This chapter discusses the principles of jurisdiction as they relate to international crimes. International law tends to allow jurisdiction over international crimes on broader bases than it offers over other crimes. Therefore, this chapter must be read with the caveat that it is not intended to be a general discussion of the international law of jurisdiction.

We are at war with life. The Earth ecosystem, our common home, is being destroyed by industrial technologies which have led to massive pollution of all ecosystems, greenhouse effect, deforestation, impoverishment of the soil, overexploitation of fresh water, acidification of the ocean. We are now engaged in a sixth mass extinction. It is time to recognise the ongoing ecocide, the destruction of our common home, as a crime. It is also time to relearn to live in harmony with Nature, to recognise its intrinsic value and its right to exist, persist, maintain and regenerate its vital cycles, in all its life forms. The Rights of Nature allow us to protect the rights of future generations, human and non-human. This chapter presents various new initiatives and legal cases from around the world to that end.

Each state enjoys full sovereignty over its territory and therefore has, in principle, full jurisdiction over events and persons within its territory. The term “jurisdiction” is often associated with the power of a court to hear a case, but judicial or adjudicative jurisdiction is just one of three manifestations of jurisdiction. The exercise of jurisdiction is also manifested in the authority of states to prescribe rules (legislative or prescriptive jurisdiction) and the power of states to enforce rules (enforcement jurisdiction). Although the power of states to exercise jurisdiction follows from the principle of sovereignty, this power is not unlimited. Each state has to respect the personality and sovereign equality of other states, and overstepping this boundary entails a violation of public international law. This limitation is most pertinent when a state exercises jurisdiction outside its own territory, for example when it enforces domestic legislation outside of its territory or when it extends the application of its domestic laws to people, property, or events outside its own territory. This chapter discusses the scope of the jurisdiction of states when states exercise enforcement, prescriptive, and adjudicative jurisdiction in relation to persons, property, and acts outside their own territory.

Each state enjoys full sovereignty over its territory and therefore has, in principle, full jurisdiction over events and persons within its territory. The term “jurisdiction” is often associated with the power of a court to hear a case, but judicial or adjudicative jurisdiction is just one of three manifestations of jurisdiction. The exercise of jurisdiction is also manifested in the authority of states to prescribe rules (legislative or prescriptive jurisdiction) and the power of states to enforce rules (enforcement jurisdiction). Although the power of states to exercise jurisdiction follows from the principle of sovereignty, this power is not unlimited. Each state has to respect the personality and sovereign equality of other states, and overstepping this boundary entails a violation of public international law. This limitation is most pertinent when a state exercises jurisdiction outside its own territory, for example when it enforces domestic legislation outside of its territory or when it extends the application of its domestic laws to people, property, or events outside its own territory. This chapter discusses the scope of the jurisdiction of states when states exercise enforcement, prescriptive, and adjudicative jurisdiction in relation to persons, property, and acts outside their own territory.

Chapter Six explores the third and last constitutive stage of human dignity in international criminal law. Human dignity’s first manifestations coincide with the adoption and entry into force of the Hague Law (1899 and 1907) and the largely symbolic, in retrospect, Article 227 of the 1919 Treaty of Versailles, under which the German Kaiser was to be brought to justice, although that did not happen. In 1945, with the Nuremberg Statute, human dignity is unequivocally enshrined in legal form, both in the definition of international crimes, including ‘against humanity’, and in the necessary corollary of an international prosecution of such crimes. The institutional and legal criminal framework of the 1990s, however, provides a more solid basis for the consolidation of human dignity through international criminal law, vesting it with an actionable nature. Aside from the expansion of conflict-specific international tribunals, the conclusion in 1998 of the Rome Statute establishing a general International Criminal Court, defining both crimes and institutional processes for the prosecution, consolidates the incremental approach prevailing until them in international criminal law.

Chapter 8 puts previous chapters to work by defining war crimes – their required precursors and circumstances – asking the reader whether real-life scenarios are, or are not, war crimes. The import of grave breaches is illustrated, including the factual World War II murder of fifty prisoners of war by Nazis, the subject of the motion picture, The Great Escape. When can a mosque be fired on, if ever? Are suicide attacks violations of LOAC? Is hostage-taking ever lawful? What is pillage? And “double-tapping”? On the battlefield, may one feign death? What if an individual volunteers to be a human shield? Are human shields ever lawful? Real-world war crime cases and their outcomes are related. “Disciplinary” war crimes, seldom noted, are, here, as well. Continuing, universal jurisdiction for war crimes turns out to be less than universal, and civilians can commit war crimes just as combatants can. Rape and other gender crimes are covered, here, as well. Four war crime trial records are included in the chapter’s Cases and Materials.

Chapter 7 analyses a range of practical issues that the ICC can expect to encounter in prosecuting the crime of aggression, including implications for judicial elections and the staffing of the Court; the identification of the ‘victims’ of the crime for the purposes of victims’ participation and reparation; and how the obligation of States Parties to cooperate with the Court in the investigation and prosecution of Rome Statute crimes will work in relation to aggression. The chapter next considers the issues likely to arise in the context of domestic prosecutions, including the bases of criminal jurisdiction that may be relied upon, and challenges that will arise, including those relating to immunities, securing the presence of the accused and the necessary evidence, as well as the taint of victor’s justice and the risk associated with non-expert judges interpreting the definition of the crime of aggression. The chapter also canvasses the contemplated review of the amendments and suggests proposals for reform. Finally, the chapter concludes with an assessment of the geopolitical impact of the crime of aggression amendments.

