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Coordinating concurrent legal orders in the prosecution of international crimes
Published online by Cambridge University Press: 28 June 2013
Abstract
International criminal law provides a particularly interesting case study for the proliferation of legal orders as it helps to understand the types of uncertainties their interaction may entail with respect to the position of the individual as well as the solutions that may be adopted in that respect. This article analyses a selected number of substantive and procedural uncertainties that originate in the relationship between international criminal law and domestic legal orders. The purpose of the discussion is to identify the particular legal devices that have been elaborated in order to ensure the coordination between these legal orders, and to suggest areas in which a better coordination is still to be achieved.
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References
1 IMT, Nuremberg Judgment (1947) 41 American Journal of International Law 172, 221.
2 ‘[I]nternational law may impose duties on individuals directly without any interposition of internal law’ (1950) vol II Yearbook of the International Law Commission 374.
3 ‘[I]nternational law applies to crimes against the peace and security of mankind irrespective of the existence of any corresponding national law. The result is the autonomy of international law in the criminal characterization of the types of behaviour which constitute crimes against the peace and security of mankind under part two’, (1996) vol II(2) Yearbook of the International Law Commission 18, para 9.
4 For the sake of simplicity, only crimes provided for under the Rome Statute of the International Criminal Court will be taken into account, namely, aggression, genocide, crimes against humanity and war crimes.
5 See the Commentary on art 8 of the 1996 ILC Draft Code of Crimes against the Peace and Security of Mankind, (1996) vol II(2) Yearbook of the International Law Commission 28, paras 4–5.
6 See in particular the preamble of the International Criminal Court Statute, clauses 4 and 5. The same goal underlies the provisions of the 1948 Genocide Convention, the 1949 Geneva Conventions, the 1984 Torture Convention, the 1996 ILC Draft Code of Crimes against the Peace and Security of Mankind, and the 2010 Proposed International Convention on the Prevention and Punishment of Crimes against Humanity, available at <http://law.wustl.edu/harris/cah/docs/EnglishTreatyFinal.pdf> accessed 27 January 2012.
7 See in general Cassese, A, International Criminal Law (Oxford University Press, Oxford, 2008) 13 ffGoogle Scholar. See below notes 49–53 and accompanying text.
8 Compare, for instance, the very general obligations embodied in arts 4 to 6 of the 1948 Genocide Convention with the more precise obligations provided in arts 4 to 7 of the 1984 Torture Convention. See in this respect Orentlicher, DF, ‘Settling Accounts: The Duty to Prosecute Human Rights Violations of a Prior Regime’ (1991) 100 The Yale Law Journal 2537, 2562–7.Google Scholar
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10 According to van der Wilt, H, ‘Equal Standards? On the Dialectics between Domestic Jurisdictions and the International Criminal Court’ (2008) 8 International Criminal Law Review 229–72Google Scholar, states parties to the Rome Statute are not obliged ‘to meticulously follow and apply the standards which have been crystallized in the Statute and have been developed in the case law of the international criminal tribunals’. A certain degree of diversity in the application of international criminal law is even desirable. However, this conclusion seems limited to gaps in treaty law (240) or still undefined rules of international criminal law (245), that is, the margin of appreciation of domestic courts seems confined to sectors in which international criminal law does not yet provide clear guidance. See also Ferdinandusse, W, ‘The Prosecution of Grave Breaches in National Courts’ (2009) 7 Journal of International Criminal Justice 723, 729.Google Scholar
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12 Bonafé, BI, ‘International Law in Domestic and Supranational Settings’ in d’Aspremont, J and Kammerhofer, J (eds), International Legal Positivism in a Post-Modern World (Cambridge University Press, Cambridge, 2013) (forthcoming).Google Scholar
13 Ibid.
14 See in particular Michaels, R, ‘Global Legal Pluralism’, (2009) 5 Annual Review of Law and Social Science 243–62Google Scholar; Teubner, G, ‘Global Bukowina: Legal Pluralism in the World Society’ in Teubner, G (ed), Global Law without a State (Aldershot, Dartmouth, 1997) 3–28Google Scholar; Berman, PS, ‘Global Legal Pluralism’ (2007) 80 Southern California Law Review 1155–1238Google Scholar. Global legal positivism is discussed in detail in Bonafé (n 12).
