JCCM Flashcards
(122 cards)
1
Q
Rule that states have exclusive enforcement jurisdiction over acts committed on their territory
A
Territoriality Principle
2
Q
Grants a ship’s flag state exclusive jurisdiction over that ship and its members
A
Flag Principle
3
Q
States possess jurisdiction over certain crimes which harm universally recognized legal interests. Includes piracy, crimes against humanity, genocide, war crimes, and maybe crime of aggression
A
Universality principle
4
Q
Found in ICJ Art. 38 and includes:
-international conventions/treaties
-international custom
-general principles of law recognized by civilized nations
-subsidiarily, judicial decisions and teachings of scholars
A
Sources of law
5
Q
Includes active personality, passive personality, protective, and vicarious forms of jurisdiction
A
Traditional Heads of Jurisdiction
6
Q
jurisdiction exercised where a crime is committed on a state’s territory
A
Territorial Jurisdiction
7
Q
Jurisdiction exercised over ships and planes registered to a certain country
A
Quasi-territorial jurisdiction
8
Q
Type of territorial jurisdiction where crime is initiated abroad but completed in State’s territory
A
Objective territoriality principle
9
Q
Type of territorial jurisdiction where crime is initiated in State’s territory but completed abroad
A
Subjective territoriality principle
10
Q
Type of territorial jurisdiction where one constitutive element of crime took place on State’s territory
A
Constitutive element approach
11
Q
Type of territorial jurisdiction where crime took place “in whole or in party” on State’s territory
A
Principle of Ubiquity
12
Q
Type of territorial jurisdiction where crime committed outside State’s territory, but produces (substantial harmful) effects within its territory (often used in antitrust law)
A
Effects doctrine
13
Q
States enjoy prescriptive and adjudicative criminal jurisdiction over extraterritorial conduct of its nationals, regardless of nature of the offense
A
Active personality (nationality) jurisdiction
14
Q
States can assert prescriptive and adjudicative jurisdiction over offenses abroad where victim was State’s national
A
Passive personality (nationality) jurisdiction
15
Q
No crime without law
A
Nullum crimen sine lege
16
Q
States may lawfully criminalize extraterritorial conduct of non-nationals to protect fundamental national interests
A
Protective jurisdiction
17
Q
Derived form of jurisdiction where states may exercise jurisdiction as a representative of a state with original jurisdiction, but (ordinarily) will apply its own laws
A
Vicarious (delegated) jurisdiction
18
Q
Type of universal jurisdiction with no limits, so any UJ crime may be prosecuted by any state
A
Absolute universal jurisdiction
19
Q
Type of universal jurisdiction with some limits–state may avoid exercising UJ if another state has a better claim
A
Subsidiary universal jurisdiction
20
Q
Type of universal jurisdiction that cannot be exercised unless the perpetrator is physically present on the state’s territory
A
Universal jurisdiction requiring presence of the accused
21
Q
Type of universal jurisdiction due to obligations derived from prior agreements between states
A
Treaty-based universal jurisdiction
22
Q
Extradite or prosecute–refers to state obligation to either prosecute or extradite perpetrators of universal jurisdiction crimes
A
Aut dedere aut judicare
23
Q
Justification for universal jurisdiction: state derives right from common interest of international community in prosecution of int. crimes—“decentralized” form of int. criminal prosecution
A
Cosmopolitan Justification
24
Q
Justification for universal jurisdiction: state can exercise UJ as an extension of its domestic penal power
A
Extraterritorial dimension justification
Extraterritorial dimension extension of state penal power
25
Justification for universal jurisdiction, also called transnational justification: state is acting on behalf of int. community AND domestic relationship btwn victim, perp, and prosecuting state
Dual foundation justification
26
ICC case employing objective territoriality, constitutive elements theory, and ubiquity principle to determine that country X (not a state party) expelling people to country Y (state party) was sufficient to grant the court territorial jurisdiction
Bangladesh/Myanmar
27
ICC Case concerning unilateral coercive measures taken by US on country X. X argued that effects doctrine should apply, but they would've been better served by objective territoriality, constitutive elements approach, or ubiquity theory.
