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Complete summary (7 weeks in total) International Criminal Law
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Complete summary (7 weeks in total) International Criminal Law - ICL - UvA
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International Criminal LawSession 1 Jurisdiction: principle of territoriality, extraterritorial
jurisdiction, universal jurisdiction
- Perm. Court of Int. Just. 7 September 1927, The Case of the S.S. Lotus, Series A No.
10.
- Austen L. Parrish, ‘Domestic Responses to Transnational Crime: The Limits of
National Law’, in: 23 Criminal Law Forum (2012), pp. 275-293.
- George P. Fletcher, ‘Against Universal Jurisdiction’, in: Journal of International
Criminal Justice 1 (2003), pp. 580 – 584.
- Cryer et al. pp. 49-68
1. Austen L. Parrish, ‘Domestic Responses to Transnational Crime: The Limits of National
Law’, in: 23 Criminal Law Forum (2012), pp. 275-293.
General idea: With the rise of transnational criminality, multilateralism is to be preferred than
extraterritorial laws, in respect of territorial sovereignty.
Growth of transnational crime + growth of domestic responses to transnational criminality, as opposed
to multilateral ones. E.g. creation in the US in 2011 of a special unit for transnational criminality
within the DoJ.
“While, at one time, criminal law was inherently territorial and confined to use exclusively within a
nation’s borders, countries have begun to enact criminal laws that purport to regulate the conduct of
foreigners abroad.”
“While globalized crime requires a response, no compelling reason exists for why that response should
be unilateral and domestic in nature, rather than multilateral and collaborative.”
The EU cooperation system is very much predicated on this idea. Problem (relevant for thesis): the
idea of a strong multilateral response to transnational crime requires a high degree of mutual trust.
Compatible with HR?
“While perhaps useful, as a last resort in some contexts, extraterritorial national laws are more
problematic than commonly assumed, at least for those committed to finding effective, long-term
solutions to transnational crime. Extraterritorial domestic laws often detract from, and can even
undermine, more comprehensive, meaningful, multilateral efforts. And they risk shifting the focus
away from the perpetrators and their victims, to the prosecutorial response and whether that response
is legitimate and legal”.
Blackstone : ‘[c]rimes are in their nature local, the jurisdiction of crimes is local.’ 1
If the goal is to significantly reduce transnational crime, then extraterrito- rial strategies have been, in
most cases, a failure.
Criticisms:
1 th
W. Blackstone, Commentaries on the Laws of England (London: Murray, 4 ed., 1876) 1055, 1058
1
, - universal jurisdiction, instead of drawing attentin to the crime and its victims, draws attention
to the prosecutorial action and its legality
- erodes cooperation
- pragmatic reasons : cost of transfering witnesses and evidence, obstacles to investigations, etc.
- legitimacy and reciprocity
2. George P. Fletcher, ‘Against Universal Jurisdiction’, in: Journal of International Criminal
Justice 1 (2003), pp. 580 – 584.
General idea: the failure to prosecute the most terrible crimes is almost considered as worst than the
crimes themselves. But universal jurisdiction is both unwise and unjust.
Generally, in domestic criminal systems, there is a hierarchy between the interests of (i) the accused,
(ii) the victims, (iii), the state (prosecution). In ICL, this hierarchy is reversed: according to the RS and
mechanisms of universal jurisdiction, the priority is the interests of victims. Focus on the fight against
impunity. In second place come the interests of state parties, through the principle of complementarity.
The only come the interests of the accused – the RS does not even provide for the right to a fair trial or
a catalogue of procedural guarantees, like modern constitutions do.
Universal jurisdiction and double jeopardy: no guarantee that the accused will not be tried in one court
after the other.
E.g. Finta, Canadian SC, 1994: nazi war criminal tried in absentia in Hungary and then again in
Canada (even though acquitted). Other example is the Demjanjuk case.
Other example – Belgian attempts to prosecute Ariel Sharon for the atrocities of Sabra and Shatila,
even after an impartial commission in Israel had judged that he was not responsible for the acts of the
Phallangists.
The main problem identified by the author is that even though some lawyers may be willing to insert a
rule against double jeopardy as a condition to the exercise of universal jurisdiction, the principle of
universal jurisdiction itself denotes a trial which has no connection in time or in space with the crime,
therefore, it makes it impossible for courts more connected with the crime to accept the verdict of a
court which is disconnected entirely. As a result the rule against double jeopardy is simply
unacceptable when applied to proceedings initiated on the grounds of universal jurisdiction.
+ universal jurisdiction is an offence to the interests of local communities most affected by the crimes.
This idea is even enshrined in Article 6 of the US Constitution (‘principle of local concern’).
