• “The Criminal Investigation and its Impact on Jurisdiction, Extradition, Cooperation and Criminal Policy”, in Transitional Justice in Ibero-America, ALMQVIST, ESPOSITO, Eds. Centre for Political and Constitutional Studies, Madrid, 2009. (original) (raw)
Related papers
THE DILEMMA OF INTERNATIONAL CRIMINAL JUSTICE
International Progress Organization -- I.P.O. Online Papers, 2023
Independence of the judiciary, secured by a separation of powers, is an indispensable criterion for the rule of law. In any state system (domestically), this requires an elaborate mechanism of checks and balances between the branches of government. Specifically, “independence” rests in the judiciary’s not being bound by political instructions, but solely by the norms of the democratically created law (within the bounds of the Constitution), and in the ability (i.e. authority) to enforce its decisions via the executive branch in a subsidiary role. Only such an arrangement can ensure the exercise of judicial authority in a consistent manner. Equality before the law, as basic principle, cannot be guaranteed in any other setting. The above conditions – indispensable for the rule of law – are absent outside the normative framework of the sovereign state. Internationally, in the largely anarchic space between states, there simply is no separation of powers. There may exist a balance of power among a multitude of sovereign actors, holding each other in check. Judicial authority that stretches beyond state borders is alien to such a system. If it is asserted nonetheless, its exercise, legally dubious in itself, risks being arbitrary and politicized. This has been the case with virtually all arrangements of international criminal justice since the Second World War, such as: o the “unilateral” projection of sovereignty in cases where a state claims “universal jurisdiction” (measures that have the potential to trigger conflicts with other states); o the “collective” projection of power by states that establish a court either as victors after armed conflict or as members of the United Nations Security Council (in violation of Article 14[1] of the International Covenant on Civil and Political Rights); o the International Criminal Court, established by intergovernmental treaty, where limited membership (in particular regarding the absence of great powers) is in contrast to the quasi-universal prosecutorial mission of the Court (potentially also over officials from non-state parties, as far as territorial jurisdiction is concerned, in contravention, as some states argue, to the Vienna Convention on the Law of Treaties). The dilemma of international criminal justice consists in an irreconcilable contradiction at the roots of these projections of judicial power, namely a conflict between national sovereignty and supranational authority (which is situated totally outside a framework of checks and balances). This antagonism has opened the door for the politicization of the judicial function. As regards legal consistency and moral legitimacy, but also mere effectiveness, the problems are similar to those of today’s humanitarian intervention. In the absence of a world state, both risk becoming pawns of global power politics.
grin, 2019
The determination of the international community to combat non-criminality and the fight against international crime has prompted the international community to find ways to address the legal vacuum existing in international criminal law. Due to the temporary nature of the courts established since World War II, as well as the absence of major crimes such as terrorism and human trafficking in the Statute of the International Criminal Court, the international community is inclined towards domestic courts and plans for actions such as global jurisdiction and commitment to extradition or trial. Due to differences arising from the obligation to perform an extradition or trial, it is necessary to examine the principles governing this obligation. Meanwhile, the judiciary and international bodies' opinions on these actions are of great importance. The International Court of Justice is one of the most prominent legal entities in the international community in terms of its distinctive and important role in the development of international law. In the present article, the Tribunal's judgments on the obligation to extradite or trial and the effect of the Court on the development of this commitment have been examined.
THE JURISDICTION OF THE INTERNATIONAL CRIMINAL COURT IN AFICAN POLITIES: A REALITY OR A MYTH
It is indeed a trite law that the jurisdiction of courts is radical and crucial. Where a court lacks jurisdiction over a matter, it lacks the vires to entertain and deliberate on it. A defect in competence is therefore fatal in that, it renders an entire proceedings, trial or findings invalid, null and void abinitio however brilliantly they must have been conducted and concluded . The International Criminal Court is an independent judicial institution with the power to try and punish individuals for the most serious crimes of International concern such as genocide, crimes against humanity, crimes of aggression, and war crimes. First approved in 1998 vide a treaty known as the Rome Statute, the International Criminal Court came into being on the 1st July, 2002, with its headquarters in The Hague. However, its proceeding may hold anywhere . The International Criminal Court has handled lots of cases, but the parties subject to prosecution before the court raise questions of serious concern. The objective of this paper is to analyze the jurisdiction situation of the International Criminal Court vis – a- vis the reality of the existence of the court in the Africa polities, the limitation it had set down for the inefficient operation of the African Human Right Court, the usage of ICC as a witch hunting stage by Africans, the effect of Article 12 (3) and Article 13 (b) and the general challenges of the African States, with view to proffering recommendations to that effect.
1998
It is submitted that the term "right" accords moreso with both theory and practice as it directly designates a state of legality. A State may well possess the power and capacity to exercise extraterritorial jurisdiction but to do so lawfully it must be entitled by right by international law to do so. This construction fully accords with an prohibitive jurisdictional regime. 71 This area of the jurisdictional rules, although fundamentally important, suffers from a lack of State practice. This is due in the main to the reluctance of States to risk what are considered greater interests, such as international good will and friendly relations, by casting aspersions upon the actions of another State on the behalf of a single individual who is accused of a criminal act.
International Criminal Trials and the Circumstances of Justice
Transitional justice is broadly understood to refer to formal efforts to deal with past wrongs in the midst of a transition from an extended period of conflict or repression to democracy. In this paper, I consider the role of international criminal trials in transitional justice. I argue that such trials may contribute to transitional justice, but such contributions are conditional on two main factors. The first factor is time. The second factor is what other transitional justice responses are adopted domestically.
2022
Over the years, the International Criminal Court (ICC) has received criticism for exercising its territorial jurisdiction over non-state parties' nationals. Non-state parties claim that the Court is illegitimate and that its jurisdictional claim over their nationals violates the principle of consent in public international law. This thesis aims to develop interdisciplinary research into international relations and international law by asking the question of how the alleged legitimacy deficit of the ICC can be alleviated. The interdisciplinary methodology is approached through supplementing the legal dogmatic method with international relations theory. In turn, the analysis is carried out in two sections, one dedicated to legal analysis and the other to the international relations theory constructivism.