Venezuela Referral
28
Delegated jurisdiction case, Ukraine delegated jurisdiction to Netherlands following the downing of a plane pursuant to European Transfer of Proceedings Convention
MH17
29
Landmark case for universal jurisdiction AND male captus: "crimes which offended the whole of mankind and shocked the conscience of nations are grave offences against the law of nations itself"
Eichman
30
Mechanisms for legal assistance in gathering of criminal evidence abroad, in jurisdiction other than that in which the investigation, prosecution, or adjudication has been triggered (investigative or forum jurisdiction). Cooperation of judicial authorities ONLY.
MLA (mutual legal assistance)
31
Type of MLA including exchange of judicial info or voluntary interrogation of experts/witnesses
Non-coercive MLA measures
32
Type of MLA including search and seizure, interception of telecommunications, JITs, and undercover surveillance of criminal organizations
Intrusive MLA measures
33
Includes lack of formal request, double criminality, request inconsistent with state law and practice, crime involves fiscal/military/political matters (older), request would prejudice sovereignty, security, public order, or other special interests (LHC Art. 30.1(g)), double jeopardy, human rights concerns
MLA grounds for refusal
34
Law of the requested state--controlling for purposes of MLA and extradition
Locus regit actum
35
Law of the forum (where the crime is being adjudicated)
Lex fori
36
Law of the state where the crime occurred
Lex Loci
37
Bilateral treaties and conventions, including: Inter-American Convention on Mutual Legal Assistance in Criminal Matters; ECOWAS; ASEAN Treaty on Mutual Legal Assistance; EIO; UN Convention against Illicit Traffic in Narcotic Drugs and Psychotropic substances, Art. 7; UN Convention against Transnational Organized Crime, Art. 17; UN Convention Against Corruption, Art. 46; and UN torture and terrorism conventions, more generally
MLA Legal Regimes
38
legal agreement between competent authorities of two or more states for the purpose of carrying out criminal investigations. Established for fixed periods, usually 12-24 months.
JITs
39
a person who is extradited can be prosecuted or sentenced in the requesting state only in relation to the offence(s) for which extradition was granted
Rule of Specialty
40
2014 case of Liberian arrested in Belgium STILL at investigatory stage, and many victims and witnesses have now died. Demonstrates need for MLA
Martina Johnson case
41
"Not twice in the same thing," prohibition against double jeopardy or prosecution of same crime twice
Ne bis in idem
42
Includes Extradition, MLA, transfer of criminal proceedings, and enforcement of foreign penalties
Traditional forms of legal cooperation
43
the formal process whereby a State requests from another state the return of a person (unlawfully at large) who is accused or convicted of a crime to stand trial or serve a sentence in the requesting state
Extradition
44
Older way of determining whether a crime is extraditable by simply listing all extraditable offenses in a treaty
Enumerative Method
45
Preferred in multilateral treaties, method of determining which offenses are extraditable where extraditable offenses are all those with a minimum level of punishment (i.e. prison term of certain duration)
Elimination Approach
46
Requirement for extradition that alleged offense must be criminal in both requesting and requested States—inherent to elimination approach
Dual Criminality
47
Two-step analysis of dual criminality for extradition purposes. First consider the law of the requested state, then compare laws of requested and requesting state. Outcome depends on jurisdiction and whether one takes an abstract or concrete approach.
Solipsistic Approach
48
Part of solipsistic analysis of dual criminality, more common in civil law jurisdictions. For step 1, asking whether the acts would be chargeable. For step 2, asking whether the elements of illegal activity are "substantially similar."
In Abstracto
49
Part of solipsistic analysis of dual criminality, more common in common law jurisdictions. For step 1, ask whether acts are prosecutable (stricter version asks whether prosecutable AND could result in conviction). For step 2, use enumerative method to ask whether label of the offense and its legal elements are the same
In Concreto
50
The place where a crime or offense was committed. Fear that non-nationals will be prejudiced in these trials.
