A Short History of Jurisdiction in Transnational Criminal Law

Criminal Jurisdiction ◽

History Of

Florian Jeßberger explores the development of criminal jurisdiction in multilateral suppression conventions. He identifies general trends, such as extension, specification and standardization, and shows that suppression conventions oscillate between simple replication of firmly settled bases of jurisdiction and integration of innovative, typically subject-matter-specific bases, often pushing the boundaries of the established law of criminal jurisdiction. He also points to the repercussions of jurisdictional rules in transnational criminal law on the ambit of domestic criminal law, by (as treaty practice) shaping the permissive rules under customary international law which limit domestic authority to punish.

A Short History of Western Legal Theory by J M Kelly

Victoria University of Wellington Law Review ◽

10.26686/vuwlr.v31i4.5931 ◽

2000 ◽

Vol 31 (4) ◽

pp. 901

Author(s):

Sandra Petersson

Keyword(s):

International Law ◽

Rule Of Law ◽

Criminal Law ◽

Natural Law ◽

Legal Theory ◽

The State ◽

Short History ◽

History Of

This article is a book review of J M Kelly A Short History of Western Legal Theory (reprint, Clarendon Press, Oxford, 1997) (466 + xvi pages, $75). Kelly's aim was to make the reader see jurisprudence in its historical setting, something that Petersson agrees was done well. The book discusses the history of Western legal theory through the ages, tracing key themes including Theory of the State, Validity of Law, Rule of Law, Nature and Purpose of Law, Natural Law, Equality, Property, Equity, Criminal Law and Punishment, and International Law. Petersson notes that Kelly's work is notably non-Anglocentric. However, Petersson comments on Kelly's failure to treat positivism as its own separate conception of law, as well as Kelly's omission of feminist legal theories.

The Arbitral Award in the Enrica Lexie Case and its Questionable Recognition of Functional Immunity to the Italian Marines Under Customary International Law

The Italian Yearbook of International Law Online ◽

10.1163/22116133-03001012 ◽

2021 ◽

Vol 30 (1) ◽

pp. 209-225

Author(s):

Raffaella Nigro

Keyword(s):

International Law ◽

Current Practice ◽

The State ◽

Arbitral Tribunal ◽

Criminal Jurisdiction ◽

State Practice ◽

Majority Judgment ◽

Functional Immunity ◽

The Military

The dispute between Italy and India on the Enrica Lexie incident has finally been decided by the Award handed down on 21 May 2020 by the Arbitral Tribunal to which the Parties had referred the case. After having concluded that it had jurisdiction on the issue of the immunity of the two Italian marines involved in the case at hand, the majority judgment (by three votes to two) affirmed that under customary international law the latter enjoyed functional immunity from the criminal jurisdiction of India. This article will argue that the Arbitral Tribunal’s conclusions are unconvincing, first and foremost, considering that, based on State practice, it is not possible to affirm without reservations that a settled customary rule exists under international law conferring immunity to all State officials, and regardless of the type of functions they perform. In fact, immunity has often been recognized as applying only to certain categories of State officials, and on the basis of the governmental nature of the functions they perform on behalf of the State. Given the doubtful existence under customary international law of a clear rule establishing the functional immunity of all State officials, for all the acts performed in the exercise of their functions, this article argues that the Arbitral Tribunal should have firstly ascertained the existence of a specific customary rule on the immunity of the military abroad, together with the exact content of such rule and, secondly, whether this was applicable in the case of the Enrica Lexie. As current practice stands, military forces abroad are entitled to immunity only under specific circumstances, which do not seem to occur in the present case. In particular, this article maintains that the Italian marines were not entitled to functional immunity. While the acts they performed did indeed fall within their typical functions, they were exercised on behalf of a private subject and not on behalf of the Italian State.

9 The Residual Receptacle

The Discourse on Customary International Law ◽

10.1093/law/9780192843906.003.0009 ◽

2021 ◽

Author(s):

d'Aspremont Jean

Keyword(s):

International Law ◽

Criminal Law ◽

International Human Rights Law ◽

Human Rights Law ◽

Legal Obligations ◽

The Common ◽

General Principles Of Law ◽

Common Understanding

This chapter explores customary international law that is constantly approached as the residual receptacle for international legal obligations that cannot be grounded in treaty law. It highlights the discursive performance that presupposes a sort of fetishization of the treaty as the first go-to source of international law as well as the idea that customary international law is second-best. It also cites the discursive performance that led some observers to claim that customary international law has become the generic category for practically all binding non-treaty standards. The chapter draws on international human rights law and international criminal law and highlights the discursive performance that is witnessed by customary international law. It formulates some observations on the consequences for general principles of law of the common understanding of customary international law as a residual receptacle for non-treaty international legal obligations.

