National Criminal Jurisdiction Research Articles

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.

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.

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.

The aggression of the Russian Federation against Ukraine: topical issues of establishing a special international tribunal and the developing an effective mechanism of compensation for crimes against peace and security of manking

The article examines the doctrinal foundations and legal grounds for the establishment of a Special International Tribunal for the prosecution of senior officials of the Russian Federation responsible for committing international crimes on the territory of Ukraine.It has established that the interaction of international and national criminal jurisdictions is one of the most complex and topical issues of modern legal science. With this in mind, the author analyzes the peculiarities and trends of Ukraine’s cooperation with the International Criminal Court, which is generally considered to be the first legal institution to prosecute persons responsible for genocide, war crimes and crimes against humanity. The author proves that the effectiveness of the Court’s functioning depends not only on the expansion of the number of States Parties, but also on the ability to implement measures to counter international crimes at the national level.The study has established that the future ratification of the Rome Statute of the International Criminal Court will greatly facilitate the process of cooperation with leading European legal organizations, and will also make it possible to implement the criminal prosecution process in accordance with the modern reference standards of international criminal law. To achieve the relevant result, Ukraine should use the most optimal way to implement the provisions of the Rome Statute - to amend and supplement the relevant legislative acts, among which the author identifies the Criminal Code of Ukraine, the Criminal Procedure Code of Ukraine, and the Criminal Executive Code of Ukraine. The author emphasizes that the process of amending and supplementing the legal acts relating to domestic criminal jurisdiction should be accompanied by the adoption of a special Law of Ukraine “On Cooperation with the International Criminal Court”.The study also establishes that the prospect of Ukraine’s cooperation with the International Criminal Court will provide a unique opportunity to apply new procedures in national legislation to protect the rights and freedoms of Ukrainian citizens. At the same time, the author proves that the International Criminal Court is significantly limited in its competence in cases involving the prosecution of the top leadership of the Russian Federation for genocide and crimes against humanity. With this in mind, the author conducts a comprehensive and in-depth analysis of the legal basis for the establishment of the Special International Tribunal.

Teorijski i praktični aspekti primene načela ne bis in idem u pravu Evropske unije

The ne bis in idem principle as one of the most established legal rules, has been widely regulated by sources of national and International Law. By its very nature, it protects individuals from double punishment for the same act, regardless of its classification as a misdemeanor, criminal offence etc. Different legal traditions, together with a purely national criminal jurisdiction, led to a certain divergency among states. Moreover, such a problem has existed for a long time in the jurisprudence of the European Court of Human Rights. However, regulation of this principle in the EU Law brought upon some novelties. In the end of 20th century and in the beginning of 21st century there was the process of a more detailed defining of conditions for the application of ne bis in idem principle. In parallel with that process, the European Court of Justice delivered its judgments, which clarified practical dilemmas of national courts in this particular field of law. These judgments resulted from the requests for preliminary ruling referred by national courts. In that regard, many important precedents have been adjudicated, defining essential elements for implementation of prohibition of double punishment, as for example concept of the 'same act'. On the basis of the analysis of the legal framework and relevant jurisprudence of the ECJ, we come to the conclusion that the principle ne bis in idem in the EU Law system has been interpreted extensively and this fact significantly impacts on the overcoming of formalities contained in national legal systems, which can bring about double punishment for the same act.

Niemiecka doktryna i judykatura wobec problemu odpowiedzialności karnej „sprawców zza biurek” — uwagi na tle koncepcji „Organisationsherrschaft”