Locus Delicti
51
Specific exception for a type of offense that is non-extraditable
Political Offense Exception (POE)
52
Crimes that would normally be non-extraditable are, including for heinous crimes (like assault on the life of head of state) and core crimes
Exceptions to POE
53
Would fall under POE; a crime untainted by common crime aspects, “only affect the political organization of the state”
Pure (absolute) political offense
54
Would not fall under POE; crimes that exclusively affect rights other than those of the state
Common crime
55
Involves a common crime joined to a political act; common crime which acquires a political character as a result of 1) the motivation of the offender or circumstances under which it is committed 2) being directed at both “the political order and private rights."
Relative political offense
56
Type of relative political offense where there exists both a political offense and common crime. Typically excluded from POE.
Complex political offense
57
Type of relative political offense where common crimes are committed in the course or furtherance of political acts
Connex (connected) political offense
58
Latin phrase representing the philosophy that a person will be best judged by a judge from their own territory
Ius de non evocando
59
German term meaning the state and its subject are bound by bonds of allegiance
Treupflicht
60
UK relative POE theory: political offense must be specifically and immediately directed at overthrowing or changing the government of a State or inducing it to change its policy
Political Incidence Theory
61
Switzerland relative POE theory: examines political motivation of the offender and the circumstances surrounding the commission of the crime; proportionality between the means and the political ends or the predominance of the political elements over the common crime elements
Predominance Doctrine
62
France relative POE theory, aka injured rights theory: considers an offence non-extraditable only if it directly injured the rights of the State
and the motives of the accused are viewed as irrelevant.
Political Objective Test
63
POE requirement: offence must be capable of achieving the final goal (or a stepping stone towards it)
Proximity
64
POE requirement: the goal must be commensurate with the damage caused
Proportionality
65
POE requirement: offence should be the only or least intrusive means of achieving the political objective. Almost a subset of proportionality req
Subsidiarity
66
Special tribunal for Lebanon
STL
67
Rule and traditional justification for male captus bene detentus favored by common law jurisdictions (but going out of style) that courts hearing extradition cases may not inquire into the procedures or treatment, including possible physical abuse, that await the extraditee in the requesting state.
Rule of non-inquiry
68
When one state gets an extraditee and then extradites them somewhere else without the consent of the first extraditing state. Generally prohibited but sometimes OK under EAW.
Re-extradition
69
Amounts to ECHR Art. 3 violation, refers to the process of waiting long periods of time for execution
Death row phenomenon
70
Adjustments made to extradition requests to convince the requested state to hand over the perpetrator
Assurances
71
risk of exposure to inhuman/degrading treatment/punishment in extradition cases: includes death row, torture, prison conditions, medical treatment, life in prison w/o possibility of parole
ECHR Article 3 violation
72
Flagrant denial of justice--includes 1) trials in absentia with no possibility of fresh determination of charges, 2) trial summary in nature and conducted with a total disregard for the rights of the defence, 3) detention without any access to an independent and impartial tribunal to have the legality the detention reviewed, 4) deliberate and systematic refusal of access to a lawyer, especially for an individual detained in a foreign country, and 5) evidence obtained by torture
ECHR Article 6 violation
73
Unlawful capture, lawful detention
Male captus bene detentus
74
Unlawful capture, unlawful detention
Male captus male detentus
75
a state uses its immigration system to deport an individual to a state seeking to prosecute, thus avoiding extradition (which may take longer, be more expensive, or not be a legally available avenue where there is no treaty)
Disguised extradition
76
method by which “deceit, fraud and tricks [are used] to lure individuals from the country of their residence to a location where there is jurisdiction to arrest the suspects.” (page 38, fn 50 of Paulussen 2010 big doc)
Luring
77
state takes suspect by force.
