Week 2

Juristiction + types

• power/rights of a state to excercise legal authority

• Legislative: make laws

• Executive: enforce laws

• Judicial: power of courts to decide cases

Criminal Juristiction Principles

• Territorial

• Active personality

• Passive Personality

• Protective

• Universality

Territorial Principles + examples

• Primary jurisdiction held over crimes that occur in one’s own territory BUT

• Cross-border effect: Subjective / Objective territoriality

• Ex. 9/11, Lockerbie Case, Camp Zeist

Subjective territoriality

• Crimes start in the state but completed abroad

Objective territoriality

• Crime starts abroad but is completed or causes effects in another state

Active personality

A state may prosecute its OWN nationals for crimes commited abroad

Passive Personality Principle

A state may enforce jurisdiction over the perpetrator if the victim is a national

• Secondary Basis/Weaker/Limited to serious offenses (espionage)

• Achille Lauro Case

Protective Principle

A state may prosecute foreign acts committed abroad if it threatens security or vital interests

Universality Principle

• persecution viable if crime is a serious international crime, even w/out territorial/nationality/victim link

• Piracy/Slave trade/Humanitarian law breaches/genocide, war crimes

• Adolf Eichmann Case

• Belgium —> curtailing of juristiction (2003)

Immunity + Background + Examples

• Protection from legal obligation, penalty or lawsuit

• Arises from equality of states/sovereignty: par in parem non habet imperium

• Arises from absolute monarchy rex non potest peccare

Germany vs. Italy: immunity for sovereign wartime acts vs. accountability

Restrictive Immunity

Distinguishing between:

• Acta iure imperii: sovereign/government acts

• Acts iure gestionis: commerical/private acts —> no immunity

Ex. The Charkieh (1873)

Types of Immunity

• State

• Heads of state/Senior officials

• Diplomatic/Consular Immunities

• Special Missions

• International Organzations

Sources of Immunity

• Customary International Law

• Treaties

• National Statutes

• National Court Practices

Sources of Immunities: Treaties

• 1961 Vienna Convention on Diplomatic Relations

• 1963 Vienna Convention on Consular Relations

• 1972 European Convention on State Immunity

• 2004 UN Convention on Jurisdictional Immunities of States and Their Property

Substantive Exceptions

A state may lose immunity when acting like a private actors

• Commercial transactions

• employment contracts

• participation in companies

• personal injury or damage to property

• ownership/posession/use of propeorty

• ships used for commercial purposes

Procedural Exceptions

• Expressed waiver: via int. agreement

• Implied Waiver: state commences proceedings, intervenes or argues the merits; does not directly give up immunity, but its behavior shows it does

Personal Immunity

• Immunity Ratione Personae

• Immunity of certain top officials because of their office; all acts weather private/official, during and prior

• Who? only top officials

• Ex. Pinoche

Functional Immunity

• Personae Ratione Materiae

• protects a state official from being sued/prosecuted in another state for things they did as part of their official state function.

• official acts but exists after office (for official acts)

• Who? state official generally

Arrest Warrant: Congo v. Belgium - Exceptions to Protection from Criminal Jurisdtiction

• Criminal Prosecution in Own State

• Home state waives immunity

• Prosecution before international courts

• Prosecution after term expiry (prior/subsequent/private acts during)

International Law Commission Article 7

• Functional immunity should not apply to certain int. crimes

• Genocide

• Crimes against humanity

• War crimes

• Apartheid

• Torture

• Enforced dissapearance