15 Nollkaemper, A, National Courts and the International Rule of Law (Oxford University Press, Oxford, 2011) 299–300.Google Scholar
16 Therefore, it will not deal with the uncertainties that may arise inside a given legal system, whether it be a domestic legal order or international law. An example of the latter is provided below at notes 30 and 31.
17 There may be similar uncertainties in the application at the domestic level of the modes of liability and defences provided under international criminal law. See, for example, below notes 30 and 31 and accompanying text.
18 House of Lords, R v Jones and Others, Judgment of 29 March 2006, (2006) UKHL 16, Lord Bingham of Cornhill, para 19. See also Lord Hoffmann, ibid, para 59.
19 Lord Bingham of Cornhill, ibid, para 28.
20 Lord Hoffmann, ibid, para 60.
21 Lord Bingham of Cornhill, ibid, para 30; Lord Hoffmann, ibid, paras 63–67. See the definition of the crime of aggression adopted in 2010 at the Kampala Review Conference (RC/Res.6) and introducing art 8 bis in the ICC Statute.
22 See (1996) vol. II(2) Yearbook of the International Law Commission 27.
23 Ibid 30.
24 1999 AUST FEDCT LEXIS 584, 14.
25 Ibid 26.
26 Special Tribunal for Lebanon, Appeals Chamber, Interlocutory Decision on the Applicable Law: Terrorism, Conspiracy, Homicide, Perpetration, Cumulative Charging, 16 February 2011, para 76, available at <http://www.stl-tsl.org/en/the-cases/stl-11-01/rule-176bis/filings/orders-and-decisions/appeals-chamber/f0010> accessed 22 May 2013.
27 Cassese, A, International Criminal Law (Oxford University Press, Oxford, 2003) 141Google Scholar. A different question is whether it may be said that a principle of legality today exists under international law and what its precise scope of application may be. See in general Gallant, KS, The Principle of Legality in International and Comparative Criminal Law (Cambridge University Press, Cambridge, 2009).Google Scholar
28 See the Application by Belgium instituting proceedings before the International Court of Justice in the case concerning Questions Relating to the Obligation to Prosecute or Extradite (Belgium v Senegal), 16 February 2009, available at <http://www.icj-cij.org/docket/index.php?p1=3&p2=3&k=5e&case=144&code=bs&p3=0> accessed 27 January 2012.
29 ECOWAS Court, Hissène Habré v Senegal, 18 November 2010, available at <http://www.hrw.org/fr/news/2010/11/18/arr-t-cedeaoecowas-ruling-hissein-habr-c-r-publique-du-s-n-gal> accessed 27 January 2012.
30 Joint criminal enterprise is a collective mode of liability according to which all participants in a common criminal action are equally responsible. Under the expanded form of joint criminal enterprise (JCE III), the accused can be held accountable for crimes committed by the participants in the JCE that were not part of the original common criminal design, provided that 1) the perpetration of such crimes was foreseeable, and 2) the accused willingly took that risk. See ICTY, Prosecutor v Tadić, Appeals Judgment, 15 July 1999, para 228. It must be recalled that a partially different notion of joint criminal enterprise in embodied in the ICC Statute (art 25(3)d). See in particular Prosecutor v Lubanga, Decision on the Confirmation of Charges, ICC-01/04-01/06-803, P-TC I, 29 January 2007, paras 316–339; and Prosecutor v Katanga, Decision on the Confirmation of Charges, ICC-01/04-01/07, P-TC I, 30 September 2008, paras 480–486.
