Emerging Networks: Domestic Prosecution of Core International Crime

In 2024, the Office of the Prosecutor of the International Criminal Court (ICC) published a policy paper on complementarity that marked a move away from the conception of the ICC as an apex court at the centre of the international criminal justice system, towards an understanding of the court as a ‘justice hub’ steering a broader and more distributed accountability architecture.1 As has been documented by a growing body of scholarship,2 this fits within the transition from negative complementarity, in which the ICC ideally intervenes when national authorities fail, to a model of positive complementarity, in which the Court actively supports and encourages domestic prosecutions of international crimes. The policy paper consolidated this shift in contemporary discourse by reflecting the ICC’s self-understanding that its mandate to fight impunity is better served by supporting domestic authorities than by attempting to shoulder the full burden of international criminal prosecution itself. This shift reflects a structural response to the reality of international criminal justice. It is driven, at least in part, by the limited institutional and financial capacity of the ICC to address the full range of situations involving international crimes, as well as by the growing recognition that accountability will, in practice, often have to be pursued through domestic legal systems. In this sense, international criminal justice increasingly operates in a distributed way; through a plurality of domestic fora, each with its own legal and institutional context. Developments such as the return of individuals suspected of involvement in international crimes from conflict zones, including Syria, and the presence of large diaspora communities in Europe have contributed to the increasing demand for domestic prosecutions based on universal jurisdiction. The shift of the ICC from apex court to justice hub calls for thinking about the next step: a system of interstate complementarity and cooperation. Within the European Union we have witnessed over the last two decades an increased investment in partnerships amongst member states that are prosecuting core international crimes.3 The war in Ukraine has accelerated cooperation through Eurojust and its Genocide Prosecution Network (hereinafter the Genocide Network).4 This network, where investigators and prosecutors meet, share practices, and coordinate efforts, has been so successful that it is exported to other regions of the world.5 Can we use the Genocide Network as a springboard for a system of subsidiarity and universal jurisdiction allocation amongst states? This question was at the heart of a conference organized on 13 and 14 June 2024 at Tilburg University. The conference sought to develop parameters for a more coordinated system of international criminal justice at the domestic level. Central to this endeavour is the premise that domestic authorities are reinforced in their capacity to exercise universal jurisdiction — and/or other forms of extraterritorial jurisdiction — through a sharing of existing practices and experiences. The conference and the related ‘Joined Up Justice’ research project6 resulted in this special issue. An interesting development towards a connected and coordinated inter-state system of international crimes prosecution is the judicial dialogue amongst domestic courts. Rather than referring to the case law of the ICC and the ad hoc international criminal tribunals for the former Yugoslavia and Rwanda, some courts have started to refer to rulings of other domestic (foreign) courts when prosecuting on the basis of universal jurisdiction. Dutch prosecutors–no doubt facilitated by their connections within the Genocide Network — have directed courts to Swedish, German, and Belgian law on the interpretation of common Article 3 of the Geneva Conventions7 and–with regard to specific (Islamic State) criminality — to domestic interpretations of the war crime of outrages upon personal dignity.8 What emerges at the domestic level, is a patchwork of interpretations, rooted in international instruments and jurisprudence as well as in practices and interpretations developed by domestic prosecutors and courts. Indeed, legislators, prosecutors, and courts selectively engage with international norms and jurisprudence, embedding their interpretations and procedural choices within their own criminal law traditions and doctrinal frameworks. As the contributions to this special issue illustrate, some jurisdictions seek close alignment with international criminal law, while others proceed through more distinctly domestic routes. Access to decisions by domestic courts in extraterritorial/universal jurisdiction cases is important. This is, however, not self-evident. Unlike the extensive databases of international courts and tribunals, states do not consistently publish their case law. In some jurisdictions there is simply no tradition or custom of making judgments publicly available. At best, states publish judgments of their highest (constitutional) courts. A notable exception to that is the Dutch database rechtspraak.nl,9 which allows access to all case law, also concerning ‘ordinary’ criminal, civil, and administrative law. Other examples are the International Crimes Database10 of the T.M.C. Asser Institute, and the database by Eurojust11 that publishes most of the core international crimes decisions. The special issue reflects the reality of disparate universal jurisdiction practices. We take stock of selected national practices, examining how universal and other forms of extraterritorial jurisdiction is exercised by domestic authorities in concrete settings. We believe that any meaningful discussion of coordination, and burden-sharing must be grounded first in