed as one of standing. A major objective of this thesis is to draw attention to the fact that standing doctrine a predominantly common law doctrine provides a means of distinguishing between jurisdictional concepts termed \"universal\" and of evaluating their legitimacy. The disparate rationales expounded for the exercise of the universality principle(s) rely upon a form of intangible harm to an undefined universal \"victim\" rather than the tangible interests of the prosecuting state. This in tum reflects a failure to distinguish law from morality to the point where the enforcement of moral norms has become the primary goal. This study also highlights the inappropriateness of customary international law as a source of law in the present context in relation both to its role and its content. It advocates international debate on the specific problems identified in order both to clarify and agree a universal terminology and the negotiation of an international convention relating to the exercise of extraterritorial jurisdiction over international cnmes."
Rights statementCopyright 2008 the author - The University is continuing to endeavour to trace the copyright owner(s) and in the meantime this item has been reproduced here in good faith. We would be pleased to hear from the copyright owner(s). Thesis (PhD)--University of Tasmania, 2008. Includes bibliographical references. Ch. 1. Introduction -- Ch. 2. Universal jurisdiction in international law: principles, forms and concepts -- Ch. 3. From piracy to war crimes: the foundation of the piracy analogy -- Ch. 4. Casualties of war: misunderstanding war crimes jurisdiction -- Ch. 5. Odious comparisons: the rise and fall of the piracy analogy -- Ch. 6. A flurry of activity: new dilemmas in universal jurisdiction -- Ch. 7. Vaulting ambition: the case against universal jurisdiction