31 ‘The Pre-Trial Chamber has not been able to identify in the Cambodian law, applicable at the relevant time, any provision that could have given notice to the Charged Persons that such extended form of responsibility was punishable as well. In such circumstances, the principle of legality requires the ECCC to refrain from relying on the extended form of JCE in its proceedings’ (ECCC, Decision on the Appeals against the Co-Investigating Judges Order on Joint Criminal Enterprise (JCE), 20 May 2010, para 87, available at <http://www.eccc.gov.kh/en/documents/court/decision-appeals-against-co-investigating-judges-order-joint-criminal-enterprise-jce> accessed 27 January 2012). Needless to say this approach differs from that of the ICTY put forward in Tadić (n 30) and upheld in the subsequent case law of the Tribunal.
32 Spanish Audencia Nacional, Sentencia por los crímenes contra la humanidad en el caso Adolfo Scilingo, 19 April 2005, para IIIB1, available at <http://www.derechos.org/nizkor/espana/juicioral/doc/sentencia.html> accessed 27 January 2012.
33 Ibid.
34 See (n 26) para 133.
35 ECtHR, Kononov v Latvia, Judgment of 17 May 2010, App No 36376/04. See also Kolk and Kislyiy v Estonia, Decision on Admissibility of 17 January 2006, App No 23052/04; Jorgić v Germany, Judgment of 12 July 2007, App No 74613/01; Korbely v Hungary, Grand Chamber, Judgment of 19 September 2008, App No 9174/02.
36 ECtHR, Kononov v Latvia (n 35) para 237. At para 238, the Court further considered ‘that, having regard to the flagrantly unlawful nature of the ill-treatment and killing of the nine villagers in the established circumstances of the operation on 27 May 1944 (paras 15–20 above), even the most cursory reflection by the applicant, would have indicated that, at the very least, the impugned acts risked being counter to the laws and customs of war as understood at that time and, notably, risked constituting war crimes for which, as commander, he could be held individually and criminally accountable’.
37 See French Court of Cassation (criminal chamber), Barbie, 26 January 1984, (1998) 78 ILR 125.
38 See, for example, Belgium, Tribunal of First Instance, In Re Pinochet, 6 November 1998. See also Supreme Court of Canada, Finta, 24 March 1994, where Justice Cory held that ‘customary international law [could] form a basis for the prosecution of war criminals who have violated general principles of law recognized by the community of nations regardless of when or where the criminal act or omission took place’.
39 See the reports on Yearbook of International Humanitarian Law 1998, 1999, 2000.
40 See below note 51 and accompanying text.
41 See Klamberg, M, ‘International Criminal Law in Swedish Courts: The Principle of Legality in the Arklöv Case’ (2009) 9 International Criminal Law Review 395–409.Google Scholar
42 See e.g. arts 49/50/129/146 of the Four Geneva Conventions: ‘The High Contracting Parties undertake to enact any legislation necessary to provide effective penal sanctions for persons committing, or ordering to be committed, any of the grave breaches of the present Convention defined in the following Article. Each High Contracting Party shall be under the obligation to search for persons alleged to have committed, or to have ordered to be committed, such grave breaches, and shall bring such persons, regardless of their nationality, before its own courts. It may also, if it prefers, and in accordance with the provisions of its own legislation, hand such persons over for trial to another High Contracting Party concerned, provided such High Contracting Party has made out a prima facie case.’ In a recent case the ICJ has established that Senegal has breached the duty to prosecute enshrined in the 1984 Torture Convention (Case Concerning Questions Relating to the Obligation to Prosecute or Extradite (Belgium v Senegal), judgment of 20 July 2012 available at <http://www.icj-cij.org/docket/files/144/17065.pdf> accessed 11 September 2012).
43 ICTR, Prosecutor v Bagaragaza, Amicus Curiae Brief filed by the Kingdom of Norway, 26 June 2006.
44 ICTR, Prosecutor v Bagaragaza, Decision on the Prosecution Motion for Referral to the Kingdom of Norway, 19 May 2006, para 16. The Appeals Chamber upheld the decision on 30 August 2006. Similarly, a referral to the Netherlands of the same case was revoked by the Appeals Chamber because the Dutch judge had no jurisdiction over the crime of genocide (Prosecutor v Bagaragaza, Decision on Prosecutor’s Extremely Urgent Motion for Revocation of the Referral to the Kingdom of the Netherlands Pursuant to Rule 11 bis (F) and (G), 17 August 2007, para 11).
