This article introduces a new analytical category to provide a more accurate, comprehensive, and nuanced account of universal jurisdiction defendants: defendants living in fear. In contrast to defendants living with impunity, defendants living in fear are defendants whose home state is very much willing and able to prosecute and punish them. Using an original database, this article shows that there is a substantial number of universal jurisdiction defendants who live in fear, and that their percentage has increased since the early 2000s. The article also shows that defendants living in fear are more than ten times more likely to be arrested and more than 30 times more likely to be tried than defendants living with impunity.

In addition, this article argues that the function and justification of universal jurisdiction for defendants living in fear is not (only) the traditional justification of avoiding impunity, but (also) providing a fair trial that prevents wrongful convictions, and then assigning proportionate punishment if the defendant is found guilty.

Finally, this article discusses what democracies should do with living-in-fear cases to avoid being instruments of autocratic regimes that often prompt or encourage universal jurisdiction cases in other states against their military and political opponents.

Franz Perrez is Director-General of the Directorate of International Law at the Federal Department of Foreign Affairs (FDFA), Switzerland. He is responsible for the development and interpretation of international law and ensuring that Switzerland's strategic rights are respected abroad. As a member of the FDFA senior management, Mr Perrez is also jointly responsible for the FDFA's strategic approach and advises the Federal Council, Switzerland's representatives abroad and other Federal Administration offices on international law issues.

Prior to his new role Mr Perrez was appointed Switzerland's Ambassador for the Environment and Head of the International Affairs Division at the Federal Office for the Environment (FOEN) in 2010. In this capacity, he headed the Swiss delegations to international environmental and climate negotiations for thirteen years.

After studying law in Bern and Paris, Mr Perrez worked at the FDFA's Directorate of International Law from 1993 to 1995. He went on to study at New York University, where he gained a master of laws focusing on international law and completed a PhD thesis on the topic of sovereignty as a principle of cooperation. On returning to Switzerland, he took up a position at the World Trade Organization (WTO) Division of the State Secretariat for Economic Affairs, before joining the FOEN in 2001.

Mr Perrez has proven expertise in international law. He has widely published in the area of international environmental law, international environmental governance, the relationship between trade and the environment, and public international law. Since 2008, Mr Perrez has also lectured on international environmental law at the University of Bern School of Law. He served as a panellist on the newest WTO tuna–dolphin dispute between Mexico and the United States, and as Switzerland's Ambassador for the Environment and Chief Negotiator for Environmental Issues, namely climate change, biodiversity, chemicals and waste, he led the Swiss delegation to the Rio+20 conference and to the Paris Climate Change Conference in 2015. He was President of the Basel Convention (COP 11 in 2013) and President of the Rotterdam Convention (COP 8 in 2017) and facilitated the negotiations on mitigation of the Paris Agreement. Through his work within and outside of Switzerland, he has built strong networks around the world and within the Federal Administration.

Should theoretical discourse supporting state crimes be protected as free speech or prosecuted as atrocity speech? The relationship between Neo-Hobbesian Nazi collaborator Carl Schmitt and progressive Futurology founder Ossip Flechtheim provides a fascinating framework for exploring that question. In 1933, Schmitt rejected Flechtheim as a PhD student, on antisemitic grounds. Meanwhile, becoming Nazism’s “Crown Jurist,” he helped force Jewish lawyers, including Flechtheim, into exile. Post-war, Flechtheim, now on the US Nuremberg prosecution staff, arrested Schmitt. Through Flechtheim’s experience, this article explores how Schmitt’s prosecution, within a contemplated “Propaganda and Education Case” (PEC), might have determined how to treat atrocity-complicit academic propagandists. It chronicles how the PEC/Schmitt case collapsed when Flechtheim’s investigation was curtailed due to resource constraints, equivocal precedent, and prosecutor Robert Kempner’s botched interrogations. Nonetheless, Flechtheim contributed to the Ministries Trial conviction of propagandist Otto Dietrich. The article concludes by juxtaposing that case with Schmitt’s near-prosecution to contemplate norms for charging theorists laying needed groundwork for atrocity, via sufficiently proximate speech, even absent direct incitement. Such an international justice future would mirror immediate post-Cold War intellectual developments, which vindicated Flechtheim’s vision, not Schmitt’s. Exploring this topic is timely, as Russian academic discourse has enabled/fueled Ukraine’s invasion and related atrocities.

Persons with disabilities suffer disproportionately in every armed conflict, and Russia’s war in Ukraine is no exception. The atrocities committed against persons with disabilities in this conflict, however, are in part a consequence of the state’s longstanding policy of institutionalization, which heightens existing vulnerabilities and places persons with disabilities at an unacceptable risk of acute harm. The Independent International Commission of Inquiry for Ukraine must investigate the extensive and varied acts of violence that have been committed against persons with disabilities in Ukraine since the beginning of the Russian invasion, with a focus on persons with disabilities who are institutionalized. In recommending future action, the Commission must be driven by a victim-centred approach to accountability that contributes both to the criminal prosecutions of individual perpetrators, and to systemic reforms that contribute to the project of deinstitutionalization. This article can assist the Commission’s analysis by: (i) canvassing the reports of violence against persons with disabilities during the war in Ukraine, particularly those persons in institutions; (ii) reviewing the Commission for Ukraine’s mandate and explaining its primary purpose – that is, to ascertain the facts of the conflict, through an intersectional lens, with the aim of promoting accountability – with reference to the work done by United Nations commissions of inquiry in the past; and (iii) providing concrete examples on how the Commission’s investigations and report can further both legal accountability and systemic accountability for violence against persons with disabilities in Ukraine.

