Prosecuting Asia-Pacific Crimes: Universal Jurisdiction & The Future Crimes Against Humanity Convention

As state delegates and legal experts look toward the first Preparatory Committee meeting in January 2026, negotiations over a landmark Convention on Crimes against Humanity face a severe ideological fracture over universal jurisdiction. Spanning from the initial International Law Commission Draft Articles in 2019 to UN General Assembly resolution 79/122 in 2024, the path toward formal negotiations running through 2029 or 2030 has exposed deep divisions among Asian states regarding how national courts handle international atrocities.

The Legislative Framework of Universal Jurisdiction Under Draft Article 7

At the center of the diplomatic dispute is Draft Article 7, which dictates how nations establish criminal jurisdiction over crimes against humanity. According to the text, states must set up jurisdiction based on territoriality and the suspect’s nationality. They may also do so for stateless residents and victims who hold local citizenship under Draft Article 7(1). Furthermore, Draft Article 7(2) mandates that a nation must establish jurisdiction when a suspect is present in any territory under its jurisdiction and it does not extradite or surrender the person.

This provision outlines a form of conditional universal jurisdiction that does not require any additional points of connection beyond physical presence. When an accused individual is found, Draft Article 9(1) instructs authorities to take the suspect into custody or take other legal measures to ensure his or her presence. Following this, the custodial government must immediately notify all potential claimant states under Draft Article 9(3). This protocol opens the door for extradition requests, with Draft Article 13(12) requiring the custodial state to give due consideration to requests originating from the country where the alleged crimes actually took place.

Alongside these procedural mechanics, Draft Article 10 establishes the classic legal obligation to prosecute or extradite, known as aut dedere aut judicare. Under this article, a state hosting a suspect must weigh prosecution unless it chooses extradition or surrender to an international tribunal. Crucially, neither Draft Article 7 nor Draft Article 10 creates a formal legal hierarchy among competing jurisdictional bases. No single government can automatically claim that its right to prosecute overrides that of the custodial state.

Regional Pushback and State Proposals From Asia

Despite the lack of legal primacy in the draft text, written submissions submitted by approximately 65 states and the European Union ahead of the April deadline reveal sharp pushback from several Asian governments. Participation from the Asia-Pacific region was notably sparse, with only three contributions from East Asia, three from Southeast Asia and the Pacific including Australia, two from South Asia, and six from other nations in the UN Asia-Pacific group. Prominent non-submitters included Indonesia, Malaysia, the Philippines, Thailand, Bangladesh, Mongolia, and Aotearoa New Zealand.

Among those that did submit comments, major policy divergences emerged. China launched a sweeping attack on the framework, opposing universal jurisdiction entirely. According to official submissions, China proposed deleting preambular paragraph 8 regarding the duty of every state to exercise criminal jurisdiction, arguing it lacks clear legal evidence and leads to considerable controversy [and] conflicts with the principle of the primacy of territorial jurisdiction. Beijing further advocated for deleting Draft Article 7(2) and 7(3) entirely, which would restrict jurisdiction strictly to territoriality or personality.

In contrast, Japan adopted a more nuanced approach. While suggesting a domestic law caveat to narrow its backing of universal jurisdiction, Tokyo proposed strengthening vertical international tribunals by adding language to Draft Article 13 to give priority to a request from the competent international criminal court or tribunal for the surrender of a person. South Korea signaled general support for the current text, joining Aotearoa New Zealand at the January PrepCom in welcoming a diverse array of jurisdictional bases.

Other capitals sought explicit restrictions. Singapore argued for limiting Draft Article 7(2) strictly to nationals of states parties, framing it as a specific treaty-based jurisdiction. Singapore also maintained its position that states with a direct linkage under Draft Article 7(1) should hold primacy because they possess a greater interest in prosecuting the offence. Similar arguments for priority emerged from Türkiye, Iran, and Australia.

Why Legal Hierarchy Threatens Global Accountability

Injecting a hierarchy of jurisdiction into the new convention would mark a major regression in international law. International jurisprudence has never prescribed a mandatory ranking for criminal jurisdiction outside of practical convenience. As noted in landmark domestic cases like the Eichmann trial in Israel and proceedings in the United Kingdom, custodial states maintain valid authority to act.

Singapore’s assertion that territorial states hold a greater interest misinterprets the legal framework. While proximity helps gather evidence, creating a strict legal priority would paralyze justice. Custodial states would effectively need permission from other governments, wait indefinitely for responses, or face rigid extradition duties without knowing whether a genuine trial would actually happen. Home states could easily exploit the doctrine of national primacy to stall or block accountability.

Crimes against humanity remain acts that deeply shock the conscience of humanity under the preamble to the draft articles, constituting the most serious crimes of concern to the international community as a whole as recognized in the Rome Statute. As the International Court of Justice established in the 1970 Barcelona Traction case, every member of the international community holds a legal interest in prosecuting such wrongs.

Reflecting this moral weight, the Maldives emphasized during the PrepCom that crimes against humanity are morally so repulsive that it must be condemned universally. Imposing procedural hurdles on custodial states undermines this collective duty. Because domestic trials for international crimes remain exceedingly rare across the Asia-Pacific, dismantling universal jurisdiction would directly defeat the core purpose of the convention: driving a meaningful increase in global prosecutions.