To criminalize certain behavior and to prosecute or extradite (handout)

What was the gist of the joint separate opinion of Higgins, Kooijmans and Buergenthal in the Arrest Warrant Case?  

Possibility under international law to exercise universal jurisdiction in absentia, applying the Lotus principle and taking certain safeguards

What were the possible objections to the exercise of universal jurisdiction in absentia, and how were they rejected by the separate opinion of Higgins, Koojimans and Buergenthal in the Arrest Warrant case?

  Q “What were the objections of Judge Guillaume to the exercise of universal jurisdiction in absentia?

a.       Sovereign equality of states (decolonization has strengthened territoriality principle)

b.      Would bring total judicial chaos

c.       Powerful countries will exercise this jurisdiction arbitrarily

What are the safeguards that have to be in place to exercise universal jurisdiction in absentia?

1.      Safeguards

a.       Independent prosecutor or investigative magistrate

b.      Should respond to special circumstances

                                                  i.      Someone has to bring damages to the attention of the prosecutor?

c.       Should not violate immunity principle

d.      Shouldn’t interfere with exercise of jurisdiction of country in which territory relator is present

What is the difference between jurisdiction to prescribe and jurisdiction to enforce? 

1.      To include anything in its national legislation or to legislate « to adjudicate the case and to enforce/compel compliance

a.       To enforce is only within territory

What is the main holding of the Lotus Case and what is its important dictum? 

Dictum:     prescriptive jurisdiction has no limits

Holding:    unless special permission, states do not have the power to exercise their jurisdiction to prescribe beyond their territory

What is the “Doctrine of Specialty” in extradition cases? 

Doctrine of specialty prevents requesting nation from prosecuting extradited individual for any offense other than that for which the surrendering state agreed to extradite

What is the principle of dual criminality in extradition cases?

 Surrendering nation and requesting nation should both criminalize the same behavior

Enumerate and give a very short definition of the various heads or categories of jurisdiction under customary international law.

5 kinds

a.       Territorial                          -->based on territory

                                                  i.      Divided in…

1.      Subjective (action began in territory of state exercising jurisdiction)

2.      Objective (if commenced in other jurisdiction but effect in territory)

b.      Passive personality           --> nationality of the victims

c.       Universal                            --> nature of the offense

d.      Protective                           --> protects vital national interests

e.       Nationality                         --> nationality of the perpetrator

What state determines when a crime is within the provisions of an extradition treaty? Explain the process. 

  Requested state

What are the arguments for or against the extradition of nationals? 

  Sovereignty and right to be judged under own law and by own judges « comity and international cooperation

What is the probable cause standard applicable in extradition proceedings?

Enough evidence to reasonable believe that defendant committed the charged offense

Describe the two-step procedure that divides responsibility for extradition between the judicial officer and the secretary of state.

Two Steps:

a.       Judicial officer

                                                  i.      Identity of relator

                                                ii.      Probable cause or sufficient evidence to sustain charged offense

                                              iii.      Offense within extradition treaty

b.      Secretary of state

                                                  i.      If magistrate denies extradition, then no extradition

                                                ii.      If magistrate allows extradition, then secretary decides upon actual extradition taking into account international relations
E.g.            political or diplomatic reasons not to extradite are possible

What is the rule of non-inquiry?

Not take into account the conditions of the other criminal justice system

a.      More detail

How was the statute of limitation issue decided in Ross v. US Marshal for the Eastern District of Oklahoma?

Statute of limitation was tolled when the accused/relator was fleeing from justice

What are the main tests to determine whether the political exception applies? 

Main tests

a.       Anglo-American incidence/t test

b.      Swiss, predominance and proportionality test

c.       French, objective test

Why did the court in Quinn v. Robinson decide that the incident test excluded acts of international terrorism? 

Does not fulfill the spatial requirement of the incident test, because it comes from abroad and the uprising should come from within the state

When does the United States have extraterritorial jurisdiction to prosecute criminal conduct?