45 Ibid. In this case, the different qualification of the underlying criminal conduct led to a dismissal of the request for the referral to the Kingdom of Norway. The ICC adopted a similar approach in Prosecutor v Kony et al., and declared the case admissible because of the absence of an adequate legislative framework which would have allowed prosecution before the domestic courts of Uganda (Decision on the Admissibility of the Case under Article 19(1) of the Statute, Pre-Trial Chamber, 10 March 2009, especially para 48).
46 See Ferdinandusse (n 10) 730.
47 See art 281 Ethiopian Criminal Code. Expanded definitions of the crime of genocide can also be found in the legislation (see e.g. art 61 of the Estonian Criminal Code) and case law (see e.g. the Scilingo case (n 32) para 3.2) of other States.
48 For a similar case, see The Hague District Court, Jalalzoy, 14 October 2005. The Court held that ‘the fact that the Netherlands has opted for applying criminal law when it concerns settlement of the less serious violations of the provisions included in four Geneva Conventions of 12 August 1949 is not in conflict with the law of nations, in view of the order given to the states on the one hand to act against it and on the other hand the freedom given to the states in that respect’.
49 Supreme Court of Canada, Baker v Canada, 9 July 1999.
50 Supreme Court of Canada, Mugesera v Canada, 28 June 2005, para 126: ‘These tribunals have generated a unique body of authority which cogently reviews the sources, evolution and application of customary international law. Though the decisions of the ICTY and the ICTR are not binding upon this Court, the expertise of these tribunals and the authority in respect of customary international law with which they are vested suggest that their findings should not be disregarded lightly by Canadian courts applying domestic legislative provisions, such as ss. 7(3.76) and 7(3.77) of the Criminal Code, which expressly incorporate customary international law. Therefore, to the extent that Finta is in need of clarification and does not accord with the jurisprudence of the ICTY and the ICTR, it warrants reconsideration.’
51 Supreme Military Court of Switzerland, Nyionteze, 27 April 2001, para 9(d): ‘le TPIR a adopté une conception qui ne semble pas particulièrement restrictive … il convient donc de reprendre ces critères et de les interpreter en fonction de la situation concrète de l’accusé. C’est maladroitement que le Tribunal d’appel a affirmé s’écarter de l’actuelle jurisprudence du TPIR dès lors que, ce nonobstant, il a en definitive appliqué au cas particulier des critères correspondant à ceux que l’on vient d’exposer. Il n’y a donc pas lieu d’analyser de façon plus approfondie cette prétendue divergence dans l’interprétation des normes du droit international humanitaire.’ Translation: ‘the ICTR has adopted a view that does not appear to be too restrictive … In this specific case, it is sufficient therefore to recall the criteria and interpret them in accordance with the defendant’s actual circumstances. The Court of Appeal clumsily decided to depart from the current case law of the ICTR.Notwithstanding this, in final instance it applied to this particular case the same criterion as that which has just been set out. Therefore there is no reason to analyse in more detail this supposed divergence in the interpretation of standards of international humanitarian law’. [ILDC 349 (CH 2001)]
52 See in particular Military Tribunal of Ituri, Bongi Massaba, 24 March 2006, ILDC 387 (CD 2006) and Kahwa Panga Mandro, 2 August 2006, ILDC 524 (CD 2006). For an analysis of the prosecution of international crimes in the DRC, see A Trapani, ‘Complementarity in the Congo: The Direct Application of the Rome Statute in the Military Courts of the DRC’, Report DOMAC/12, November 2011, available at <http://www.domac.is/media/domac-skjol/Domac-12-Trapani.pdf> accessed 27 January 2012.
