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.

Foreword	p. V
Acknowledgements	p. VII
Abbreviations	p. XIII
Exercising Jurisdiction over International Crimes
Introduction	p. 3
Impediments to exercising jurisdiction over international crimes	p. 9
Impediments	p. 11
Jurisdiction	p. 13
International crimes	p. 21
War crimes	p. 32
Grave breaches	p. 32
Serious violations of the laws and customs of war	p. 34
Crimes against humanity	p. 37
Genocide	p. 49
Torture	p. 59
Impediments
Amnesties	p. 75
Definition and historical context	p. 75
Amnesties and international and hybrid criminal courts and tribunals	p. 85
Contextual and policy considerations	p. 93
The need to secure the peace and maintain the peace	p. 95
The need for a public accounting of the truth	p. 98
The need to strengthen the rule of law and uphold the principle of legality	p. 102
The question of deterrence	p. 103
The need for reconciliation	p. 106
Legal rationales with regard to the exercise of jurisdiction in the face of amnesties	p. 110
The scope of the obligation to prosecute international crimes	p. 110
Whether victims' fundamental rights vitiate the validity of amnesty laws	p. 124
Whether States are constrained not to amnesty international crimes due to the peremptory character of international crimes	p. 138
Preliminary conclusions	p. 144
Pardons	p. 149
Definition and historical background	p. 150
Pardons and international and hybrid criminal courts and tribunals	p. 154
Contextual and policy considerations	p. 155
Legal rationales with regard to the use of pardons covering international crimes	p. 161
The scope of the obligation to punish those convicted of international crimes	p. 163
The possibility of pardons or commutation of sentence by international criminal courts	p. 171
Clemency by way of the guilty plea	p. 175
The possible ne bis in idem effect of pardon	p. 177
Preliminary conclusions	p. 181
Statutes of Limitation	p. 183
Definition and historical background	p. 184
Statutes of limitation and international and hybrid criminal courts and tribunals	p. 188
Contextual and policy considerations	p. 190
Legal rationales with regard to statutes of limitation covering international crimes	p. 192
International customary law precludes the use of statutes of limitation over international crimes	p. 192
Obligations to prosecute international crimes or to ensure fundamental human rights are incompatible with statutes of limitation	p. 209
The purposes and principles underlying the use of statutes of limitation do not account for the specificities of cases dealing with international crimes	p. 211
Time may be tolled in many cases where international crimes have been committed	p. 214
Preliminary conclusions	p. 217
Immunities	p. 221
Definition and historical background	p. 222
Functional immunity	p. 223
Act of State doctrine	p. 226
Personal immunity	p. 228
Diplomatic immunity	p. 229
Head of State Immunity	p. 230
Head of government and foreign minister immunity	p. 233
State immunity	p. 236
National immunity	p. 240
Immunities and international and hybrid criminal courts and tribunals	p. 243
Contextual and policy considerations	p. 246
Functional immunity	p. 246
Act of State doctrine	p. 248
Personal immunity	p. 249
Diplomatic immunity	p. 249
Head of State immunity	p. 249
Head of Government and Foreign Minister immunity	p. 250
State immunity	p. 251
National immunity	p. 253
Legal rationales with regard to functional and personal immunities for international crimes	p. 253
Treaty obligations to prosecute or extradite persons accused of international crimes are incompatible with immunities	p. 254
States have impliedly waived immunity of their officials by signing treaties criminalising certain international offences	p. 258
Customary international law lifts functional (and personal) immunity in case of international crimes	p. 262
The jus cogens nature of international crimes overrides immunity	p. 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 rights	p. 281
Preliminary conclusions	p. 284
The Principle of Ne Bis in Idem	p. 287
Definition and historical background	p. 288
Historical background	p. 288
Ne bis in idem and international and hybrid criminal courts and tribunals	p. 290
Definition	p. 292
What constitutes an 'idem'	p. 295
Types of procedures to which ne bis in idem may attach	p. 300
Contextual and policy considerations	p. 306
Legal rationales with regard to the principle of ne bis in idem and international crimes	p. 310
Legal arguments countering a transnational ne bis in idem principle	p. 310
Fundamental defects in the trial/Sham trial	p. 315
Retrial in the case of newly discovered evidence or facts	p. 318
The State claim to exercise jurisdiction over offences committed on its territory	p. 322
Exception for certain offences	p. 323
Additional serious offences	p. 323
Preliminary conclusions	p. 325
Abuse of Process	p. 329
Definition and historical background	p. 330
Contextual and policy considerations	p. 332
The need to ensure a fair trial	p. 332
The need to preserve the integrity of the judicial system	p. 333
Legal rationales with regard to the doctrine of abuse of process and international crimes	p. 336
Abduction/Disguised extradition	p. 336
National level	p. 336
International level	p. 341
Procedural rights	p. 347
National level	p. 348
International level	p. 348
Delay	p. 352
National level	p. 352
International level	p. 353
Withholding of exculpatory evidence	p. 355
Double jeopardy	p. 357
Breach of promises of non-prosecution (amnesty)	p. 357
National level	p. 357
International level	p. 358
Misuse of the criminal process	p. 361
Preliminary conclusions	p. 362
General Conclusion
General Conclusion	p. 367
Bibliography	p. 381
Table of Cases	p. 395
Index	p. 413
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