   When there is a statute and when it’s authorized by international law

What is the famous dictum by Justice Marshall in Murray v. Schooner Charming Betsy (p. 63 CB)?

 Principle of statutory interpretation that states that an act of Congress ought never to be construed to violate laws of nations if any other construction remains

When can a statute be interpreted by a court as having extraterritorial reach?

    When statutes are not logically dependent on their locality (Bowman case) and to limit the application to the strictly territorial jurisdiction would greatly curtail the scope and usefulness of the statute

What was the basic reason(s) for the decision in US v. Layton?

Application of Bowman test and injures the government wherever the crimes occurs

Under what principles did the Ninth Circuit exercise extraterritorial jurisdiction in the case of Chua Han Mow v. US?

Objective territorial principle and protective principle

In US v. Ricardo, how were the jurisdictional requisites satisfied given that the statute did not require proof of an overt act?

 Had to proof that the effects were intended to apply within the territory of the US, so could satisfy the objective territoriality principle even without actual overt act proven in the US

Discuss a case in which the nationality principle was applied by a United States court to bolster its statutory interpretation.

Case in which defendant made false statement on customs declaration forms abroad (US v. Walzack)

What was the international jurisdictional basis applied by the court in US v. Yunis?

Universality principle and passive personality principle

What court decided the Soering case; on the basis of what treaty and under what provision?

  European Court of Human Rights, article 3 of the European Convention on Human Rights that proscribes that no one shall be subjected to torture or inhuman or degrading treatment or punishment

What was the relevant provision of the treaty between the United Kingdom- United States regarding extradition for crimes punishable by death, and what was the practice of the United Kingdom in that respect?

   If offense for which extradition is requested is punishable by death penalty, the requested state may refuse extradition unless the requesting state gives satisfactory assurances

What countries’ relevant law and practice did the European Court of Justice take into consideration for its decision?

 Commonwealth of Virginia, UK and Federal Republic of Germany

How was the European Convention of Human Rights breached in Soering case? 

  Through death row syndrome

What were the particular circumstances taken into account by the Court in the Soering case?

 Length of detention prior to execution, conditions of death row, applicant’s age and mental state, possibility of extradition to Germany

What was the decision of the Dutch Supreme Court in the case The Netherlands v. Short?

 Human rights treaty had priority / prevailed over the Statute of Force Agreement treaty

Under what laws or treaties were the European war criminals tried after World War II? 

London Charter and Allied Control Council Law n°10 of 1945

Over what categories of crimes did the Nuremberg International Military Tribunal (IMT) have jurisdiction? 

Crimes against peace, war crimes and crimes against humanity

Over what crimes does the International Criminal Tribunal for the former Yugoslavia (ICTY) have jurisdiction? 

Grave breaches of the Geneva Conventions, violations of the laws and customs of war, genocide and crimes against humanity

Was the decision of the Security Council establishing the ITCY legal and appropriate? 

   Yes, because it was in accordance to article 41 of the Charter of the UN

Define the notion of armed conflict in the context of the Bosnian situation at the time Tadic committed his deeds. 

Use of armed force 1. between states or 2. protracted armed violence within a state between governmental authorities and organized armed groups or 3. between such groups (page 6)

What was the Tadic court’s interpretation of Article 3 of the ITCY Statute?  (

   Article 3 covers all violations of humanitarian law not falling under article 2 or not covered by articles 4 and 5

What are the conditions for a violation of international humanitarian law to be subject to Article 3 of the ITCY Statute? 

4 requirements

a.       Violation must constitute an infringement of a rule of international humanitarian law

b.      Rule must be customary in nature or, if it belongs to treaty law, the required conditions must be met;

c.       Violation must be "serious"

d.      Violation of the rule must entail, under customary or conventional law, the individual criminal responsibility of the person breaching the rule.

What was the test established by the International Criminal Tribunal for Rwanda to determine whether cumulative convictions would not infringe the principle of non bis in idem?

