Jurisdic(on and coopera(on in criminal ma1ers
Seminar 1: introduc0on – jurisdic0on and coopera0on in criminal ma6ers as part of interna0onal
criminal law
No seminar.
1
,Seminar 2: the interna0onal law of jurisdic0on in rela0on to interna0onal and transna0onal crimes
>>>> Ques0ons:
1. The ICC Prosecutor, Karim Kahn QC, wishes to make a decision as to whether or not to move the
preliminary examina0on into Venezuela II into a full-scale inves0ga0on. Before doing so, he wants
your advice on the legal soundness of the argument made in the Government of Venezuela`s
referral, more specifically the asser0on that the ICC has territorial jurisdic0on over unilateral
coercive measures imposed primarily by the USA against Venezuela allegedly cons0tu0ng crimes
against humanity. Discuss arguments in favor and against.
Based on art. 14 ICC Statute (which states that “a state party may refer to the prosecutor a situa0on
in which one or more crimes within the jurisdic0on of the ICC appear to have been commi6ed
reques0ng the prosecutor to inves0gate the situa0on for the purpose of determining whether one
or more specific persons should be charged with the commission of such crimes”) Venezuela
referred a situa0on to the ICC Prosecutor.
Regarding the jurisdic0on of the ICC, Venezuela has argued that because it is a state party to the
Rome Statute, art. 12(2)(a) Rome Statute confers the ICC with jurisdic0on over the territory of
Venezuela. Furthermore, Venezuela argues that the unilateral coercive measures (the economic
sanc0ons) cons0tuted a crime against humanity. Although the unilateral coercive measures were
fully imposed (and thus fully commi6ed) outside the territory of Venezuela, these measures were
directed at and produced effects upon the territory of Venezuela. This is called the effects doctrine
in the context of territorial jurisdic0on.
- Arguments in favor of jurisdic0on:
o Considerable evidence can be found of an emerging state prac0ce favoring exercise of
jurisdic0on where the effects are felt on the territory of a state. In addi0on, in the Arrest
Warrant case, several judges of the ICJ spoke favorable of the ‘contemporary trend’
towards the adop0on of ‘effects’ jurisdic0on.
o Viewed from the perspec0ve of art. 8 Rome Statute, it seems evident that acts perpetrated
on the territory of one state des0ned to destroy life or property on the territory of another
state will cons0tute an important component of interna0onal armed conflict. An enormous
limita0on would be imposed upon the scope of art. 8 Rome Statute were it to exclude from
the jurisdic0on of the ICC acts that are ini0ated or perpetrated in the physical sense of the
territory of a non-party state by non-na0onals of a state party even if they are intended to
produce their effects and do in fact produce them on the territory of a state party.
o The crimes within the jurisdic0on of the ICC are crimes of universal concern. They are ocen
associated with the erga omnes and jus cogens principles. This also compels a broad
understanding of territorial jurisdic0on, one that can assist the ICC in promo0ng its goals.
o The sanc0ons were designed to damage Venezuela and hence there is inten0on to harm,
and the consequences were severe. Hence the effects doctrine is a good thing because
Venezuela should be given a remedy.
o Even though the unilateral coercive measures (the economic sanc0ons) do not resemble a
typical crime against humanity, they do cons0tute a crime against humanity in this case,
because they produce the same effects on the territory of another state as the typical
crimes against humanity. There is no stability, medical supplies, and food supplies in
Venezuela, and these effects are felt by the Venezuelan popula0on.
2
, - Arguments against jurisdic0on:
o Jurisdic0on based upon territory because of acts perpetrated outside the territory of a
state party to the extent that such acts were directed at producing effects on the state
party (in this case Venezuela) and did in fact do so does not appear to have been addressed
during the dracing of the Rome Statute. Therefore, it can be argued that it was not
intended to confer jurisdic0on on the ICC based on the effects doctrine.
o In the ICC Bangladesh/Myanmar decision, the ICC listed five doctrines of territorial
jurisdic0on and the effects doctrine was also included, but it is important to note that the
effects doctrine is clearly the most controversial one of the ones listed by the ICC. It can be
argued that the effects doctrine is not applicable in interna0onal criminal law.
o The consequences of the act were indirect, and this makes it problema0c to apply the
effects doctrine because the causality link is not clear.
o For a crime to fall under the jurisdic0on of the ICC, it must be a war crime, a crime against
humanity or the crime of genocide. Venezuela argued that the unilateral coercive
measures (the economic sanc0ons) cons0tuted a crime against humanity. However, in this
case it can be debated whether the measures were directed at the civilian popula0on.
Because the US can argue that the measures were directed at the Venezuelan government
and there was no intent to target the civilian popula0on, the crime cannot be classified as
a crime against humanity. Hence, the ICC does not have territorial jurisdic0on.
