Principles of State Jurisdiction and International Criminal Law
Principles of State Jurisdiction and International Criminal Law
like to cover the basic principles of
the criminal jurisdiction of States so
there are a number of topics we'll cover
in these slides relatively quickly so I
want to look at the difference between
prescriptive adjudicative and
enforcement jurisdiction so the
authority to make rules the authority to
judge rules and the authority to enforce
rules each of which is potentially
important to us then we'll look at the
idea of prescriptive jurisdiction based
on links when can a state legislate that
a crime
exists within a national system and
we'll focus particularly on universal
jurisdiction to prescribe when may
states pass laws applicable to conduct
committed by anyone anywhere in the
world irrespective of any connection to
the prosecuting state and then we'll
look briefly at the idea of treaty based
systems of so called quasi universal
jurisdiction so this is common in
relation to terrorist or transnational
offenses particularly say the provisions
in article 6 and 7 of the Convention
Against Torture where states come
together to pool their jurisdiction to
try and prevent their being impunity for
certain particularly heinous crimes now
these questions of universal
jurisdiction and treaty based
jurisdiction in the absence of ordinary
links to the prosecuting state are
particularly important when we come to
look at the jurisdiction given to treaty
based courts like the International
Criminal Court all right so let's look
at jurisdiction based on so called links
so the easiest idea here is that a state
and can prescribe the conduct can pass
rules governing the conduct of its
nationals so this is called active
nationality so whatever for example in
Australian does anywhere in the world is
potentially subject to Australian
criminal law if the relevant Australian
Parliament's have so enacted
similarly passive nationality
jurisdiction is increasingly accepted
which is to say that if an offense is
committed against a Belgian and the
state of Belgium can secure the in
custody the offender then Belgium can
prosecute that offense even if it was
committed outside Belgium so if an
Australian assaults a Belgian in Canada
so long as Belgium can secure the
extradition of the Australian it could
prosecute that assault or murder even
though the offense occurred in Canada so
active and passive nationality
jurisdiction are two principles by which
States criminal law will often extend
beyond their territory which brings us
to the idea of territorial jurisdiction
so we would say it's fairly obvious that
a state should have jurisdiction over
events that occur within its territory
but what about events or crimes that
cross borders transnational crimes
particularly crimes such as for example
drug smuggling now the classic example
usually given in lectures is the idea of
someone shooting another person across a
border so again we might have in this
scenario on a border between the United
States and Canada a person standing on
the United States side of the border
shooting someone on the Canadian side of
the border who has territorial
jurisdiction well the answer would be
where the offense is completed where the
murder or wounding or assault took place
would be the state of objective
territorial jurisdiction the physical
elements of the crime were completed
there but the crime was commenced the
mind governing the crime the guilty
mental state was found in in our example
the United States where the gun was
fired and that would be said to be the
state of subjective territorial
jurisdiction so again both territorial
jurisdictions could have jurisdiction
over the entire
fence now one might say okay well
nonetheless surely a territorial
jurisdiction should trump or prevail
over a nationality jurisdiction or the
objective territorial jurisdiction
should always be able to prosecute a
crime and the subjective territorial
jurisdiction should defer to that
actually all these principles are equal
there is no rule of priority multiple
states may have concurrent jurisdiction
to prosecute a crime further there is no
absolute rule in international law
against double jeopardy multiple
prosecutions for the same offense but as
a matter of practice States will
normally only prosecute particularly
serious extraterritorial crimes because
of the expense and the difficulty of
gathering evidence and ultimately states
are usually even if they have provision
for trial in absentia are often not
particularly keen on conducting
something as expensive as a trial unless
they have the defendant actually in
custody and are in a position to do
something about them so very often the
question of priority over a crime must
be resolved by who has the defendant in
custody there are a number of other
concepts we should note effect
jurisdiction is known largely in
economic law it's the idea of activity
abroad that influences your national
jurisdiction in terms of criminal
activity the classic one for effects
might be for example currency forgery
because releasing a large number of fake
for example euros or US dollars into
circulation internationally could affect
the value of that currency even if the
forged currency never moves inside the
relevant jurisdiction if it only
circulates in the wider world so that
might be one example but largely the
effects jurisdiction will overlap with
