Week 5(i) - National Prosecutions Flashcards
How do the bases of jurisdiction differ for domestic and international level?
They are the same
What is the relationship betwen ICL and domestic/international courts? (2)
1) ICL is the subtantive law - nothing to do with forum
2) may be enforced both at domestic and international level
What are different methods of enforcement of ICL? (3)
1) Indirect: national criminal jurisdiction
2) Direct: international criminal jurisdiction
3) ICC Statute: combination due to principle of complementarity
How has ICL been enforced at the domestic level historically? (5)
1) very few prosecutions in 50 years following WWII
2) mainly only GCs existed (grave breaches) but also not really prosecuted
3) Reason: too controversial prosecuting other State’s citizens during Cold War
4) Change: Rome Statute
5) Domestic courts have indicted far more than the 46 of the ICC - principle of of complementarity has created incentive
Why has there historically been few national prosecutions of ICL?(4)
1) Reluctance to prosecute own nationals (cf. not the case in E/W GER + YUG)’
2) national prosecutions of own nationals may implicate the govt
3) complex and sensitive cases: political willingness and resources required
4) limited expertise of national judges in ICL
Where are obligations on States to prosecute internaitonal crimes? (1(ii) + 2(ii) + 3(iii))
1) Treaty
(i) CAT and GCs
(ii) duty aut dedere aut judicare
2) HRL
(i) IACHR and ECHR: duty to provide effective remedy
(ii) unclear whether obligation to prosecute ALL international crimes (outside territory, rights of accused)
3) CIL
(i) ICTY AC: CIL obligation aut dedere aut judicare for grave breaches of IHL
(ii) However not clear that this is true
(iii) ILC: potentially duty aut dedere aut judicare where territoriality or nationality jurisdiction
What were facts of the Eichmann case? (5)
1) High-ranking Nazi official in charge of planning Final Solution
2) 1950: fled to ARG
3) 1960: captured by Mossad agents and brought to ISR without ARG consent
4) Breach of principle of non-intervention: condemned by UNSC
5) However ISR later solve conflict diplomatically with ARG
What crimes were Eichmann indicted for? (4)
1) Under Nazi and Nazi Collaborators (Punishment) Law
2) CaH
3) War Crimes
4) Crimes against the Jewish People (ad verbatim from Genocide Conv)
What bases of jurisdiction was the trial of Eichmann based on? (5)
1) Universality
2) Protective Principle
3) Passive personality principle
4) Problem: ISR did not exist at time of crimes casting doubt on latter 2
5) Court rejected objections to these jurisdictional bases but primarily relied on universality
What objections as to impartiality could be raised regarding the trial of Eichmann? (3)
1) 3 judges on bench all German speaking and partly educated in GER
2) were they impartial - potentially lost family in GER
3) many of the jews that moved to ISR were those evicted/persecuted by GER
Why are Syrian war crimes prosecuted in GER? (5)
1) GER has broad universal jurisdiction
2) domestic courts more suitable for less important officials since ICC lacks resources
3) SYR is not member of ICC (so no territoriality/nationality jurisdiction)
4) no UNSC referral to ICC since RUS supports SYR regime
5) by ECCHR