an evaluation of these national practices. Before a system of burden-sharing and universal jurisdiction allocation can be envisaged, it is necessary to understand how domestic authorities investigate and prosecute international crimes in practice: how cases are selected, how crimes are legally labelled, how procedural pathways are construed, and to what extent institutional constraints shape prosecutorial choices. It is precisely this bottom-up examination of national practices that constitutes the core objective of this special issue. Already a decade ago, the debate on the domestic enforcement of international criminal law moved beyond striving for unity, acknowledging pluralism and considering how it can be managed.12 Taking pluralism as a starting point, we acknowledge that sharing practices is essential. It enables the development of a connected system of international criminal. A recent publication, reviewed in this special issue by Anne Hausknecht, deserves to be highlighted in this respect. Lachezar Yanev and Harmen van der Wilt’s edited volume entitled Universal Jurisdiction over Core International Crimes: Law & Practice (Edward Elgar Publishing, 2024) makes a significant contribution to understanding universal jurisdiction practices. As the editors themselves observe, the exercise of universal jurisdiction across states has produced outcomes that are often ‘disparate, disjointed and incoherent’. To improve mutual understanding and to learn from one another, this publication — spanning 13 jurisdictions — constitutes a significant step towards a greater insight into how states approach universal jurisdiction. The breadth of jurisdictions and the depth of the analyses render this collection an indispensable reference work for the years to come. A similar focus on domestic practice underpins the edited work by Florian Jeßberger, Chantal Meloni and Maria Crippa entitled Domesticating International Criminal Law: Reflections on the Italian and German Experiences (Routledge, 2023). As the editors observe in their introductory chapter, more than 20 years after the adoption of the Rome Statute, states’ willingness and capacity to address the commission of international crimes vary considerably, not only across continents but also within Europe itself. As noted by Lavinia Parsi in her book review in this special issue, the volume concentrates on the Italian and German experiences as two contrasting points within the European landscape. By juxtaposing these two systems that share comparable criminal law traditions, the volume offers insights that extend beyond Italy and Germany and speak to broader questions concerning the conditions under which domestic legal systems are capable of giving effect to international criminal law. The articles in this special issue are organized into three sections, with the book reviews in the concluding Section IV. Section I, ‘Introduction and Conceptual Foundations of Universal Jurisdiction’, lays the conceptual groundwork for the issue. Morten Bøe, in his foundational piece, discusses universal jurisdiction as vicarious jurisdiction. Bøe conceptualizes domestic adjudication of core international crimes as an exercise of authority on behalf of the international community, offering a productive lens through which to reflect on how the pluralism inherent in national prosecutions of international crimes might be understood and managed. As Bøe points out, the nature and ‘subject matter of international crimes permeate every aspect of domestic proceedings’, as well as the broader normative context in which such trials unfold. National authorities exercising universal jurisdiction cannot be treated as isolated actors but operate within a wider normative framework informed by the international character of the crimes concerned. At the same time, Bøe’s account does not amount to a dogmatic plea for uniformity. Rather, it provides a conceptual framework that recognizes the legitimacy of national variation while opening space for further reflection on how domestic practices relate to one another within an increasingly interconnected system of international criminal justice. Section II, ‘Key Actors and Practices in the Exercise of Universal Jurisdiction’, shifts the focus to the institutional and practical dimensions of universal jurisdiction, examining how prosecutors, courts, victims, and other actors shape the selection, construction, and pursuit of cases in practice. The first contribution in this section, authored by Gezy Schuurmans, examines how the domestic prosecutor functions as an enforcer of international criminal justice. Schuurman’s paper is based on solid empirical data; nine semi-structured interviews with prosecutors, investigators, and investigative judges involved in domestic prosecutions of international crimes in the Netherlands. The article opens the black box of prosecutorial decision-making and allows for testing doctrinal and scholarly claims that such investigations are politically motivated. The findings challenge this narrative. Rather than political considerations, the interviews reveal that evidentiary feasibility, investigatory capacity, and jurisdictional constraints are the decisive factors shaping prosecutorial action. Staying in the Netherlands, the section continues with a contribution by Tess Castelijn, Romy Huiszoon, Simon Minks, and Zenzi Ophof, which examines the challenges presented by the Dutch legal framework with regard to victim participation and compensation. Dutch courts consider a damage claim to be a disproportionate burden on the criminal process where the court is required to apply foreign law to determine the damages. As a result, compensation claims are often delayed. To better align the Dutch legal framework to international standards and to render the procedure more victim-centred, the authors