The territorial jurisdiction of the International Criminal Court M. Vagias

There are many variables of territoriality available to national courts under contemporary international law. Does the same apply to the International Criminal Court? And if so, what are the limits to the teleological expansion of the Court's territorial jurisdiction as regards, for example, partial commission of a crime in State not Party territory, crimes committed over the internet or crimes committed in occupied territories? Michael Vagias's analysis of the law and procedure surrounding the territorial jurisdiction of the Court examines issues such as the application of localisation theories of territoriality and the means of interpretation for article 12(2)(a); the principle of legality (nullum crimen sine lege) and human rights law for the interpretation of jurisdictional provisions; compétence de la compétence; crimes committed over the internet; and the procedure for jurisdictional objections. Cover Half title Title Copyright Contents Foreword Acknowledgements Table of Cases Table of treaties and selected other instruments List of selected acronyms and abbreviations 1 Introduction 1.1 Objective 1.2 Structure and approach 2 Definitions and State territorial jurisdiction 2.1 Introduction 2.2 The territorial jurisdiction of the International Criminal Court 2.3 The Lotus Case: territorial jurisdiction in international law 2.4 Territoriality and territorial fictions 2.4.1 Subjective territoriality 2.4.2 Objective territoriality/ubiquity 2.4.2.1 Scope; defining constituent elements; intent, modes of participation, attempt and preparatory acts 2.4.2.2 Ubiquity 2.4.2.3 The effects doctrine 2.5 Jurisdictional rule of reason in international law and the International Criminal Court 3 The preparatory works of Article 12(2)(a) 3.1 Purpose of the chapter; sources; caveats; structure 3.2 The International Law Commission’s work on the Statute of an International Criminal Court; territorial jurisdiction 3.3 The Ad Hoc Committee (1995) and the Preparatory Committee (1996-1998) 3.4 Negotiations at the Rome Conference 3.5 Conclusions 4 Instruments of interpretation of the Rome Statute and Article 12(2)(a) 4.1 Introduction 4.2 Interpretation of the Rome Statute in accordance with the Vienna Convention on the Law of Treaties; contextual and teleological interpretation 4.3 Interpretation of the Rome Statute in accordance with the Statute’s rules of interpretation 4.3.1 Interpretation of Article12(2)(a) of the Rome Statute in accordance with Article21(3) 4.3.2 Interpretation of Article12(2)(a) of the Rome Statute in accordance with the principle of legality 4.4 Interpretation of the Rome Statute in accordance with the legal nature of the provision 4.5 Conclusion 5 ‘The conduct in question’ 5.1 Introduction 5.1.1 The problem: post-Rome negotiations in the 2008-2009 Aggression Working Group 5.1.2 The doctrinal conditions 5.1.2.1 State territory as connecting link 5.1.2.2 The inherent power of the Court to decide on its jurisdiction (compétence de la compétence/kompetenz kompetenz) 5.1.2.3 Interpretation of ICC jurisdiction, delegation of authority and limitations 5.1.2.4 The usefulness of international law rules 5.1.2.5 The usefulness of national law 5.2 ‘Conduct in question’ as conduct, including act or omission 5.3 ‘Conduct in question’ as ‘crimes in question’ 5.4 Interim conclusion 5.5 Localization of criminal activity 5.5.1 Delimiting the Court’s territorial jurisdiction on the basis of consequences or ubiquity and the application of rules and principles of international law 5.5.2 Delimiting the Court’s territorial jurisdiction on the basis of consequences or ubiquity and the application of general principles of law 5.5.3 Delimiting the Court’s territorial jurisdiction on the basis of consequences or ubiquity and the application of human rights rules 5.6 Localization of crimes committed over the internet 5.6.1 Cybercrimes and crimes committed through the internet as Rome Statute crimes 5.6.2 Searching for the minimum common denominator for the localization of online criminal activity 5.6.2.1 Treaty law: the 2001 Cybercrime Convention 5.6.2.2 EU instruments 5.6.2.3 National law 5.6.3 Conclusion 5.6.4 The territorial jurisdiction of the International Criminal Court over incitement to commit genocide through online activity 5.7 Conclusion 6 The effects doctrine 6.1 The problem