Criminal Jurisdiction Research Articles

An Examination of the Causes of the Criminal Jurisdiction Model of the Hong Kong SAR of China

An Examination of the Causes of the Criminal Jurisdiction Model of the Hong Kong SAR of China

Jurisdiction of Hybrid Courts in the Light of International Criminal Law. The Case of Cambodia and Sierra Leone (Part II)

The idea of establishing hybrid or internationalized tribunals arose in the context of the law performance of international ad hoc tribunals of the former Yugoslavia and Rwanda in the view of several experts. In addition, trough these courts an attempt was made to reach a compromise between the national criminal jurisdiction of the states and the international one. Or, in the opinion of those who promoted this concept, the involvement of local experts in the examination of illegalities committed on the territory of these states could awaken greater trust on the part of society in general and the victims, especially in the act of justice, and subsequently even lead to the start of the reconciliation process of the respective societies. We proposed two cases for this study, which are the most well-known — the Extraordinary Cambers for Cambodia and the Special Court for Sierra Leone.

Reconceptualizing Corruption as an International Crime: A Review of International Law

The discourse surrounding corruption as an international crime is increasingly urgent, as it transcends national borders and contributes to economic crises, conflicts, and various crimes that threaten global security. Scholars such as Christensen (2017), Peters (2018), Davis (2018), and Rothe (2010) have linked corruption to human rights violations, revealing that states often struggle to address it effectively. This research seeks to explore how corruption can be redefined as an international crime and what legal accountability mechanisms exist for perpetrators within international law, while also examining the opportunities for the international community to recognize corruption as an international crime. The findings suggest that corruption crimes impacting security, human rights, and environmental integrity, particularly in contexts where states are unable or unwilling to act, should be classified as international crimes, necessitating a global commitment to amend the United Nations Convention Against Corruption (UNCAC) accordingly. Furthermore, the potential for universal jurisdiction over corruption is explored, whether through amending the 1998 Rome Statute or establishing an ad hoc international tribunal, although significant obstacles remain due to states’ commitments to their sovereignty and criminal jurisdiction.

Definition of State Official in the Context of Immunity from Foreign Criminal Jurisdiction

As ILC noted, the concept of State official is particularly relevant to the topic Immunity of State officials from foreign criminal jurisdiction, because it determines the subjective scope of the topic. The concept should meet the following two criteria or characteristics: first, representativeness, i.e., the ability of the State official to act on behalf of the State, regardless of whether the representational relationship is de facto or de jure, temporary or long-term and stable; and secondly, limitations, i.e., the ability to define the relevant person as a State official is limited by the nature of their acts, etc. It is not practical or scientific to make an abstract list of types of State officials. Besides, it is limited, i.e., whether or not the person concerned can be defined as a State official is limited by the nature of his or her behaviour, etc. To sum up, State officialshould be in connection with the State and behave on behalf of the state, these are central elements in defining the concept. Accordingly, in addition to government personnel, political party personnel and foreign military personnel have a theoretical and practical basis for being defined as State officials.

Considerations of (Non)-Application of Immunity of State Officials from Foreign Jurisdiction in Cases of International and Transnational Crimes

Abstract This article examines the scope and limitations of jurisdictional immunities afforded to high-ranking state officials accused of international and transnational crimes in foreign courts, including international courts. It discusses how international law balances the immunities granted to facilitate international relations and uphold state sovereignty against the need to address serious crimes that threaten the international community as a whole. The analysis delves into key legal debates and landmark cases shaping the understanding of these immunities. A focal point of the analysis is the work of the International Law Commission (ilc) on the topic of Immunity of State Officials from Foreign Criminal Jurisdiction, particularly Draft Article 7. It is argued that ilc’s Draft Article 7, while explicitly clarifying the application of immunity in international crime cases, also provides valuable insights into the scope of immunity for transnational crimes. Transnational crimes, like corruption, are fundamentally private acts carried out for personal gain, regardless of whether they are committed by someone in an official capacity or utilizing the resources and instrumentalities of the state. Therefore, these acts cannot be considered official and do not trigger the application of immunity ratione materiae. By highlighting the implications of Draft Article 7, the article contributes to the broader understanding of how international law can reconcile the need for state officials to perform their duties without fear of foreign prosecution with the necessity of holding them accountable for serious crimes. It suggests a more restrictive approach to immunity, particularly concerning transnational crimes, thereby enhancing the potential for legal accountability for offending state officials.

