Download National criminal jurisdiction

National criminal jurisdiction
Gro Nystuen
Jurisdiction:
• The power of the State:
- internally (at the national level)
- externally (in relations with other states)
- Jurisdiction reflects state sovereignty and
equality of states - the basic principles of
international law
Sovereignty/equality
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State sovereignty:
The State can do what it wants within its
own borders or: The State is not subject
to the authority of others
Equality of States:
States cannot infringe on the sovereignty
of other states and they must agree on
how to relate to each other and how to
solve problems
Three kinds of jurisdiction:
1) Legislative power (prescriptive
jurisdiction)
2) Judicial power (court jurisdiction)
3) Executive power (enforcement
jurisdiction)
Civil/criminal jurisdiction
• Civil jurisdiction (private international law):
Often goes further than criminal
jurisdiction – less sensitive in relation to
sovereignty issues
Different rules for different cases, for
example: tort/ compensation,
marriage/family law, commercial cases
Criminal jurisdiction
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The territorial principle
The nationality principle
The passive personality principle
The protective principle
The universality principle
The territorial principle
• All crimes committed within a State’s
territory are within the legislative,
executive and judicial jurisdiction of the
state.
• Exceptions: international agreements
• (Exceptions: immunity (diplomatic, state,
parliamentary))
The nationality principle
• Nationality/citizenship is the link between
the territory and its inhabitants
• Nationality/citizenship derives from:
- Jus sanguinis (born of nationals)
- Jus soli (born in the territory)
• Many Sates claim jurisdiction over crimes
committed by their citizens
The passive personality
principle
• Jurisdiction over foreigners for acts
committed abroad, which affects nationals
of the state
• Become more accepted in recent decades
following the development of international
terrorism
The protective principle
• Jurisdiction over foreigners for crimes
committed abroad, when the vital interests
of the State is threatened
• Reflected in many treaties
The universality principle
• Jurisdiction over foreigners abroad for
certain crimes under international law:
– Piracy (hijacking)
– Slavery
– War crimes
– Crimes against humanity
– Genocide
Treaty based jurisdiction
– Torture - CAT requires jurisdiction:
– When the offence took place in the territory
– When the offender is a national of the state
– When the victim is a national (if appropriate)
– When the offender is in the territory (and the
state does not extradite him/her)
Treaty based jurisdiction
– Terror acts – several UN conventions:
– Unlawful financing of terror acts (1999)
– Suppression of Terrorist bombings (1997)
– Unlawful Acts of Violence in Airports (1988)
– Taking of Hostages (1979)
– Unlawful Acts against the Safety of Civil
Aviation (1971)
– Unlawful seizure of aircraft (1970)
Treaties on terror acts:
• States parties shall establish jurisdiction:
- When the offence is committed in the territory of
the state (or on a vessel or aircraft of that state)
- When the offence is committed by a national of
that state
- Jurisdiction may also be established when the
offence was directed against nationals of the
state, or against the states embassies or other
government facilities abroad.
Cases
• The Lotus case (Permanent Court of
Justice 1927)
• The Eichmann case, (Israel Supreme
Court, 1951)
• The Congo v. Belgium case (International
Court of Justice, 2000)