Week 5(ii) - Jurisdiction Flashcards
What is the traditional limits to enforcement jurisdiction? (5)
1) Lotus
2) Failing the existnce of a permissive rule to the contrary a State may not exercise its executive jurisdiction in another State’s territory
3) today maybe we permit broader jurisdiction, but still problems where no consent from host State
4) Cryer: unclear whether extra-territorial enforcement jursidiction requires national courts to decline jurisdiction
5) ICTY: discretion to refuse cases where accused rendered by extra-territorial enforcement although high threshold (Nikolic)
What are the limits to prescriptive jurisdiction traditionally? (4)
1) Lotus
2) IL leaves a wide measure of discretion which is only limited in certain cases by prohibitive rules
3) doubtful whether reflect CIL in 1927
4) Today: state tend to rely on positive grounds of jurisdiction rather than absence of prohibition
What are the bases of prescriptive jurisdiction? (4)
1) Territoriality
2) Nationality
3) Protective Principle
4) Universality
What are the 3 types of territorial jurisdiction?
1) Subjective: where commenced
2) Objective: where concluded
3) Ubiquity Principle: where part of crime occurs (Boister)
What is the Nottebohm Principle? (3)
1) the person with purported nationality must have ‘genuine connection’ with the State
2) Cf. does this apply to jurisdiction (the case was on diplomatic protection)
3) However analogy since nationality and DP both require extra-territorial jurisdiction over events in host State
What are the 2 types of nationality jurisdiction?
1) Active nationality: perpetrator’s nationality
2) passive PERSONALITY: victim’s nationality
What is the status of passive personality jurisdiction under IL? (2)
1) Traditionally accepted for war crimes - even for nationals of co-belligerents (Velpke Baby Home)
2) Lotus: all judges expressing a view thought it was not permitted under CIL (but since then increasing support)
What were the facts of the Lotus case? (4)
1) High Seas collision between FRA and TUR vessels
2) TUR vessel sank with 8 dead
3) FRA vessel go to TUR port where criminal charges against it are issued
4) FRA challenge in PCIJ
What was held in the Lotus case? (4)
1) Effects Doctrine
2) Principle of territoriality of criminal law is fundamental
3) effects of the offence were produced on the TUR vessel (territory)
4) TUR has jurisdiction over the vessel
What are criticisms of nationality jurisdiction? (3)
1) State exercising jurisdiction may be biased in favour of own national
2) Passive personality principle favours powerful States
3) Passive personality may lead to application of laws they were justifiably unaware of (Cf. mainly where law differs between States - not as much for ICL)
What is protective principle jurisdiction? (2)
1) Jurisdiction exercised over activities threatening State security
2) often overlap with territoriality and nationality
How has universal jurisdiction developed historically? (3)
1) originally: piracy (1900)
2) then extended to universally condemned acts:
(i) War Crimes (1945)
(ii) Genocide (1950)
3) Later extended further
(i) Certain terrorist acts in specific treaties (e.g. High jacking)
(ii) international crimes (GCs, Nuremberg, ICTY, ICC)
(iii) Grave breaches regime GCs 1949
What is the grave breaches regime under GCs I-IV? (4)
1) 1949: GCs I-III revised, GC IV introduced, and codify grave breaches regime
2) Establish duty aut dedere aut judicare perpetrators of grave breaches
3) Non-grave breaches there is right but not duty aut dedere aut judicare
4) EX Art 49 GC I
Why did States opt for universal jurisdiction regime for GC grave breaches in 1949 rather than international criminal tribunal? (2)
1) More convenient and easier to implement
2) Cold War was starting perhaps making cooperation unlikely
What are pros and cons of having domestic prosecution rather than international? (2)
1) Pros: cheaper and easier
2) Cons: potentially dilution of principles since not uniformly applied
- Cf. today more uniformity due to Rome Statute implementations