War and armed conflict — Armed conflict — Definition — Prerequisites for the existence of an armed conflict — International armed conflict — Non-international armed conflict — Intensity of hostilities — Organization of non-State armed groups — Duration of hostilities

War and armed conflict — Non-international armed conflict — Participation of international forces in non-international armed conflict — Conflict intervention — Intervention on invitation — United Nations Security Council — International Security Assistance Force — Afghanistan

War and armed conflict — International humanitarian law — Notion of attack by military means — Customary international law — Geneva Conventions, 1949, and Additional Protocols to the Geneva Conventions, 1977

War and armed conflict — International humanitarian law — Individual status under international humanitarian law — Combatants — Civilians — Direct participation in hostilities — Continuous combat function — Military objectives — Civilian objects

War and armed conflict — International humanitarian law — Military attack — Precautionary measures — Proportionality — Collateral damage — Expectation — Relevant perspective

War and armed conflict — Military action in Afghanistan in 2009 — International Security Assistance Force — Airstrike — United Nations Security Council Resolution 1386 (2001) — Kunduz incident

International criminal law — War crimes — Non-international armed conflict — Nexus — Prerequisites of nexus — Indiscriminate attack — Excessive collateral damage — Intent — Feasible precautions — Relevant perspective — Whether military action or law enforcement — Domestic jurisdiction — Universal jurisdiction

International criminal law — Relationship between international criminal law and domestic criminal law — General principles of law — Jurisdiction — Justification — Notion of war crime — International humanitarian law as justification in domestic criminal law — The law of Germany

Human rights — Scope of application — European Convention on Human Rights, 1950, Article 1 — Deaths occurring as result of air strike outside jurisdiction of Contracting State — Deaths occurring in context of extraterritorial military operation — Mandate for military operation given by resolution of United Nations Security Council acting under Chapter VII of United Nations Charter — Whether institution of domestic criminal investigation in itself sufficient to establish jurisdictional link between that State and victims’ relatives — Whether excessively broadening scope of application of Convention — Whether “special features” existing which establish jurisdictional link — Respondent State having exclusive jurisdiction over its troops in respect of serious crimes — Obligation of respondent State to investigate under international law and under domestic law — Whether facts complained of occurring within jurisdiction of respondent State — Admissibility of application

Human rights — Right to life — European Convention on Human Rights, 1950, Article 2 — Procedural element — Deaths occurring in extraterritorial armed conflict — Multinational operations under auspices of United Nations — Requirements of an effective investigation into those deaths — Whether any conflict with respect to requirements of effective investigation under applicable rules of international humanitarian law and under Convention — Adequacy — Promptness, reasonable expedition and independence — Participation of next of kin and public scrutiny — Whether investigation into deaths effective — Whether respondent State violating procedural limb of Article 2 of Convention

War and armed conflict — Extraterritorial armed conflict — Afghanistan — Troop-contributing States in United Nations authorized military operation — Obligations of States engaging in multinational military operations — Air strike during active hostilities causing deaths — Air strike constituting potential war crime — Obligation of respondent State to investigate under international law and domestic law — Whether investigation into deaths effective — Whether respondent State violating procedural limb of Article 2 of Convention

International criminal law — Individual criminal responsibility — War crimes — Afghanistan — Troop-contributing States in United Nations authorized military operation — Obligations of States engaging in multinational military operations — Air strike during active hostilities causing deaths — Air strike constituting potential war crime — Respondent State having exclusive jurisdiction over its troops in respect of serious crimes — Obligation of respondent State to investigate under international law and under domestic law — Whether investigation into deaths effective — Whether respondent State violating procedural limb of Article 2 of Convention

State immunity — Immunity from civil jurisdiction — Immunity in relation to acts amounting to war crimes or crimes against humanity — Jurisprudence of Supreme Court of Cassation on jurisdictional immunity — Whether immunity lifted where foreign State’s acts war crimes or crimes against humanity — Judgment of International Court of Justice (“ICJ”) of 3 February 2012 — Whether Italy internationally responsible for not recognizing Germany’s immunity under customary international law — Law No 5 of 14 January 2013 — Change in jurisprudence of Supreme Court of Cassation on jurisdictional immunity — Constitutional Court’s judgment no 238 of 22 October 2014 — Whether Law No 5 of 14 January 2013 unconstitutional — Whether Italian courts denying jurisdictional immunity where foreign States perpetrating war crimes or crimes against humanity — Supreme Court of Cassation reverting to earlier jurisprudence — Whether Court of Appeal of Florence taking change in jurisprudence into account — Whether Court of Appeal’s judgment quashed — Whether case to be remitted to Court of First Instance