This chapter describes the three purposes the book serves.The first is to introduce readers to certain core questions in the philosophy of law, by way of engagement with international legal skepticism.The book’s second aim is to acquaint readers with recent work by legal and political philosophers on conceptual and moral questions specific to particular domains of international law.These include the nature of human rights, and of a crime against humanity, as well as the moral justifiability of certain core features of the law of war, international trade law, and international law’s stance on unilateral secession.Finally, the book aims to advance the debate on many of the topics it discusses.Examples include novel readings of both H.L.A. Hart’s and Ronald Dworkin’s reflections on international law, as well as new arguments regarding the existence of an international rule of law, the possible bases of a moral duty to obey international law, and the moral grounds of universal jurisdiction over crimes against humanity.A brief chapter-by-chapter outline is also included.

This chapter explores philosophical contributions to international criminal law, focusing in particular on analyses of the concept of a crime against humanity and the justifiability of universal jurisdiction over those who commit such a crime.In what sense, if any, are crimes against humanity wrongs done to “humanity?”Does the label "crime against humanity" refer to a distinctive wrong committed by those who perform such acts?If not, what distinguishes crimes against humanity from other types of crime?The first half of this chapter critically examines several competing accounts of the concept of a crime against humanity and the answers they provide to these questions.The remainder of the chapter considers two approaches to justifying the international prosecution of crimes against humanity.The first grounds it in the dangers that such crimes pose to all human beings, while the second appeals to an (emerging) moral or political global community that makes perpetrators of crimes against humanity answerable to courts that act on behalf of all humanity.

Emil Stanisław Rappaport took part in the major international debates concerning criminalization of international crimes and at the same time he had an opportunity to introduce all discussed concepts in law of the reborn state. The first part of the chapter focuses on the early years of Rappaport’s academic career and the influence on him of the sociological school of criminal law. Rappaport’s work as a defence attorney and its impact on his further research on criminal enforcement law is discussed. The second part is devoted to Rappaport’s contribution to the development of a legal system and court system in the newly independent Republic of Poland (he considered the Codification Committee as a laboratory of modern legislation, a belief shared by the Association internationale de droit pénal). The third part presents Rappaport’s efforts in various international associations of criminal lawyers, and his work towards the unification of criminal laws worldwide and towards the establishment of the foundations of international criminal law. The final part discusses the period during and after World War II, when Rappaport had to face the challenges of bringing Nazi criminals to justice while dealing with the spread of Soviet influence across the Polish judiciary and academia.

Chapter 6 addresses an alternative theory to delegation of territorial jurisdiction and implied consent. It explores whether the principle of universality can provide a coherent legal basis for the ICC’s jurisdiction in various situations allowed by the Rome Statute. It takes two different approaches to the possibility that universality provides a foundation for the ICC’s authority over nationals of non-States Parties. First is the idea that States are delegating universal jurisdiction to the ICC, along with jurisdiction based on territoriality and nationality. The second approach is one that envisages universal jurisdiction as inherent to the international community and exercisable by the ICC as an agent of this community. Ultimately this chapter argues that the limitations of both the delegated and inherent universal jurisdiction theories mean that there is no advantage to conceiving of the legal basis for the ICC’s jurisdiction as predicated on universal jurisdiction.

This chapter examines the jurisprudential contributions of the Special Court for Sierra Leone on the treatment of the legality of blanket amnesties for crimes under international law and the key reasons the Special Court determined that domestic amnesties cannot apply to international crimes. The chapter argues that the Appeals Chamber reasoning on this complex legal issue could have been clearer. First, the Court’s decision to create a broad holding for a narrowly posed question was unnecessary. Second, it analyzes the confusing Appeal Chamber’s holding in support of the trial court’s determination that amnesties could not apply to international crimes. Third, the chapter questions the Appeals Chamber and its approach to the analysis of what constitutes universal jurisdiction and jus cogens crime under international law. Finally, it raises concerns that a blanket ban on all amnesties, even conditional ones that parts of popularly supported peace agreements, may impact the possibilities of securing peace and may even serve to prolong the continued commission of international crimes in complex conflict situations in Africa and around the world.

Chapter 5 addresses the potential role of domestic courts and mechanisms in the adjudication and award of reparations for international crimes. It draws from existing studies in the field and examines the role that domestic courts may have in adjudicating claims of reparations for international crimes. It analyzes these questions through case studies of domestic reparations for international crimes in Bosnia and Herzegovina where the international criminal tribunal did not have a reparative dimension. It also provides a unique contribution through a timely discussion of the development of universal civil jurisdiction, including the challenges, recent case law from different countries and the United States through the Alien Tort Claims Act (ATCA), as well as recent decisions by US courts limiting its jurisdictions on the ATCA. With this chapter, the book provides a careful survey and analysis of the intricacies of international, national, and administrative mechanisms that are being developed to address reparative justice for international crimes, their unique challenges and some suggestions on how reparative justice for international crimes should develop.

This chapter presents the dominant account of Alien Tort Statute litigation, which the remainder of the book challenges, providing at the same time some legal background necessary to understanding the book’s analysis. It outlines the development of human rights litigation under the statute, the law, and practice of such litigation, and the dominant terms of the scholarly and policy debate surrounding this form of litigation. It explains that the debate has pit human rights advocates seeking to promote international norms and human rights accountability beyond borders against conservatives seeking to avoid judicial interference in foreign policy. It highlights the assumptions and blind spots in that debate, in particular the striking indifference to the meaning of the litigation for the societies in which the litigated abuses occurred, at the same time as the United States itself has been viewed as disconnected from the litigated violence.