Suchergebnisse

The interests of justice are embedded in Article 53 (1) of the Rome Statute of the International Criminal Court (Rome Statute). They give the Prosecutor the right to decline to initiate an investigation or suspend a prosecution. In these cases, the interests of justice act as a basis for the Prosecutor to refrain from any action. This article argues that due to their non-positivist character, the interests of justice could serve as the platform also of prosecutorial action, acting as the legal vehicle for a broad interpretation of the Rome Statute in the name of justice. Nevertheless, such broad, interests of justice-instigated interpretation, cannot but have positivism as its outmost limit. The Rome Statute is an international criminal law instrument and international criminal law is governed by the legality principle, which narrows any hermeneutical endeavors. Along these lines, this article examines the nexus between the expansive interpretational interests of justice function and its limits by referring to cases where the International Criminal Court (icc) was called to endorse or not a broad interpretation of notions included in the Rome Statute. The article examines cases arising from situations referred to the icc by States and by the un Security Council.

Shortly after the Second World War the community of States, still shocked by the explosion of violence that had torn the world apart for more than five years, ratified an updated version of the Geneva Conventions in the hope of acquiring a sound legal instrument which would preserve human dignity even in times of war. They undertook to respect the fundamental rights of the individual in armed conflicts, whether international or otherwise, and to limit the use of force to what was strictly necessary to place an enemy hors de combat. Their resolve found confirmation in the two Additional Protocols of 1977.

Over the last few decades, a global trend of extending the reach of domestic penal power can be observed, namely driven by the changing face of crime as it becomes increasingly transnational in nature. It is demonstrated in this article that the Swiss legislature has clearly followed this global trend of broadening the extraterritorial reach of domestic criminal law, most notably since the 1980s. It has acted with particular resolve in the last decade, adding jurisdictional bases to the Swiss Criminal Code by virtue of which Swiss criminal law can be applied to many instances of conduct taking place abroad. Certain offences – specified crimes against minors and female genital mutilation – have even been subjected to an absolute and unrestricted universality principle. The Swiss legislature is not indifferent to the problems that such an expansive approach to jurisdiction may create, notably in terms of conflicts of jurisdiction. Yet, the rules it adopted to temper the effects of applying Swiss criminal law to extraterritorial conduct only partially remedy the situation. This development in Swiss law begs the question whether such an expansive approach towards jurisdiction is permissible – or even encouraged or requested by international law. Hence, this article explores to what extent international law informs the reach of domestic penal power and concludes that international law is Janus-faced with regard to the question of the geographical scope of domestic criminal law. While some of its rules push for long-arm jurisdiction, others put limits on the domestic legislature's endeavour to expand the reach of its domestic criminal law. In light of this, the idea of adopting, on an international level, general principles governing the definition of the scope of domestic prescriptive and adjudicative jurisdiction for transnational cases is tempting, albeit difficult to realize.

Over the last few decades, a global trend of extending the reach of domestic penal power can be observed, namely driven by the changing face of crime as it becomes increasingly transnational in nature. It is demonstrated in this article that the Swiss legislature has clearly followed this global trend of broadening the extraterritorial reach of domestic criminal law, most notably since the 1980s. It has acted with particular resolve in the last decade, adding jurisdictional bases to the Swiss Criminal Code by virtue of which Swiss criminal law can be applied to many instances of conduct taking place abroad. Certain offences – specified crimes against minors and female genital mutilation – have even been subjected to an absolute and unrestricted universality principle. The Swiss legislature is not indifferent to the problems that such an expansive approach to jurisdiction may create, notably in terms of conflicts of jurisdiction. Yet, the rules it adopted to temper the effects of applying Swiss criminal law to extraterritorial conduct only partially remedy the situation. This development in Swiss law begs the question whether such an expansive approach towards jurisdiction is permissible – or even encouraged or requested by international law. Hence, this article explores to what extent international law informs the reach of domestic penal power and concludes that international law is Janus-faced with regard to the question of the geographical scope of domestic criminal law. While some of its rules push for long-arm jurisdiction, others put limits on the domestic legislature's endeavour to expand the reach of its domestic criminal law. In light of this, the idea of adopting, on an international level, general principles governing the definition of the scope of domestic prescriptive and adjudicative jurisdiction for transnational cases is tempting, albeit difficult to realize.

Theory of international criminal law -- Principles of liability and participation in international criminal law -- Defences in international criminal law -- State jurisdiction and immunities -- War crimes and grave breaches -- Crimes against humanity -- Genocide -- Offences against the person -- International criminal law of the sea -- Terrorism -- Transnational offences 1 -- Transnational offences 2 -- Extradition -- Abduction -- Mutual legal assistance -- Mutual legal assistance : national perspectives -- International police co-operation -- Evidence before the ad hoc tribunals -- Nuremberg, Tokyo and the birth of modern international criminal law -- The international tribunals for Yugoslavia and Rwanda -- The permanent international criminal court -- Internationalised domestic criminal tribunals