objective territorial jurisdiction for
our purposes there are a number of
special cases where objects or people
are a are the object of special
extraterritorial
diction already mess so a vessel on the
high seas is subject to the exclusive
jurisdiction of the state whose flag it
is entitled to Fleiss this could be
called flag vessel jurisdiction and it
crops up in treaty based arrangements
including the Statute of the
International Criminal Court so an
offense committed on a vessel on the
high seas will be treated in much the
same manner as an offence committed on
the flag States territory that is not to
say that a flagged vessel is territory
in law it is not a floating piece of
territory just that for certain criminal
law purposes it can be treated as if it
were territory also separately from the
nationality principle states have
jurisdiction to regulate the conduct of
their armed forces abroad even where
members of that armed force are not
their own Nationals so foreign nationals
for example can join the British or US
or French Armed Forces without
necessarily having nationality in the UK
the US or France alright that brings us
then though to universal jurisdiction
the most important to a popular perhaps
concept in jurisdiction an international
criminal law so the first thing is first
idea is universal jurisdiction to
prescribe when can states prescribe
conduct it's just turning back to an
earlier idea we're still talking largely
about prescription here so the passing
of rules that your courts can adjudicate
this needs to be distinguished from
enforcement jurisdiction the ability to
as it will use your executive powers
your police to enforce rules and
particularly to take suspects into
custody or to seize evidence now we've
been talking about quite a number of
cases where jurisdiction to prescribe is
extraterritorial but that doesn't mean
there's extraterritorial enforcement
jurisdiction in my example of an
Australian
murdering a Belgian in Canada while on
Canadian territory the only valid
enforcement authority obviously belongs
to Canada there are certain exceptions
to the territorial limitation of
enforcement authority usually granted by
treaties such as sort of cross-border
police pursuit arrangements for example
within Europe or rules of intervention
against foreign ships on the high seas
in cases such as piracy but while
jurisdiction to prescribe is commonly
extraterritorial jurisdiction to enforce
is only exceptionally extraterritorial
let's come back to universal
jurisdiction to prescribe so the
essential idea here is that universal
jurisdiction is simply jurisdiction that
exists in the absence of ordinary links
so those who have already talked about
so the question then becomes well in
respect of which offenses may a state
assert universal jurisdiction to
prescribe an offense and then to
adjudicate it if it can somehow gain
custody of a suspect so on that question
of which offenses are covered
certainly the core international crimes
we'll look at in this course are said to
be subject to universal jurisdiction so
war crimes crimes against humanity
genocide and perhaps the crime of
aggression certainly one might also add
to that piracy and perhaps offenses such
as torture and more marginally perhaps
slavery but once one moves beyond the
court there are sort of more complex
questions of evidence about the nature
of the existence and nature of universal
jurisdiction so the first question we
always have to ask is universal
jurisdiction in respect of what and to
remain universal jurisdiction under
custom or universal jurisdiction the
sense of jurisdiction in the absence of
links ordinary links which might be
provided by a treaty system of the kind
we'll talk about next
the next question is just because you've
got universal jurisdiction does that
mean you must exercise it if you have a
genocide suspect on your territory must
you attempt to prosecute them that is is
universal jurisdiction mandatory you
must do this or merely permissive you
may do this well insofar as we're
talking about a rule of customary
international law and examining what
states do in practice it's pretty
obvious that states are not continually
attempting to assert universal
jurisdiction over international crimes
committed everywhere in the world by
whoever may have committed them and not
necessarily even that came to a certain
universal jurisdiction over persons who
come within their territory so on the
basis of state practice it would appear
the rule is permissive rather than
mandatory this leads us to the other big
controversy is can you only exercise
universal jurisdiction can you only
commence an investigation or prosecution
if the accused is physically present in
your territory and this leads to a
confusing debate that will examine in
class about the idea of attempting to
assert extraterritorial enforcement
jurisdiction in respect of universal
jurisdiction but simply though if a
state cannot take preparatory steps like
opening an investigation and beginning
to gather evidence before someone
suspected of a universal jurisdiction
crime is on their territory it's going
to be very difficult issue an arrest
warrant for them in a timely manner
further if one requests another state
surrender to you a suspect in a
universal jurisdiction case that is not
extraterritorial enforcement that is
simply asking for some cooperation in
