Class 13 Jurisdiction & Extradition

1. Class 13Jurisdiction & Extradition POLS 363 International Law P. Brian Fisher Spring 2011

2. Jurisdiction Generally • Both in US domestic law and IL, there needs to be some minimum contacts with the person or persons (in personam) involved and the act itself (subject matter). • 3 categories of Jurisdiction • 1. juris to prescribe or legislate (authority of state to make its laws applicable to persons or subject matter) • 2. juris to adjudicate (to subject particular persons or things to its judicial process) • 3. juris to enforce or execute (to use gov’t resources to induce compliance)

3. 5 Principles of Int’l Jurisdiction • 1 Territorial Principle • 2. Nationality Principle • 3. Passive Personality Principle • 4. Protective Principle • 5. Universality Principle

4. The Territorial Principle A State can exercise its jurisdiction to legislate with respect to: • (a) Conduct that, wholly or in substantial part, takes place within its territory; • (b) the status of persons, or interests in things, present within its territories; • (c) conduct outside its territory that has or is intended to have substantial effect within its territory. • Rt to adjudicate and enforce is based on “reasonableness” which is admittedly vague.

5. US v ALCOA (Canadian Corp)148 F.2d 416 (2nd Cir 1945) • F: Foreign corp was alleged to collaborated with other foreign producers of aluminum creating a cartel. The prosecution asserts that this is a violation of US anti-trust laws under the Sherman Act, even though foreign corps and foreign acts. • I: Did Congress intend to include foreign cartels within prohibitions in the Sherman Act, where those cartels are acting beyond the US, but intended to have an effect on US trade? • H: Yes (created the ‘objective territorial’ principle). Acts by ALCOA did violate the Sherman Act because they had affected US trade. • R: Settled that any state can impose liabilities, even upon persons or subject matter beyond its territory, if conduct outside its borders “has consequences within its borders.” However, ct considers if there was intent, but no effect, AND if there was no intent but an effect within the US. They argue in neither case is there jurisdiction. So, they reasoned that juris only exists where there was intent and an effect on US. Here, the ct found that 1936 agr intended to set quotas for imports to US (so intent), and that it in fact had an effect on US imports.

6. Nationality Principle • States my exercise juris over their nationals and over the conduct of their nationals—even when those nationals or conduct are physically outside the state’s territory. • Justifications for this principle are: • The national owes allegiance to his/her state regardless of location • Each state has certain responsibilities to other states for the conduct of its nationals • Each state has an interest in the well-being of its nationals abroad • Each state therefore has the rt to determine who it nationalizes • However, to be recognized on int’l plane, there must be a “genuine link” with state (Nottebohm) • Finally, a corp is the nationality where it is incorporated

7. Passive Personality Principle • In limited circumstances, states have the authority to exercise juris over acts committed abroad, regardless of offence location or perp’s nationality, if they injure a national of the claiming state. • Not widely accepted, but increasingly used against “terrorist acts” committed abroad on state’s national. • US v. FawazYunis(DC Cir 1991): Lebanese skyjacker of Jordanian Flight with 4 Americans on board. US had Antiterrorism and Hostage Taking Statute that was applied here after Yunis was lured into FBI custody and brought to US. Ct held that it had juris because Congress intended to adjudicate on these grounds, and it’s consistent with US treaty obligations.

8. Protective Principle • State can exercise jurisdiction over “certain conduct outside its territory by persons not its nationals that is directed against the security of the State or against a limited class of other state interests.” • The conduct must be generally recognized as “criminal” by other states in the int’l community. • Less used by US because of preference for juris tied to territory. • See US v. Bin Laden

9. Universal Principle • A state may exercise jurisdiction over conduct outside its territory if that conduct is universally dangerous to states and their nationals. • Obligation is ergaomnes: obligation is owed to the entire international community (not just to a victim or gov’t) • There is certain agreement over core activities that trigger universal juris • Stateless vessel • Piracy • Slave trade • Genocide • Torture • Crimes against humanity • War crimes

10. Princeton Principles (extras) • 3. Can rely on UJ…provided that it has established a prima facie case of the person's guilt and that the person sought to be extradited will be tried or the punishment carried out in accordance with international norms and standards on the protection of human rights in the context of criminal proceedings. • 4. In exercising UJ, a state and its judicial organs shall observe international due process norms including but not limited to those involving the rights of the accused and victims, the fairness of the proceedings, and the independence and impartiality of the judiciary (hereinafter referred to as "international due process norms").

11. AG of Israel v EichmannSup Ct of Israel (1962) • F: Eichmann, “architect of the Holocaust”, fled to Argentina as a German citizen after WWII. In 1960, he was discovered by Israeli agents and brought to Israel for trial on Crimes against Humanity and War Crimes. • I: Does Israel have juris over Eichmann for crimes against humanity? • H: Yes b/c of acts qualify for the application of univjuris • R: “These crimes constitute acts which […] violate the universal moral values and humanitarian principles that lie hidden in the criminal law systems adopted by civilized nations” (118). The Court rejected Eichmann’s other 2 arguments, because the crimes were global affecting the int’l community--not just Germany. • Juris: Nationality? Territorial? Passive Personality? Protective?

12. Argentina <-> Israel • Int’l dispute over the capture of Eichmann capture and smuggling. After negotiations failed between the states, Arg appealed to the UN Sec Council arguing that Israel breached its sovereignty. • UNSC passed Res 138 which requested Israel "to make appropriate reparation", while stating that "Eichmann should be brought to appropriate justice for the crimes of which he is accused.” • Israel and Arg later agree to end dispute • Israeli courts avoided the issue of the legality of Eichmann's capture, relying instead on legal precedents that the circumstances of his capture had no bearing on the legality of his trial. • The Israeli Court also determined that because "Argentina has condoned the violation of her sovereignty and has waived her claims, including that for the return of the Appellant, any violation of international law that may have been involved in this incident has thus been remedied."