The aim of the paper is to present the concept of Claus Roxin’s Organisationsherrschaft as an alternative to attributing criminal responsibility for crimes committed by Nazi “desk murderers.” This concept arose against the background of criticism, after the trials of Adolf Eichmann and Bohdan Stashynsky, of the particularly low number of convictions in similar cases and the numerous omissions of the entire German justice system. Under West German criminal law, a distinction made between those who order murder and those who commit murder on their own initiative meant that the above-mentioned perpetrators who passed on orders from above could only be found guilty of accessory to murder. The novelty of Roxin’s views, however, consisted in an attempt to combine the previous only individualistic perspective of criminal law with the idea of mass, bureaucratic murders. The traditional system of individual attribution of responsibility, as applied for ordinary criminality characterized by the individual commission of single crimes, must be adapted to the needs of collective responsibility, in which the organization (for example, an administrative structure) as a whole serves as the entity upon which attribution of criminal responsibility is based. The first part of the text discusses the main lines of argumentation presented by the West German jurisprudence in cases concerning high-ranking members of the state power apparatus of the Third Reich. At the same time, efforts were made to emphasize the lack of homogeneity of legal solutions presented in national criminal jurisdiction in West Germany and their unacceptable consequences. The second part is devoted to the basic theoretical assumptions of the doctrine of Organisationsherrschaft and its significance for the perception of the boundary between perpetration and participation in German criminal law. The third part briefly presents the contemporary reception of Roxin’s thought, as well as the main points of his criticism, indicating, however, how important it was to effectively prosecute decision-makers from the power apparatus of the Third Reich.

Types of international judicial institutions and their role in ensuring the right to judicial protection

The article is devoted to the study of the types of international judicial institutions and their role in ensuring theright to judicial protection. It is noted that the Manila Declaration provides for a judicial settlement of disputes andarbitration. The International Court of Justice is the principal judicial organ of the United Nations. The InternationalCriminal Court is the permanent body with jurisdiction over persons responsible for particularly serious crimes, inaddition to national criminal jurisdictions. The Inter-American Court of Human Rights is an independent, conven-tional body whose function is to protect human rights in the states of North and South America. The Arab Court ofHuman Rights has not yet begun its work, although the Court’s mandate allows States parties to lodge complaints.The African Court of Human and Peoples’ Rights is an independent body whose purpose is to protect human rightsin African countries. The jurisdiction of the European Court of Human Rights extends to all matters of interpretationand application of the Convention for the Protection of Human Rights and Fundamental Freedoms and its protocols.The Court of Justice of the European Union interprets EU law and provides for the settlement of disputes by the EU’snational government-institutions. It is emphasized that regional judicial institutions are designed to protect the rightsand freedoms of man and citizen. They are part of a subsidiary human rights protection mechanism that can be applied once all national remedies have been exhausted. Recourse to the International Court of Justice or arbitration isnot an unfriendly act in relations between states, but on the contrary indicates the use of peaceful means of dispute settlement. Unlike other international courts, only international criminal tribunals can be joined in a single proceeding.

The Emergence of “Universal Jurisdiction” in Response to Somali Piracy: An Empirically Informed Critique of International Law’s “Paradigmatic” Universal Jurisdiction Crime

Abstract Since the 1980s, the idea that piracy is the “original” and “paradigmatic” universal jurisdiction crime in customary international law has been increasingly supported by weighty scholarship. In the wake of the unprecedented surge in Somali piracy, this view is gaining ground among various powerful actors in international law. Yet, remarkably little empirically grounded scholarship exists in support of universal jurisdiction. This Article provides the first comprehensive empirical analysis of state practice in response to Somali piracy in a ten-year period since 2006. Additionally, the data on Somali piracy are compared with the empirical findings of state practice regarding international crimes, which are more “heinous” than piracy, since the end of World War II to 2016. In so doing, this Article brings new insight and the first thorough critique of what most scholars, governments, the UN and even the International Court of Justice have said on universal jurisdiction, its purpose and the basis for it in international law. In view of inter-state tensions and conflict caused by universal jurisdiction and a move towards law codification, there is now a pressing need for a paradigm shift in the concept of universal jurisdiction for both piracy and international crimes, a step away from conventional scholarly accounts, and the grand narratives from which they proceed, to a position that has a solid basis in the actual practice of states. Empirically and historically informed, it is proposed that “universal jurisdiction” for both categories of crime provides a basis in international law permitting the exercise of national criminal jurisdiction over offences involving foreign nationals abroad that have a close nexus between the case over which jurisdiction is asserted and the state asserting jurisdiction. Common and traditionally held assumptions that universal jurisdiction is based solely on the grave nature of crimes and is applied by states absent any nexus to offences and in the interest of the international community are unfounded.

