Universal Jurisdiction over International Crimes and Gross Human Rights Violations: The Role of the Principle of Subsidiarity

Abstract

The international law of jurisdiction sets out the circumstances under which states can apply their laws, offering a number of “permissive” jurisdictional principles, including the universality principle. To prevent normative conflict as a result of overlapping jurisdictional claims, the international community should agree on procedures that circumscribe single states’ unilateralist instincts. Subsidiarity is a procedural tool for this. Subsidiarity requires that bystander states defer to efforts made by other states that have a stronger link to the situation, while allowing them to protect global goods or values which states having a stronger regulatory link fail to address. This contribution explores how subsidiarity has been applied by domestic courts in human rights cases arising under the universality principle. A distinction is made between universal criminal jurisdiction, where state prosecutors bring criminal proceedings before domestic courts, and universal civil jurisdiction, where foreign plaintiffs bring transnational tort claims in a domestic forum.