Legal Conditions for the Implementation of the "Silencing Weapons by 2020" Program of the African Union Agenda for the Period Up to 2063

Silencing weapons by 2020 is an ambitious project of the African Union contained in the ‘Agenda 2063 the Africa we want’. According to aspiration 4 (32) of that Agenda, the achievement of that project requires that mechanisms for peaceful prevention and resolution of conflicts should be functional at all levels. Therefore, that article doesn’t name those mechanisms. In the first aspect of his reflection, the author analyzes those mechanisms as being the peace and security architecture, which is the main mechanism designed to prevent and manage conflicts in Africa, as well as to strengthen peace and to which the African Union (AU) adhered, Regional Economic Communities (RECs) as well as Regional mechanisms (RM); and the African Union Court of Justice and Human Rights, which is a merger of the African Court on Human and Peoples' Rights (ACHPR) and the Court of Justice of the African Union(CJAU) and is the primary judicial agency of the African Union and the first regional court with international criminal jurisdiction. Further in his analysis, the author explains that the failure to meet the silence the guns by 2020 program and the postponement until 2030 has been a consequence of the non-achievement of the mechanisms mentioned in aspiration 4(32). The author ends up his analysis on the conclusion according to which if those mechanisms are not put in place there is a high risk that the second deadline scheduled for 2030, will also not be met. He therefore calls for the complete implementation of the ASP and for the ratification of the CJDHUA Treaty. If this is not possible, to demonstrate realism by setting the deadline for silence the guns in a period after the implementation of the mechanisms provided for in aspiration 4 of Agenda 2063.

MISJUDICIAL MISUNDERSTANDING: State Reparation and Criminal Review

Miscarriage of justice is a factor present in the judicial system, affecting the lives of countless people, who suffer directly from their conviction or indirectly from its repercussions. This paper aims to present a study on miscarriage of justice, especially focusing on errors resulting from criminal proceedings, seeking to demonstrate the State's responsibility to make reparations for errors in the provision of criminal jurisdiction. Using an interdisciplinary study of various areas of law and specific cases, the paper seeks to delve deeper into the reasons that may be decisive in the erroneous outcome of the process. The paper is based on data research that allows for a deeper understanding of the problem, as well as on the analysis of the historical case of the Naves brothers and other cases of error. It also presents the Innocence Project program , from the USA and now in Brazil, whose role is to investigate and file review actions in cases where there was an error in the judgment of the criminal action. This research also delves deeper into the autonomous action of criminal review, which presents itself as one of the tools to repair the error and provide due compensation. The use of mechanisms such as adversarial proceedings are ways of reducing errors in actions; furthermore, the possibility of the procedural and constitutional system providing for reparation and compensation is a positive factor, and its application should be favorable to the detriment of res judicata.

Judicial Trend in Contract Related Disputes: Nepalese Perspective

This research delves into the dynamic evolution of contract law in Nepal over the past five and a half decades, focusing on the pivotal role played by the Supreme Court. The study analyzes the major changes in contract-related decisions and identifies emerging trends shaping Nepal's legal landscape. Beginning with Nepal's initial contract regulations under Ain and tracing the legal journey through various legislative acts, the study scrutinizes key Supreme Court cases that have defined and refined the understanding of contracts. The research highlights the transformative trends in Nepal's contract law. Furthermore, the study explores the issue of contract validity. In addition, the research examines the critical demarcation between civil and criminal jurisdiction in contractual matters. Through the various cases, Supreme Court of Nepal developed the doctrine that contractual disputes lacking criminal elements fall under civil jurisdiction, preventing unwarranted criminalization of contractual disagreements and ensuring a balanced legal approach. Thus, the article argues that comprehensive analysis through the various cases, Supreme Court of Nepal illuminates Nepal's progressive legal framework in contracts, promoting transparency, fairness, and adherence to fundamental legal principles. The research contributes valuable insights into the evolution of Nepal's contract law, providing a foundation for fostering a favorable business environment in the country.

The Dreamworld deaths: corporate crime and the slumber of the law

ABSTRACT On Tuesday 25 October 2016, four people were killed on the popular Thunder River Rapids Ride (TRRR) at Dreamworld, Australia. Ardent Leisure Ltd pleaded guilty to three charges under section 32 of the Work Health and Safety Act 2011 (Qld) and was fined $A3.6 million with convictions recorded. This article analyses the charges, penalties and ways in which the responsibility of Ardent Leisure Limited for these deaths has been framed by the criminal jurisdiction – essentially, to minimise and neutralise the criminality. The article contends that the legal framework for governing corporate crime in Australia does not reflect the culpability of corporations or provide sentences of deterrence, as illustrated in the case of Guilfoyle v Ardent. The article explores the ways in which the Inquest and sentencing remarks in relation to Ardent demonstrate the failure of the legal system to grapple with the personhood of corporations, specifically in terms of agency and the implications for culpability.