13. Jurisdiction Rules • More than 1 principle may be used to gain juris • States have discretion to apply juris—so, IL may permit the exercise of juris, it remains within the state’s discretion to actually do so. • So, you must look to national law to determine whether the state has actually exercised discretion permitted under IL • E.g. US doesn’t have federal criminal law, so if a US national commits murder abroad, there are no means of US prosecution, even though IL permits the US to do so. • Concurrent Juris: IL recognizes that more than 1 state may have juris over person or event. • Most US courts rely on comity (legal reciprocity) to determine how to “balance the exercise of concurrent authority”

14. Vid • Universal Jurisdiction (youtube) • Universal • ATS • TVPA (protects from torture and extrajudicial killings • Citizens and non-citizens

15. ICJ (Int’l Court of Justice) • Successor to the PCIJ (permanent Court of Int’l Justice), which was established in 1920gave way to ICJ in 1945 (even though technically stopped in 1939 because of WWII) • ICJ is the principal organ of the UN • Only states that are parties to UN Charter may appear before it. • 15 judges, elected by UN GA and UN SC (absolute majority by both bodies) • 2 types of jurisdiction • Contentious jurisdiction • Advisory jurisdiction—invoked ONLY by UN organs (states and indivs have no standing to request an advisory op)nonbinding

16. Contentious JurisdictionICJ Article 36 • Disputes between states ONLY, and ONLY when states have consented to jurisdiction • So, NO juris for individuals or entities • NOTE: State may be a party to ICJ’sjuris, but not consent to it. • 3 ways to consent to ICJ’s jurisdiction • 1. accept Court’s juris ad hoc for that dispute (Malay v. Singapore) • 2. States can adhere to a treaty (bilateral or multilateral) in which the Court’s juris is accepted. • Treaty explicitly specifies conditions under which ICJ has juris • US reservation in Genocide Convention: submits to ICJ but “the specific consent of the US is required in each case.” • Yugo sued US for acts assoc with NATO intervention in Kosovo, but ICJ found no juris because of that reservation (Yugov. US, 1999 ICJ 916). • 3. “Optional Clause”: state parties may declare that they recognize as compulsory ipso facto and without special agreement, the ICJ juris in ALL legal disputes • * 65 states to date • Only needs to respond to states who made a similar declaration

17. ICC (Int’l Criminal Court) • Created in 2002 • Over 100 states have ratified (not USsigned but not ratified) • Juris can be applied to INDIVIDUALS • Purpose: to investigate and prosecute individuals for: • Genocide • Crimes against humanity • War crimes • “Aggression” (once certain issues are decided later) • ICC has juris when state is party to ICC or consents ad hoc based on: • Where crime was committed • The state of accused’s nationality • OR referred by the UN Sec Council

18. Jurisdiction Generally • Both in US domestic law and IL, there needs to be some minimum contacts with the person or persons (in personam) involved and the act itself (subject matter). • 3 categories of Jurisdiction • 1. juris to prescribe or legislate (authority of state to make its laws applicable to persons or subject matter) i.e. subject matter juris • To determine, look at 5 principles • 2. juris to adjudicate (to subject particular persons or things to its judicial process) i.e. personal jurisdiction • To determine, look at link between state and person (@ time juris is to be asserted). • 3. juris to enforce or execute (to use gov’t resources to induce compliance)

19. Juris to Adjudicate • Look at link between state and the person (or thing) at the time juris is asserted • Relevant links would be, whether the person (or thing) is: • 1. present in the territory of state • 2. a national of, or domiciled or resident in, the state; • 3. has consented to the exercise of juris or conducted business in state • Basically, need “minimum contacts” with state asserting juris

20. Juris to Enforce • According to IL, a state is subject to limitations on its juris to enforce • Need “juris to prescribe” first->look to 5 principles • Must be “reasonable” to do so • Measures must be in proportion to violation • Generally: • Person is given reasonable notice • Person is given an opportunity to be heard • When enforcing through a state’s courts, , may only exercise with the other state’s consent • See US v. Alvarez-Machain • US applies domestic law once SMJ and PJ asserted

21. US v. Alavarez-Machain504 U.S. 655 (1992) • F: Dr. Machain, MX citizen, prolonged DEA Agent Camerena’s life to torture in Guadalajara. Soon after he was found dead. Bounty hunters then kidnapped Dr. Machain and transported to US through DEA led operation. • I: Does the US have juris over defendant, who as a foreign national, was abducted and transported to US by private actors superseding an Extradition treaty between the two countries? • H: Yes. If the Extradition Treaty does not prohibit respondent's abduction, the rule of Ker applies and jurisdiction was proper. • R: A defendant may not be prosecuted in violation of the terms of an extradition treaty. United States v. Rauscher. Yet, admin Exec has the right to overrule int’l law. Also, when a treaty has not been invoked, a court may properly exercise jurisdiction even though the defendant's presence is procured by means of a forcible abduction. Ker v. Illinois (private citizen can abduct abroad).

22. Import from Machain • Jurisdiction to Enforce in IL, but domestic law applied • Abduction was “shocking” • May have been a violation of IL (gen principles) • Decision to return Machain to MX is a question for the Executive branch, but if he’s here in US, we can assert juris • SCt finds SMJ and PJ here, and applied US domestic law to try Machain. • Recall, they do not address gov’ts role here in the abduction. Simply say that if it doesn’t violate treaty then Ker applies allowing for abduction—even though it may violate IL.