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

Research output: Contribution to journalArticle

4 Citations (Scopus)

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 to resolve 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 insulate themselves from prosecution. This Article re-examines 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.

Original languageEnglish (US)
Pages (from-to)445-490
Number of pages46
JournalColumbia Journal of Transnational Law
Volume42
Issue number2
StatePublished - 2004

Fingerprint

humanitarian intervention
immunity
jurisdiction
offense
minister
International Court of Justice
prosecution
Belgium
abuse
responsibility

All Science Journal Classification (ASJC) codes

  • Political Science and International Relations
  • Law

Cite this

@article{e92ad35d7da44115afa02c97fc0a4304,
title = "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 to resolve 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 insulate themselves from prosecution. This Article re-examines 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.",
author = "Marks, {Jonathan Harold}",
year = "2004",
language = "English (US)",
volume = "42",
pages = "445--490",
journal = "Columbia Journal of Transnational Law",
issn = "0010-1931",
publisher = "Columbia Law Review Association",
number = "2",

}

TY - JOUR

T1 - Mending the Web

T2 - Universal Jurisdiction, Humanitarian Intervention and the Abrogation of Immunity by the Security Council

AU - Marks, Jonathan Harold

PY - 2004

Y1 - 2004

N2 - 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 to resolve 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 insulate themselves from prosecution. This Article re-examines 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.

AB - 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 to resolve 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 insulate themselves from prosecution. This Article re-examines 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.

UR - http://www.scopus.com/inward/record.url?scp=1642320360&partnerID=8YFLogxK

UR - http://www.scopus.com/inward/citedby.url?scp=1642320360&partnerID=8YFLogxK

M3 - Article

AN - SCOPUS:1642320360

VL - 42

SP - 445

EP - 490

JO - Columbia Journal of Transnational Law

JF - Columbia Journal of Transnational Law

SN - 0010-1931

IS - 2

ER -