Analysis On the Criminal Jurisdiction Path of Foreign-Related Cybercrime from The Perspective of Transnational Telecom Fraud

Analysis On the Criminal Jurisdiction Path of Foreign-Related Cybercrime from The Perspective of Transnational Telecom Fraud

Balancing the Legitimate Interests of States

This study explores the principles of domestic criminal jurisdiction under international law, focusing on universal jurisdiction. It analyzes the contentious nature of universal jurisdiction, particularly its application by international judicial organs post-human rights and international criminal law developments. The research scrutinizes the Rome Statute's provisions, debating whether it implicitly or explicitly endorses universal jurisdiction over non-party state nationals. It also examines the complementarity principle within the Statute, arguing that it safeguards state interests by prioritizing national jurisdiction. The findings affirm universal jurisdiction's recognition under international law and its potential activation under the Rome Statute, while complementarity balances states' interests against the jurisdiction of international courts.

Jurisdiction of Hybrid Courts in the Light of International Criminal Law. The Case of Cambodia and Sierra Leone (Part I)

The idea of establishing hybrid or internationalized tribunals arose in the context of the law performance of international ad hoc tribunals of the former Yugoslavia and Rwanda in the view of several experts. In addition, trough these courts an attempt was made to reach a compromise between the national criminal jurisdiction of the states and the international one. Or, in the opinion of those who promoted this concept, the involvement of local experts in the examination of illegalities committed on the territory of these states could awaken greater trust on the part of society in general and the victims, especially in the act of justice, and subsequently even lead to the start of the reconciliation process of the respective societies. We proposed two cases for this study, which are the most well-known - the Extraordinary Cambers for Cambodia and the Special Court for Sierra Leone.

Where the Gavel Wields: The Jurisdictional Conundrum of Sedition in Hong Kong

Abstract The offence of sedition in Hong Kong, a colonial relic that has languished in a state of dormancy since the 1960s, has made an abrupt return to the city’s legal landscape following the enactment of the Hong Kong National Security Law. The confluence of these two regimes has engendered myriad nuanced legal intricacies that belie straightforward resolution, one of which occupies the focal point of this article: whether or not the District Court, an intermediate trial court with limited criminal jurisdiction, can hear sedition cases. This article engages this issue and contends that a coherent reading of the now multitude of legislative instruments constituting Hong Kong’s national security and criminal procedural regime yields a negative answer. Only the Court of First Instance, a superior court of record with unlimited criminal jurisdiction, is competent to hear sedition cases. In reaching this conclusion, this article engages with and diagnoses the errors in the diverse strands of reasoning put forward in the cases of HKSAR v Tam Tak Chi and HKSAR v Chan Tai Sum in defence of the District Court’s jurisdiction.

Иммунитеты должностных лиц государств от иностранной уголовной юрисдикции: обзор позиций государств

Following the recent changes in the paradigm of the immunity of State officials within the customary international law, the article analyzes the submissions of States to the UN International Law Commission connected to Draft articles on the immunity of officials from foreign criminal jurisdiction. Based on national legislation and jurisprudence provided by States, an assumption is made about the possible universal scope of the Draft Articles, as well as an assumption about its applicability to the Russian criminal procedure.

Judicial Interpretations, Findings and Pronouncements of the Nigerian Apex Court: A Review of Mohammed Vs Frn

Purpose: The objective of this review was to challenge the apex court's decision, encompassing its findings, judicial interpretations, and pronouncements (DFIP). A notable issue arises from the discovery that the National Assembly (NA) mistakenly granted 'exclusive' criminal jurisdiction to the Federal High Court (FHC) regarding Indian hemp offenses. Consequently, this study critically examined the DFIP in depth.
 Methodology: This work adopts the doctrinal method of research, which involves the use of primary and secondary sources of law. This study relied on key primary sources, including the constitution of the Federal Republic of Nigeria, Acts of the National Assembly, case laws, and Decrees. Supplementary information was derived from secondary sources such as books and articles. This review extensively employed primary and secondary legal sources, focusing on statutory interpretation rules, the hierarchy of norms, particularly in relation to the principle of inconsistency, and the unalterable nature of jurisdiction prescribed by the Constitution of the Federal Republic of Nigeria (CFRN). These criteria were systematically applied to evaluate the Decision, Findings, Interpretations, and Pronouncements (DFIP) of the apex court.
 Findings: The apex court's determination that Section 8 of the Indian Hemp Act (IHA) was implicitly repealed by Section 26 of the National Drug Law Enforcement Agency (NDLEA) Act is inaccurate. Similarly, the assertion that the National Assembly (NA) granted 'exclusive' criminal jurisdiction to the Federal High Court (FHC) is flawed, as Section 251(3) of the Constitution of the Federal Republic of Nigeria (CFRN) actually confers concurrent criminal jurisdiction on the FHC. 
 The finding of the apex court that Magistrate Courts (MC), being a creation of state legislation, cannot try Indian hemp offences is erroneous. The apex court's assertion that Indian hemp is both a 'drug' and a 'narcotic drug' is refuted as erroneous in the course of this review.
 Recommendations: Statutory intervention in the manner of amendment of Sections 251(1)(s) and 251(3) is required if the decision of the apex court is to represent the position of the law in Nigeria.

