The International Criminal Court and Universal Jurisdiction: A Close Encounter?

Bekou, Olympia; Cryer, Robert

doi:10.1093/iclq/lei149

Cited by 50 publications

(3 citation statements)

References 30 publications

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“…Memberswouldrecusethemselvesfromcasesinvolvingsuspectsofthe samenationality.BeforethestartofCourtoperations,rulesofdiscovery, procedure, and evidence would be formulated utilizing commonalities acrosspartystates. TheCourtwouldemployaninquisitorialformofop 29 .TheICJCourtofJusticehastakenattemptstomodernize itsprocesses,buttheinternationalcommunityhasindirectlyopposed theCourt'sstrengthening.Thus,theICJcourttakeneffortstoimprove the efficacy of its internal operations, pushed litigating states to submit better, more concise written pleadings, and made its orders and judgements readily accessible to all via its new website. On the other side, the United Nations has imposed major fiscal restrictions on the Court, hindering its capacity to manage its rising workload 30 .…”

Section: Suggestion For An International Permanent Diplomatic Crimina...mentioning

confidence: 99%

Possible remedies to prevent the misuse of diplomatic immunity

Allan Abusamra

2023

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Since 1945, diplomatic immunity has altered. There are many factors which inhibit immunity. Firstly, consistent Cold War retaliation existed. Second, national security in the nuclear age was prioritized. The intricacy of international politics and mission expansion influenced a change. Also, the abuse of diplomatic and non-diplomatic immunity necessitated modification. In the 1960s, when hundreds of diplomats were sued, diplomatic immunity was called into doubt. Diplomatic abuses should force a reform of the Vienna Convention. Functional needs explained immunity modifications in the 1960s. Increasing and expanding immunity categories contributed to the improvement of the theory. However, there is no abuse remedy that is universally acceptable and enforceable. Should functional necessity theory replace immunity’s cloak? The pacta sunt serva concept of the noncontroversial law of treaties could be utilized to obtain multilateral agreement on the nature, cause, and effect of the functional necessity theory. A Permanent International Diplomatic Criminal Court with mandatory jurisdiction over accused diplomats and its own punishment system has been under discussion since the late 1980s. It never occurred, yet it may have resolved the diplomat disagreement between the victim and the accused.

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Section: Suggestion For An International Permanent Diplomatic Crimina...mentioning

confidence: 99%

Possible remedies to prevent the misuse of diplomatic immunity

Allan Abusamra

2023

ZPPPiPS

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“…3.1.5 Universal jurisdiction. Universal jurisdiction refers to that a jurisdiction recognizes the international treaties to which it participates and exercises jurisdiction over serious crimes that endanger the common interests of all mankind, even if the occurrence of the crime and the identity of the perpetrator do not have any substantial connection with this jurisdiction (Bekou and Cryer, 2007). Despite the differences in judicial traditions across jurisdictions around the world, there are serious crimes such as terrorism, piracy, human trafficking, hijacking of civil aircraft, war crimes, humanitarian crimes, genocide and others, recognized as an infringement of the interests of all human beings.…”

Section: The Implications and Prioritization Of Different Jurisdictional Principlesmentioning

confidence: 99%

A jurisprudential analysis of the concurrent criminal jurisdiction over cross-border telecom fraud crime

