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Jurisdiction & Cooperation > Exam > Flashcards

Exam Flashcards

1
Q

What are some forms of unfairness that could amount to an Article 6 flagrant denial of justice based on Othman & Soering?

A
  1. Conviction in absentia
  2. A trial that is summary in nature
  3. Detention without any access to an independent and impartial tribunal
  4. Deliberate and systematic refusal of a lawyer
  5. Evidence obtained by torture
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2
Q

What Questions did the Othman case raise when it comes to ensuring the quality of assurances from requesting states?

A
  1. can any assurances that are made be trusted based on the state’s human rights record?
  2. What are the quality of the assurances and can these assurances be trusted?
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3
Q

What are some of the assurances a requesting state needs to give based on Othman?

A
  1. Specificity
  2. Legally binding
  3. Ability of monitoring
  4. Whether or not the state giving assurances is a party to the ECHR
  5. Verifiability in practice
  6. History of ill-treatment of that person
  7. Quality of interstate relationship
  8. Transparency
  9. Legal status treatment
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4
Q

There is only a breach of ECHR in case of these cumulative conditions:

A
  1. Presence of the individual on that territory and
  2. Exposing that person to a real risk of Article 2, 3 or, serious Article 5 or 6 violations in another state or exceptionally an Article 8 violation
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5
Q

Article 3 (prohibition on torture) Violations

A

Some known prison conditions, a sentence of life imprisonment without parole and concerns about the medical treatment of the suspect

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6
Q

Article 6 (right to a fair trial) Violations

A

Lack of practical information, like a lack of information on whether a lawyer will be provided free of charge

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7
Q

Article 8 (Right to family life) Violations

A

Only in cases of exceptional circumstances can the right to family life stand in the way of extradition

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8
Q

What are the three alternatives to extradition?

A
  1. Disguised extradition
  2. Luring
  3. Abduction/kidnapping
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9
Q

What are extradition irregularities related to?

A
  1. Surrender
  2. Pre-trial detention
  3. Offical arrest
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10
Q

What is disguised extradition?

A
  • When a state uses its immigration laws to deny the right to stay in the state.
  • This is not a violation of state sovereignty because it requires the consent of the deporting state.
  • It is also much harder to prove that deportation was intended to circumnavigate traditional extradition
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11
Q

What are the facts/take-away of the Bozano case?

A

Facts: this is an example of disguised extradition where an Italian national murdered a Swiss girl and fled to France. He was tried in Italy in absentia, which prevented France from extraditing him, so France instead deported him to Switzerland where they knew he would eventually be sent back to Italy.
Takeaway: You do not have to navigate the state’s sovereignty because you have the consent of the state to deport.

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12
Q

What is luring?

A

Luring is a method by which “deceit, fraud, and tricks” are sued to lure a suspect from one state to another. You do not usually need consent from the residing state.

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13
Q

What are the facts/takeaways of the Yunis case?

A

Facts: A Jordanian who participated in a plane hijacking was lured to Cyprus with the promise of a drug deal only to be arrested by FBI agents
Takeaway: Luring does not always violate state sovereignty because the luring may not take place on another state’s soil.

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14
Q

What is abduction/kidnapping in the context of alternatives to extradition?

A

Abduction/kidnapping is the removal of a person from the jurisdiction of one state to another by the threat or use of force. The threat or use of force does not need to come from the wanting state. Usually, state sovereignty is violated here (see Uruguayan cases).

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15
Q

What is the Eichmann case and its relationship to abduction/kidnapping?

A

Eichmann was abducted in Argentina and tried in England.

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16
Q

What rights are violated by Male Captus?

A
  1. State sovereignty
  2. Human Rights
  3. Rule of law
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17
Q

Why is state sovereignty violated by Male Captus?

A
  1. Because it violates independent sovereignty (internal: only the state has authority over its territory and external: respect from other states and respect other states’ sovereignty)
  2. The principle of non-intervention
  3. An encroachment onto a state’s police powers
  4. Only disguised extradition does not harm state sovereignty
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18
Q

What are some exceptions to violating state sovereignty?

A
  1. Frely given and clearly established consent of the residing state
  2. Self-defence (see the Caroline Principles: imminence means immediate, overwhelming, and no other means of repelling)
  3. Humanitarian grounds
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19
Q

What is Male Captus Bene Detentus?

