Jurisdiction to Adjudicate and Jurisdiction to Prescribe in International Criminal Courts

Direct jurisdiction over individuals, along with responsibilities to them, are outstanding characteristics of the new International Criminal Court (ICC or Court), as they already are of the International Criminal Tribunals for the Former Yugoslavia (ICTY) and for Rwanda (ICTR). This Article raises issues of legitimate power to prosecute and to define criminal law and issues of individual human rights which necessarily arise in any criminal system. This Article is predominantly an analysis of issues of criminal jurisdiction over persons as they are treated in the ICC Statute, as well as in the current ad hoc international criminal tribunals. Part II discusses the sources of international criminal tribunals’ jurisdiction to prescribe from the end of World War II through the proposal of the ICC Statute. Part III describes the limited jurisdiction to adjudicate over individuals in the ICTY and ICTR. Part IV discusses the ICC Statute’s general statement of and limits on jurisdiction to adjudicate over individuals. The subsequent Parts examine personal jurisdiction in the three classes of cases, defined by the manner in which a situation comes before the ICC, as set out in the ICC Statute. Part V addresses two of these, jurisdiction to adjudicate where a situation is referred to the Court by a State or where an investigation is initiated by the prosecutor proprio motu. Part VI addresses personal jurisdiction in situations referred to the ICC by the United Nations (U.N.) Security Council. These latter two Parts necessarily address jurisdiction to prescribe criminal law, as well as jurisdiction to adjudicate allegations of crime, because situations covered by the ICC Statute may involve nationals of States not parties to the ICC Statute, that have not accepted the Court’s jurisdiction

International Criminal Courts and the Making of Public International Law: New Roles for International Organizations and Individuals

Judicial decisions of the International Criminal Court and other international criminal tribunals now serve as instances of practice and statements of opinio juris for the formation of customary international criminal law and customary international human rights law related to criminal law and procedure. In these areas of law and others, they are no longer “subsidiary” sources as that word is used in the International Court of Justice Statute, Art. 38. In the same fields of customary international law, other binding acts of international organizations, such as the UN Security Council, are also used as practice, and the statements of these organizations are used as opinio juris. Where judicial and quasi-judicial decisions of international organizations are acts of treaty interpretation and application, these acts are instances of subsequent practice. In some cases, judicial decisions play a role similar to the subsequent acts of states parties to the treaties in the Vienna Convention of the Law of Treaties. Under the ICC Statute, when the Court is interpreting a matter within its judicial competence, its decision is authoritative. Individuals, particularly those accused of crime, can make direct claims of right under international law to these courts and tribunals. These claims may concern jurisdiction, the substantive law of crimes and defenses, international human rights in criminal procedure and criminal law, or other issues that arise in the course of prosecutions. The expanding role of international organizations, including the international judiciary, in the process of making international law is being led by the ICC and other international criminal tribunals. It is already spreading to other areas of the law, such as international trade law. This growth is likely to continue. Individuals have gained the right to make claims directly under international law in certain non-criminal international fora. As in criminal law, the right depends on the agreement of states or international organizations to establish these tribunals. While the growth of this right is uncertain, it is hard to imagine that it will be cut back

The Indeterminate International Law of Jurisdiction, the Presumption Against Extraterritorial Effect of Statutes, and Certainty in U.S. Criminal Law

It is, in certain cases, impossible for persons to tell in advance which states will have effective legislative jurisdiction over their acts. In these cases, it is impossible to tell in advance whose law the person must obey. This quandry arises where some national law purports to regulate outsiders and their acts in a manner arguably inconsistent with the international law of legislative jurisdiction. If the regulating state\u27s courts do not allow challenges to jurisdiction based on international law, and the state of the outsider\u27s nationality fails to protect her diplomatically, the outsider has no protection against excessive claims of jurisdiction. Some common law states, like the United States, have no thorough jurisdictional provisions in their criminal codes. In the United States, the presumption against extraterritorial effect, revitalized in the non-criminal case of Morrison v. Australia National Bank (U.S.S.Ct. 2010), can assist in minimizing the problem of surprise jurisdiction over persons who had no reason to know that they would be subject to United States criminal laws which do not specify the territory, persons, and situations outside the U.S. to which they apply. The presumption against extraterritorial effect might sensibly be given an elemental reading. The presumption against extraterritoriality would be triggered if neither subjective territoriality (an act committed in the U.S. constitutes an element of an offense) or objective territoriality (a result which is an element of the crime occurs on U.S. territory) is present. It is hard to believe that any state would give up the general right to control either wrongful acts or illegal effects on its own territory, despite statements made by certain countries in the Morrison litigation and its aftermath. In developing this argument, this paper suggests that, on average, in recent decades, Congress has been more attuned to the obligations of the United States as an entity under the international law of jurisdiction than have been the Courts

Criminal Defence and the International Legal Personality of the Individual

Since the beginning of the Nuremberg trial, the status of the individual in international law has changed. This change is intimately connected with the right of defense in criminal proceedings, especially international criminal proceedings. Today, as a matter of right, the individual may make certain claims in international law, and especially international criminal law and international human rights law related to criminal procedure and substantive criminal law, without relying on a state to make them on his or her behalf. This article explores this development of the international legal personality of individuals. It also considers some of the limits of this development, particularly concerning whether acts of individuals in the field affect the development of customary international criminal law