53 On the adoption of the French law n. 2010-930 of 9 August 2010, see Ascenscio, H, ‘Une entrée mesurée dans la modernité du droit international pénal’ (2010) La semaine juridique 1691–8.Google Scholar
54 See (n 26) para 41.
55 Ibid, para 40.
56 This decision also seems ambiguous in another respect. It is not clear whether the duty of consistent interpretation only applies to international courts, or whether it is also binding on domestic courts. See idem, where the Tribunal considers that ‘application of nation law by an international court is subject to some limitations by international law’ (emphasis added), or para 125 where the Tribunal sets out the most congruous construction of art 314 and adds ‘at least when Article 314 is applied by the Tribunal’ (emphasis added).
57 See (n 28) and accompanying text.
58 African Union, Decision of 2 August 2006, Doc Assembly/AU/3(VII).
59 See in general Cassese (n 27) 277 ff.
60 See in particular ’Keefe, R O, ‘Universal Jurisdiction: Clarifying the Basic Concept’ (2004) 2 Journal of International Criminal Justice 735Google Scholar; and Henzelin, M, Le principe de l’universalité en droit pénal international (Helbing & Lichtenhahn, Bâle, 2001).Google Scholar
61 It is generally acknowledged that the adoption of the Rome Statute, despite the absence of any specific obligation requiring the States Parties to adopt domestic legislation criminalizing and ensuring the prosecution of the suspects at the domestic level, had the indirect effect of stimulating States to enact the necessary legislation to that end.
62 For example, the procedure under Rule 11 bis of the ICTY and ICTR Rules of Procedure and Evidence gives the ad hoc tribunals the power to transfer cases to domestic authorities. By transferring accused persons charged with less serious crimes to domestic jurisdictions, the ad hoc tribunals can concentrate on the most serious cases. But the transfer requires the state to have an appropriate legislation on the prosecution of international crimes. See above notes 51 and 42 and accompanying text.
63 See art 9 ICTY Statute and art 8 ICTR Statute.
64 See arts 1 and 17 ICC Statute. See in general Stahn, C and El Zeidy, MM (eds), The International Criminal Court and Complementarity: From Theory to Practice (Cambridge University Press, Cambridge, 2011).Google Scholar
65 The European Court of Human Rights has repeatedly emphasized that the protection of human rights provided by the European Convention is subsidiary to the protection afforded by national legal systems. See e.g. Grand Chamber, Markovic v Italy, 14 December 2006, App No 1398/03, para 109.
66 See Cassese (n 27) 353.
67 See respectively art 1 of the London Charter and art 1 of Control Council Law No 10.
68 See in particular Report on the Judicial Status of the International Criminal Tribunal for the Former Yugoslavia and the Prospects for Referring Certain Cases to National Courts, June 2002, annexed to UN Doc. S/2002/678. The subsequent completion strategy reports are available at <http://www.icty.org/tabs/14/2> accessed 11 September 2012.
69 UN Doc. E/CN.4/1996/7, 28 June 1995. The subsequent completion strategy reports are available at <http://www.unictr.org/AboutICTR/ICTRCompletionStrategy/tabid/118/Default.aspx> accessed 11 September 2012.
70 ICC, Paper on some policy issues before the Office of the Prosecutor (ICC Policy Paper), September 2003.
71 According to the ICC: ‘the complementarity principle, as enshrined in the Statute, strikes a balance between safeguarding the primacy of domestic proceedings vis-à-vis the International Criminal Court on the one hand, and the goal of the Rome Statute to “put an end to impunity”’ (Prosecutor v Katanga, ICC-01/04-01/07 OA 8, Appeals Chamber, Judgment on the Appeal of Mr Germain Katanga against the Oral Decision of Trial Chamber II of 12 June 2009 on the Admissibility of the Case, 25 September 2009, para 85). This complementarity, clearly stated in the Statutes of international courts and tribunals, is also recognized in the case law of domestic courts: ‘The underlying assumption is that the crimes are offences against the law of nations or against humanity and that the prosecuting nation is acting for all nations’ (US Court of Appeals, Sixth Circuit, Demjanjuk v Petrovsky, 31 October 1985, 776 F.2d 571 (6th Cir. 1985)).
