1: Jurisdiction and National Criminal Prosecutions

Goals of National Criminal Law

• Incapacitation: protect society from dangerous offenders

• Denunciation: Define prohibited conduct and attach punishment

• Deterrence: Discourage future crime

• Victim Support: Restore victims where possible

goals of International Criminal Law

• Retribution

• Detterence

• Incapacitation

• Denunciation and Education

• Historical Record

Difference in goals of ICL and domestic law

ICL has broader symbolic and expressive goals than domestic law

Cost of ICC trials

120 million per year

Successful ICC Trials

only 11 convictions in 24 years

Types of jurisdiction

• legislative

• judicial

• executive

Lotus Principle

States may exercise jurisdiction unless explicitly prohibited by international law

Subjective Territorial Jurisdiction

Crime started in a State’s territory

Objective Territorial Jurisdiction

Crime was completed in a State’s territory

Active Jurisdiction based on Nationality

the offender was a State national

Passive Jurisdiction based on Nationality

The Victim was a State National

Nottebohm principle for passive nationality jurisdiction

Nationality must reflect a genuine connection, not just a formal passport.

Protective Jurisdiction

An act threatening state security:

• Espionage

• Counterfeiting

• Terrorism

Universal Jurisdiction

Applies regardless of location or nationality for specific crimes:

• Piracy

• War crimes

• Crimes against humanity

• genocide

• torture

absolute (in absentia) universal jurisdiction

the suspect is not present

Conditional universal jurisdiction

the suspect must be present in the territory

male captus bene detentus

“wrongly captured, properly detained”, the court must balance rights of the accused and the international community’s interest in prosecuting serious crimes

National prosecution of international crimes

States are the primary enforcers of international criminal law, and are preferred over international courts

Gacaca Courts (Rwanda)

Community-based justice system featuring elected judges, short training and cases which were initiated by victims, where speed was prioritised over due process