Liu

2020

JFC

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Purpose The issue of concurrent jurisdiction over cross-border crimes has become common in a globalizing world, while the rigid compliance with territoriality and active personality jurisdiction has created a legal vacuum for cross-border crimes in many situations. The jurisdiction dispute between mainland China and Taiwan over cross-border telecom fraud crimes is a good example. In recent years, the Ministry of Public Security of the People’s Republic of China cracked down a series of cross-border telecom fraud crimes against mainland residents and extradited suspects to mainland China. Given a certain proportion of Taiwan residents in criminal gangs, the Taiwan side raised jurisdiction objections, arguing that mainland China had no right to exercise jurisdiction over Taiwanese criminals. The essence of the jurisdiction dispute between two sides is the concurrence of Taiwan’s right to exercise active personality jurisdiction and the mainland’s right to exercise passive personality jurisdiction. The purpose of this paper is to analyze the connotation of different jurisdiction principles (namely, territorial, active personality, protective and passive personality jurisdiction) and reinterpret their prioritization of applicability from a jurisprudential perspective, and thus, enhance the theoretical basis for resolving the issue of concurrent jurisdiction over cross-border crimes. Design/methodology/approach By reviewing the historical trajectory of major jurisdiction principles since the 1920s, and studying the specificities of the case in this context, this paper argues that territorial jurisdiction and active personality jurisdiction have presumed priority but not an absolute priority for resolving the issue of concurrent jurisdiction. The applicability of protective and passive personality jurisdiction could precede the former provided the jurisdictions of territoriality or active personality are inadequate, incompetent or lack of motivation to combat crimes, which harm other jurisdictions. Findings The developmental trajectory and contemporary connotation of major jurisdiction principles suggests that the legitimacy of the mainland’s exercise of passive personality jurisdiction over Taiwan criminal suspects lies in the urgent need to recover mainland victims’ significant property loss, the incompetence of Taiwan in detecting and prosecuting telecom fraud crimes committed by Taiwanese residents and targeting mainland victims and that the mainland has guaranteed the Taiwan side’s right to be timely informed and fully participate in its exercise of criminal jurisdiction over crimes involving Taiwan suspects. Originality/value Current literature on jurisdiction doctrines mainly uses a historical or descriptive approach to reveal the attitudes of different countries toward jurisdiction principles, which helps little in resolving the issue of concurrent jurisdiction over cross-border crimes in an era of globalization. This paper uses an interpretative approach, reinterprets the contemporary connotation of different jurisdiction principles and redefines the criteria for determining their prioritization in the context of the specificities of a case. It is expected to update the academic literature for resolving concurrent jurisdiction, fill the legal vacuum for combating cross-border crimes created by rigid compliance with territorial jurisdiction, and meanwhile relieve concerns about abuse of extraterritorial jurisdiction as it provides concrete standards for weighting the applicability of jurisdiction principles.

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“…When it became clear that most states would reject universal jurisdiction, proponents of a broad jurisdictional scope 96 shifted support to a South Korean proposal that would have given the ICC jurisdiction when any of the territorial state, state of nationality of the suspect, state of nationality of the victim, or state of custody of the accused were parties to the ICC Statute. 100 Although in theory this stopped short of universal jurisdiction, in practice there would have been little difference. Jurisdiction would have been possible with the consent of the custodial state (and without it no trial would be feasible in any case, as trials in absentia are not allowed at the ICC).…”

Section: The Functional Approachmentioning

confidence: 99%

Dual Nationality and International Criminal Court Jurisdiction

Wolman¹

2020

Journal of International Criminal Justice

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The International Criminal Court (ICC) can exercise jurisdiction over nationals of states parties. However, it has never been clear whether the Court will automatically recognize a nationality that has been conferred by a state party under its domestic law, nor what criteria it would use to evaluate that nationality should it not be automatically accepted. In December 2019, the Office of the Prosecutor made its first formal pronouncement on the question, finding that the ICC does not have jurisdiction over North Koreans, despite their being South Korean nationals under South Korean law, because North Koreans are not able to exercise their rights as South Koreans until accepted as such by application, and on occasion their applications might be refused. In this article, I reject the Prosecutor’s analysis as misguided. I also reject the other main approaches to nationality recognition suggested by scholars, namely a ‘genuine link’ requirement, a deferral to municipal law, and a deferral to municipal law except where a conferral of nationality violates international law. Instead, I propose a functional approach that would respect municipal conferral of nationality unless that conferral unreasonably interferes with the sovereign interests of a non-state party.

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The International Criminal Court and Universal Jurisdiction: A Close Encounter?

Cited by 50 publications

References 30 publications

Possible remedies to prevent the misuse of diplomatic immunity

Possible remedies to prevent the misuse of diplomatic immunity

A jurisprudential analysis of the concurrent criminal jurisdiction over cross-border telecom fraud crime

Dual Nationality and International Criminal Court Jurisdiction

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