Week 5 Jurisdiction PPT PDF

Public International Law Week 5 Lecture : Jurisdiction Anna Schmitt Nagelbach 1. Territorial Jurisdiction A state is sovereign within its own territory and therefore has the right to prosecute in respect of acts arising within its territory....

Public International Law Week 5 Lecture : Jurisdiction Anna Schmitt Nagelbach 1. Territorial Jurisdiction A state is sovereign within its own territory and therefore has the right to prosecute in respect of acts arising within its territory. Why? Primary duty of any government is to maintain law and order in its territory (territorial jurisdiction extends over land, national airspace, internal water, *territorial sea, national aircrafts and national vessels) Subjective territorial principle: State ‘A’ has jurisdiction to prosecute a crime initiated (started) in its own territory but completed abroad. ObjectiveLecture 1 territorial principle: State ‘A’ would have jurisdiction to prosecute a crime initiated outside its own territory but either completed in state A or produced harmful consequences in Anna state A.Schmitt Nagelbach Lotus case (PCIJ 1927) The Lotus (French ship) was involved in a collision on the High Seas with a Turkish ship, the Boz Kurt. The Boz sank (8 Turkish nationals died). Turkish criminal proceedings against French 1 st officer of Lotus for killing Turkish nationals; French gov’t protested: lack of required jurisdiction to prosecute a foreigner for acts committed outside of the Turkish territory (high seas). Only flag state or state of nationality has jurisdiction. Lecture PCIJ accepted the argument 1 by Turkey that the Turkish Vessel could be regarded as an extension of Turkish territory and thus jurisdiction could be assumed under Anna Schmitt the objective territorial Nagelbach principle. PCIJ: a state is entitled to exercise jurisdiction within its own territory---unless and until it could be shown prohibited under international law. PCIJ: There is no international rule prohibiting the exercise of Turkish jurisdiction; restriction on state sovereignty should not be presumed 2. Nationality Jurisdiction States have authority over their own nationals, beyond the state’s territory - link between state and its nationals independent of location A state may prosecute its own nationals (the offender) for crimes committed anywhere in the world; the ground of this jurisdiction is known as active nationality (personality) principle. Nationality of the suspect / offender is key Lecture 1 Also, it may claim jurisdiction for crimes committed by aliens against their nationals (the Anna Schmitt victim) abroad; principle Nagelbach the ground of this jurisdiction is known as passive nationality (personality) Nationality of the victim is key Injuring a national of a state = injuring the state This principle is controversial and not generally accepted When is a person a ‘national’ of a state?  Nationality 1. Jus soli – English common law 2. Jus sanguinis – Roman law 3. Nationality of spouse 4. Acceptance of public office 5. Permanent residence Nottebohm Case (Liechtenstein v. Guatemala) ICJ 1955 defined nationality as: Lecture 1 “a social fact of attachment, of genuine connection of existence, Anna Schmitt interests Nagelbach and sentiments, together with the existence of reciprocal rights and duties.”  3. Protective Principle Authorizes a state to exercise jurisdiction over individuals (non nationals) when their criminal acts occur outside of its borders. Such acts must threaten the national security, territorial integrity, or political independence of the state. Actual harm is not necessary. Protective principle: Offenders conduct violates state X law Conduct may start and end outside State X (Territorial principle must either start or end in X, harm has been caused) Lecture 1 Anna Schmitt Nagelbach 4. Universal Jurisdiction Conduct sufficiently heinous as to violate the laws of all states & threaten the international community at large Conduct in question can be started and completed anywhere Involvement of own nationals is not a requirement All states may prosecute  moral duty! Historical foundation in piracy, but extends to a number of crimes today: gross violations of human rights (torture, genocide, war crimes, crimes Lecture 1 against humanity etc.) Anna Schmitt Nagelbach Close link to jus cogens norms Potential breach of state sovereignty Practical issues in light of investigation etc.  Universal Jurisdiction Adolf Eichmann 1961 – responsible for the implementation of the “Endloesung” Seized by Israeli secret agents in Argentina -> extradition treaty that had not been ratified -> Israel abducted him in fear of Eichmann’s escape; Israeli court held that the illegality of the means by which the accused was within its territorial jurisdiction was not material; Israeli court held that jurisdiction to prosecute Eichmann for acts that had taken place in Europe existed under something resembling a protective principle and also under the universal principle: “Not only do all the crimes attributed to the appellant bear an international character, but their harmful and murderous effects were so embracing and widespread as to shake the international community to its very foundations. The State of Israel therefore was entitled, Lecture pursuant 1 of universal jurisdiction...to try the appellant.” to the principle Anna Schmitt Nagelbach  Universal Jurisdiction Augusto Pinochet 1998 - former dictator of Chile Before leaving office, Pinochet had created a legal structure of ‘absolute immunity’ for himself and accomplices 1996: complaints filed in Spain on behalf of the victims, even though the crimes were committed in Argentina and Chile Spanish courts allowed the cases on the basis of “universal jurisdiction” 1998: Pinochet travelled to the UK – arrest warrant issued by Spanish Judge Extradition requested by Spain, Belgium, France and Switzerland Lecture 1 Immunity issues?  later Anna Schmitt Nagelbach Constraints on jurisdiction Constraints on what a state can do to foreigners / foreign assets foreign nationals must comply with the state’s laws but international law demands that the state extend certain basic standards of proper treatment to these foreign nationals : ‘minimum standard’ of treatment of aliens Expropriation: it is considered a violation of international law for a state to take the property of a national of another state unless it is Lecture (a) for a public1purpose; Anna Schmitt Nagelbach (b) non-discriminatory; (c) accompanied by provision for just compensation  Extradition the process whereby one state surrenders someone accused of a crime to another state. - Extradition treaties are necessary because extradition is not automatic. - There is no duty to surrender an individual to another nation. - Example: a citizen of Peru committed a crime in his country, then he fled to Venezuela. Is it obliged for Venezuela to return the criminal to his own country?  Concurrent jurisdiction It is possible that several states claim jurisdiction over one act? Who has the stronger claim? Usually, the state who has the subject in custody may be the best to continue with investigation and prosecution Issues related to extradition Obligation to extradite or prosecute (aut dedere, aut judicare) Lecture 1 Anna Schmitt Nagelbach Extraterritorial jurisdiction  Under certain circumstances, states can claim jurisdiction over acts occurring outside their territories  “effects doctrine” Serious violations of human rights /international peace & security Earlier days – Piracy / Slave Trade Post-Nuremberg trials – Genocide Lecture 1 Convention 1948 / Four Geneva Conventions: Genocide / War Crimes Anna Schmitt Nagelbach UN Convention Against Torture 1984 – Torture Rome Statute 1998 (ICC): Genocide / War Crimes / Crimes Against Humanity  “Universality” principle