A

Wrongly captured, properly detained

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20
Q

What are the three main positions on Male Captus Bene detentus?

A
  1. They were wrongly captured, tough luck
  2. Because of these wrongful circumstances we will refuse to exercise jurisdiction
  3. Other remedies, such as financial compensation
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21
Q

What is the position of domestic courts on Male Captus Bene Detentus?

A

The traditional answer to male captus bene detentus is we don’t have the right to inquiry. BUT in the Bennet case, the UK court refused to claim jurisdiction for the unlawful capture

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22
Q

What is the abuse of process doctrine in relation to male captus cases?

A

The abuse of process doctrine is when capture offends the court’s sense of justice and propriety. A judge would have the discretion to stay the proceedings because it would be unfair to even try the suspect.

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23
Q

Tell me about the U.S. case of Alverez-Manchain

A

The forcible abduction of a suspect from Mexico, despite the existence of an extradition treaty between the two nations, did not preclude the court from hearing the case

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24
Q

What is the position of human rights mechanisms on male captus cases?

A

The state is always responsible in case of extraterritorial force, unless that force is carried out by a private individual

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25
Q

What is the stance of international criminal tribunals on male captus cases?

A

Abuse of process is not accepted. State sovereignty is not violated if a tribunal and not a state is the requesting party (Nikolic ICTY case). Human rights are only violated if they are egregious - extensive pre-trial detention is not enough (Barayagwiza ICTR case/Lubanga ICC case)

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26
Q

What are the five accepted bases for jurisdiction under international law?

A
  1. Territorial
  2. Active Personality
  3. Passive Personality
  4. Protective Principle
  5. Delegated jurisdiction
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27
Q

What are the five bases of territorial jurisdiction as set out by the Bangladesh/Myanmar decision?

A
  1. Objective territoriality
  2. Subjective territoriality
  3. Constitutive element
  4. Effects doctrine
  5. Principle of ubiquity
28
Q

What is objective territoriality?

A

When a crime initiated abroad is completed on the state’s territory

29
Q

What is subjective territoriality?

A

Crime initiated in the state’s territory and completed abroad

30
Q

What is the constitutive element approach?

A

When one element of the crime (usually a vital element of the crime) is committed on that state’s territory

31
Q

What is the effects doctrine?

A

When the crime is committed outside the state’s jurisdiction but has effects within its territory

32
Q

What is the principle of ubiquity?

A

When the crime takes place in whole or in part on the state’s territory

33
Q

What is active personality jurisdiction?

A

Jurisdiction over the extraterritorial conduct of its nationals regardless of the nature of the offense.

34
Q

What is passive personality jurisdiction?

A

Prescriptive and adjudicative jurisdiction over offenses abroad because the victim was a state’s national

35
Q

What is the protective principle?

A

States may criminalize the conduct of non-nationals in order to protect fundamental national state interests. Applies only to offenses that are capable of harming the state, such as those related to national security.

36
Q

What is delegated jurisdiction?

A

A derived form of jurisdiction stating that states can exercise jurisdiction because another state delegated the jurisdiction it could exercise. Mainly used when extradition is undesirable or impossible. The forum state will typically apply its own laws.

37
Q

What is the universality principle?

A

States possess jurisdiction over certain crimes that harm universally recognized legal interests. Not one single state, but international community of states have a common interest in prosecuting and adjudicating those particular crimes.

38
Q

What are the different forms of universal jurisdiction?

A
  1. Absolute UJ
  2. Subsidiary UJ
  3. UJ Requiring Presence of the Accused on Territory
  4. Treaty-based UJ
39
Q

What is Absolute UJ?

A

You can try people in absentia. Political pressure caused countries that believed in this approach to restrict UJ

40
Q

What is subsidiarity UJ?

A

Last resort; if other states cannot have jurisdiction

41
Q

What are the three ways UJ can be justified?

A
  1. UJ as the extraterritorial dimension of domestic penal power
  2. Cosmopoitian justification of UJ
  3. Dual foundation/transnational justification of UJ
42
Q

What is the cosmopolitan justification of UJ?

A

When the state derives right from common interest of the international community in the prosecution of international crimes

43
Q

What is the dual foundation justification of UJ?