order that a prosecution might occur so
if one says that somehow you can't do
anything under universal jurisdiction
until the accused comes within your
territory then that kind of
international cooperation is defeated as
well now the idea of universe
jurisdiction and particularly commencing
prosecutions or investigations against
people who are not in your state's
territory already does raise a number of
concerns in its occasionally alleged
that this could endanger international
diplomacy or lead to people being the
victims of politically motivated
prosecutions and hounded through all the
courts in the world but we can ask
whether in practice that seems a
realistic fear we then need to come to
the idea of treaty based or quasi
universal jurisdiction so this is as it
were a system where states may club
together to share their territorial
jurisdiction and say you may prosecute a
crime committed on our territory or
against our Nationals or by our
Nationals if you can secure jurisdiction
over that person or if you find them
within your territory so if you look at
articles six and seven of the Convention
Against Torture it lays out that parties
to the Convention Against Torture are
under an obligation to if they have a
someone suspected of torture within
their jurisdiction and if the
circumstances so warrant take that
person into custody commence an
investigation and notify other states
who are parties to the convention who
might have an interest in the case that
they are looking into it
then under article 7 that state party
has to make a decision will they
prosecute that person themselves or
extradite them to another state for
prosecution if they choose national
prosecution they have to have a national
law that allows the prosecution of that
individual even if that individual is
not their national and even if that
individuals crime of torture was
committed outside their territory so
long as either the suspected torturer
the suspected victim or the territory in
which the act occurred are covered by
the jurisdiction of a memberhello in this short presentation I'd
like to cover the basic principles of
the criminal jurisdiction of States so
there are a number of topics we'll cover
in these slides relatively quickly so I
want to look at the difference between
prescriptive adjudicative and
enforcement jurisdiction so the
authority to make rules the authority to
judge rules and the authority to enforce
rules each of which is potentially
important to us then we'll look at the
idea of prescriptive jurisdiction based
on links when can a state legislate that
a crime
exists within a national system and
we'll focus particularly on universal
jurisdiction to prescribe when may
states pass laws applicable to conduct
committed by anyone anywhere in the
world irrespective of any connection to
the prosecuting state and then we'll
look briefly at the idea of treaty based
systems of so called quasi universal
jurisdiction so this is common in
relation to terrorist or transnational
offenses particularly say the provisions
in article 6 and 7 of the Convention
Against Torture where states come
together to pool their jurisdiction to
try and prevent their being impunity for
certain particularly heinous crimes now
these questions of universal
jurisdiction and treaty based
jurisdiction in the absence of ordinary
links to the prosecuting state are
particularly important when we come to
look at the jurisdiction given to treaty
based courts like the International
Criminal Court all right so let's look
at jurisdiction based on so called links
so the easiest idea here is that a state
and can prescribe the conduct can pass
rules governing the conduct of its
nationals so this is called active
nationality so whatever for example in
Australian does anywhere in the world is
potentially subject to Australian
criminal law if the relevant Australian
Parliament's have so enacted
similarly passive nationality
jurisdiction is increasingly accepted
which is to say that if an offense is
committed against a Belgian and the
state of Belgium can secure the in
custody the offender then Belgium can
prosecute that offense even if it was
committed outside Belgium so if an
Australian assaults a Belgian in Canada
so long as Belgium can secure the
extradition of the Australian it could
prosecute that assault or murder even
though the offense occurred in Canada so
active and passive nationality
jurisdiction are two principles by which
States criminal law will often extend
beyond their territory which brings us
to the idea of territorial jurisdiction
so we would say it's fairly obvious that
a state should have jurisdiction over
events that occur within its territory
but what about events or crimes that
cross borders transnational crimes
particularly crimes such as for example
drug smuggling now the classic example
usually given in lectures is the idea of
someone shooting another person across a
border so again we might have in this
scenario on a border between the United
States and Canada a person standing on
the United States side of the border
shooting someone on the Canadian side of
the border who has territorial
jurisdiction well the answer would be
where the offense is completed where the
murder or wounding or assault took place
would be the state of objective
territorial jurisdiction the physical
elements of the crime were completed
there but the crime was commenced the