This doctrine of local concern is acknowledged in the RS (complementarity principle), but not by
universal jurisdiction.
CCL: universal jurisdiction reverses the interests at stake by prioritizing the victims’ interests over the
accused’s.
Session 2 International Cooperation in Criminal Matters and
Sovereignty (I) The Problem of Nationals
- Cryer et al. pp. 74-76; pp. 98-102
- Van der Wilt, Chapters 1 & 2 (Canvas)
- Paul Gully Hart: ‘The European approach to Extradition’
2
, - Council of Europe, Explanatory report on the Convention on the Transfer of
Sentenced Persons, Strasbourg 1983, pp. 5 – 23.
1. Paul Gully-Hart, ‘The European Approach to Extradition’, in: M. Cherif
Bassiouni (ed.) International Criminal Law; Volume II Multilateral and Bilateral
Enforcement Mechanisms, 3rd edition Leiden 2008, pp. 343-376.
Legal framework of extradition within Europe:
- 1995 + 1996 Conventions
- Council of Europe: 1957 European Convention on Extradition (+ 1975 and 1978
Protocols)
- European Union
o Convention on the Application of the Schengen Agreement (Title III)
o European Arrest Warrant Framework Decision 13 June 2002
o 27 November 2008 Framework Decision on mutual recognition of probation
decisions and alternative sanctions
o 27 November 2008 Framework Decision on mutual recognition of judgments
imposing custodial sentences or measures involving the deprivation of liberty
for the purpose of their enforcement in the EU
- Bilateral conventions
- Jus cogens and customary international law
Sources of extradition
I) Council of Europe
The European Convention on Extradition (+ Protocols) – main features:
Provides for extradition without proof of a prima facie case and gives parties
discretion as to whether extradite their nationals, even though it encourages parties to
extradite their nationals. States may refuse to extradite their nationals if they
ensure the prosecution of their nationals before domestic courts.
The offence should be serious enough to justify extradition, but there is no restrictive
list of offences subject to the convention as such (i.e. no enumerative list of offences
subject to extradition). + extradition applies to tax offences.
The offence should be punishable under both the laws of the requesting and the
requested state (dual criminality rule).
Contains a political offence exception, and a military offence exception*.
Ne bis in idem: the extradition request will not be granted if the accused or convicted
person has been definitively tried in the requested state. The same applies to non-state
parties.
Death penalty is a specific ground to deny a request.
No evidence of guilt or probable cause should be sought by the requested state from
the requesting state.
Interpol plays an important role in requests on provisional arrest with a view to
extradition.
3
, Contains a rule of specialty.
What about fugitives sentenced in absentia? Where a contracting party requests the extradition
in relation to a conviction in absentia, the requested state may deny the extradition if the
procedure did not meet fundamental safeguards (minimum defense rights). Nonetheless
extradition will be granted if the requesting state may give an assurance that the person will
be retried, that his or her defense rights will be respected, if it is considered sufficient by the
requested state.
*Scope of the political exception:
- the political exception may not apply to crimes against humanity and war crimes.
- subsequent European Convention on the Suppression of Terrorism (the ‘European
Terrorism Convention’), 1977 also excluded certain ‘terrorist’ offences from the scope of the
political offence exception ( meaning that terrorist offences are extraditable offences). That
list was further extended by a 2003 protocol to the Terrorism convention, which has not come
into force.
- 2005 Convention on the Prevention of Terrorism: public provocation to commit terrorist
offences and recruitment and trading for terrorism are to be considered as extraditable
offences in any treaty existing between any party to the convention, prior to its entry into
force. And parties undertake to include these offences as extraditable in future treaties. But
this convention has not entered into force.
- Criminal Law Convention on Corruption, 1999, into force since 2002: idem for offences
relating to corruption.
The ‘European Terrorism Convention’
- It excludes certain offences from the scope of the political exception, but it
provides that extradition may be denied if the requested state has substantial grounds
for believing that the request was made with a view to prosecute the person on the
basis of his or her race, religion, nationality, political opinions, or that the person
might be prejudiced for these reasons.
- The 2003 protocol also reaffirmed that the Convention on Extradition does not
impose on States to extradite a person where there are risks of torture/death
penalty/life imprisonment without the possibility of parole.
II) European Union
1. The EAW
Before the EAW:
1995 Convention on simplified extradition procedure
1996 Convention relating to extradition between the Member states of the EU
(‘1996 EU Extradition Convention’): this text largely increases the number of
circumstances likely to give rise to extradition and lowers the threshold for
extraditable offences + exceptions to the dual criminality rule. Problem with the 1996
EU Convention: a lot of reservation clauses + kept a traditional, diplomatic
mechanism, which by definition is political and intergovernmental.
4
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