Jurisdiction Flashcards
What is jurisdiction?
Exercising juris involves asserting a form of sovereignty
What are the three heads of juris?
Legislative, adjudicative and executive
Legislative juris is to do with enforcing the law through investigations and arrests. True or false.
False.
What does legislative jurisdiction/prescriptive involve?
Legislative juris is the right of a state to pass laws to regulate conduct
What are the two differing approaches to prescriptive juris?
Prohibitive rule and specific permissible rule
What is the difference between the prohibitive rule and the specific permissible rule?
The former states that juris is able to be exercised unless there is an explicit prohibition against it whereas the latter
Which jurisdiction is: ‘The extent to which national courts can and will take action to apply the laws of their state and pass judgements on matters’?
Adjudicative juris
Executive juris is the practical and coercive juris?
Ja
Generally, will the unlawful exercise of executive juris render inadmissiblity?
No, unless it involves egregious violations of human rights as per Eichmann and Nikolic.
In Eichmann, Nikolic, and Tolimir, was the exercise of unlawful executive juris considered to be conduct in an egregious manner?
No.
Why can adjudicative juris still be exercised despite unlawful executive juris?
Minor violations in executive juris are considered to be disporportionate to the benefit of prosecuting int crimes.
What are the grounds for exercising juris?
Territoriality, nationality, passive personality, protection principle and universal juris.
Territoriality comes in two forms which are?
Subjective and objective territorial claims.
What did SS Lotus establish in regard to territoriality?f
Turkey was permitted to exercise juris on territorial basis bc it one of the constituent elements of the offence and one of its effects had taken place in one state, it has juris.
Does the nationality principle also apply to permanent residents?
Yes.
For states that do not require a person to be a national at the time of the offence, what is required?
States need to be satifised that the person’s alleged conduct was prohibited under int/national law at that time.
If nationality is being contested, what must a state claiming nationality show?
That there is a genuine link b/w the state and that individual - Nottembum.
What is passive personality?
States can exercise juris if the victims of an offence are nationals
Was juris on the grounds of passive personality accepted in the Eichmann case?
No because the Jewish victims were not Israeli citizens at the time of the commence.
What is protective principle?
PP entitles states to exercise juris over situations that threaten state security.
Was the protective principle accepted in Eichmann?
No, Israel did not exist at the time of the offence.
Is a nexus between the state and alleged int criminal conduct necessary for the exercise of universal jurisdiction?
No nexus is required.
What is universal juris confined to?
Torture, piracy, crimes against humanity, genocide and war crimes
Universal juris can be exercised in two forms, what are they?
Universal juris with presence and absolute universal juris.
Will a primary court trump universal juris?
Generally, at least in respect to the Rome Statute, where the ICC can exercise the complementarity principle if domestic courts are unable to or unwilling to prosecute.
Does universal jurisdiction give rise to state obligations?
No
What are some practical difficulties with universality?
Double criminality, evidentiary burden, ‘political offence’ and the specificity principle
Was universal jurisdiction accepted in Eichmann?
Yes, inter alia, a number of other basis for jurisdiction
In Arrest Warrant case (Congo v Belgium) (Yerodia) what was the dissenting opinion regarding universal jurisdiction?
Universal jurisdiction can be exercised in the absence of the accused in the territory. She makes a distinction between executive jurisdiction and legislative jurisdiction.
What did Polyukhovich v Cth establish in regard to the separation of powers?
Although the War Crimes Act had a retroactive effect, it was not trial by legislature.
