Modern trend under mult lateral agreements with respect to criminal law is that

Modern trend under mult lateral agreements with

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Modern trend under mult-lateral agreements with respect to criminal law is that partes are obliged to prosecute the ofender or extradite him for prosecuton. ( aut dedre aut punire = either extradite or punish ) *** Failure of a State to prosecute / extradite natonal may invoke Internatonal Criminal Court (ICC) to take the case on. Passive Personality Principle Allows for a State to prosecute a foreign natonal if his / her actons abroad afect a natonal of the prosecutng State. Sometmes seen as an extension to the concepts that underpin the Natonality Principle (but in reverse). Natonality principle = Natonal has commited the harm. Passive Personality Principle = Natonal has sufered the harm Protectve principle Not as clear cut as natonality and territorial principles. Really deals with the ‘protecton’ of natonal interests which may have been injured by the acton – security, natonal integrity and politcal independence. Looks at State’s exercise of its jurisdicton to ‘punish’ actons commited overseas which consttute a threat to the interests of that State. Used to justfy prosecuton of terrorists and those who plan / train terrorism / terrorists abroad. Widely used in espionage /spying type cases – popularity of approach increases afer the 1960’s. Joyce v DPP [1946] American citzen helping broadcast German propaganda into Britain during WWII Held that because he held a Britsh passport he owed an allegiance to the Crown and that his actons where against the interests of Britain (applying Protectve Principle) Universality Principle Accepts that there are certain actons that ‘transcend’ the jurisdicton of any single State. Looks at ‘internatonal crimes’ that are recognised as afectng the entre world order. Aimed at jus cogens type ofences such as piracy, slavery, genocide, torture, war crimes and crimes against humanity. o cf Diferent from treates which have a quasi-universal jurisdicton eg Conventon Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (1984) Status of principle is controversial in some respects – although piracy has been accepted as one area where Universality Principle applies. Downloaded by Ashleigh Nicolau ([email protected]) lOMoARcPSD|2420463
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Israel v Eichmann Nazi Ofcer responsible for Germany’s ‘Final Soluton’ programme escaped to Argentna afer WWII. In 1960 was discovered and capture by Mossad and taken to Israel where placed on trial. At Trial and on Appeal, Eichmann raised several defences including: o Israel did not exist at the tme of the alleged ofences. o Actons not taken against Israeli natonals. o Actons did not take place in Israeli territory. o Legal basis for prosecuton was retroactve. Main Israeli argument was that war crimes fall within the Universal Jurisdicton. R v Bow Street Metropolitan Magistrate (Pinochet’s case) Spain demanded that former President of Chile (General Pinochet) be extradited for the torture of Spanish citzens in Chile. Pinochet in Britain at tme on medical grounds.
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