The protective principle of jurisdiction over war crimes and the hollow concept of universality

At the end of World War II, the prosecution by the Allies of thousands of enemy war criminals in Europe and the Far East, and the creation of International Military Tribunals at Nuremberg and Tokyo, are seen by many as a landmark in the development of international criminal law. This development is widely asserted to have given rise to universal jurisdiction over war crimes for the prosecution of perpetrators of gross human rights offences. By using primary research, the purpose of this article is to challenge the perceived emergence of universal jurisdiction and to show that it has been allowed to develop as a myth, a hollow concept. The article seeks to provide an alternative view, by arguing that jurisdiction over war crimes is better explained as an important development of the protective principle, which was exercised collectively by some Allies, for the punishment of a ‘common enemy’.