Allegiance, Diplomatic Protection and Criminal Jurisdiction Over Aliens

The Cambridge Law Journal ◽

10.1017/s0008197300123335 ◽

1947 ◽

Vol 9 (3) ◽

pp. 330-348 ◽

Cited By ~ 3

Author(s):

H. Lauterpacht

Keyword(s):

International Law ◽

Present Article ◽

Criminal Law ◽

Constitutional Law ◽

Point Of View ◽

Considerable Importance ◽

Criminal Jurisdiction ◽

Diplomatic Protection ◽

The Right

The cause célèbre of King v. William Joyce, subsequently reported as Joyce v. Director of Public Prosecutions, was concerned to a large extent with matters of interest for international law, and it is mainly from this point of view that it is proposed to discuss it in the present article. Obviously the case is also of considerable importance both for criminal law, in so far as it is concerned with the crime of treason, and for constitutional law inasmuch as it bears directly on the question of the nature and the obligations of allegiance. However, it is probable that the case books which will claim it most insistently will be those of international law. For the decision in Rex v. Joyce is not only an authority on certain aspects of allegiance owed by aliens and of the right of a State to assume jurisdiction over acts committed by aliens abroad. It sheds light on such questions as the nature of diplomatic protection of citizens, the right of a State to protect diplomatically persons who are not its citizens, the obligation of allegiance of so-called protected persons, and some others. Not all these questions were judicially answered, but they loomed large in argument and imparted to the proceedings the complexion of a case concerned predominantly with international law. In view of this it may be pertinent to preface this article by drawing attention to a point which appears to be a mere matter of terminology but which, it is believed, raises an issue of wider significance.

Part 3 General Principles of Criminal Law: Principes Généraux Du Droit Pénal, Art.27 Irrelevance of official capacity/Défaut de pertinence de la qualité officielle

10.1093/law/9780198739777.003.0032 ◽

2016 ◽

Author(s):

Schabas William A

Keyword(s):

International Law ◽

Criminal Law ◽

International Criminal Court ◽

Rome Statute ◽

International Criminal ◽

Criminal Responsibility ◽

Criminal Court ◽

Head Of State

This chapter comments on Article 27 of the Rome Statute of the International Criminal Court. Article 27 consists two paragraphs that are often confounded but fulfil different functions. Paragraph 1 denies a defence of official capacity, i.e. official capacity as a Head of State or Government, a member of a Government or parliament, an elected representative or a government official shall not exempt a person from criminal responsibility under the Statute. Paragraph 2 amounts to a renunciation, by States Parties to the Rome Statute, of the immunity of their own Head of State to which they are entitled by virtue of customary international law. In contrast with paragraph 1, it is without precedent in international criminal law instruments.

State Practice as Element of Customary International Law: A White Knight in International Criminal Law?

International Criminal Law Review ◽

10.1163/15718123-02001003 ◽

2019 ◽

Vol 20 (5) ◽

pp. 784-804

Author(s):

Harmen van der Wilt

Keyword(s):

Human Rights ◽

International Law ◽

Criminal Law ◽

International Criminal ◽

Case Law ◽

International Criminal Tribunals ◽

Domestic Courts ◽

State Practice

Inter-state practice is relatively scarce in the area of human rights and international criminal law. This article ventures to inquire how this has affected the process of identification of customary international law by international criminal tribunals and courts. The main conclusion is that the two components of customary international law – opinio juris and state practice – have become blurred. In search of customary international law, international tribunals have resorted to national legislation and case law of domestic courts. These legal artefacts can be qualified as both evidence of state practice and opinio juris. The author attempts to explain the reasons for this development and holds that, if properly applied, the methodology, while seemingly messy, comports with the nature of international criminal law.

The crime of apartheid: genealogy of a successful failure

London Review of International Law ◽

10.1093/lril/lrz005 ◽

2019 ◽

Vol 7 (2) ◽

pp. 181-214

Author(s):

Adam Sitze

Keyword(s):

International Law ◽

Criminal Law ◽

International Criminal ◽

Specific Form ◽

History Of

Abstract This article argues that international criminal law implies a specific form of conscience. It then traces the vicissitudes of that conscience throughout the history of the criminalisation of apartheid in international law. It concludes with three theses about the concept of ‘global apartheid’.