A Pre-Trial Standard Operation Procedure for Children in Conflict with Sharia Criminal Law in Malaysia

Criminal offences committed by children in Malaysia do not only involve jurisdiction of the Child Act 2001 (Act 611), (Amendment 2016, A1511) but also jurisdiction of the states’ sharia criminal enactments and acts. Children are not exempted from being a perpetrator and contribute to increased rate in statistic of sharia crime throughout states in Malaysia. The social turmoil of humanity such as birth to an illegitimate child, abandoned babies were the impact from sharia criminal conduct of these children. Among factors for statistical increase on sharia crime by child offenders is due to ambiguity in legal provision regarding the position of child offender and pre-trial procedure for related sharia criminal matter. In fact, the flaws in the enforcement and implementation of pre-trial procedural laws against child offender are evident outcome from these legal ambiguities and the absence of a specific guideline in dealing with these perpetrators. Therefore, this paper discusses on justification on the importance to formulate a better and immediate alternative i.e. to establish a standard operating procedure (SOP) specifically for child offender at the pre-trial stage under the sharia criminal jurisdiction for the states in Malaysia. A pure legalistic study methodology of qualitative approach is used to produce this article. Data is gathered through library research and fieldwork study, which includes some semi-structured interviews with religious enforcers from the Department of Federal Territory Islamic Affairs (JAWI) and the Selangor Islamic Religious Department (JAIS) as respondents. The data were then conceptually and descriptively analyzed. This article presents a substantial justification to establish a pre-trial standard operating procedure for children in conflict with the states’ sharia criminal law in Malaysia.

Criminal Liability for a Private Party in Outer Space

This article analyses whether a private party can be a subject of a criminal deed, since till now this issue has not been exhaustively consolidated either in the legal acts of the Republic of Lithuania nor foreign countries, therefore a necessity arises to ensure that there are no gaps in law that could determine the fact that criminal law would not fulfil a protective function, in other words, the interests of the individual, the society and the state would not be secured. 
 The article evaluates where the limit is, when space law comes into force and analyzes the legal regulation of outer space. Future problems related to space tourism are revealed and the problem of committing a criminal offence in outer space is assessed. 
 The analysis carried out in this work shows that the issues of criminal jurisdiction and criminal liability for a private party is quite problematic, as the provisions of many significant international agreements are unclear and differently evaluated. However, the aforementioned problematic issues can be resolved based on the systematic application of legal sources.

Māori Rejections of the State’s Criminal Jurisdiction Over Māori in Aotearoa New Zealand’s Courts

Māori Rejections of the State’s Criminal Jurisdiction Over Māori in Aotearoa New Zealand’s Courts

Establishing criminal jurisdiction over corruption offences: current mechanism and some prospects for its improvement

Establishing criminal jurisdiction over corruption offences: current mechanism and some prospects for its improvement

Universal jurisdiction and the obligation to extradite or prosecute

The article is devoted to the question of the relationship between the aut dedere aut judicare principle and concepts of universal jurisdiction in international criminal law. Cooperation between states in the fight against international crimes involves, among other things, solving the issue of the exercise of national criminal jurisdiction, including universal jurisdiction, as well as the implementation of the aut dedere aut judicare principle. Providing universal jurisdiction is an important element of prosecuting alleged perpetrators of crimes of international concern, especially when the alleged perpetrator is not prosecuted in the territory where the crime was committed. It was determined that each state defines the scope of its criminal jurisdiction (including universal jurisdiction) and each state is responsible for determining the scope of its criminal law. States are required to conform to their international obligations, including refraining from interfering in the internal affairs of other states and implementing obligations on prosecution or extradition. A conclusion was made about the importance of distinguishing the concepts of universal jurisdiction and aut dedere aut judicare. Universal jurisdiction applies when there is no other connection to the state (territoriality, nationality, the protective principle or any other basis). Aut dedere aut judicare obligation entails the transfer of the case to the competent authorities for prosecution or extradition, not the establishment of jurisdiction. In order to fulfill the obligation aut dedere aut judicare, the state must already have passed laws criminalizing certain acts. An obligation aut dedere aut judicare does not only refer to serious crimes committed by a foreigner against a foreigner abroad. An aut dedere aut judicare obligation is not limited to situations in which a universal jurisdiction is required to be applied for the prosecution or extradition.