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Realizing UtopiaThe Future of International Law$
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The Late Antonio Cassese

Print publication date: 2012

Print ISBN-13: 9780199691661

Published to Oxford Scholarship Online: September 2012

DOI: 10.1093/acprof:oso/9780199691661.001.0001

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The Need Reasonably to Expand National Criminal Jurisdiction over International Crimes

The Need Reasonably to Expand National Criminal Jurisdiction over International Crimes

Chapter:
(p.596) 45 The Need Reasonably to Expand National Criminal Jurisdiction over International Crimes
Source:
Realizing Utopia
Author(s):

Paola Gaeta

Publisher:
Oxford University Press
DOI:10.1093/acprof:oso/9780199691661.003.0045

This chapter discusses the question of the extraterritorial expansion of criminal jurisdiction over international crimes. Since recourse to the territorial and active nationality principles is unlikely with respect to ‘core’ international crimes, the emerging culture of accountability for these crimes necessitates the expansion of domestic criminal jurisdiction on the basis of other principles. Whether and to what extent this is possible under international law ultimately depends on the approach one takes in relation to the notion of sovereignty and the competences of sovereign states under international law. For the repression of international crimes, customary international law allows extraterritorial jurisdiction on the basis of the passive personality and the protective principles. As for universal jurisdiction, controversy exists, inter alia, as to the need for a jurisdictional link to the forum state, in particular the presence of the suspect in the territory of the state. It is suggested that to put the exercise of universal jurisdiction in conformity to the principle of legality the presence of the suspect should be at least a requirement for the exercise of adjudicatory/enforcement jurisdiction. In addition, the judge exercising universal jurisdiction should be allowed to apply substantive criminal law which is most favourable to the accused among those of the forum state, the state of nationality, and the territorial state to fill the lacunae of international criminal law particularly in relation to penalties.

Keywords:   extraterritorial expansion, criminal jurisdiction, international crimes, international law, sovereignty

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