Symposium on Prosecuting Asia-Pacific Crimes: Universal Jurisdiction Under the Future Crimes Against Humanity Convention

[Kate Schuetze is a Regional Researcher on the Pacific Islands in the East and Southeast Asia and Pacific Regional Office of the International Secretariat of Amnesty International.

Jan Wetzel is a Senior Policy Adviser in the International Justice Team and the East and Southeast Asia and Pacific Regional Office of the International Secretariat of Amnesty International.]

The genesis since 2008, of the project on a Convention on Crimes against Humanity to the 2019 International Law Commission (ILC) Draft Articles (DAs) and the first Preparatory Committee (PrepCom) meeting in January 2026, and positions of Asian states, have been explored by Aakash Chandran  in this symposium (and here). UNGA resolution 79/122 of 2024 now sets out a framework for formal negotiations until 2029 (possibly 2030). States had until April this year to submit written comments on the ILC DAs. In June, proposals for amendments by about 65 states, plus the EU, were made public. While this is not the last opportunity, this moment enables a snapshot of where many states stand.

Comparatively fewer contributions were submitted by Asia-Pacific states: three each from East Asia, and Southeast Asia and the Pacific (incl. Australia; none from Pacific island states); two from South Asia; plus six from other states part of the Asia-Pacific UN group. While capacity and different national priorities will have curtailed contributions, it is regrettable that states like Bangladesh, Indonesia, Malaysia, Mongolia, Aotearoa New Zealand, the Philippines, and Thailand did not submit proposals.

The present post summarizes the state of discussions as of mid-2026 regarding universal jurisdiction in the convention and respective positions of Asian states, specifically in East and Southeast Asia. It concludes that relevant DAs will need robust defending.

How Would Universal Jurisdiction Work Under the New Convention?

A major topic of contention in the negotiations is the establishment and exercise of national jurisdiction, Draft Article (DA) 7 (for background see Amnesty International in 2024 and 2026).

DA7 obliges states to establish criminal jurisdiction over crimes against humanity: States shall establish jurisdiction on the bases of territory and nationality of the suspected offender; and can do so for suspects who are stateless residents, and where the victims are nationals (DA7(1)); other national bases of jurisdiction are preserved (DA7(3)).

Specifically, DA7(2) provides that a state shall also establish national jurisdiction in cases where a suspect:

“is present in any territory under its jurisdiction and it does not extradite or surrender the person”.

Beyond physical presence, no additional criteria are required for suspects to fall under this category – essentially conditional universal jurisdiction.

If evidence so warrants, a state party must take a suspect present “into custody or take other legal measures to ensure his or her presence” (DA9(1)), and then “immediately notify” all states with potential jurisdiction (DA9(3)). This allows those other states to submit extradition requests under DA13, including the suspects’ and victims’ home states. Under DA13(12), the custodial state must especially “give due consideration” to requests for extradition by the state where the alleged crimes were committed (territoriality principle). Moreover, DA13(13) generally requires the custodial state to consult with any requesting state, giving it “ample opportunity to present its opinions and to provide information”.

Finally, DA10 sets out the duty to prosecute or extradite (aut dedere aut judicare). When a suspect of crimes against humanity “is present” in any place subject to a state’s jurisdiction, that state must consider them for prosecution, unless it decides to extradite them to another state or surrender them to an international criminal tribunal.

The Draft Articles therefore establish a framework under which a suspect, who can come from anywhere, can be arrested in one state, but all respective other states must be promptly informed and given an opportunity to make their case for extradition.

Neither DA7 nor DA10 indicate that one basis of jurisdiction – such as territorial, active personality or passive personality, or universal – has legal “primacy” over another. This means no hierarchy is set among the bases of jurisdiction, and no state can assert that its claim to exercising criminal jurisdiction has priority over others, especially vis-à-vis the custodial state.

However, this is contested. In April (and before) some states made proposals to provide “primacy” for certain bases of jurisdiction or otherwise limit the discretion of the custodial state.

State Proposals

Drawing on their UN contributions, within the Asia-Pacific this discussion is exemplified by the submissions of China, Japan, South Korea and Singapore.

China is generally opposed to universal jurisdiction in relation to crimes against humanity. Among others, China proposes to delete draft preambular paragraph 8 on “the duty of every State to exercise its criminal jurisdiction with respect to crimes against humanity”, as ostensibly lacking “clear evidence” legally, and leading “to considerable controversy [and] conflicts with the principle of the primacy of territorial jurisdiction.” Specifically, China proposes deleting DA7(2) and 7(3) in full, leaving only territoriality or personality as bases of jurisdiction under DA7(1). In its view, no state should exercise criminal jurisdiction “regardless of … points of connection”. Furthermore, China proposes deleting the option in DA10 of surrendering the suspect to an international criminal tribunal. Thus, it opposes any form of “international jurisdiction”,whether universal jurisdiction by other states (horizontal relationship) or jurisdiction of international tribunals (vertical relationship).

In contrast, Japan actually suggests strengthening “vertical” international jurisdiction by confirming in DA7(2) the option to surrender a suspect to an international tribunal, and even adding in DA13 to:

“give priority to a request from the competent international criminal court or tribunal for the surrender of a person”

along the lines of Article 90 of the Rome Statute. However, Japanalso proposes to limit the “duty” to prosecute in draft preambular paragraph 8 to crimes with a territorial nexus and to insert a domestic law caveat in DA7(2), indicating narrower support for universal jurisdiction.

