Domestic Prosecution
- Created by: bethbladen96
- Created on: 17-05-19 15:09
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- Domestic Prosecution
- No treaty obliges prosecution for CaH in comparison to IC Statute for complimentary
- States parties to ICC - complimentarity principle reason to enact legislation
- Art. 146 Geneva Convention IV.
- Enact any legislation to provide penal sanctions for grave breaches
- Obligation to search for persons, bring before courts regardless of nat.
- Try or hand over to other state
- All 4 GCs have provisions of grave breaches
- High Contracting Party
- Convention Against Torture 1984
- Article 5(2)
- Measures to establish jurisd. in cases where alleged offender is present in any territory under its jurisd.
- And it does not extradite him
- eg - in transition?
- Measures to establish jurisd. in cases where alleged offender is present in any territory under its jurisd.
- Torture not in ICC Statute - under war crimes & CaH.
- No limitation to nationality/ territory
- Article 5(2)
- Universal Jurisdiction
- Controversial
- Bush - Belgian prosecutor tried to prosecute for Guantanamo Bay
- US retaliated - shut down NATO HQ, abandon military assistance
- Court approved indictment- arrest warrant
- No limit in UJ - now - have to show Belgian interest in prosecuting such crimes
- Bush - Belgian prosecutor tried to prosecute for Guantanamo Bay
- RE most serious crimes
- Genocide
- CaH
- Torture
- War Crimes
- Torture
- CaH
- Genocide
- Absolute and Limited
- Conditional
- Guarantee person is in your country
- Secondary
- Easier to get evidence
- Building case = easier
- Better for political and legal approach
- Secondary
- Guarantee person is in your country
- Conditional
- Controversial
- Domestic Legislation
- Different ways to adopt legislation
- Use of domestic terminology
- Dynamic Model
- Change war crimes provision - Germany
- Redrafting
- Hybrid Model
- Some crimes reproduced, others refer to int'l law
- Not aligned as neatly to int'l law as static.
- Some crimes reproduced, others refer to int'l law
- Routes to Domestic Prosecution
- Interplay Int'l and Nat. Courts
- Completion strategy
- ICTR/ ICTY
- Interests
- National Interests
- Territorial or personal jurisdiction
- Solidarity
- Universal jurisdiction
- Crimes so severe - can't be unpunished
- Universal jurisdiction
- National Interests
- UK
- Royal Warrant 1945: WWII Cases
- Geneva Conventions Act 1957, two Eps
- universal jurisdiction
- Geneva Conventions Amendment Act 1995
- genocide, grave breaches, war crimes.
- Geneva Conventions Amendment Act 1995
- universal jurisdiction
- ICC Act 2001
- UK courts jurisd. over crimes committed by UK resident/ nationals for core crimes.
- & crimes committed abroad
- UK courts jurisd. over crimes committed by UK resident/ nationals for core crimes.
- Section 134 Criminal Justice Act 1988
- Torture - universal jurisd.
- Proposals CPS
- 1948 Genocide - not 1969
- Retrospective Application
- CaH - 1991 - ICTY established, CaH part of Statutory regime.
- Residency and nationality - narrow. want to see presence
- 1948 Genocide - not 1969
- NO UJ for all crimes in this country.
- Exradition
- ICTY
- Since 2005 - refusals to transfer 5 cases
- Ahorugeze(Sweden)
- EctHR - extraditions
- ICTY
- No treaty obliges prosecution for CaH in comparison to IC Statute for complimentary
- Article VI Genocide Convention
- Person charged with gen. shall be tried by a Tribunal of the state in territory where act was committed
- Obligation to prosecute gen. on own territory
- Prompts states to take up obligation
- Domestic Prosecution
- No treaty obliges prosecution for CaH in comparison to IC Statute for complimentary
- States parties to ICC - complimentarity principle reason to enact legislation
- Art. 146 Geneva Convention IV.
- Enact any legislation to provide penal sanctions for grave breaches
- Obligation to search for persons, bring before courts regardless of nat.
- Try or hand over to other state
- All 4 GCs have provisions of grave breaches
- High Contracting Party
- Convention Against Torture 1984
- Article 5(2)
- Measures to establish jurisd. in cases where alleged offender is present in any territory under its jurisd.
- And it does not extradite him
- eg - in transition?
- Measures to establish jurisd. in cases where alleged offender is present in any territory under its jurisd.
- Torture not in ICC Statute - under war crimes & CaH.
- No limitation to nationality/ territory
- Article 5(2)
- Universal Jurisdiction
- Controversial
- Bush - Belgian prosecutor tried to prosecute for Guantanamo Bay
- US retaliated - shut down NATO HQ, abandon military assistance
- Court approved indictment- arrest warrant
- No limit in UJ - now - have to show Belgian interest in prosecuting such crimes
- Bush - Belgian prosecutor tried to prosecute for Guantanamo Bay
- RE most serious crimes
- Genocide
- CaH
- Torture
- War Crimes
- Torture
- CaH
- Genocide
- Absolute and Limited
- Conditional
- Guarantee person is in your country
- Easier to get evidence
- Building case = easier
- Easier to get evidence
- Better for political and legal approach
- Guarantee person is in your country
- Conditional
- Controversial
- Domestic Legislation
- Different ways to adopt legislation
- Use of domestic terminology
- Dynamic Model
- Change war crimes provision - Germany
- Redrafting
- Hybrid Model
- Some crimes reproduced, others refer to int'l law
- Not aligned as neatly to int'l law as static.
- Some crimes reproduced, others refer to int'l law
- Routes to Domestic Prosecution
- Interplay Int'l and Nat. Courts
- Completion strategy
- ICTR/ ICTY
- Interests
- National Interests
- Territorial or personal jurisdiction
- Solidarity
- Universal jurisdiction
- Crimes so severe - can't be unpunished
- Universal jurisdiction
- National Interests
- UK
- Royal Warrant 1945: WWII Cases
- Geneva Conventions Act 1957, two Eps
- universal jurisdiction
- Geneva Conventions Amendment Act 1995
- genocide, grave breaches, war crimes.
- Geneva Conventions Amendment Act 1995
- universal jurisdiction
- ICC Act 2001
- UK courts jurisd. over crimes committed by UK resident/ nationals for core crimes.
- & crimes committed abroad
- UK courts jurisd. over crimes committed by UK resident/ nationals for core crimes.
- Section 134 Criminal Justice Act 1988
- Torture - universal jurisd.
- Proposals CPS
- 1948 Genocide - not 1969
- Retrospective Application
- CaH - 1991 - ICTY established, CaH part of Statutory regime.
- Residency and nationality - narrow. want to see presence
- 1948 Genocide - not 1969
- NO UJ for all crimes in this country.
- Exradition
- ICTY
- Since 2005 - refusals to transfer 5 cases
- Ahorugeze(Sweden)
- EctHR - extraditions
- ICTY
- No treaty obliges prosecution for CaH in comparison to IC Statute for complimentary
- Broad extraterritorial jurisdiction powers, harsher sentences
- Command Reposnisibility - simpler, clearer in domestic legislation
- ICC definition is compromise - causation
- National Interests
- War Crime Act 1991
- UK Citizens and residents
- Genocide Act 1969
- Only committedUK - territorial jurisdiction
- Issues with Domestic Prosecution
- Genocide Definition - broaden protected groups
- Non - retroactivity
- Use of external sources
- Customary and conventional int'l law
- Domestic criminal law
- criminal jurisdiction
- Practical issues
- Location, time difference
- Lack of judicial expertise
- Location, time difference
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