International law, Sixth edition
particularly offensive to the international community as a whole. There are
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International Law MALCOLM N. SHAW
particularly offensive to the international community as a whole. There are two categories that clearly belong to the sphere of universal jurisdiction, which has been defined as the competence of the state to prosecute alleged offenders and to punish them if convicted, irrespective of the place of commission of the crime and regardless of any link of active or passive nationality or other grounds of jurisdiction recognised by international law. 100 These are piracy 101 and war crimes. However, there are a growing number of other offences which by international treaty may be subject to the jurisdiction of contracting parties and which form a distinct category closely allied to the concept of universal jurisdiction. War crimes, crimes against peace and crimes against humanity In addition to piracy, war crimes are now accepted by most author- ities as subject to universal jurisdiction, though of course the issues 98 See e.g. the Hostages Convention, 1979; the aircraft hijacking conventions and the Safety of United Nations and Associated Personnel Convention, 1994: see below, pp. 676 ff. 99 See e.g. Akehurst, ‘Jurisdiction’, pp. 160–6; Bowett, ‘Jurisdiction’, pp. 11–14; Harvard Research, pp. 563–92; Jennings, ‘Extraterritorial Jurisdiction’, p. 156; Gilbert, ‘Crimes’, p. 423; K. C. Randall, ‘Universal Jurisdiction under International Law’, 66 Texas Law Re- view, 1988, p. 785; M. C. Bassiouni, Crimes Against Humanity in International Criminal Law, Dordrecht, 1992; L. Reydams, Universal Jurisdiction, Oxford, 2003; Redress Report on Legal Redress for Victims of International Crimes, March 2004; M. Inazumi, Universal Jurisdiction in Modern International Law for Prosecuting Serious Crimes under International Law, Antwerp, 2005; R. O’Keefe, ‘Universal Jurisdiction: Clarifying the Basic Concept’, 2 Journal of International Criminal Justice, 2004, p. 735; A. H. Butler, ‘The Doctrine of Universal Jurisdiction: A Review of the Literature,’ 11 Criminal Law Forum, 2001, p. 353; M. Henzelin, Le Principe de l’Universalit´e en Droit P´enal International, Brussels, 2000, and L. Benvenides, ‘The Universal Jurisdiction Principle: Nature and Scope’, 1 Annuario Mex- icano de Derecho Internacional, 2001, p. 58. See also the Princeton Principles on Universal Jurisdiction, Princeton, 2001 and the Cairo Arusha Principles on Universal Jurisdiction in Respect of Gross Human Rights Violations, Inazumi, Universal Jurisdiction, p. 5. Note also H. Kissinger, ‘The Pitfalls of Universal Jurisdiction’, Foreign Affairs, July/August 2001. 100 See the resolution adopted by the Institut de Droit International on 26 August 2005, para. 1. 101 As to piracy, see above, chapter 8, p. 398 and chapter 11, p. 615 j u r i s d i c t i o n 669 involved are extremely sensitive and highly political. 102 While there is little doubt about the legality and principles of the war crimes deci- sions emerging after the Second World War, a great deal of controversy arose over suggestions of war crimes with regard to American person- nel connected with the Vietnam war, 103 Pakistani soldiers involved in the Bangladesh war of 1971 and persons concerned with subsequent conflicts. Article 6 of the Charter of the International Military Tribunal of 1945 referred to crimes against peace, violations of the law and cus- toms of war and crimes against humanity as offences within the juris- diction of the Tribunal for which there was to be individual responsi- bility. 104 This article can now be regarded as part of international law. In a resolution unanimously approved by the General Assembly of the United Nations in 1946, the principles of international law recognised by the Charter of the Nuremberg Tribunal and the judgment of the Tribunal were expressly confirmed. 105 The General Assembly in 1968 adopted a Convention on the Non-Applicability of Statutory Limita- tions to War Crimes and Crimes Against Humanity, reinforcing the gen- eral conviction that war crimes form a distinct category under interna- tional law, susceptible to universal jurisdiction, 106 while the four Geneva ‘Red Cross’ Conventions of 1949 also contain provisions for universal jurisdiction over grave breaches. 107 Such grave breaches include wilful killing, torture or inhuman treatment, unlawful deportation of protected 102 See e.g. Akehurst, ‘Jurisdiction’, p. 160; A. Cowles, ‘Universality of Jurisdiction over War Crimes’, 33 California Law Review, 1945, p. 177; Brownlie, Principles, pp. 303–5; Bowett, ‘Jurisdiction’, p. 12; Higgins, Problems and Process, p. 56; Mann, ‘Doctrine of Jurisdiction’, p. 93, and Bassiouni, Crimes against Humanity, p. 510. See also the Eichmann case, 36 ILR, pp. 5 and 277 and the UN War Crimes Commission, 15 Law Reports of Trials of War Download 7.77 Mb. Do'stlaringiz bilan baham: |
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