Jurisdiction

Question 1

What is jurisdiction?

Answer 1

Exercising juris involves asserting a form of sovereignty

Question 2

What are the three heads of juris?

Answer 2

Legislative, adjudicative and executive

Question 3

Legislative juris is to do with enforcing the law through investigations and arrests. True or false.

Answer 3

False.

Question 4

What does legislative jurisdiction/prescriptive involve?

Answer 4

Legislative juris is the right of a state to pass laws to regulate conduct

Question 5

What are the two differing approaches to prescriptive juris?

Answer 5

Prohibitive rule and specific permissible rule

Question 6

What is the difference between the prohibitive rule and the specific permissible rule?

Answer 6

The former states that juris is able to be exercised unless there is an explicit prohibition against it whereas the latter

Question 7

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’?

Answer 7

Adjudicative juris

Question 8

Executive juris is the practical and coercive juris?

Answer 8

Ja

Question 9

Generally, will the unlawful exercise of executive juris render inadmissiblity?

Answer 9

No, unless it involves egregious violations of human rights as per Eichmann and Nikolic.

Question 10

In Eichmann, Nikolic, and Tolimir, was the exercise of unlawful executive juris considered to be conduct in an egregious manner?

Answer 10

No.

Question 11

Why can adjudicative juris still be exercised despite unlawful executive juris?

Answer 11

Minor violations in executive juris are considered to be disporportionate to the benefit of prosecuting int crimes.

Question 12

What are the grounds for exercising juris?

Answer 12

Territoriality, nationality, passive personality, protection principle and universal juris.

Question 13

Territoriality comes in two forms which are?

Answer 13

Subjective and objective territorial claims.

Question 14

What did SS Lotus establish in regard to territoriality?f

Answer 14

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.

Question 15

Does the nationality principle also apply to permanent residents?

Answer 15

Yes.

Question 16

For states that do not require a person to be a national at the time of the offence, what is required?

Answer 16

States need to be satifised that the person’s alleged conduct was prohibited under int/national law at that time.

Question 17

If nationality is being contested, what must a state claiming nationality show?

Answer 17

That there is a genuine link b/w the state and that individual - Nottembum.

Question 18

What is passive personality?

Answer 18

States can exercise juris if the victims of an offence are nationals

Question 19

Was juris on the grounds of passive personality accepted in the Eichmann case?

Answer 19

No because the Jewish victims were not Israeli citizens at the time of the commence.

Question 20

What is protective principle?

Answer 20

PP entitles states to exercise juris over situations that threaten state security.

Question 21

Was the protective principle accepted in Eichmann?

Answer 21

No, Israel did not exist at the time of the offence.

Question 22

Is a nexus between the state and alleged int criminal conduct necessary for the exercise of universal jurisdiction?

Answer 22

No nexus is required.

Question 23

What is universal juris confined to?

Answer 23

Torture, piracy, crimes against humanity, genocide and war crimes

Question 24

Universal juris can be exercised in two forms, what are they?

Answer 24

Universal juris with presence and absolute universal juris.

Question 25

Will a primary court trump universal juris?

Answer 25

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.

Question 26

Does universal jurisdiction give rise to state obligations?

Answer 26

No

Question 27

What are some practical difficulties with universality?

Answer 27

Double criminality, evidentiary burden, ‘political offence’ and the specificity principle

Question 28

Was universal jurisdiction accepted in Eichmann?

Answer 28

Yes, inter alia, a number of other basis for jurisdiction

Question 29

In Arrest Warrant case (Congo v Belgium) (Yerodia) what was the dissenting opinion regarding universal jurisdiction?

Answer 29

Universal jurisdiction can be exercised in the absence of the accused in the territory. She makes a distinction between executive jurisdiction and legislative jurisdiction.

Question 30

What did Polyukhovich v Cth establish in regard to the separation of powers?

Answer 30

Although the War Crimes Act had a retroactive effect, it was not trial by legislature.