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International criminal jurisdiction : whose law must we obey? /

'International Criminal Jurisdiction' is a treatise for anyone conducting research into how domestic and international regimes create and enforce rules for personal and subject matter jurisdiction in transnational or international criminal cases.

Bibliographic Details
Main Author: Gallant, Kenneth S., 1951- (Author)
Format: eBook
Language:English
Published: New York, NY : Oxford University Press, [2022]
Subjects:
Criminal jurisdiction.
International crimes.
Transnational crime.
Droit pénal international.
Droit international pénal.
Criminalité internationale.
Criminal Law.
LAW.
Criminal Procedure.
International.
Criminal jurisdiction
International crimes
Transnational crime
Electronic books.
Online Access:Connect to the full text of this electronic book
Table of Contents:
  • Cover
  • International Criminal Jurisdiction
  • Copyright
  • Dedication
  • Summary Table of Contents
  • Detailed Table of Contents
  • Acknowledgments
  • Abbreviations
  • Part One The Question and Its Context
  • 1. The Question of Jurisdiction
  • 1.I Some Meanings of the Question
  • 1.I.A Legal Obligation and the Meaning of "Must"
  • 1.I.B Jurisdiction and Authority
  • 1.II A Concept of Law
  • 1.II.A A Few Words on Criminal Law
  • 1.II.B A Few Words on International Law
  • 1.II.C Law in a World of Multiple Legal Systems
  • 1.III Jurisdiction and Its Three Aspects
  • 1.III.A Legislative Jurisdiction (Jurisdiction to Prescribe)
  • 1.III.A.1 Jurisdiction to prescribe "true" international criminal law and treaty crimes
  • 1.III.B Adjudicative Jurisdiction
  • 1.III.C Jurisdiction to Enforce
  • 1.III.D The Primacy of Prescriptive Jurisdiction
  • 1.III.E Bringing in Adjudication: "Answerability" of Persons to States
  • 1.III.F Schools of Thought: "Criminalist" and "Internationalist"
  • 1.III.F.1 Values underlying public international law and criminal law
  • 1.III.F.2 "Criminalists," "internationalists," and private international lawyers
  • 1.III.F.3 International law and criminal law: A changing balance of influence
  • 1.III.G Conflicts of Jurisdiction
  • 1.III.H The Regulatory State and Authority to Make (Mostly) Non-​Criminal Law
  • 1.III.I Jurisdiction over Persons and Their Acts Does Not Exhaust State Power
  • 1.IV National Law of Criminal Jurisdiction from the Viewpoints of States and of Actors
  • 1.V The Question of Jurisdiction as Public International Law
  • 1.V.A The Dominant Perspective: Jurisdiction as Public International Law
  • 1.V.B Posing the International Law Issues of Jurisdiction, from the Point of View of Persons Affected
  • 1.VI Why the Question "Whose Law Must We Obey?" Persists.
  • 1.VII Comparative Law of Jurisdiction: Importance, Classification, Problems
  • 1.VII.A Classification of Legal Systems
  • 1.VII.A.1 Common law system
  • 1.VII.A.2 Civil law system
  • 1.VII.A.3 Islamic law states
  • 1.VII.A.4 "Other Asian legal systems"
  • 1.VII.A.5 The problem of legal imperialism
  • 1.VII.B Biases and Limitations of Language and Materials in this Book
  • 1.VII.B.1 Limitations of comparative research in this book
  • I.VII.B.2 Transliteration and other spelling problems
  • 1.VIII The Theses of this Book
  • 1.IX The Plan of this Book
  • 1.IX.A Why Is this Book so Long?
  • 2. The National and International Law of Criminal Jurisdiction: Structure and Sources
  • 2.I Introduction to the National Sources
  • 2.I.A Foreign Law Used in Domestic Criminal Cases
  • 2.I.B Non-​National Sources of Criminal Law? The Case of Islamic Law
  • 2.I.B.1 Statutes, sharī'a, and applicability of criminal law
  • 2.II How Does International Law Affect State Authority to Define the Ambit of Criminal Laws and Adjudicative Jurisdiction of Courts? The Lotus Framework
  • 2.III The Place of the Individual in the International Law of Jurisdiction
  • 2.III.A "Diplomatic Protection" by One's State of Nationality
  • 2.III.B The Individual in International Law
  • 2.III.B.1 The problem of legal obligation
  • 2.III.C Law and/​or Politics? Court Process for Persons versus Legal/​Political Interaction between States
  • 2.III.D Individual or State: Whose Claim? Whose Remedy?
  • 2.III.E Application of International Law in National Courts: Monism, Dualism, and Their Variants
  • 2.III.E.1 Interpreting domestic statutes to achieve compliance with international law
  • 2.III.F Direct Participation of Individuals in International Legal Processes: Human Rights Treaty Courts and International Criminal Courts
  • 2.III.G Extradition and Protections from Jurisdictional Claims.