Relationship of international law and municipal law — Decisions of international courts — International Court of Justice’s judgment of 3 February 2012 — Whether Italy internationally responsible for not recognizing Germany’s immunity under customary international law — Law No 5 of 14 January 2013 — Change in jurisprudence of Supreme Court of Cassation on jurisdictional immunity — Constitutional Court’s judgment no 238 of 22 October 2014 — Whether Law No 5 of 14 January 2013 unconstitutional — Whether Italian courts denying jurisdictional immunity where foreign States perpetrating war crimes or crimes against humanity — Supreme Court of Cassation reverting to earlier jurisprudence — Whether Court of Appeal of Florence taking change in jurisprudence into account — Whether Court of Appeal’s judgment quashed — Whether case to be remitted to Court of First Instance

International criminal law — War crimes and crimes against humanity — State immunity — Immunity from civil jurisdiction — Immunity in relation to acts amounting to war crimes or crimes against humanity — Judgment of International Court of Justice of 3 February 2012 — Jurisprudence of Italian courts — The law of Italy

State immunity — Restrictive doctrine of State immunity — Whether acts of this case private legal acts — Whether acts of this case sovereign — Assessment — Customary international law — International conventions — Legislative trends in various countries — Case law — International Court of Justice — Italian courts — Whether exceptions to State immunity — Whether this case exceptional — Sovereign acts — Peremptory norms — Crimes against humanity — Whether reasonable for Korean court to have jurisdiction over Japan — Whether State immunity applicable

Relationship of international law and municipal law — Customary international law — State immunity — Applicability — Treaties — Korean written laws — Relevance — Customary international law — International conventions — Legislative trends in various countries — Case law — International Court of Justice — Italian courts — Whether exceptions to State immunity — Whether this case exceptional — Sovereign acts — Peremptory norms — Crimes against humanity — Interpretation of law — Whether conclusions unreasonable or unjust — Korean Constitution — Whether highest norm in legal order — Rights of victims — Damage to individuals — Reparations for individuals — Failure of lawsuits in other countries — Respect for sovereign States — Whether exception to State immunity where State violating peremptory norm — Whether State immunity applicable — Whether Korean court having jurisdiction

Jurisdiction — Crimes against humanity — Use of “comfort women” in Korea — Whether Korean court having jurisdiction — Whether State immunity applicable — Whether Korean court having international jurisdiction over this case — Whether exception to State immunity where State violating peremptory norm — Whether State immunity applicable — International jurisdiction — Relevant legal principles — Assessment — Article 2(1) of Private International Act — Whether Korean court having jurisdiction over litigation relating to extraterritorial cases when venue Korea

International criminal law — Crimes against humanity — Whether acts of this case constituting crime against humanity — Whether exception to State immunity where State violating peremptory norm — Whether State immunity applicable — Whether Korean court having jurisdiction

War and armed conflict — Treatment of civilians — Annexation of territory — Imperial Japan occupying Korean Peninsula — Annexation Treaty, 1910 — Asia-Pacific War — Military strategy of Imperial Japan — Wartime “comfort stations” — Wartime “comfort women” — Imperial Japan mobilizing “comfort women” from Korean Peninsula — Plaintiffs subjected to violence and sexual assaults by Japanese soldiers — Plaintiffs suffering physical and psychological damage — Plaintiffs seeking compensation from Japan — Reparations for individuals — Whether State immunity applicable — Whether Korean court having jurisdiction

Damages — Compensation — Post-war — Wartime “comfort stations” — Imperial Japan mobilizing “comfort women” from Korean Peninsula — Military strategy of Imperial Japan — Plaintiffs claiming reparations for physical and psychological damage — Whether acts of this case constituting crime against humanity — Responsibility for indemnification for damages — Applicable law — Assessment of illegality of acts of this case — Scope of responsibility for indemnification for damages — Reparations for individuals — Plaintiffs seeking reparations from Japan as successor to Imperial Japan — Whether Japan obligated to pay reparations to plaintiffs

Treaties — Application — Scope — Claims Agreement, 1965 — 2015 Agreement — Effect on plaintiffs’ right to claim reparations for damage — Whether Agreements extinguishing plaintiffs’ right to claim — The law of the Republic of Korea

International criminal law — Crimes against humanity — Universal jurisdiction — Criminal procedure — Private citizen seeking to commence prosecution in Australia for crimes against humanity under Crimes Act 1914 (Cth), Section 13(a) — Criminal Code (Cth), Section 268.11 providing that proceedings may only be prosecuted “in the name of the Attorney-General” and with the Attorney-General’s consent — Whether right to commence private prosecution ousted by contrary legislative intention

Relationship of international law and municipal law — Treaties — Rome Statute of International Criminal Court, 1998 — International Criminal Court Act 2002 (Cth) — Australia’s international obligations under Rome Statute — Offences against international law incorporated as offences under Australian law — Primacy of Australia’s right to exercise its jurisdiction with respect to crimes within jurisdiction of International Criminal Court — Whether private citizen having right to commence prosecution in Australia for crimes against humanity under Crimes Act 1914 (Cth) — The law of Australia