The Impunity Gap Analysis

Over the past decades millions of civilians have been victims of those atrocity crimes as genocide, crimes against humanity, grave war crimes, and other gross human rights violations. As a response to these crimes it was voiced that these atrocities should never happen again and perpetrators should not go unpunished. Because, too often perpetrators committed atrocity crimes as a result of impunity. To close the “impunity gap” several tribunals were created, examples are the International Military Tribunal, the ICTY, and the ICTR. Still, with these tribunals, only a part of the perpetrators were reached and the “impunity gap” was still not closed. Therefore the idea started to rise that it was up to individual States to prosecute and try international

Over the past years this ‘Western’ exercise of universal jurisdiction has been increasingly under attack by several Non-Western States and international organizations. For example, the AU has adopted several decisions, censuring the political abuse of universal jurisdiction in particular against African officials, by Western States. In 2008, the AU openly challenged the political nature and abuse of the principle of universal jurisdiction by judges from some non-African States against African leaders. It stated that the misuse of universal jurisdiction clearly violated the sovereignty and territorial integrity of the countries involved and it undermines the stability of African States. In its Decision on the Abuse of the Principle of Universal Jurisdiction (2009), the AU asserted that the principle of universal jurisdiction has been hijacked by judges from European States. Moreover, Tanzania, on behalf of the African States, requested to add the scope and application of the principle of universal jurisdiction to the agenda of the sixty-third session of the U.N. General Assembly. Also China, in its speech to the U.N. General Assembly, stated that universal jurisdiction was only an academic concept with no universally accepted

Recently, based on universal jurisdiction, an Argentine judge asked Spain to arrest and extradite 20 former officials accused of abuses during the military rule of General Franco. Also, on October 30 2014, the South African Constitutional Court unanimously ruled that South Africa is obligated to investigate crimes against humanity, including torture, committed by Zimbabwean police in March 2007. Moreover the AU adopted in 2012 the AU Model National Law, whose aim is to provide to African countries to exercise universal jurisdiction over international crimes and give effect to its obligations under international law. However, these practices of universal jurisdiction do not mean that non-Western States are not critical towards the Western practice of universal jurisdiction. Looking at the comments made by non-Western States in the Sixth Committee of the U.N. General Assembly (Sixth Committee), it can be said that a lot of comments focus on the way in which Western States exercise universal jurisdiction. Also Western exercise of universal jurisdiction is not free of criticism uttered by Western legal experts, however unlike other criticism voiced by non-Western States, this is often voiced by legal experts and voiced towards the policy of