Prosecution before national courts Learning objectives To provide

Prosecution before national courts

Learning objectives • To provide participants with an understanding of how national prosecutions of international criminal law can be undertaken. • To alert participants to the fundamental value of national prosecutions of international criminal law. • To familiarise participants with the various difficulties that arise in national prosecutions of international criminal law and the possible ways in which such difficulties can be overcome.

Overview • The concept of universal jurisdiction. • The impact of international law on national legislation and prosecution. • Legal impediments to the exercise of national jurisdiction. • State cooperation with respect of national proceedings.

Jurisdiction • Definition: the ability of a state to make, apply and enforce rules of conduct upon a person, both natural or legal, pursuant to its domestic laws. • Forms of jurisdiction: – legislative/prescriptive; – adjudicative; – enforcement jurisdiction.

Traditional heads of legislative jurisdiction • Territoriality (where the crimes are committed). • Active nationality (nationality of the perpetrator). • Passive nationality (nationality of the victims). • The protective principle.

Universal jurisdiction I • Definition: ‘Universal jurisdiction is [. . . ] based solely on the nature of the crime, without regard to where the crime was committed, the nationality of the alleged or convicted perpetrator, the nationality of the victim, or any other connection to the State exercising such jurisdiction. ’ (Principle 1 – Fundamentals of Universal Jurisdiction, The Princeton Principles on Universal Jurisdiction). • Two categories: – absolute; – conditional.

Universal jurisdiction II Examples: – piracy; – Geneva Conventions of 1949; – the Torture Convention of 1984. Cases: – Eichmann; – Pinochet.

Impact of international law on national legislation • International treaty obligations to criminalise certain conduct (eg, Genocide Convention, 1949 Geneva Conventions, 1984 Torture Convention). • The influence of the ICC Statute: – principle of complementarity; – obligation to implement the ICC Statute into domestic legislation. • The influence of international jurisprudence on national law.

Impact of international law on national prosecution • Aut dedere aut judicare. • Specially established national courts. • The ICC complementarity principle. • Question: Is there an obligation to prosecute international crimes?

Impediments • Amnesty. • Pardon. • Immunities. • Statutes of limitation. • The non bis in idem (double jeopardy).

State cooperation • Extradition. • Mutual legal assistance. • Enforcement of foreign judgments.

Extradition • Double criminality. • Double jeopardy. • Bars to extradition. • Re-extradition. • Illegality of means by which a person is brought before national courts.

Mutual legal assistance • Bases: – comity-based – treaty law. • Measures: – taking of testimony; – the provision of documents, records and articles of evidence; – the serving of documents; – the locating of persons; – the transfer of persons in custody for searches and seizure; – the freezing of unlawfully obtained assets. • Justifications for refusal: political offences, military law offences.

Enforcement of foreign judgments • Recognition of foreign criminal judgments. • Transfer of prisoners. • Transfer of proceedings.