International Society—The Duty Either to
Extradite or Prosecute
Chapter 2 discussed alternative sources of international law. This chapter builds on that discussion by asking who has the right to prosecute individuals for violations of international law. The two questions (and thus the two chapters) are of course closely linked. Whether a state can claim the right to prosecute those violating international law depends on the scope of the law and the legitimacy of the processes that made that law. The solidarist who recognizes the legitimacy of a universal consensus on 'war crimes', for instance, will likely support a state's claim to assert jurisdiction over those who commit such acts, even though that state might not have a direct connection to the crime. On the other hand, a positivist unwilling to accept the invocation of a universal consensus would be interested to know whether specific treaties exist indicating an agreement between states over the exercise of criminal jurisdiction or whether the prosecuting state has some kind of connection to the particular crime.1 The positivist position on the source of international law, in other words, is the starting point for the pluralist position on universal jurisdiction. To assert jurisdiction when a treaty is not present would put at risk the two principles of pluralist international society. First, it would be undemocratic as a state would be holding an individual to account before a law he, by not being a citizen of that state, had not consented to. Indeed, the actions that the prosecuting state might deem unlawful may very well have been sanctioned by the perpetrator's state and may even have been conducted on behalf of that state. This would not necessarily make those actions democratic (the state may after all be a dictatorship), but to
1 Other than the universality principle, it is generally considered that a state can claim juris-
diction based on three other principles: the territorial principle, where a state claims jurisdiction
over crimes committed on its territory; the national principle, where a state claims jurisdiction
over crimes committed by their nationals (active nationality principle) or against their national
(passive personality principle); and finally the protective principle, which allows a state to
prosecute acts that threaten its security even when they are committed by foreigners abroad.
Malanczuck, Akehurst's, 109–12.