INTRODUCTION

The fascination of jurists with international criminal tribunals has often eclipsed the fundamental role of national jurisdictions in eradicating impunity for crimes against humanity. The practice of the International Criminal Tribunals for the former Yugoslavia (ICTY) and Rwanda (ICTR) has demonstrated that the inordinate cost and length of proceedings impose a serious limitation on the quantity of trials. Both tribunals were supplemented by other jurisdictions, such as the war crimes chambers in Bosnia and Herzegovina and in Kosovo and national trials and traditional gacaca proceedings in Rwanda. The “complementarity” scheme of the Statute of the International Criminal Court (ICC Statute) has institutionalized the primary responsibility of national courts in prosecuting international crimes. Beyond the confines of the ICC, however, the scope of responsibility of domestic jurisdictions in international law is clearly incongruent with a partnership between national and international courts. In particular, there is a conspicuous normative lacuna in the repression of crimes against humanity based on the exercise of universal jurisdiction by national courts. The creation of such an obligation may be the single most important argument in favor of the adoption of an International Convention on Crimes Against Humanity (Convention).

The principle of “universal jurisdiction” was proposed but expressly rejected by the drafters of the ICC Statute. Instead, with the exception of referrals by the Security Council under Chapter VII of the United Nations Charter, ICC jurisdiction is limited to those instances where crimes are committed either on the territory of a State Party or by its nationals.