Universell jurisdiktion in absentia : Nationella domstolars tillämpning av universell jurisdiktion in absentia som ett verktyg i kampen mot straffrihet för internationella brott

Sammanfattning

The permissibility and legal limits of exercising universal jurisdiction in absentia under contemporary international law are the focus of this study. Particular attention is given to the fragmented normative foundations, the human rights constraints governing trials in the absence of the accused, and the potential for politically motivated proceedings. Analysis of treaty law, customary international law, international jurisprudence, domestic legislation, and major scholarly debates shows that no authoritative source provides a definitive determination on the legality of in absentia proceedings under universal jurisdiction. The applicable legal framework is therefore reconstructed by examining the traditional jurisdictional principles, the development of universal jurisdiction over core international crimes, and the fair trial requirements articulated by the European Court of Human Rights and by United Nations human rights bodies. A combination of doctrinal and comparative methods, supplemented by a normative assessment, is used to identify whether and under which conditions in absentia proceedings may be justified for genocide, crimes against humanity, and war crimes. Based on this analysis, a three-tier framework is proposed, grounded in subsidiarity, minimum fair trial guarantees, and institutional legitimacy, providing a structured method for assessing when universal jurisdiction in absentia may be permissible. It may be considered permissible only when (i) the territorial state is unwilling or unable to prosecute, (ii) strict procedural safeguards ensuring effective defense rights and the possibility of a full retrial are guaranteed, and (iii) the forum state demonstrates sufficient rule of law capacity to prevent political misuse. When these conditions are met, universal jurisdiction in absentia can operate as a legiti- mate, effective and necessary tool for addressing impunity for the most serious international crimes.