Domestic Prosecution

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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?
      • Torture not in ICC Statute - under war crimes & CaH.
      • No limitation to nationality/ territory
    • 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
      • RE most serious crimes
        • Genocide
          • CaH
            • Torture
              • War Crimes
      • 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
    • 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.
    • 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
      • UK
        • Royal Warrant 1945: WWII Cases
        • Geneva Conventions Act 1957, two Eps
          • universal jurisdiction
            • Geneva Conventions Amendment Act 1995
              • genocide, grave breaches, war crimes.
        • ICC Act 2001
          • UK courts jurisd. over crimes committed by UK resident/ nationals for core crimes.
            • & crimes committed abroad
        • 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
        • NO UJ for all crimes in this country.
    • Exradition
      • ICTY
        • Since 2005 - refusals to transfer 5 cases
      • Ahorugeze(Sweden)
        • EctHR - extraditions
  • 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?
        • Torture not in ICC Statute - under war crimes & CaH.
        • No limitation to nationality/ territory
      • 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
        • RE most serious crimes
          • Genocide
            • CaH
              • Torture
                • War Crimes
        • Absolute and Limited
          • Conditional
            • Guarantee person is in your country
              • Easier to get evidence
                • Building case = easier
            • Better for political and legal approach
        • 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.
        • 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
          • UK
            • Royal Warrant 1945: WWII Cases
            • Geneva Conventions Act 1957, two Eps
              • universal jurisdiction
                • Geneva Conventions Amendment Act 1995
                  • genocide, grave breaches, war crimes.
            • ICC Act 2001
              • UK courts jurisd. over crimes committed by UK resident/ nationals for core crimes.
                • & crimes committed abroad
            • 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
            • NO UJ for all crimes in this country.
        • Exradition
          • ICTY
            • Since 2005 - refusals to transfer 5 cases
          • Ahorugeze(Sweden)
            • EctHR - extraditions
    • 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

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