  1) Where the crimes have different elements; or 2) where the provisions creating the crimes protect different interests; or 3) where it is necessary to record a conviction for both crimes to adequately show what the accused did – the extent of the culpability (important question)

Explain the notion of command responsibility contained in Article 6(3) of the statute of the International Criminal Tribunal for Rwanda?

Superior had reason to know that his subordinate were about to commit or had committed a crime and he/she failed to take the necessary or reasonable measures to prevent such act or punish the perpetrators thereof (important question)

a.       Exception to article 6(1)

b.      Read about strict liability, discussion…

What is the specific intent of the crime of genocide? Describe one of the particular actions among the many that may constitute genocide.

  Destroy in whole or in part a national, ethnical, racial, or religious group

Describe the crime of complicity to genocide.

  Accused knowingly aided or abetted the principal in committing a murder which he knew or had reason to know was being committed with genocidal intent

Describe the crime of direct and public incitement to genocide.

Directly and publicly encourage, persuade and/or provoke others to destroy in whole or in part a national, ethnical, racial, or religious group

Describe the “public” element in the crime of direct and public incitement to genocide.

Public means in a public place with an attendance that is not preselected and not limited to certain people and that is informed through any way of communication, e.g. audiovisual means

Describe the “direct” element in the crime of direct and public incitement to genocide.

Incitement should be beyond mere vagueness and could be immediately grasped by the intended audience in accordance with cultural and linguistic backgrounds

What are the elements of crimes against humanity under the ICTR Statute according to the Akayesu judgment?

 Act must be…

a.       Inhuman

b.      Committed as part of a widespread or systematic attack

c.       Committed against members of the civilian population

d.      Committed on discriminatory grounds

1) Not only prohibition of torture but also failure to criminalize it or the existence of laws that tolerate it; 2) it imposes on states obligations erga omnes, and 3) the prohibition of torture has become a jus cogens prohibition

How has rape been characterized by the Prosecutor v. Delalic case and what are the reasons for this characterization? 

Characterized as torture because of the humiliation and therefore violation of the grave breaches of the Geneva Conventions and the rest of the laws of the customs of war

Read CB 315-317

What were the modifications to the Convention Against Torture introduced by the Trial Chamber in the Furundzija case? 

 Added idea of humiliation as a form of torture

What article of the ICTY statute covers outrage upon personal dignity, including rape, and why? 

Article 5 as a crime against humanity, article 2 as a grave breach of the Geneva Convention and article 3 as a violation of laws of customs of war

a.       In ICTR could also be used as crime of genocide

What was the definition of rape of the Trial Chamber of the International Criminal Tribunal for Rwanda in the Akayesu case? 

  Physical invasion of a sexual nature, committed on a person under coercive circumstances (page 33)

What were the legal flaws in the Akayesu court’s definition of rape according to the Trial Chamber in the Furundzija case? 

  It was against the principle of legality (“nullum crimen sine lege (stricta)”) because too broad and vague

What were the legal reasons for the Furundzija court to include forcible oral sex in the definition of rape? 

Because of humiliation and dignity

a.      Then bad argument because policy argument ex post facto, so controversial because legal argument is not clear

b.      Less stigma

How did the Appeals Chamber in Prosecutor v. Kunarac modify the Furundzija court’s definition of rape? 

Eliminated the resistance of the victim as a requirement for a rape conviction

What is the relationship between international criminal law and comparative criminal law in light of the Furundzija’s court’s definition of rape? 

1.      Because court went through all the definitions of rape, to create the definition

a.      See handout he’s going to send?

b.      Rights of women « strict applicability of principle of legality

How did the Appeals Chamber in Prosecutor v. Kunarac modify the Furundzija court’s definition of rape? 

Eliminated the resistance of the victim as a requirement for a rape conviction

What was the separate and dissenting opinion of Judge Li

Could not be a complete defense, but could be a mitigating factor because otherwise it would encourage commission of such atrocities

What was the separate and dissenting opinion of Judge Stephen

Because he took into account the majority of the major legal systems in the world concluded that a complete defense was possible