Accountability for Corporate Human Rights Abuses: Lessons from the Possible Exercise of Dutch National Criminal Jurisdiction over Multinational Corporations

In the implementation of the UN Guiding Principles on Business and Human Rights, little emphasis has been put on the criminal law as a mechanism to hold corporations to account. From a doctrinal perspective, the main stumbling block for a more intensive use of the criminal law appears to be how to establish jurisdiction and liability with regard to corporate involvement in human rights violations in transnational supply-chains. On closer inspection, however, domestic criminal law offers surprising, although largely untested opportunities in this respect. Criminal liability could notably be based on violations of a corporate duty of care violation, whereas jurisdiction could, relatively non-controversially, be grounded on the principles of territoriality, nationality, and universality. The Dutch criminal law system is used as a case-study in this article.

The African Court of Justice and Human and Peoples’ Rights ‘International Criminal Law Section’: Promoting Impunity for African Union Heads of State and Senior State Officials?

On 27 June 2014 the African Union (au) Assembly adopted a protocol entitled ‘Protocol on Amendments to the Protocol on the Statute of the African Court of Justice and Human Rights’. This Protocol contains an annex entitled ‘Statute of the African Court of Justice and Human and Peoples’ Rights’. The Protocol and the Statute annexed to it provide for the establishment of a regional court in Africa to be known as the ‘African Court of Justice and Human and Peoples’ Rights’ (African Court). This Court will, among others, exercise criminal jurisdiction over a wide range of international crimes involving individual criminal responsibility and corporate criminal liability over legal persons (with the exception of States), which goes beyond any other international court or hybrid tribunal. This article considers reasons for establishing a regional court in Africa with criminal jurisdiction and examines the likely effectiveness of the African Court focussing on the wide jurisdiction conferred on the Court; the impact of immunity from criminal prosecution granted to serving au heads of State and other undefined ‘senior State officials’; and the need to strengthen national criminal jurisdictions to enable them to prosecute international crimes in Africa.

Zbrodnie przeciwko dziedzictwu kulturowemu przed Międzynarodowym Trybunałem Karnym – analiza krytyczna

On 24 March 2016 the International Criminal Court (ICC) issued a decision confirming the charges of committing war crimes by Al Ahmad Al Mahdi (Abu Tourab). He is suspected of war crimes allegedly committed in 2012, in Timbuktu (Mali), through intentionally directing attacks against buildings dedicated to religion and/or historical monuments (Article8(2)(e)(iv) of the Rome Statute). In fact, this is the first case to be brought before the ICC concerning the destruction of cultural property. By referring to the circumstances of the case, this article analyses the complimentary function of international criminal tribunals in the prosecuting and convicting of individuals liable for grave cultural heritage crimes vis-à-vis the shortcomings of national criminal jurisdiction. First, it reconstructs the normative foundations of prohibiting and prosecuting cultural heritage crimes. Second, it endeavours to critically assess the practice of international criminal tribunals ad hoc in dealing with the destruction of cultural property. In particular, by referring to certain cases adjudged by the ICTY, it aims to demonstrate to what extent the international protective status of a cultural heritage site may constitute a critical factor in imposing criminal responsibility on individual perpetrators (the cases of Blaškić, Čerkez and Strugar). It also analyses whether intentional attacks against cultural heritage sites, whose protection lies in the general interest of all humanity, may have an impact on the gravity of the crime and the penalty imposed for its commission. Third, the paper deals with the limited provisions of the Rome Statute and offers some general conclusions in respect to the evolving system of individual criminal responsibility for cultural heritage crimes.

The Role of the International Court of Justice in the Enforcement of the Obligation of States to Investigate and Prosecute Serious Crimes at the National Level

States have undertaken an international obligation to investigate and prosecute individuals for serious human rights violations and grave breaches of international humanitarian law. However, compliance with that obligation is poor and prosecutions at the national level remain few. The mechanism for enforcement of that obligation is also limited. This article explores the way in which the International Court of Justice (ICJ) can play, and has played, a role in this respect. The jurisprudence of the Court is analysed with regard to three matters: (i) the obligation of states to investigate and prosecute serious crimes at the national level; (ii) national criminal jurisdiction with regard to prosecution of serious crimes, as well as immunities from that jurisdiction; and (iii) the obligation of states to cooperate in criminal matters with other jurisdictions. The Court has adjudicated on some key issues relating to national prosecutions. Some of its findings have, without doubt, enhanced the enforcement of prosecution at the national level, while others have undermined it. Recent cases before the ICJ show an increased willingness by states to use the Court as an avenue for enforcement and, at the same time, the Court has proved more willing to utilise its powers.

