Universal Jurisdiction under Attack: An Assessment of African Misgivings towards International Criminal Justice as Administered by Western States

Abstract

This article discusses the current criticism, expressed by African states and institutions, of the exercise of universal jurisdiction by Western states, accusing the latter of overstepping their lawful powers, as well as practicing ‘legal colonialism’. In order to gauge whether this criticism is warranted, this article starts by expounding the normative framework. Subsidiary universal jurisdiction derives out of the primary obligations of the territorial state or the state of the perpetrator to initiate criminal investigations and the prosecution of international crimes. These states owe such obligations towards the entire international community (erga omnes). Inadequate performance by the states bearing prior responsibility therefore triggers the right of other states to exercise universal jurisdiction. An analysis of some cases and legal trends provides this author with the impression that Western courts have made prudent use of universal jurisdiction; that their case law has contributed to the development of international criminal law; and that international criminal tribunals have frequently orchestrated their initiatives. The author therefore concludes that this criticism has, in general, been far-fetched and unfair. Nevertheless, he submits that such indignation might have been triggered by isolated events in which Western judges have overstepped their powers and displayed a remarkable lack of political sensitivity.