week 5 june International Law: Jurisdiction, Immunities, and the ICC Trigger Mechanisms of the ICC

Jurisdictional Principles and the Principle of Complementarity

  • The Complementarity Principle:     * The principle of complementarity dictates which entity should prosecute a crime when there are overlapping claims.     * In a hypothetical scenario involving the Prime Minister of Russia and a university restriction constituting a crime, the question of who should prosecute—such as France or another state—depends on the jurisdictional link for the same person and the same conduct.     * Jurisdictional requirements must be met because the same version of the conduct is required for a valid prosecution in international law.

  • ICC Jurisdiction and Crime Levels:     * A critical question in the International Criminal Court (ICC) system is whether there is a "little crime rate" or "middle power" hierarchy among the crimes under its jurisdiction.     * The ICC's suppression of crimes is subject to specific conditions inherent to the Rome Statute.

Immunities under International Law

  • Personal and Functional Immunity:     * Personal Immunity: This is associated with the status of certain high-ranking officials which protects them while in office.     * Functional Immunity: This covers acts performed in the exercise of official functions.

  • The Case of Peacekeepers:     * Peacekeepers often go on missions in a healthy state but may return with HIV, raising questions about functional immunity regarding their conduct while deployed.     * A specific scenario discussed involved a peacekeeper who allegedly raised 15 children in Seattle and another 5 to 10 in the Democratic Republic of the Congo (DRC).

  • Sovereign Equality:     * The foundational rule is that states are sovereign and equal.     * The operative maxim is that one equal does not have authority over another ("Par in parem non habet imperium"). This is effectively the rule of personal immunity.

Diplomatic Law and Persona Non Grata

  • Diplomatic Inviolability and State Action:     * A scenario was presented involving a social worker who believed the wife of a Russian ambassador was abusing her children.     * The social worker took the police to the embassy and arrested the wife.     * Under international law, the host state cannot simply arrest members of a diplomatic mission due to diplomatic immunity.

  • Persona Non Grata (PNG):     * If a host state is dissatisfied with the actions of an ambassador or their staff, they have the diplomatic option to declare that individual Persona Non Grata (PNG).     * This declaration signifies that the person is no longer welcome in the country.     * Standard procedure involves giving the individual a specific timeframe to leave the country, often a window of 1212 hours.

  • Pop Culture Examples of PNG:     * The TV show The Americans features two undercover Russian spies in Washington, D.C.     * In real-world historical contexts, when the US Department of State grew tired of a KGB agent serving as a liaison officer in the embassy with the USSR during the Cold War, they issued a PNG and afforded him 1212 hours to depart.

The Lotus Case and Types of Jurisdiction

  • Legality of Abduction and Consent:     * The transcript references a historical case of a highly ambitious official (implied to be Adolf Eichmann) during the time of Nazi Germany.     * He was "illegally rescued" (abducted) from Argentina and brought to Israel without the consent of Argentina.     * The question raised in international law is whether the lack of consent from the state of Argentina prevents the state of Israel from exercising jurisdiction.

  • The Lotus Principle:     * The Lotus Case (Permanent Court of International Justice) establishes the distinction between two types of jurisdiction:         1. Legislative (Law-making) Jurisdiction: The right of a state to apply its laws to certain conduct.         2. Enforcement Jurisdiction: The authority of a state to physically enforce those laws (e.g., making an arrest).     * Territorial Exclusivity of Enforcement: Enforcement jurisdiction is strictly territorial. No state may exercise its police power on the territory of another state without that state's explicit consent.

  • Example: Policing in Greece:     * In tourist areas like Chalkidiki (popular for crystalline blue water), there are two major pathways from North Macedonia and Bulgaria.     * If no specific agreement exists between these nations, one state's police force cannot cross into the other to enforce laws on tourists or travelers.

  • Example: Marijuana Consumption in the Netherlands:     * Two German students consumed "Indian" (marijuana) in a "bulwog" (coffee shop) in the Netherlands, where it is legal.     * They were intimidated and feared prosecution by German authorities upon their return.     * The legal question was whether German enforcement jurisdiction could be exercised in the Netherlands. The answer is no; German police cannot cross the border to enforce German drug laws without violating international law and Dutch sovereignty.

Extraterritorial Jurisdiction and Criminal Law

  • Crimes Committed Abroad:     * States sometimes attempt to criminalize behavior of their citizens even when it occurs outside their borders.     * Australia: The Australian government has the right to criminalize the purchase of sexual services from minors by Australian tourists abroad (e.g., in Cambodia), even if the act is committed outside Australian territory.

  • Holocaust Denial laws in Germany:     * In Germany, there is a criminal prohibition against the denial of the Holocaust.     * Stating that the Holocaust never happened or that Hitler's National Socialist regime was a "bunch of angels" can lead to imprisonment.     * The Tobin Case: A man named Mr. Tobin, who lived in Australia and the United States, expressed these prohibited ideas while at a conference. This raises questions about how German law interacts with individuals outside its enforcement jurisdiction.

ICC Trigger Mechanisms

  • Activating the ICC:     * The mechanisms that "trigger" or activate the ICC’s jurisdiction are categorized into three groups:         1. UN Security Council (UNSC) Referral: The UNSC can refer a situation to the ICC.         2. State Party Referral: A state that is a party to the Rome Statute can refer a situation. Note: The United States, China, and India are not state parties and therefore cannot make such a referral.         3. The Prosecutor (Proprio Motu): The Prosecutor can initiate an investigation on their own authority.

  • Case Study: The Uighurs:     * The Uighurs are a Muslim minority in Western China who claim they are subjected to persecution, extermination, and torture.     * If they want the ICC to initiate an investigation into alleged war crimes, they must navigate the trigger mechanisms.     * China is a state not party to the Rome Statute. Therefore, for the ICC to have jurisdiction, there must be a referral via the UNSC (unlikely due to China's veto) or a referral by a State Party where the conduct occurred, depending on specific preconditions.

Questions & Discussion

  • Question regarding the Uighurs: Which trigger mechanism can be used for the Uighurs in Western China since China is not a party?     * Response: The discussion suggests that if a state is not a party to the Rome Statute, the hurdles for prosecution are significant. If a referral by a party like the US (were it a member) were attempted, it would face procedural barriers. The state that typically takes over the institution of prosecution is the state where the person is found or the state whose nationality the person holds, unless the ICC takes over through a valid trigger mechanism.