Establishment of the International Criminal Court and the Role of USA: A Legal Appraisal

In order to end global impunity of perpetration of heinous crimes against humanity and gross violation of human rights and to bring individual perpetrators to justice, international community felt the need for a permanent international criminal court.2 As the armed conflicts and serious violations of human rights and humanitarian law continue to victimize millions of people throughout the world, the reasons for an international criminal court became compelling.3 In many conflicts around the world, armies or rebel groups attack ordinary people and commit terrible human rights abuses against them. Often, these crimes are not punished by the national courts. Here the ICC is complementary to national criminal jurisdictions.4 The court only acts in cases where states are unwilling or unable to do so.5 The jurisdiction of the Court is not retrospective and binds only those States that ratify it.6 Unlike the International Court of Justice in The Hague, whose jurisdiction is restricted to states, the ICC has individualized criminal responsibility. However, the role of USA regarding the establishment and continuation of ICC has caused the organization fall in a trouble. The better cooperation of USA and other states could make the organization more active and effective as to its activities. The view of this paper is to analyze the role of USA towards the establishment, continuation and function of the International Criminal Court. DOI: http://dx.doi.org/10.3329/nujl.v1i0.18525 Northern University Journal of Law Vol.1 2010: 51-69

The Principle of Complementarity and Libya Challenge to the Admissibility Before the International Criminal Court

In 26 February 2011, the United Nations Security Council (UNSC) referred the Libya situation to the International Criminal Court (ICC). Consequently, three warrants of arrest were issued for Moammar Qaddafi, Saif Al-Islam Qaddafi and Abdullah Al-Senussi. After the assassination of Moammar Qaddafi, Saif Al-Islam and Al-Senussi were arrested. Although, Saif Al-Islam has been captured by Zinitani militants and to this date Libyan authority has not been successful to obtain him from the control of the militants. Considering the situation, Libyan authorities challenged the ICC jurisdiction by invoking constantly to their sovereignty, primacy of national criminal jurisdiction and its ability to investigate their nationals. Therefore this paper assesses the challenge of the Libyan authorities and potential outcome of their challenge before the ICC, focusing on the principle of complementarity provided in article 17 of the Rome Statute. To this end, this paper starts with an overview and examination of various aspects of complementarity principle in the light of the ICC previous jurisprudence which are relevant for the analysis of the Libya situation and Saif Al-Islam case. Also, it will be suggested that even though that the amendment of the Rome Statute article 17 is desirable, the ICC may rely upon article 21 (3) to interpret the statute to meet the human rights standard in cases that the rights of the accused is being violated. The Libya challenge to the admissibility will be analysed first before the various part of the principle apply to the Saif Al-Islam case.

An Analysis of the Admissibility of the Kenyan Situation Before the International Criminal Court in Light of the Principle of Complementarity

For every institution that respects democracy and the rule of law, there has to be checks counter-checks and balances. One of the ways by which the people of a particular country put a checks on the government is by way of regularly constituted elections. This was the position that Kenya as a country found itself in in the year 2007 when the country went into a general election. However, the general election brought more sorrow and anguish than had been contemplated, when the populace of the country, angry and dissatisfied with the results of the election, took to ethnic hatred, killings and violence which saw many individuals killed, while others were displaced. The situation in Kenya attracted international attention more so from the International Criminal Court prosecutor who commenced investigations on the possibility of there having been committed various atrocities within the Kenyan territory at that time. After investigations were concluded, the International Criminal Court prosecutor decided to institute proceedings a proprio motu under Article 15 of the Rome Statute. The commencement of the proceedings was met with resistance by the Kenyan government which launched an admissibility challenge before the court citing the principle of complementarity as provided for in the 10th paragraph of the preamble to the Rome Statute. The principle is to the effect that the International Criminal Court's jurisdiction is complementary to national criminal jurisdictions. It is on this basis that this paper seeks to discuss and analyze the merits and admissibility of the Kenyan situation before the International Criminal Court with regard to the principle of complementarity. The paper begins by distinguishing between jurisdiction and admissibility with regard to the Kenyan situation, and proceeds to have a discourse on the principle of complementarity and its application to the Kenyan situation. The paper concludes by making a definitive finding that the Kenyan situation is properly admissible in the International Criminal Court, the principle of complementarity having duly been considered.

