Jurisdiction and ImmunityLL278 – Public International LawTopic 10 – Joseph Collison

Overview• Definition and judicial history of jurisdiction

- The Lotus Case (1927)• Definition and judicial history of immunity

- Compania Naviera Vascongado v Steamship ‘Cristina’ (1938)

• Israel v. Eichmann (1961)• Jones and Others v. UK (2014)• Debate surrounding these principles

Jurisdiction: Definition• Power of a state to govern persons/property

according to its municipal law• Power to prescribe and enforce rules• Executive and judicial powers of enforcement• Civil or criminal• Concurrent with other states or exclusive • Debate over extent of international jurisdiction• Related: the extent to which immunity bars exercise

of jurisdiction

Harvard Research Draft Convention on Jurisdiction with Respect to Crime

(1935)• De lege ferenda • 5 principles to determine jurisdiction1. Territorial 2. Nationality3. Protective4. Universality5. Passive Personality

- Not included in final Draft Convention

The Lotus Case [1927] PCIJFrance v. Turkey

• French Lotus / Turkish Boz-Kurt steamship collision• Turkey: criminal proceedings against French captain• France: rejects Turkey’s authority to proceed • PCIJ: rejects all French arguments • No prohibition against Turkey initiating proceedings in

response to the effects of collision on Turkish vessel– The Lotus Principle: a foundation of international law– Sovereign states may act in any way they wish so long as they do not

contravene an explicit prohibition of international law

• ‘Restrictions upon the independence of States cannot therefore be presumed.’ – Lotus (Fr.v.Turk), 1927 PCIJ

Immunity: Definition• Immunity exempts accused from prosecution – Functional Immunity (ratione materiae): acts of state – Personal Immunity (ratione personae): granted to

people due to what office they hold

• Why does the principle of immunity exist?

Compania Naviera Vascongado v Steamship ‘Cristina’ [1938] AC 485

• Spain requisitioned all ships registered at Bilbao • Spanish consul at Cardiff went aboard the Cristina

and put a new master in charge• Company: ship is their property• Spanish government: claim should be set aside as it

impleads a foreign sovereign • Lord Atkin: ‘the courts of a country … will not by their

process make [a sovereign] against his will a party to legal proceedings whether the proceedings involve process against his person or seek to recover from him specific property or damages.’

Attorney-General of the Government of Israel v. Eichmann [1961] 36 I.L.R. 5.

District Court of Jerusalem• Eichmann: Nazi German administrator of ‘final solution’• Discovered in Argentina by Israeli agents, 1960• Israeli law: Nazi and Nazi Collaborators Law of 1951– War crimes, crimes against the Jewish people– Crimes against humanity

• Defence: Israel did not exist at time of act thus protective principle cannot apply / victims were not Israeli citizens thus passive personality principle cannot apply / Israeli legislature exceeding its powers

• Argentina: complaint to UNSC (sovereignty violation)

• Israel: Eichmann’s crimes delicta juris gentium• Sources: ICJ Article 38(1)(d); Israeli Court cites legal

authors who note that ‘crimes against international law generally or war crimes in particular give rise to universal jurisdiction’

• Linking Point Doctrine‘the State may, in so far as int’ law does not contain rules to the contrary, punish only persons and acts which concern

it more than they concern other States’ – Harris (2010)• Court: Principle of territoriality does not limit power of a

State to try crimes; arguments against such power must point to a specific rule stating otherwise

• Argentina drops complaint; no further challenges

Jones and Others v UK [2014] • Falsely accused in a bombing campaign in Riyadh• Repeatedly tortured, endured severe psychological

and physical harm • High Court – Saudi Arabia entitled to immunity under

section 1(1) of the State Immunity Act 1978 • Court of Appeal - Upheld the immunity of the state,

but denied immunity of the state official

Jones and Others v UK [2014] • House of Lords – Lord Bingham ‘wealth of authority in the United Kingdom

and elsewhere to show that a State was entitled to claim immunity for its servants or agents and that the State’s right to immunity could not be circumvented by suing them instead.’

• ECHR – Grant of immunity reflects generally recognized rules of

public international law– 'However, State practice on the question is in a state of

flux, with evidence of both the grant and the refusal of immunity ratione materiae in such cases’

Debate Kissinger

‘The Pitfalls of Universal Jurisdiction’ (2001)Roth

‘The Case for Universal Jurisdiction’ (2001)

• Universal jurisdiction is new

• A dangerous precedent

• Pinochet: leave reconciliation to Chile

• Lack of checks and balances

• ICC: lack of accountability, vague definitions of crime, prone to political abuse, no due process, no time limits

• UNSC ad hoc tribunals reliable

• Universal jurisdiction is not new

• A necessary step in international law

• Pinochet: imposed impunity required

• Checks and balances exist

• ICC: accountability and due process is democratic states parties; Rome Statute =/= universal jurisdiction

• UNSC ad hoc tribunals not reliable

U.N. Goldstone Report• The right of a state to exercise universal jurisdiction:

uncontroversial• Conditions and requirements of universal

jurisdiction: controversial • Notes Article 146, 1949 Geneva Convention IV• Universal jurisdiction = efficient tool for enforcing int’

humanitarian law/human rights• Parties to Geneva IV: begin to actively utilise

universal jurisdiction to enforce convention

Universal Jurisdiction – Clarifying the Basic Concept (Roger O’Keefe) • Looks at the Arrest Warrant Case • Claims that the respective judges’ understanding of the

concept of Universal Jurisdiction is debatable • Universal jurisdiction in absentia • ‘When assertion by states of so-called subsequent

presence, subsequent nationality, and subsequent residency jurisdiction over crimes under general international law is taken into account – more state practice to support permissibility of universal jurisdiction over such offences than recognized in Arrest Warrant Case’ – O-Keefe (2004)

• Judges ended up ‘muddying the waters’ in this case

Questions1. Was Israel justified in relying on the protective

principle to prosecute the accused in the Eichmann case for acts committed before Israel came into being?

2. Should those who have committed crimes against humanity not be able to receive immunity?

3. Should universal jurisdiction be considered as a tool to enforce humanitarian law?