Who knew that the International Criminal Court doesn’t operate on the basis of universal jurisdiction? Yet this is what chief prosecutor Luis Moreno-Ocampo declared earlier this month. This is how he justified not acting on a request by the Palestinian Authority to investigate alleged war crimes committed by Israel. Instead, Moreno-Ocampo said, the ICC will await a determination of statehood by the United Nations. International human rights organizations, including Amnesty International, immediately charged political bias.
Most importantly, the incident reveals a crucial and ongoing gap in international law: the 12 million or so stateless people that, according to the UNHCR, live in every region of the world and yet remain invisible. It’s no wonder stateless people resort to universal jurisdiction—absent open, legal spaces where they can pursue justice and claim their internationally recognized human rights. What would we expect from people with grievances, real or imagined, who are denied access to national and international tribunals?
Universal jurisdiction in foreign courts, for all its imperfections, gives legal haven to those whose national identities remain unbounded by statehood.
Erga Omnes 
My political opinions probably don’t flow with yours but the points you’re making about universal jurisdiction in the context of that ICC decision are extremely important. I have a couple recent posts (http://acrazynation.wordpress.com/2012/04/04/icc-denial-to-palestinians-more-proof-settlements-are-legal-part-i/) about it from the perspective of Israeli settlements, but I don’t focus so much on this issue, which should concern even the most right-wing Israelis when it comes to what this will mean for groups that aren’t rivals of Israel, but rather allies. There are a number of politicians here that are happy enough to limit the ability of the Palestinian Authority or Hamas or Hezbollah to be a plaintiff in the ICC or ICJ, but it presents a major moral issue and further emphasizes the ambiguity and lack of power of international legal institutions. It hearkens back also to clarifications about asymmetric warfare and non-state actors not being formally addresses in international conventions about the rules of war. Good post.
By: joshuare5768 on April 16, 2012
at 4:19 am
Many thanks for this thoughtful response. There’s also a strategic, not just moral, argument in all of this–those who wish to limit universal jurisdiction (in foreign courts) can’t realistically expect this to happen under the status quo. Even if individual plaintiffs to the ICC would never amount to that many in terms of numbers, there is a lot of symbolism attached to having access to an international tribunal blocked. (Don’t forget individual plaintiffs can’t access the ICJ on their own any way.) Again, thanks for the very interesting perspective.
By: scardenas on April 16, 2012
at 8:55 am