mind governing the crime the guilty
mental state was found in in our example
the United States where the gun was
fired and that would be said to be the
state of subjective territorial
jurisdiction so again both territorial
jurisdictions could have jurisdiction
over the entire
fence now one might say okay well
nonetheless surely a territorial
jurisdiction should trump or prevail
over a nationality jurisdiction or the
objective territorial jurisdiction
should always be able to prosecute a
crime and the subjective territorial
jurisdiction should defer to that
actually all these principles are equal
there is no rule of priority multiple
states may have concurrent jurisdiction
to prosecute a crime further there is no
absolute rule in international law
against double jeopardy multiple
prosecutions for the same offense but as
a matter of practice States will
normally only prosecute particularly
serious extraterritorial crimes because
of the expense and the difficulty of
gathering evidence and ultimately states
are usually even if they have provision
for trial in absentia are often not
particularly keen on conducting
something as expensive as a trial unless
they have the defendant actually in
custody and are in a position to do
something about them so very often the
question of priority over a crime must
be resolved by who has the defendant in
custody there are a number of other
concepts we should note effect
jurisdiction is known largely in
economic law it's the idea of activity
abroad that influences your national
jurisdiction in terms of criminal
activity the classic one for effects
might be for example currency forgery
because releasing a large number of fake
for example euros or US dollars into
circulation internationally could affect
the value of that currency even if the
forged currency never moves inside the
relevant jurisdiction if it only
circulates in the wider world so that
might be one example but largely the
effects jurisdiction will overlap with
objective territorial jurisdiction for
our purposes there are a number of
special cases where objects or people
are a are the object of special
extraterritorial
diction already mess so a vessel on the
high seas is subject to the exclusive
jurisdiction of the state whose flag it
is entitled to Fleiss this could be
called flag vessel jurisdiction and it
crops up in treaty based arrangements
including the Statute of the
International Criminal Court so an
offense committed on a vessel on the
high seas will be treated in much the
same manner as an offence committed on
the flag States territory that is not to
say that a flagged vessel is territory
in law it is not a floating piece of
territory just that for certain criminal
law purposes it can be treated as if it
were territory also separately from the
nationality principle states have
jurisdiction to regulate the conduct of
their armed forces abroad even where
members of that armed force are not
their own Nationals so foreign nationals
for example can join the British or US
or French Armed Forces without
necessarily having nationality in the UK
the US or France alright that brings us
then though to universal jurisdiction
the most important to a popular perhaps
concept in jurisdiction an international
criminal law so the first thing is first
idea is universal jurisdiction to
prescribe when can states prescribe
conduct it's just turning back to an
earlier idea we're still talking largely
about prescription here so the passing
of rules that your courts can adjudicate
this needs to be distinguished from
enforcement jurisdiction the ability to
as it will use your executive powers
your police to enforce rules and
particularly to take suspects into
custody or to seize evidence now we've
been talking about quite a number of
cases where jurisdiction to prescribe is
extraterritorial but that doesn't mean
there's extraterritorial enforcement
jurisdiction in my example of an
Australian
murdering a Belgian in Canada while on
Canadian territory the only valid
enforcement authority obviously belongs
to Canada there are certain exceptions
to the territorial limitation of
enforcement authority usually granted by
treaties such as sort of cross-border
police pursuit arrangements for example
within Europe or rules of intervention
against foreign ships on the high seas
in cases such as piracy but while
jurisdiction to prescribe is commonly
extraterritorial jurisdiction to enforce
is only exceptionally extraterritorial
let's come back to universal
jurisdiction to prescribe so the
essential idea here is that universal
jurisdiction is simply jurisdiction that
exists in the absence of ordinary links
so those who have already talked about
so the question then becomes well in
respect of which offenses may a state
assert universal jurisdiction to
prescribe an offense and then to
adjudicate it if it can somehow gain
custody of a suspect so on that question
of which offenses are covered
certainly the core international crimes
we'll look at in this course are said to
be subject to universal jurisdiction so
war crimes crimes against humanity
genocide and perhaps the crime of
aggression certainly one might also add
to that piracy and perhaps offenses such
as torture and more marginally perhaps
slavery but once one moves beyond the
court there are sort of more complex
questions of evidence about the nature
of the existence and nature of universal
jurisdiction so the first question we
