Building a Global Criminal Justice System at the Domestic Level

While the project’s focus is on international criminal law (ICL), international refugee law (IRL) is the starting point; it is the metaphorical canary in the coal mine that flags up questions at the heart of ICL. Many of the domestic prosecutions of international crimes  are asylum and migration related and call for a joined up and coordinated system of justice where there is a clear focus on who should be prosecuted. To date, no such system exists. 

This comes with problems. First, article 1F(a) of the Refugee Convention, the so-called exclusion clause, stipulates that those who are suspected of having committed international crimes are undeserving of protection and should be prosecuted. But there is no uniform understanding of ‘undeserving’. At the same time, ICL lacks an overarching policy of who is 'deserving' of prosecution. Many excluded asylum claimants remain unprosecuted and exist in a legal limbo. 

Second, asylum related prosecutions have a distorting effect. It comes with a focus on low-level and ‘low cost’ defendants (from weak countries). 

Third, ad hoc prosecutorial decision-making premised on asylum applications hampers developing a long-term approach to the enforcement of international criminal law. 

Through empirical research in eight countries (Australia, United States, Canada, United Kingdom, Germany, Sweden, France and The Netherlands) and comprehensive case-analysis the project will, among other things, map who is ‘deserving’ of prosecution. It will also clarify the scope of ‘undeserving’ and draw the line between criminal complicity and non-criminal association, addressing the ICL-IRL mismatch that leaves many in limbo. It will result in a proposal for a system of ‘jurisdiction allocation’ based on subsidiarity and burden-sharing plus a resettlement proposal premised on a ‘right to start again’.