72 See in particular Burke-White, WW, ‘Proactive Complementarity: The International Criminal Court and National Courts in the Rome System of International Justice’ (2008) 49 Harvard International Law Journal 53Google Scholar; WW Burke-White, ‘Reframing Positive Complementarity: Reflections on the First Decade and Insights from the US Federal Criminal Justice System’ in C Stahn and MM El Zeidy, (n 64) 341.
73 The ICTY had the occasion to appreciate the improvements in Bosnia, Croatia and Serbia. The relevant case law concerning the transfer of cases is available at <http://www.icty.org/sid/8934> accessed 11 September 2012. The ICTR has recently accepted that accused could be transferred for trial to the courts of Rwanda thanks to the improvements in substantive law and procedural guarantees. See in particular Prosecutor v Uwinkindi, Decision on Rule 11 bis, Trial Chamber, 28 June 2011, upheld by the Appeals Chamber 16 December 2011.
74 See among others Prosecutor v Kony et al., Admissibility Decision, Pre-Trial Chamber, 10 March 2009, and Appeals Chamber Decision, 16 September 2009; Prosecutor v Katanga, Admissibility Decision, Trial Chamber, 12 June 2009, and Appeals Chamber Decision, 25 September 2009; Prosecutor v Ruto et al., Admissibility Decision, Pre-Trial Chamber, 30 May 2011, and Appeals Chamber Decision, 30 August 2011. See in particular C Ryngaert, ‘The Principle of Complementarity: A Means of Ensuring Effective International Criminal Justice’ in Ryngaert, C (ed), The Effectiveness of International Criminal Justice (Intersentia, Antwerp, 2009) 145.Google Scholar
75 For example, Libya requested the ICC to declare the case concerning Gaddafi and Al-Senussi inadmissible on the ground that its national judicial system is investigating the crimes committed from 15 February 2011 until the liberation of Libya, Application on Behalf of the Government of Libya Pursuant to Article 19 of the ICC Statute, 1 May 2012.
76 See the proposal for the establishment of an international criminal law section at the African Union level, Draft Protocol on Amendments to the Protocol on the Statute of the African Court of Justice and Human Rights, adopted on 15 May 2012, available at <www.africa-union.org> accessed 11 September 2012.
77 According to the ICTY, in international law there is no established priority in favour of the State in whose territory the crime was committed (Prosecutor v Mejakić, Decision on Prosecutor’s motion for referral of case pursuant to Rule 11 bis, Trial Chamber, 20 July 2005, para 41) or in favour of the State of nationality of the accused (Prosecutor v Ljubičić, Decision to refer the case to Bosnia and Herzegovina pursuant to Rule 11 bis, Trial Chamber, 12 April 2006, para 28).
78 See in particular Shany, Y, Regulating Jurisdictional Relations between National and International Courts (Oxford University Press, Oxford, 2007) 159–63.Google Scholar
79 Institut de droit international, Resolution on ‘Universal criminal jurisdiction with regard to the crime of genocide, crimes against humanity and war crimes’, Krakow Session, 2005, paras 3(c) and 3(d).
80 Spain, Constitutional Court, Guatemala Generals, 26 September 2005, 20: ‘Since the prosecution of such atrocious crimes is a common interest (at least on the level of principles) of all States because of their effect on the International Community, a reasonable and basic political-criminal process must grant priority to the jurisdiction of the State where the crime took place’. See in this respect H Ascensio, ‘The Spanish Constitutional Tribunal’s Decision in Guatemala Generals’ (2006) 4 Journal of International Criminal Justice 586. See also the Scilingo case (n 19).