A

UJ can be justified both because the state is acting on behalf of the international community and the domestic relationship between the victim, perpetrator and the prosecuting state (think victim diasporas)

44
Q

What does mutual legal assistance stand for?

A

MLA stands for mechanisms for legal assistance in the gathering of criminal evidence abroad, in jurisdictions other than that in which the investigation, prosecution, or adjudication has been triggered (investigative or forum jurisdiction)

45
Q

What are the grounds for refusal of MLA?

A
  1. Needs to be a prior request
  2. Cannot be for military or political reasons
  3. Subject to double criminality (has to be criminalized in both states)
  4. Would prejudice sovereignty, security, public order or other essential interests
  5. Double jeopardy would be a bar
  6. Human rights and non-discrimination principle
  7. Has to be subject to the same conditions as a domestic investigation
46
Q

What is a joint investigation team (JIT)?

A

One of the most far-reaching and advanced forms of MLA, extensively used for investigating international core crimes. Typically short-term, but much more efficient than traditional MLA.

47
Q

What are the pros of open-source evidence?

A
  1. Obviates the need for MLA
  2. Democratising potential
  3. Prevents over documentation
  4. Relative objectivity
  5. Establishes patterns
  6. Shows the commission of atrocities
  7. Can corroborate or supplant traditional forms of evidence or disprove information
48
Q

What are some cons of open-source evidence?

A
  1. Can be easily manipulated
  2. Overdocumentation
  3. Can put victims in danger
  4. Problems with admissibility
  5. Doesn’t depict the full picture - may still need linkage evidence
  6. Lack of common standards
49
Q

What is extradition?

A

A FORMAL process by which a state requests from another state the return of a person unlawfully at large who is accused of a crime in the requesting state to face trial or to serve a sentence in the requesting state. This is to prevent states from becoming safe havens for criminals

50
Q

What are the principles of extradition?

A
  1. Extradition is regulated via extradition acts or bilateral/multilateral treaties
  2. There is no absolute duty to extradite
  3. the rule of non-inquiry applies
  4. Stakeholders: requested state, requesting state, international community, requested person
51
Q

What is the enumerative approach?

A

Lists all extraditable offenses

52
Q

What is the elimination approach?

A

Extraditable offenses are all those with a minimum level of punishment

53
Q

What is dual criminality?

A

When there is a divergence in criminal practice

54
Q

What are the rationales behind the non-extradition of nationals?

A
  1. Active personality principle
  2. Natural judge
  3. Social contract theory
55
Q

What is a pure political offense?

A

Unstained by criminal aspects/only effects the political organization of the state

56
Q

What is a relative political offense?

A

A common crime which aquires a political character as a result of the motivation of the offender or the circumstances under which it was committed.

57
Q

Factors for identifying political offenses?

A
  1. Proximity
  2. Subsidiarity
  3. Proportionality
58
Q

What is the PO definition of proximity?

A

The act must be capable of achieving the final goal

59
Q

What is the PO definition of subsidiarity?

A

The offense should be the only, or at least the least intrusive means of achieving a political objective

60
Q

What is the PO definition of proportionality?

A

The goal must be commiserate with (or not disproportionate to) the damage caused

61
Q

What are the four EuroJust Factors to consider when deciding which jurisdiction to prosecute?

A
  1. Location of suspects
  2. Availability of evidence
  3. State of proceedings
  4. Interests of Victims
    (You have to perform a balancing exercise between the factors)
62
Q

What is the rule of non-inquiry?

A

When the requested state cannot inquire into the criminal justice system of the requesting state, but is still bound to human rights law

63
Q

What are some state reservations to the LHC?

A
  1. Obligation to criminalize
  2. Provisions on the rights of victims (unknown to some common law countries)
  3. The possibility of LHC State Parties to make reservations (can refuse to apply certain provisions it does not agree with)
  4. Future LHC State Parties may be deterred by the financial burden
64
Q

Political incidence theory

A

Looks at proximity - is it capable of achieving the final goal?

65
Q

Predominance theory

A

Looks at proportionality - the goal must be commiserate with achieving the final goal

66
Q

Political Objective Test

A

Subsidiary - could the goal have been done in the least intrusive way

Jurisdiction & Cooperation (3 decks)

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