and the structure of the argument: between policy and law 6.2 Should the Court adopt the effects doctrine of jurisdiction? The policy approach 6.3 Can the Court adopt the effects doctrine? The legal implications 6.3.1 Criminal jurisdiction: the form of liability 6.3.1.1 National legislation 6.3.1.2 The Nippon Case 6.3.1.3 Conclusion 6.3.2 Territorial jurisdiction 6.3.3 Over-regulation and jurisdictional conflicts 6.3.4 Pacta tertiis: violation of sovereignty of States not Parties 6.3.5 Practical aspects: collection of evidence 6.3.6 Delimiting effects: qualifications 6.3.7 Jurisdictional reasonableness and the ICC Statute: cases, situations and Mbarushimana 6.4 Effects, cases and situations 6.5 Conclusion 7 Belligerent occupation and ICC territorial jurisdiction 7.1 Introduction 7.2 The problem 7.3 Basic principles and rules 7.4 The application of Article12(2)(a) in State Party territories occupied by another State Party 7.5 The application of Article12(2)(a) in State Party territories occupied by a State not Party 7.6 The application of Article12(2)(a) in the territory of a State not Party occupied by a State Party 7.6.1 ‘[W]ithin the territory’ meaning ‘under their control’ in Article12(2)(a) Rome Statute? The effect of Article21(3) Rome Statute; The policy argument 7.6.2 ‘[W]ithin the territory’ meaning ‘under their control’ in Article12(2)(a) Rome Statute? The effect of Article21(3) Rome Statute; The legal argument 7.6.2.1 An example 7.6.2.2 The main issue 7.7 Conclusions 8 Challenges to the territorial jurisdiction of the Court 8.1 Challenges to the jurisdiction of the Court; definitions 8.2 Challenges to the jurisdiction of the Court; the general procedural framework 8.2.1 Standing to file a challenge to the Court’s jurisdiction and participate in the proceedings 8.2.2 The form of the challenge, page and time limits 8.2.2.1 The earliest opportunity/the identification of a case 8.2.2.2 The commencement of the trial 8.2.2.3 Scheduling orders 8.2.2.4 Page limits 8.2.3 Burden and standard of proof 8.2.4 Suspension of investigation 8.3 Challenges to the jurisdiction of the Court ratione loci 8.4 Procedural stages 8.4.1 Pre-Trial Chamber 8.4.2 Trial Chamber 8.4.3 Appeals Chamber 8.5 Concluding remarks 9 Concluding remarks Bibliography Index "There are many variables of territoriality available to national courts under contemporary international law. Does the same apply to the International Criminal Court? And if so, what are the limits to the teleological expansion of the Court's territorial jurisdiction as regards, for example, partial commission of a crime in State not Party territory, crimes committed over the internet or crimes committed in occupied territories? Michael Vagias's analysis of the law and procedure surrounding the territorial jurisdiction of the Court examines issues such as the application of localisation theories of territoriality and the means of interpretation for article 12(2)(a); the principle of legality (nullum crimen sine lege) and human rights law for the interpretation of jurisdictional provisions; compe;tence de la compe;tence; crimes committed over the internet; and the procedure for jurisdictional objections"-- Provided by publisher "There are many variables of territoriality available to national courts under contemporary international law. Does the same apply to the International Criminal Court? And if so, what are the limits to the teleological expansion of the Court's territorial jurisdiction as regards, for example, partial commission of a crime in State not Party territory, crimes committed over the internet or crimes committed in occupied territories? Michael Vagias's analysis of the law and procedure surrounding the territorial jurisdiction of the Court examines issues such as the application of localisation theories of territoriality and the means of interpretation for article 12(2)(a); the principle of legality (nullum crimen sine lege) and human rights law for the interpretation of jurisdictional provisions; compliance de la compliance; crimes committed over the internet; and the procedure for jurisdictional objections"-- Provided by publisher Michael Vagias analyses the International Criminal Court's territorial jurisdiction as regards, for example, partial commission of a crime in State not Party territory, crimes committed over the internet or crimes committed in occupied territories.