The International Criminal Court: complementarity with national criminal jurisdiction

Paper considering whether the International Criminal Court established by the 1998 Rome Statute has jurisdiction which is complementary to the national criminal jurisdictions. Article by Professor Jimmy Gurule (Notre Dame Law School). Published in Amicus Curiae - Journal of the Institute of Advanced Legal Studies and its Society for Advanced Legal Studies. The Journal is produced by the Society for Advanced Legal Studies at the Institute of Advanced Legal Studies, University of London.

Anistias Como Prática do Direito Internacional Criminal e a Complementaridade do Tribunal Penal Internacional

O conceito de complementaridade é uma das bases do Estatuto de Roma e se manifesta com duas conseqüências maiores: primeiramente, confirma a soberania dos Estados membros do tratado conferindo-lhes primazia jurisdicional na aplicação da justiça criminal aos crimes de competência do TPI; em segundo lugar, funciona como instância de controle da aplicação da jurisdição criminal pelos tribunais nacionais, verificando-lhes a correição frente a parâmetros internacionalmente aceitos. Todavia, nesse exercício o TPI pode se defrontar com anistias – figuras comuns no Direito Internacional Penal – como forma de solução de conflitos nacionais em lugar da persecução jurisdicional. Muitas dessas anistias, embora impliquem o esquecimento dos crimes cometidos, são os elementos que garantem a estabilidade social e a paz em situações de pós-conflito. Assim, o TPI deverá decidir se tal expediente (que valoriza a paz em detrimento da justiça) é suficiente para barrar a sua atuação. Quando, excepcionalmente, anistias forem concedidas com base em processos de busca pela verdade e reconstrução social, parece possível que possam afastar a jurisdição internacional. Todavia, quando tais anistias não forem mais do que uma simples evasão à punição criminal, é certo que a Corte de Roma deverá exercer sua jurisdição aplicando a lei internacional ao caso concreto.

On the Principle of Complementarity in the Rome Statute of the International Criminal Court

On the Principle of Complementarity in the Rome Statute of the International Criminal Court

Belgium, concurrent national and international criminal jurisdiction and the principle ?ne bis in idem'

Belgium, concurrent national and international criminal jurisdiction and the principle ?ne bis in idem'

International Court of Justice

In July 1998, a diplomatic conference convened by the UN General Assembly adopted the Rome statutes of the International Court of Justice. It proceeded from a proposal submitted by the Commission on International Law. The outcome of laborious negotiations was an extensive treaty with 128 articles.Once the Statutes come into force, which requires the deposition of 60 ratification documents or documents on admission and access, an 18-member International Court of Justice with its seat in The Hague commences its activity.The Court is a permanent institution which is authorized to judge the most serious international crimes, affecting the international community as a whole. The Court adopts a complementary attitude to the national criminal jurisdiction of state parties.The Court is entitled to judge crimes of genocide, crimes against humanity, war crimes and crimes of aggression. The facts of a case in the first three categories are listed in detail in the Statutes. The crime of aggression is to be specified at an evaluation and revision conference due to meet seven years after the Statues come into force. The addition of further crimes (for example, crimes of international terrorism) is not ruled out in future.The Court deals with cases in an investigation, court and appeals senate. Apart from the Court, there is an independent separate prosecutor's office which is responsible for the prosecution and investigation of the culprits. The Secretariat of the Court deals with administrative services.The Court can pass verdicts of prison sentences of up to thirty years, and in exceptional cases even life imprisonment.