Abduction (kidnapping)
78
informal agreements between states to transfer without legal reason for questioning (NOT prosecution)
Extraordinary rendition
79
Every sovereign state has the right to conduct its affairs without outside interference
Principle of non-intervention
80
Help determine imminence and when the state can rightfully attack
Caroline criteria: instant, overwhelming, no other choice of means, no moment for deliberation
81
Rights that are absolute and cannot be ignored even in wartime
Non-derogable rights
82
Latin phrase meaning last resort
Ultimum remedium
83
Set out by the Bennet court but rejected by the ICC, stands for idea that a court has the discretion to stay criminal proceedings where going forward would betray its own rules and procedures
Abuse of process doctrine
84
Element of customary international law requiring custom be regarded as state practice amounting to a legal obligation, which distinguishes it from mere usage.
Opinio juris
85
Office of the prosecutor
OTP
86
Pursuant to this philosophy, the current OTP has gotten more involved in JITs
Dynamic complementarity
87
Open-source intelligence
OSINT
88
Latin phrase meaning equals have no sovereignty over each other--one state cannot exercise sovereignty over another
Par in parem non habet imperium
89
French case that established classic definition for pure political offense: "what distinguishes the political crime from the common crime is the fact that the former only affects the political organization of the state, the proper rights of the state, while the latter exclusively affects rights other than those of the state"
Gatti
90
Dutch Supreme Court case over German national, example of a connex political crime: killed a bodyguard to abduct a high profile individual to get comrades released
Folkerts
91
UK Child abduction case which provides classic definition of relative political offense under political incidence theory: acts "committed as part of a political movement with the object of influencing the policy of the governing party of the state" are political
Re Shalom Schtraks
92
Swiss case setting out predominance doctrine: "the political character of an offense is predominant only if the offense is in direct relation to the end sought."
Re Nappi
93
STL case that corroborated bifurcated intent for terrorism as international crime: 1) perpetration or threat of crime 2) intent to spread fear OR coerce a national/intl authority to take action 3) when the act involves a transnational element (very similar to UN Draft Comprehensive Convention on Terrorism Art. 2(1)).
Ayyash
94
NY District Court IRA Case: accepted POE for murder of British captain, drew parallel between war crimes and terrorism in establishing that indiscriminate violence or targeting of civilians doesn't qualify under POE
Matter of Doherty
95
US District Court IRA case: rejected POE for attack of passenger bus on the way to Tel Aviv; because bus was not military target, POE could not apply
Matter of the extradition of Atta
96
US Court of Appeals case, rejected POE exception for bomber on the basis of distinction between political realm (represented by gov in power) and social fabric (underlying political structures)
Eain v. Wilkes
97
1996 ECtHR judgement, held death row phenomenon amounted to Art. 3 violation and prevented the extradition of German national in the UK (who had committed murder) to the US until given assurances. Later became applicable to many different situation other than extradition
Soering
98
2012 ECtHR case: Court held risk of article 6 violation because D, accused of connections with Al-Qaeda bombings, might be tortured if returned to Jordan. He was subsequently deported after UK was given assurances
Othman
99
Case which held no Art. 3 risk, but no violation, for homosexual man suspected of child abuse due to prison conditions or risk of life imprisonment
Appeals Court the Hague 13 December 2016
100
Dutch case holding no Art. 8 right to family life violation, allowing extradition of Iranian national to US despite inability to make calls to Iran from prison. Holds "no room for weighing of interests" so the minor nature of his crime (exporting dual use goods) is irrelevant
Dutch Supreme Court 8 July 2022
101
ECtHR case standing for the principle that only in exceptional circumstances will the right to family life outweigh the legitimate aim of extradition
Launder v. UK
102
ICTY appeal case utilizing male captus bene detentus. Held irregularities, unless "exceptional," do not earn the remedy of dismissal (even if violating human rights and/or sovereignty)
Nikolic case
103
UK case setting out traditional rationale for male captus bene detentus and principle of non-inquiry: “The question (…) is this, whether if a person charged with a crime is found in this country, it is the duty of the Court to take care that such a party shall be amenable to justice, or whether we are to consider the circumstances under which she was brought here. I thought, and still continue to think, that we cannot inquire into them.”