  • 2.III.H Summary and a Statement of the Ideal
  • 2.IV Sources of International Law and Their Application to the Law of Jurisdiction
  • 2.IV.A International Conventions
  • 2.IV.A.1 Treaties and jurisdiction to prescribe for "core" international criminal law
  • 2.IV.A.2 Treaties and the "Whose law . . .?" questions
  • 2.IV.B Customary International Law
  • 2.IV.B.1 The two elements
  • 2.IV.B.2 A"general practice" (the first element)
  • 2.IV.B.3 "Accepted as law" (opinio juris-​the second element)
  • 2.IV.B.3.a Opinio juris, "instant custom," and "Grotian moments"
  • 2.IV.B.4 National legislation and decisions of national courts as practice and expressions of opinio juris
  • 2.IV.B.4.a Use as forms of state practice
  • 2.IV.B.4.b Expression of opinio juris by national legislation and court decisions
  • 2.IV.B.5 Traditional interstate practice as evidence of a customary law of jurisdiction
  • 2.IV.B.6 Treaties and formation of customary international law of jurisdiction
  • 2.IV.B.7 Acts of international organizations
  • 2.IV.B.7.a Decisions of international courts and tribunals
  • 2.IV.B.8 But what about the "auxiliary" or "subsidiary" status of judicial decisions in the ICJ Statute?
  • 2.IV.B.9 What about the teachings of publicists and their auxiliary or subsidiary status?
  • 2.IV.C General Principles of Law
  • 2.IV.C.1 So what do general principles of law do?
  • 2.IV.C.2 Using general principles to construct the law of jurisdiction
  • 2.IV.C.3 General principles as a source of the law of modern international crimes
  • 2.IV.C.4 An objection: Have we gone beyond true general principles?
  • 2.IV.C.5 General principles and legality
  • Part Two International and Comparative Criminal Jurisdiction: The Standard Model
  • 3. The Standard Model of Criminal Jurisdiction: Introduction and General Issues.
  • 3.I Introduction to the Model and Its Principles
  • 3.I.A The Five Principles
  • 3.I.B The Need for a "Significant Connection" between the Persons or Events Regulated and the Regulating State
  • 3.II Jurisdiction of Courts and Ambit of Criminal Laws
  • 3.III Roots of the Standard Model
  • 3.IV The Standard Model as a Modern Intellectual and Legal Construct
  • 3.V Relationship of Jurisdiction to Prescribe and to Adjudicate
  • 3.V.A The Starting Point: Identity of Jurisdiction to Prescribe and Adjudicate in Criminal Law
  • 3.V.B Subsidiarity: Where States Define Crimes but Sometimes Refuse Adjudicative Jurisdiction
  • 3.V.C Adjudication in Absentia
  • 3.V.D Foreign Law in Domestic Criminal Cases
  • 3.V.E Jurisdiction to Adjudicate and Sources of Substantive Law in International Criminal Courts and Tribunals
  • 3.V.F Criminal Jurisdiction and Non-​Criminal Choice of Law
  • 3.VI "Primary" versus "Subsidiary" Adjudicative Jurisdiction
  • and the Need for "Double Criminality" and "Lex Mitior [Lesser Penalty]"
  • 3.VI.A Does International Law Require Subsidiarity?
  • 3.VI.B Ryngaert: Prescriptive Subsidiarity
  • 3.VII Problems of Jurisdiction to Enforce
  • 3.VIII Jurisdiction as Substantive or Procedural Law
  • 3.IX "Jurisdictional" and "Material" Facts
  • 3.X Special Jurisdictional Problems: Law of the Sea and Air, Law of Armed Forces, Artificial Persons, and Law of Immunity
  • 3.X.A Laws of the Sea and Air
  • 3.X.B Law of Armed Forces
  • 3.X.C Artificial or Juridical Persons
  • 3.X.D Diplomatic and Other Official Immunities of Individuals from Criminal Prescription and/​or Adjudication
  • 3.XI The Standard Model and the "Whose Law . . .?" Questions
  • 4. The Territorial Principle
  • 4.I Basics and Background
  • 4.I.A What Is "Territoriality"?
  • 4.I.B What Is the Territory of a State?
  • 4.I.B.1 Places "assimilated to state territory".
  • 4.I.B.2 Places in which states have limited authority to prescribe criminal law: Treaty and custom
  • 4.I.B.3 The place where a hijacked aircraft lands with the hijacker still on board: A special territory?
  • 4.I.C "Localization": How States Define which Crimes Are Committed in Their Territories and Who May Be Prosecuted for Them
  • 4.I.C.1 "Elements" of crimes and localization of crime
  • 4.I.C.2 Intent, other mental states, and territorial jurisdiction
  • 4.I.C.3 Legal fictions involved in localization of partly territorial or wholly extraterritorial crime
  • 4.I.C.3.a "Constructive presence"
  • 4.I.C.3.b "Deeming" partly or wholly extraterritorial crimes to have been committed within a state
  • 4.I.C.3.c "Continuing" or "renewed" offenses across borders
  • 4.I.C.3.d Fictional "territorial" zones
  • 4.I.D Three Basic Patterns of Territoriality Today: Subjective Territoriality, Objective Territoriality, and Ubiquity
  • 4.II Justifications of, and Objections to, Territorial Jurisdiction
  • 4.II.A Justifications of, and Objections to, Territorial Jurisdiction in General
  • 4.II.A.1 Justifications based primarily in international law theory
  • 4.II.A.2 Justifications and objections based primarily in criminal law theory
  • 4.II.B Justifications of, and Objections to, Subjective Territoriality
  • 4.II.B.1 Justifications and objections based primarily in international law
  • 4.II.B.2 Justifications and objections based primarily in criminal law
  • 4.II.B.2.a Acts by non-​nationals on the territory of a state: The philosophical debate
  • 4.II.B.2.b Counterargument to unlimited subjective territoriality where the criminal result happens elsewhere: It can criminalize "innocent" results
  • 4.II.C Justifications of, and Objections to, Objective Territoriality.