Jurisdictional Competence Through Protection: To What Extent Can States Prosecute the Prior Crimes of Those to Whom They Have Extended Refuge?

States face a dilemma: international law obliges them to protect individuals in certain contexts, but that may require them to harbour alleged criminals. If such individuals cannot be surrendered or deported, states have to find another means to ensure prosecution and avoid impunity. Unless the International Criminal Court can assume jurisdiction, the haven state is arguably required to assert extraterritorial jurisdiction. Yet, this is not straightforward. Governments are drafting policies in isolation that focus only on their specific needs — usually involving a simple removal of the individual from that state — such that protection offered through international human rights law and non-impunity are both ignored and remain unaddressed. This article explores the scope of the obligation to protect under international refugee law and/or international human rights law; the capacity of states to prosecute, including how jurisdiction might be asserted; and, most importantly, gaps in the existing systems, so as to shape the debate about devising a coherent response that respects both human rights and non-impunity under international law and does not ignore the comity of nations.