The Taliban Layeha for Mujahidin and the Law of Armed Conflict

Journal of International Humanitarian Legal Studies ◽

10.1163/18781527-00301006 ◽

2012 ◽

Vol 3 (1) ◽

pp. 192-229 ◽

Cited By ~ 1

Author(s):

Niaz A. Shah

Keyword(s):

International Law ◽

Armed Conflict ◽

Short History ◽

Law Of Armed Conflict ◽

History Of ◽

The Law ◽

International Character ◽

Better Than

In 2010 the Taliban issued a third edition of their Layeha. The Layeha contains Rules and Regulations of Jihad for Mujahidin. This article first details the short history of the Layeha published by the Taliban. Subsequently its content is analysed and compared with the international law of armed conflict that applies in conflicts of an international and non-international character. The author demonstrates that, whilst some rules are incompatible or ambiguous, most rules of the Layeha are compatible with the international law of armed conflict. Compliance with the rules that are compatible could help to achieve the objectives of the law of armed conflict: to minimise unnecessary suffering in armed conflict. The author submits that considering that the Taliban are engaged in fighting in Afghanistan and that they have control of or influence in parts Afghanistan, it is encouraging that they have produced such a self-imposed code. Any minimum restraint, whether self-imposed or imposed by municipal or international law, is better than no restraint at all.

Immunities and International Crimes before the ILC: Looking for Innovative Solutions

AJIL Unbound ◽

10.1017/aju.2018.11 ◽

2018 ◽

Vol 112 ◽

pp. 22-26 ◽

Cited By ~ 1

Author(s):

Mathias Forteau

Keyword(s):

International Law ◽

Criminal Law ◽

International Criminal ◽

High Expectations ◽

Criminal Jurisdiction ◽

International Crimes ◽

Sovereign Equality ◽

Innovative Solutions ◽

Over Time

The International Law Commision's (ILC's) work on Immunity of State officials from Criminal Jurisdiction, which started ten years ago, has generated over time high expectations. In light of progress in international criminal law, the ILC is expected to strike a reasonable balance between the protection of sovereign equality and the fight against impunity in case of international crimes. It requires the Commission to determine whether or not immunity from criminal jurisdiction applies or should apply when international crimes are at stake. At its 2017 session, the ILC eventually adopted Draft Article 7 on this issue, which proved quite controversial and did not meet states’ approval. The purpose of this essay is to shed some light on the main shortcomings of this provision and to identify possible alternatives that could permit the ILC to overcome the deadlock concerning its adoption.

PROPOSALS REGARDING A WEAPON REVIEW PROCESS IN SOUTH AFRICA (PART 1)

Obiter ◽

10.17159/obiter.v31i1.12376 ◽

2021 ◽

Vol 31 (1) ◽

Author(s):

Ashley Charles Moorhouse ◽

David Abrahams

Keyword(s):

South Africa ◽

International Law ◽

South African ◽

Subject Matter ◽

Review Process ◽

The State ◽

The South ◽

National Implementation ◽

The Subject

The purpose of this article is to put forward submissions regarding the implementation of a weapons review process in compliance of South Africa’s obligations under Additional Protocol I (hereinafter “API”) Article 36. Article 36 requires each state party to determine whether the employment of any new weapon, means or method of warfare that it studies, develops, acquires or adopts would, insome or all circumstances, be prohibited by international law. Article 36 does not specify how such a legal review should be implemented or conducted. Thus this article puts forward proposals regarding both the substantive and procedural aspectsof a review of the legality of weapons, means and methods of warfare that the authors submit best befits the South African context.A background regarding the legal limitations placed upon the use of certain weapons, means and methods of warfare and an explanation of South Africa’s obligations regarding national implementation of a weapons review process, is given in paragraph 1 so as to create an understanding as to why it is necessary for the Republic of South Africa to implement a process to review the legality of weapons, means and methods of warfare. Before the implementation of a weapons review process can be discussed, the subject matter of such a review must first be ascertained. Thus paragraph 2 contains a discussion regarding the definition of the term “weapons, means and methods of warfare” and a determination of which weapons shall form the subject matter of legal reviews. No specific manner of implementation is contained within API and thus it is at the discretion of the state in question, in this case South Africa, to adopt the necessary measures to implement this obligation. In this regard, paragraph 3 contains submissions regarding the status of the review body within the state hierarchy and its method of establishment. This paragraph also contains an explanation of the process by which South Africa acquires its weapons. The legal scope of the review process is dealt with in paragraph 4. Within thisparagraph, the place of both treaty-based law and customary international law (“CIL”) in the South African legal system is discussed. Furthermore, the treaty-law and customary international law rules binding upon South Africa regarding limitations of specific weapons and general weapons limitations are enumerated and the paragraph ends with a discussion of the Martens Clause.