Ex parte Susannah Scott
104
South African case adopting abuse of process/male captus male detentus reasoning: "When the state is a party to a dispute, as for example in criminal cases, it must come to court with “clean hands"
Ebrahim
105
UK Case accepting abuse of process doctrine: "When it is shown that the law enforcement agency responsible for bringing a prosecution has only been enabled to do so by participating in violations of international law and of the
laws of another state in order to secure the presence of the accused within the territorial jurisdiction of the court, I think that respect for the rule of law demands that the court take cognisance of that circumstance."
Bennet
106
Infamous US case holding male captus bene detentus; D accused of participating in murder of DEA agent, kidnapped from Mexico, SCOTUS rules they don't have to give him back despite Mexico's objections. Held extradition treaty is not a comprehensive list of how suspects can be gotten. Huge exception, not accepted by other jurisdictions.
Machain
107
HRC Uruguay case holding violation of ICCPR Art. 9(1): D is Uruguayan by birth, Italian national, detained for a week in her apartment then forcibly abducted in Brazil to Uruguay. Held ICCPR can have extraterritorial force and Art. 9 violated due to arbitratiness
Casariego v. Uruguay
108
Prohibits extradition if risk of death penalty for EU member states
ECHR Protocol 6
109
HRC Uruguay case held ICCPR Art. 9(1) violation for arbitrary arrest and detention when D was forcibly abducted, held secretly for two weeks, transferred to Uruguay, then again detained secretly until official arrest
Lopez Burgos v. Uruguay
110
HRC Uruguay case holding violation of ICCPR Art. 9(1): girl arrested, brought near Venezuelan embassy into which she hops the fence, then despite claiming asylum is re-arrested and brutally beaten
Almeida de Quinteros v. Uruguay
111
HRC case holding violation of ICCPR Art. 9: US and Ecuador work together to arrest D in Ecuador on behalf of US. Despite consent of both states and no physical beating, held violation because it went against the US-Ecuador extradition treaty
Garcia v. Ecuador
112
ECtHR case on disguised extradition: italian national convicted in absentia hiding in France, France doesn’t have in absentia trials so they can’t extradite, he was deported to Switzerland then extradited to Italy. Held violation for France but not for the other two countries
Bozano v. France
113
ECmHR case on male captus holding no violation of ECHR Art. 5(1): D committed German political crimes and went to Belgium, was then handed to German officials @ border despite his crimes not being extraditable under that treaty. Held no violation because it was up to Belgium to decide whether to extradite for other reasons under national law
C v. Federal Republic of Germany
114
ECtHR luring case holding no violation of Art. 5(1) of ECHR: German national D was lured to Germany by private agent (his boss) when plane secretly landed there instead of Luxembourg. No violation because free will and private actor
Stocke v. Germany
115
ECtHR case on disguised extradition holding no violation of ECHR Art. 5(1): Turkish criminal, after a lot of runaround finally handed over by Greek embassy officials to Kenyan authorities and taken to Turkey. Court rules no violation 1) because Kenya is not a state party, 2) there was no violation of state sovereignty, and 3) that there must be “fair balance” btwn general interests of community and “protection of the individual’s fundamental rights”
Ocalan v. Turkey
116
ICC case rejecting abuse of process doctrine and holding no violation of Art. 59 (2) of RS due to irregularities.
Lubanga
117
ICTR Case employing male captus bene detentus but with remedy: D accused of genocide, detained in Cameroon, invoked abuse of process doctrine successfully (MCMaleD). Prosecution (Rwanda) appeals, threatens to withdraw. They find “new facts” and sentence him to 30 years reduced imprisonment.
Barayagwiza
118
Article taking cosmopolitan UJ justification and outlining difficulties of applying UJ in adversarial domestic trials, including UK Lama trial
Hovell
119
Article taking dual foundation/extension of territorial power UJ theories, says there is no generally accepted definition for UJ and that practice of it will vary by state
Boe
120
Book author for the extradition week
Van der Wilt
121
Book author for the alternatives to extradition week
Paulussen
122
Author of article discussing problems with OSINT and Berkeley protocol
Stavrou
