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9789067043205

Impediments to Exercising Jurisdiction over International Crimes

by Yasmin Q. Naqvi
  • ISBN13:

    9789067043205

  • ISBN10:

    9067043206

  • Format: Hardcover
  • Copyright: 2010-03-08
  • Publisher: T.M.C. Asser Press

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Summary

The assumption is growing that legal impediments to the exercise of jurisdiction are invalid in the face of the imperative to prosecute international crimes. This analysis of seven principal impediments comparatively analyses each from the perspective of their historical origins, the policy contexts justifying them and the legal arguments used by courts and commentators to either uphold the barrier to prosecution or to reject its application so that prosecution remains unhindered. The seven impediments are: (1) Amnesties; (2) Pardons; (3) Statutes of Limitation; (4) Abuse of Process; (5) Immunities; (6) Ne bis in idem (double jeopardy); and (7) Male captus bene detentus (wrongly captured, properly detained). Each chapter contains a theoretical evaluation of each impediment, as well as a discussion of relevant case-law from world-wide domestic and international jurisdictions.

Table of Contents

Forewordp. V
Acknowledgementsp. VII
Abbreviationsp. XIII
Exercising Jurisdiction over International Crimes
Introductionp. 3
Impediments to exercising jurisdiction over international crimesp. 9
Impedimentsp. 11
Jurisdictionp. 13
International crimesp. 21
War crimesp. 32
Grave breachesp. 32
Serious violations of the laws and customs of warp. 34
Crimes against humanityp. 37
Genocidep. 49
Torturep. 59
Impediments
Amnestiesp. 75
Definition and historical contextp. 75
Amnesties and international and hybrid criminal courts and tribunalsp. 85
Contextual and policy considerationsp. 93
The need to secure the peace and maintain the peacep. 95
The need for a public accounting of the truthp. 98
The need to strengthen the rule of law and uphold the principle of legalityp. 102
The question of deterrencep. 103
The need for reconciliationp. 106
Legal rationales with regard to the exercise of jurisdiction in the face of amnestiesp. 110
The scope of the obligation to prosecute international crimesp. 110
Whether victims' fundamental rights vitiate the validity of amnesty lawsp. 124
Whether States are constrained not to amnesty international crimes due to the peremptory character of international crimesp. 138
Preliminary conclusionsp. 144
Pardonsp. 149
Definition and historical backgroundp. 150
Pardons and international and hybrid criminal courts and tribunalsp. 154
Contextual and policy considerationsp. 155
Legal rationales with regard to the use of pardons covering international crimesp. 161
The scope of the obligation to punish those convicted of international crimesp. 163
The possibility of pardons or commutation of sentence by international criminal courtsp. 171
Clemency by way of the guilty pleap. 175
The possible ne bis in idem effect of pardonp. 177
Preliminary conclusionsp. 181
Statutes of Limitationp. 183
Definition and historical backgroundp. 184
Statutes of limitation and international and hybrid criminal courts and tribunalsp. 188
Contextual and policy considerationsp. 190
Legal rationales with regard to statutes of limitation covering international crimesp. 192
International customary law precludes the use of statutes of limitation over international crimesp. 192
Obligations to prosecute international crimes or to ensure fundamental human rights are incompatible with statutes of limitationp. 209
The purposes and principles underlying the use of statutes of limitation do not account for the specificities of cases dealing with international crimesp. 211
Time may be tolled in many cases where international crimes have been committedp. 214
Preliminary conclusionsp. 217
Immunitiesp. 221
Definition and historical backgroundp. 222
Functional immunityp. 223
Act of State doctrinep. 226
Personal immunityp. 228
Diplomatic immunityp. 229
Head of State Immunityp. 230
Head of government and foreign minister immunityp. 233
State immunityp. 236
National immunityp. 240
Immunities and international and hybrid criminal courts and tribunalsp. 243
Contextual and policy considerationsp. 246
Functional immunityp. 246
Act of State doctrinep. 248
Personal immunityp. 249
Diplomatic immunityp. 249
Head of State immunityp. 249
Head of Government and Foreign Minister immunityp. 250
State immunityp. 251
National immunityp. 253
Legal rationales with regard to functional and personal immunities for international crimesp. 253
Treaty obligations to prosecute or extradite persons accused of international crimes are incompatible with immunitiesp. 254
States have impliedly waived immunity of their officials by signing treaties criminalising certain international offencesp. 258
Customary international law lifts functional (and personal) immunity in case of international crimesp. 262
The jus cogens nature of international crimes overrides immunityp. 268
International crimes fall outside of the notion of 'acts performed in a sovereign capacity'p. 277
The fundamental rights of victims are incompatible with fundamental human rightsp. 281
Preliminary conclusionsp. 284
The Principle of Ne Bis in Idemp. 287
Definition and historical backgroundp. 288
Historical backgroundp. 288
Ne bis in idem and international and hybrid criminal courts and tribunalsp. 290
Definitionp. 292
What constitutes an 'idem'p. 295
Types of procedures to which ne bis in idem may attachp. 300
Contextual and policy considerationsp. 306
Legal rationales with regard to the principle of ne bis in idem and international crimesp. 310
Legal arguments countering a transnational ne bis in idem principlep. 310
Fundamental defects in the trial/Sham trialp. 315
Retrial in the case of newly discovered evidence or factsp. 318
The State claim to exercise jurisdiction over offences committed on its territoryp. 322
Exception for certain offencesp. 323
Additional serious offencesp. 323
Preliminary conclusionsp. 325
Abuse of Processp. 329
Definition and historical backgroundp. 330
Contextual and policy considerationsp. 332
The need to ensure a fair trialp. 332
The need to preserve the integrity of the judicial systemp. 333
Legal rationales with regard to the doctrine of abuse of process and international crimesp. 336
Abduction/Disguised extraditionp. 336
National levelp. 336
International levelp. 341
Procedural rightsp. 347
National levelp. 348
International levelp. 348
Delayp. 352
National levelp. 352
International levelp. 353
Withholding of exculpatory evidencep. 355
Double jeopardyp. 357
Breach of promises of non-prosecution (amnesty)p. 357
National levelp. 357
International levelp. 358
Misuse of the criminal processp. 361
Preliminary conclusionsp. 362
General Conclusion
General Conclusionp. 367
Bibliographyp. 381
Table of Casesp. 395
Indexp. 413
Table of Contents provided by Ingram. All Rights Reserved.

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