Jurisdiction and Immunity

1
Jurisdiction and Immunity PIL 2007 Mark
Klamberg

2

• Outline
• Jurisdictional competence
• Seven bases/principles of jurisdiction -
  principle of genuine or effective link
• exemplified in a domestic system
• Forms of jurisdiction
• Legislative or prescriptive jurisdiction
• Judicial or adjudicative jurisdiction
• Principles and rules in cases of overlapping
  jurisdictions
• The Lotus principle
• Enforcement jurisdiction
• Immunities

3

• Five traditional bases of jurisdiction
• Penal Code (BrB)
• Territorial Principle 21 and 24
• Active nationality principle 22(1)-(3)
• Passive nationality principle 23(5)
• Protective principle 23(4)
• Universality principle 23(6)-(7)
• Two additional, subsidiary, principles
• Principle of flag 23(1)
• Effects principle 21, 24 and ECJ case law

4
Chapter 2 of the Penal Code (BrB) On the
Applicability of Swedish Law (judicial
jurisdiction) Section 1 Crimes committed in
this Realm shall be adjudged in accordance with
Swedish law and by a Swedish court. The same
applies when it is uncertain where the crime was
committed but grounds exist for assuming that it
was committed within the Realm. Section
2 Crimes committed outside the Realm shall be
adjudged according to Swedish law and by a
Swedish court where the crime has been
committed 1. by a Swedish citizen or an alien
domiciled in Sweden, 2. by an alien not domiciled
in Sweden who, after having committed the crime,
has become a Swedish citizen or has acquired
domicile in the Realm or who is a Danish,
Finnish, Icelandic, or Norwegian citizen and is
present in the Realm, or 3. by any other alien,
who is present in the Realm, and the crime under
Swedish Law can result in imprisonment for more
than six months. //
5
Chapter 2 of the Penal Code (BrB)
(continued) Section 3 Even in cases other
than those listed in Section 2, crimes committed
outside the Realm shall be adjudged according to
Swedish law and by a Swedish court 1. if the
crime was committed on board a Swedish vessel or
aircraft or was committed in the course of duty
by the officer in charge or a member of its
crew, 2. if the crime was committed by a member
of the armed forces in an area in which a
detachment of the armed forces was present, or if
it was committed by some other person in such an
area and the detachment was present for a purpose
other than an exercise, 3. if the crime was
committed in the course of duty outside the Realm
by a person employed in a foreign contingent of
the Swedish armed forces, 4. if the crime
committed was a crime against the Swedish nation,
a Swedish municipal authority or other assembly,
or against a Swedish public institution, 5. if
the crime was committed in an area not belonging
to any state and was directed against a Swedish
citizen, a Swedish association or private
institution, or against an alien domiciled in
Sweden, 6. if the crime is hijacking, maritime or
aircraft sabotage, airport sabotage, an attempt
to commit such crimes, a crime against
international law, unlawful dealings with
chemical weapons, unlawful dealings with mines or
false or careless statement before an
international court, or 7. if the least severe
punishment prescribed for the crime in Swedish
law is imprisonment for four years or more.
6
The Jurisdiction of International Criminal
Tribunals and Courts

7

• Forms of jurisdiction
• Legislative or prescriptive jurisdiction
• Judicial or adjudicative jurisdiction
• Enforcement jurisdiction

8

• Principles and rules in cases of overlapping
  jurisdictions
• Ne bes in idem (res judicata)
• The speciality rule
• Aut dedere aut punire
• The Lotus principle
• Balance of interests

9

• The Lotus case
• Captain of a French vessel before Turkish court
• France
• Active nationality principle
• Subjective territorial principle and principle of
  flag
• Turkey most show that the claim of jurisdiction
  is founded in international law
• Turkey
• Protective nationality principle
• Objective territorial principle and principle of
  flag
• Neither treaty or custom prohibits extension of
  jurisdiction

10

• The Lotus principle (long version)
• Now the first and foremost restriction imposed
  by international law upon a State is that
  failing the existence of a permissive rule to the
  contrary it may not exercise its power in any
  form in the territory of another State. In this
  sense jurisdiction is certainly territorial it
  cannot be exercised by a State outside its
  territory except by virtue of a permissive rule
  derived from international custom or from a
  convention. It does not, however, follow that
  international law prohibits a State from
  exercising jurisdiction in its own territory, in
  respect of any case which relates to acts which
  have taken place abroad, and in which it cannot
  rely on some permissive rule of international
  law. //, it leaves them in this respect a wide
  measure of discretion, which is only limited in
  certain cases by prohibitive rules as regards
  other cases, every State remains free to adopt
  the principles which it regards as best and most
  suitable.

11

• The Lotus principle (short version)
• The territoriality of criminal law, therefore,
  is not an absolute principle of international law
  and by no means coincides with territorial
  sovereignty.
• Restrictions upon the independence of States
  cannot be presumed
• The party that challenges jurisdiction has the
  burden of proof

12

• Enforcement jurisdiction
• Principle of enforcement jurisdiction
  Exclusively territorial
• What is the consequence if this principle is
  violated?
• Examples
• Eichmann
• Alvarez-Machain

13

• The Eichmann case
• Eichmann
• Retroactive action
• The alleged crimes were not committed in Israel
• Removed from Argentina against his will
• Israel
• Argentina has withdrawn its protest
• Universality
• The prohibition on retroactivity is not custom,
  According to custom the alleged acts have always
  been a crime
• Even though the crimes were not committed in
  Israel the lotus principle applies

14

• The Eichmann case (continued)
• May judicial jurisdiction be exercised?
• Israel should return Eichmann in accordance with
  the principle on enforcement jurisdiction.
• or
• 2. If the person is before a court, it is a
  dispute between the states
• The Supreme court of Israel
• International crime
• "Argentina has condoned the violation of her
  sovereignty and has waived her claims, including
  that for the return of the Appellant, any
  violation of international law that may have been
  involved in this incident has thus been remedied"

15

• Alvarez-Machain
• Dr. Humberto Álvarez Machaín, a Mexican
  physician, was allegedly involved in the 1985
  kidnapping, torture, and murder of DEA agent
  Enrique Camarena Salazar.
• In 1990, Dr. Álvarez was abducted from Mexico by
  bounty hunters hired by DEA agents and brought to
  trial in the United States
• U.S. Supreme Court the trial court's
  jurisdiction is not affected by the manner in
  which the accused was brought before it.

16
Comparison Eichmann and Alvarez-Machain

• Alvarez-Machain
• One victim
• Vigorous protest
• Not citizen of the U.S.
• State involved
• No request for extradition
• Extradition agreement according to which the
  present act was prohibited

• Eichmann
• International crime, several victims
• Protest withdrawn
• Not citizen of Israel
• State involved
• No request for extradition
• No extradition agreement, the present act is
  still prohibited

17
Immunity

• Rationale for State immunity
• An equal cannot judge an equal (par in parem non
  habet imperium)
• Non-intervention
• Forms of immunity
• Status ratione personae or procedural immunity
• Example Incumbent diplomat has title of immunity
• (Vienna convention art 31)
• Subject-matter ratione materiae or functional
  immunity
• Example State act by former diplomat has title
  of immunity (Vienna convention art 39(2))

18
Theories on immunity

• Absolute immunity
• Exception for two cases
• Fixed property
• Waiver by the own state
• Relative immunity theory
• acta juri imperii (public acts, acts of
  government)
• acta juri gestionis (commercial activities)
• How to distinguish? Two methods
• Subjective (the purpose of the act)
• Objective (nature of the act)