always have to ask is universal
jurisdiction in respect of what and to
remain universal jurisdiction under
custom or universal jurisdiction the
sense of jurisdiction in the absence of
links ordinary links which might be
provided by a treaty system of the kind
we'll talk about next
the next question is just because you've
got universal jurisdiction does that
mean you must exercise it if you have a
genocide suspect on your territory must
you attempt to prosecute them that is is
universal jurisdiction mandatory you
must do this or merely permissive you
may do this well insofar as we're
talking about a rule of customary
international law and examining what
states do in practice it's pretty
obvious that states are not continually
attempting to assert universal
jurisdiction over international crimes
committed everywhere in the world by
whoever may have committed them and not
necessarily even that came to a certain
universal jurisdiction over persons who
come within their territory so on the
basis of state practice it would appear
the rule is permissive rather than
mandatory this leads us to the other big
controversy is can you only exercise
universal jurisdiction can you only
commence an investigation or prosecution
if the accused is physically present in
your territory and this leads to a
confusing debate that will examine in
class about the idea of attempting to
assert extraterritorial enforcement
jurisdiction in respect of universal
jurisdiction but simply though if a
state cannot take preparatory steps like
opening an investigation and beginning
to gather evidence before someone
suspected of a universal jurisdiction
crime is on their territory it's going
to be very difficult issue an arrest
warrant for them in a timely manner
further if one requests another state
surrender to you a suspect in a
universal jurisdiction case that is not
extraterritorial enforcement that is
simply asking for some cooperation in
order that a prosecution might occur so
if one says that somehow you can't do
anything under universal jurisdiction
until the accused comes within your
territory then that kind of
international cooperation is defeated as
well now the idea of universe
jurisdiction and particularly commencing
prosecutions or investigations against
people who are not in your state's
territory already does raise a number of
concerns in its occasionally alleged
that this could endanger international
diplomacy or lead to people being the
victims of politically motivated
prosecutions and hounded through all the
courts in the world but we can ask
whether in practice that seems a
realistic fear we then need to come to
the idea of treaty based or quasi
universal jurisdiction so this is as it
were a system where states may club
together to share their territorial
jurisdiction and say you may prosecute a
crime committed on our territory or
against our Nationals or by our
Nationals if you can secure jurisdiction
over that person or if you find them
within your territory so if you look at
articles six and seven of the Convention
Against Torture it lays out that parties
to the Convention Against Torture are
under an obligation to if they have a
someone suspected of torture within
their jurisdiction and if the
circumstances so warrant take that
person into custody commence an
investigation and notify other states
who are parties to the convention who
might have an interest in the case that
they are looking into it
then under article 7 that state party
has to make a decision will they
prosecute that person themselves or
extradite them to another state for
prosecution if they choose national
prosecution they have to have a national
law that allows the prosecution of that
individual even if that individual is
not their national and even if that
individuals crime of torture was
committed outside their territory so
long as either the suspected torturer
the suspected victim or the territory in
which the act occurred are covered by
the jurisdiction of a member to the
convention so it's a system as it were
of pooling or cross vesting or mutually
delegating jurisdiction and that same
sort of jurisdictional basis operates to
some extent in the International
Criminal Court statute the International
Criminal Court is not given universal
jurisdiction it's given jurisdiction in
respect of its member states nationals
territory and events occurring on member
States flag vessels and aircraft all
right that concludes our review of
principles of jurisdiction and the next
of these short presentations we'll go to
questions surrounding the purposes of
international criminal law thank you for
your attention I hope you join me for
the third of these presentations thanks
to the
convention so it's a system as it were
of pooling or cross vesting or mutually
delegating jurisdiction and that same
sort of jurisdictional basis operates to
some extent in the International
Criminal Court statute the International
Criminal Court is not given universal
jurisdiction it's given jurisdiction in
respect of its member states nationals
territory and events occurring on member
States flag vessels and aircraft all
right that concludes our review of
principles of jurisdiction and the next
of these short presentations we'll go to
questions surrounding the purposes of
international criminal law thank you for
your attention I hope you join me for
the third of these presentations thanks
