Living with impunity versus living in fear: Universal jurisdiction defendants, due process, and the use of democracies by autocracies to prosecute their opponents

Abstract 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.