Crime against international law: Wikis

  
  

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A number of crimes against international law are created by treaty and convention. Some of these crimes are prosecuted before international courts and tribunals. But more difficult questions of jurisdiction arise when the issue is whether a person, natural or fictitious, can be prosecuted for breach of public international law in the municipal courts of the state in which an arrest is made.

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United Kingdom

Under s51(1) International Criminal Court Act 2001, genocide and crimes against humanity committed either in the UK or by UK nationals abroad can be prosecuted but, as a dualist nation, other prosecutions can only be mounted where the UK has acceded to the Treaties and Conventions that create the offences including: war crimes, torture, and enslavement and forced labour offences. The criminal jurisdiction is presumed territorial in the absence of express words and based on the presence of the accused within the jurisdiction. There are a number of statutes that impose criminal liability on UK and/or non-UK nationals who commit particular acts outside the jurisdiction, but this can only be exercised where the individual is present or visits the UK Otherwise the UK government would need to seek extradition from the state in which he is located.

Legal person's criminal liability

It is a rule of statutory interpretation that unless a contrary intention appears, the word "person" includes any body of persons corporate or unincorporated. Thus, once the principle of corporate liability for the form of legal entity is accepted, the entity can be charged with any international offence no matter where it was committed in the same way as a natural person.

Legal person's liability in tort

Under the Rules of the Supreme Court, a court can accept claims against a corporation for a tort arising out of an international crime committed outside the jurisdiction so long as there is some real connection with the UK (see forum shopping and forum non conveniens). This liability is usually based on some activity committed within the jurisdiction or on the fact that profits from the tortious activity have been received within the jurisdiction. Similarly, most breaches of international human rights would be tortious, e.g. torture could be trespass to the person, etc. Civil proceedings may be served on a person who is physically present within the jurisdiction, even if only temporarily. Proceedings may also be served outside the jurisdiction with the permission of the court. This will be usually be granted for defendants resident in the lex loci solutionis (the Latin tag for "the law of the place of performance whether in contract or tort), the lex situs (the Latin tag for "the law of the place where the property is located") or the proper law state.

United States

Natural and legal persons

Because the U.S. courts do not subscribe to the doctrine of universal jurisdiction, the relevant international law must have been incorporated directly into U.S. criminal law through Congressional legislation. Congress has enacted statutes covering genocide, war crimes, torture, piracy, slavery, and trafficking in women and children to meet the U.S. obligations under international agreements. If a criminal act is commenced in one U.S. state, but the defendant has fled, the first state must seek extradition and return for trial.

Legal person's liability in tort

Although U.S. federal courts do not apply the doctrine of universal jurisdiction, Joel & Dolly M. E. Filártiga v Américo Norberto Peña-Irala 630 F.2d 876 (2d Cir., June 30 1980), interpreted the Alien Tort Statute, 28 U.S.C., which provides:

The district courts shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States.

The Filartiga ruling allows a range of tort claims for alleged breaches of the "law of nations". Companies may also be liable for the illegal exploitation of resources abroad under the National Stolen Properties Act and the Racketeering Influenced Corrupt Organizations Act (RICO), and the courts have allowed claims for forced labour and personal injuries when employed as a slave labourer, and claims by citizens of "foreign" countries for injuries inflicted by security forces employed by a subsidiary of U.S. corporations. U.S. courts have in personam (the Latin tag for "personal jurisdiction") over a corporation if:

  1. the corporation is organized in a US state jurisdiction;
  2. the corporation is doing business in a jurisdiction;
  3. the corporation has consented to be sued; or
  4. the corporation appears in court to defend the action without specifying that the purpose of the appearance is a special appearance.

In personam jurisdiction over a corporation may be "general", i.e. a suit may be brought for any cause of action over which the forum court has subject matter jurisdiction and is a proper venue; or "specific", i.e. the suit may address only those activities which gave rise to the cause of action. Even if the jurisdiction and venue are proper, a federal court has a discretion to dismiss the suit under the act of state doctrine or one of its related doctrines, such as comity or political question.

Canada

Natural persons

In Canada, the Crimes Against Humanity and War Crimes Act, S.C. 2000 (CAHW) has incorporated the following as domestic crimes: genocide, crimes against humanity, war crimes, breach of responsibility by a military commander or a superior (usually a civilian superior), offences against the administration of justice of the International Criminal Court, and possession or laundering of proceeds derived from these crimes. Normally, criminal jurisdiction is exclusively territorial, but CAHW invokes universal jurisdiction as defined in customary international law.

Legal persons

Companies are not expressly included or excluded from prosecution for international crimes under CAHW. but all the standard remedies in tort are available against corporations for activities committed outside the jurisdiction. For civil jurisdiction, the court requires a "real and substantial connection" with the subject matter of the case (i.e. the forum conveniens rule).

France

Natural persons

The new Criminal Code includes a series of provisions describing crimes against humanity in considerable detail, including genocide and aggravated war crimes. A limited number of international crimes have equivalents in French domestic law, e.g. forced labour is the equivalent of illegal confinement. Extraterritorial jurisdiction is based on a connection with France through:

  • the nationality of the perpetrator (active personality jurisdiction) of the crime or the victim (passive personality jurisdiction);
  • the events constituting the crime represent a connected series of acts or an indivisible act occurring both in France and another state, or where there were acts of complicity in France for a crime committed abroad, if the acts are criminal under all relevant systems of law; or
  • the concept of universality where French public policy interests are affected.

Legal persons

In French law, a civil action can be brought jointly with a penal action before a criminal court. Corporate liability is covered in Articles 121/2 of the new Criminal Code which provide that legal persons will be liable in the cases identified by the Legislature and Article 213-3 provides that legal persons may incur criminal liability for all crimes against humanity.

Norway

Natural persons

Norwegian municipal law incorporates specific areas of international law, but there must be a matching penal provision in the domestic criminal law as a precondition to enforcement. Norway is a signatory to the International Criminal Court which has complementary jurisdiction to municipal criminal courts, albeit that the local courts have precedence to prosecute the crimes of genocide, crimes against humanity, war crimes and the crime of aggression. Norway prosecutes international crimes using domestic penal law, e.g. genocide can be treated as homicide, torture as an offence against the person, etc. Norwegian criminal law is applicable to acts committed abroad by any Norwegian national or any person domiciled in Norway when the act is a felony under the law of the country in which it is committed. There is a general discretion to decline a prosecution which occurred in a case brought against the Israeli Prime Minister.

Legal persons

If a business entity domiciled in Norway is involved in unlawful activity committed outside the jurisdiction, both civil and criminal actions are available subject to the rule of "double actionability", i.e. the activity must have been unlawful under the laws of both Norway and the country of commission. The Norwegian Code of Compensation allows actions for damages for the loss and damage arising from the breach of international law. Civil jurisdiction is based on residence or temporary personal presence for natural persons and the place where the board of directors has its seat. Non-nationals can be sued in Norway if any business activity occurs in Norway. The court must be conveniens, i.e. objectively competent in a local and functional way and, in some cases, this requires the defendant's consent.

See also

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