advise against the current legislative proposal to introduce a separate claims procedure following the end of criminal proceedings. Instead, taking inspiration from the Trust Fund for Victims, they propose allowing victims of international crimes to receive an advance payment from the state pursuant to Article 36f of the Dutch Code of Criminal Law. For the next contribution, we turn our attention to Italy. Maria Crippa’s contribution entitled ‘Finding Avenues for Prosecuting International Crimes against Migrants before Italian Courts’ focuses on the exercise of extraterritorial jurisdiction in relation to crimes committed against migrants in Libya and along the Central Mediterranean route. The article analyses how domestic investigations have been initiated in response to the arrival of migrants on Italian territory, notwithstanding the absence of explicit provisions on universal jurisdiction in Italian law. Drawing on existing case law, she explores the legal bases relied upon by prosecutors and courts, as well as the procedural and substantive limitations shaping these proceedings, including their tendency to target low-level perpetrators and to rely on ordinary criminal offences. In her contribution to the special issue, Didem Doğar offers an insightful look into Canada’s universal jurisdiction practice, combining doctrinal analysis with semi-structured interviews with senior officials from Canada’s War Crimes Section and Prosecution Service. Canada’s no-safe-haven policy leads to a focus on low-level persons; those unlikely to provoke diplomatic backlash. By applying Máximo Langer’s theory on low-cost defendants,13 Doğar argues that Western consensus rather than a truly global one, defines low-cost defendants. She concludes that Canada’s approach to international crime prosecutions is more reactive to Western priorities than proactive in pursuing ‘global’ justice. Section II concludes with an analysis by Caleb Wheeler of Finnish universal jurisdiction practice. He examines two Finnish cases, Bazaramba and Massaquoi, in which parts of the hearings were relocated to the African continent, in or near the countries where the crimes under consideration were committed. These proceedings offer insight into the potential impact that locally held trials for international crimes may have on victims and witnesses. The contribution primarily considers whether holding proceedings closer to the places where crimes were committed might alleviate some of the concerns commonly associated with such proceedings. The article invites reflection on whether forms of localization might offer a way to address concerns that universal jurisdiction is, more often than not, exercised by Global North states in relation to crimes committed in Global South contexts. Section III is entitled, ‘Labelling International Crimes Domestically’ and turns to the interpretative and expressive dimension of domestic prosecutions, analysing how international crimes are translated, framed, and labelled within national criminal law systems. The first contribution, co-authored by William Fortin and Ligeia Quackelbeen, addresses the use and potential misuse of terrorist membership labels in the prosecution of core international crimes. Focusing on the offence of membership in a terrorist organization, the article offers a fair-labelling analysis of prosecutorial and judicial practices in Belgium, Germany, and the Netherlands. It demonstrates that these ‘membership offences’ risk over-inclusiveness. Interestingly, prosecutions for membership in a terrorist organization disproportionately target women, with domestic courts frequently relying on roles linked to marriage, household activities, and caregiving to establish membership, notwithstanding the tenuous connection between such conduct and the commission of international crimes. Fanny Royen, in her contribution, focuses on the domestic interpretation of genocide. Through an analysis of Belgian, French, German, and Lithuanian case law, Royen shows that divergences in the application of the genocide definition do not necessarily undermine the coherence of international criminal law but rather reflect a margin of appreciation afforded to domestic actors. At the same time, her analysis highlights how the principles of legality, complementarity, and the peremptory nature of the prohibition of genocide operate as constraints on domestic discretion and as such manage, structure, and set boundaries to the diversity in interpretation. The last article presented in this special issue, deviates somewhat from the other pieces in that it does not discuss universal or extraterritorial jurisdiction. It examines core crimes committed in Sri Lanka by government forces. We believe it deserves a place in the special issue because it shows the attempts to engage with international criminal law. This can be seen as an attempt to end impunity for core international crimes, thus meeting the underlying objective of universal jurisdiction prosecutions. Senuri de Silva discusses charging practices in Sri Lanka, a jurisdiction that has not incorporated international crimes or international modes of liability into its domestic legal framework. She explains that, in this context, prosecutors are necessarily required to resort to ordinary domestic modes of liability to address conduct arising from systemic crimes. Insights from prosecutorial practice, however, demonstrates that the international concept of command responsibility, whilst not applicable in Sri Lanka as such, informed charging decisions in cases involving high-ranking officials. This piece and the conference on 17–18 June 2024, conducted within the Joined Up Justice-project, is an outcome of research funded by the European Research Council (Grant agreement ID: 101055397).

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