South Korea proposes adding the option of “surrender” to DA13 (without making it a priority) and calls for ensuring “internal coherence with the jurisdictional framework established” under DA7, and specifically between DA7(2) and 10. This points towards support for the present draft provisions. At the January PrepCom, South Korea and Aotearoa New Zealand were among a group of states welcoming the provision of a wide range of jurisdictional bases. This overall position can be seen as welcoming both “horizontal” and “vertical” international jurisdiction (supported by the fact that these countries are also ICC member states).

Singapore is among states(also broadly: Iran, Türkiye, earlier Saudi Arabia) that suggest various forms of curtailing jurisdiction under DA7(2). Singapore proposes limiting DA7(2) to nationals of states parties to the future convention (likewise Türkiye and earlier China), since it considers that provision to create a specific “treaty-based jurisdiction”. In 2019 and 2023, Singapore also stated that potential conflicts of jurisdiction should be resolved by giving states with a linkage under DA7(1) “primacy” over the custodial state, as the former had the “greater interest in prosecuting the offence”.

Türkiye goes further and expressly proposes that states with territorial or nationality jurisdiction should have primacy. Iran suggests adding a condition that “due regard shall be had to the State most closely connected to the offence”, via the territoriality and personality principles. Australia appears not to suggest a rule of primacy anymore for DA7(2), but adding the nationality principle to those states whose extradition requests should receive preferential “due consideration” under DA13(12).

States making such proposals have a diverse profile: ICC member states and non-parties; Global North and South; and both supporters and opponents of the Crimes against Humanity Convention project at large. The common denominators instead seem to be a combination of states inherently critical of exercises of criminal jurisdiction other than their own, and countries which through their involvement in international missions could see their soldiers accused of international crimes.

While these proponents may claim to represent a moderate, compromise position, it in fact would significantly weaken the whole convention. States should reject proposals for DA7 to provide priority for any bases of jurisdiction.

The Case Against “Primacy”

First, international law does not prescribe a ranking of jurisdiction. This is why the ILC did not propose any form of primacy (beyond that of the territorial state to have its extradition request duly considered, DA13(12)). While the primary exercise of some bases of jurisdiction, particularly territorial jurisdiction, may be intuitive or convenient for practical reasons (forum conveniens), such as the availability of evidence and the proximity for witnesses and victims, existing international law does not establish that any base of jurisdiction has default priority. That DA7 and DA10 do not indicate a hierarchy of jurisdictions is in line with treaties such as the Convention against Torture, the Convention against Enforced Disappearance, and the recent Ljubljana-The Hague Convention on mutual legal assistance for international crimes. This is supported by domestic case law in e.g. Israel (Eichman) and the UK, and expert opinion.

Singapore’s thesis as to “greater interest” may be true. However, this is not a legal requirement but one factor to be considered when determining the best place of jurisdiction. In our view, the best place is usually where a genuine prosecution is actually being carried out. Creating a legal hierarchy in the new convention would be a regressive step in international law.

Secondly, crimes against humanity are among those that “deeply shock the conscience of humanity” (preamble to the DAs) and among the “most serious crimes of concern to the international community as a whole” (preamble to the Rome Statute). When such crimes are committed, all states of the international community, individually and jointly, may consider their legal interests wronged, as the International Court of Justice (ICJ) stated in 1970 in Barcelona Traction(p. 33-34).

This convention is a direct legacy. Crimes against humanity, fundamentally, are about a particular form of serious human rights violations. The present project, with its criminalization of certain egregious forms of discrimination and the proposals on gender justice including gender apartheid and the slave trade, comes full circle. This also explains the competing proposals to add “erga omnes character” (see also Myanmar’s Permanent Representative in January) to the jus cogens reference in the draft preamble, or conversely to delete that reference altogether (e.g., China, Iran, Türkiye). The Maldives stated at the PrepCom that:

“crimes against humanity are morally so repulsive that it must be condemned universally.”

Lastly, creating any form of hierarchy or conditionality for DA7 or DA10 to fetter the discretion of the custodial state could render the possibility to prosecute meaningless: custodial states would in effect have to request permission from other states to prosecute; wait (how long?) if no response is forthcoming; or have a duty to extradite if so requested (with no certainty if a genuine prosecution would follow in the requesting state). It is not difficult to see how especially the home state of the suspect, under the guise of “primacy of national jurisdiction”, could use such conditions to at least delay, and possibly deny, an effective prosecution.

Prosecution for international crimes is an obligation, while extradition or surrender is an option left to states; the exercise of this obligation is independent from a prior request to extradite or surrender the suspect (see, inter alia, the ICJ in Belgium v. Senegal). Under existing international law, a state under whose jurisdiction a suspected perpetrator is found may open a criminal investigation without having to offer, grant, or wait for extradition requests by other states. This should be preserved in the convention.

The Claim of “Competing Jurisdictions”

Some states have raised the issue of competing claims for the exercise of jurisdiction, including many principal supporters of the convention project.

First, Amnesty International has argued that:

“the presence of the suspect outside the territorial state creates a presumption that the authorities of the territorial state are not acting with due diligence to investigate and prosecute”

the ability to travel abroad is a strong indicator that no bona fide prosecution would be forthcoming.

Secondly, should multiple states indeed intend to initiate criminal proceedings, DA9 and DA13 provide sufficient avenues of cooperation to allow all states interested in bringing proceedings to make their case.

Overall, states should consider that actual domestic prosecutions for international crimes are still relatively rare globally, at least outside of Europe and certainly in the Asia-Pacific. One leitmotif for this convention is to increase the likelihood and number of national prosecutions for crimes against humanity. Additional obstacles would run counter to this aim. States should maintain DA7 as it is and reject attempts to undermine it.