81 See Geneuss, J, ‘Interplay of National and International Jurisdictions: The German Code of Crimes against International Law’ in Burchard, C, Triffterer, O and Vogel, J (eds), The Review Conference and the Future of the International Criminal Court (Kluwer Law International, Alphen aan den Rijn, 2010) 263–75.Google Scholar
82 The AU-EU Expert Report on the Principle of Universal Jurisdiction, 16 April 2009, 42.
83 When there is a plurality of States available for transfer, the ICTY has relied on the criterion of the ‘closer nexus’ with the crime taking into account, among other factors, the location of the crime, and the nationality of the accused and of the victims. See e.g. Prosecutor v Rašević and Todović, Decision on Referral of Case under Rule 11 bis, Trial Chamber, 8 July 2005, para 32; Prosecutor v Janković, Decision on Referral of Case under Rule 11 bis, Trial Chamber, 22 July 2005, para 26.
84 See van der Wilt, H, ‘Universal Jurisdiction under Attack: An Assessment of African Misgivings towards International Criminal Justice as Administered by Western States’ (2011) 9 Journal of International Criminal Justice 1043, 1051.Google Scholar
85 See in particular Ratner, SR, ‘Belgium’s War Crimes Statute: A Postmortem’ (2003) 97 American Journal of International Law 888.Google Scholar
86 On the rule on functional immunity and its relation to the prohibition of international crimes, see more extensively Bonafé, BI, ‘Imputazione all’individuo di crimini internazionali e immunità dell’organo’ (2004) 87 Rivista di diritto internazionale 393.Google Scholar
87 For two recent cases see Italian Court of Cassation, Lozano, 24 July 2008, no 31171, (2008) 91 Rivista di diritto internazionale 1223; French Court of Cassation, Joola, 19 January 2010.
88 Institut de droit international, Resolution on ‘the Immunity from Jurisdiction of the State and of Persons Who Act on Behalf of the State in Case of International Crimes’, Naples Session, 2009, art III(1).
89 ICJ, Case Concerning the Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v Belgium), Judgment of 14 February 2002, ICJ Reports 2002, para 61.
90 Another distinction to be kept in mind is that between jurisdiction and immunity. Jurisdiction is preliminary: under municipal law a domestic court must have the power to exercise jurisdiction over international crimes. Assuming that a certain court is competent, it is nonetheless prevented from exercising jurisdiction if immunity (that is, a procedural bar to prosecution) applies.
91 ICJ, Case Concerning the Arrest Warrant (n 89) para 60.
92 The expression is borrowed from Cannizzaro, E, ‘A Higher Law for Treaties?’ in Cannizzaro, E (ed), The Law of Treaties beyond the Vienna Convention (Oxford University Press, Oxford, 2011) 425–41Google Scholar, examining the various conflicts between treaties and jus cogens rules
93 For a more detailed discussion of similar cases, see Cannizzaro, E and Bonafé, BI, ‘Of Rights and Remedies: Sovereign Immunity and Fundamental Human Rights’ in From Bilateralism to Community Interest: Essays in Honour of Bruno Simma (Oxford University Press, Oxford, 2012) 825–42.Google Scholar
94 See Ferdinandusse, WN, Direct Application of International Criminal Law in National Courts (TMC Asser Press, The Hague, 2006) 91 ff.Google Scholar
95 A neo-monist approach has been elaborated by Cannizzaro, E, ‘The Neo-Monism of the European Legal Order’ in Cannizzaro, E, Palchetti, P and Wessel, RA (eds), International Law as Law of the European Union (Martinus Nijhoff, Leiden, 2012)Google Scholar. See, more generally, Cannizzaro, E, Diritto internazionale (Giappichelli, Torino, 2012) 492–6.Google Scholar
96 The traditional mechanism of renvoi or of direct effect is different because it has its legal foundation on a specific provision of the forum.
97 But one may suggest a similar functioning of the margin of appreciation or of the equivalent protection doctrines.
98 See the Editorial in the first edition of Global Constitutionalism, Wiener, A, Lang, AF, Tully, J, Poiares Maduro, M and Kumm, M, ‘Global Constitutionalism: Human Rights, Democracy and the Rule of Law’ (2012) 1 Global Constitutionalism 1.Google Scholar