According to dr. Holvoet, the referral is not convincing. Venezuela argues that the unilateral
coercive measures (economic sanc0ons) cons0tute crimes against humanity and the effects are felt
on the territory of Venezuela. However, dr. Holvoet argues that Venezuela should not have used
the effects doctrine, but it should have argued that the crimes were actually commi6ed on the
territory of Venezuela because of the imposed sanc0ons. Furthermore, Venezuela should have
argued that the US knew that the unilateral coercive measures would have consequences and that
this contributed to crimes being commi6ed on the Venezuelan territory. Instead of using the effects
doctrine, it was also possible to use the cons0tu0ve elements doctrine and to argue that some of
the cons0tu0ve elements were commi6ed on the territory of Venezuela and not only the effects
were felt on the territory.
So, it is not very likely that the ICC Prosecutor will proceed with the inves0ga0ons. Because it
is an art. 14 Rome Statute-referral by a state, the state has the right to appeal the decision of the
ICC Prosecutor not to proceed with the inves0ga0on before the pre-trial chamber of the ICC.
2. Would the addi0on of jurisdic0on on the basis of passive personality principle in the ICC Statute be
a blessing or a curse for the effec0veness and legi0macy of the ICC? Discuss.
The jurisdic0on of the ICC is based on the territoriality principle and the ac0ve
personality/na0onality principle, but the passive personality principle is not included. Under the
passive personality principle, states can assert jurisdic0on over offences abroad because the vic0m
was the state’s na0onal. On the one hand, the addi0on of this ground of jurisdic0on will broaden
the possible grounds upon which the ICC acquires jurisdic0on. This will subsequently lead to a more
effec0ve approach to (interna0onal) crimes because more cases can be brought to the ICC's
a6en0on and actually inves0gated.
3
Seminar 1: introduc0on – jurisdic0on and coopera0on in criminal ma6ers as part of interna0onal
criminal law
No seminar.
1
,Seminar 2: the interna0onal law of jurisdic0on in rela0on to interna0onal and transna0onal crimes
>>>> Ques0ons:
1. The ICC Prosecutor, Karim Kahn QC, wishes to make a decision as to whether or not to move the
preliminary examina0on into Venezuela II into a full-scale inves0ga0on. Before doing so, he wants
your advice on the legal soundness of the argument made in the Government of Venezuela`s
referral, more specifically the asser0on that the ICC has territorial jurisdic0on over unilateral
coercive measures imposed primarily by the USA against Venezuela allegedly cons0tu0ng crimes
against humanity. Discuss arguments in favor and against.
Based on art. 14 ICC Statute (which states that “a state party may refer to the prosecutor a situa0on
in which one or more crimes within the jurisdic0on of the ICC appear to have been commi6ed
reques0ng the prosecutor to inves0gate the situa0on for the purpose of determining whether one
or more specific persons should be charged with the commission of such crimes”) Venezuela
referred a situa0on to the ICC Prosecutor.
Regarding the jurisdic0on of the ICC, Venezuela has argued that because it is a state party to the
Rome Statute, art. 12(2)(a) Rome Statute confers the ICC with jurisdic0on over the territory of
Venezuela. Furthermore, Venezuela argues that the unilateral coercive measures (the economic
sanc0ons) cons0tuted a crime against humanity. Although the unilateral coercive measures were
fully imposed (and thus fully commi6ed) outside the territory of Venezuela, these measures were
directed at and produced effects upon the territory of Venezuela. This is called the effects doctrine
in the context of territorial jurisdic0on.
- Arguments in favor of jurisdic0on:
o Considerable evidence can be found of an emerging state prac0ce favoring exercise of
jurisdic0on where the effects are felt on the territory of a state. In addi0on, in the Arrest
Warrant case, several judges of the ICJ spoke favorable of the ‘contemporary trend’
towards the adop0on of ‘effects’ jurisdic0on.
o Viewed from the perspec0ve of art. 8 Rome Statute, it seems evident that acts perpetrated
on the territory of one state des0ned to destroy life or property on the territory of another
state will cons0tute an important component of interna0onal armed conflict. An enormous
limita0on would be imposed upon the scope of art. 8 Rome Statute were it to exclude from
the jurisdic0on of the ICC acts that are ini0ated or perpetrated in the physical sense of the
territory of a non-party state by non-na0onals of a state party even if they are intended to
produce their effects and do in fact produce them on the territory of a state party.
o The crimes within the jurisdic0on of the ICC are crimes of universal concern. They are ocen
associated with the erga omnes and jus cogens principles. This also compels a broad
understanding of territorial jurisdic0on, one that can assist the ICC in promo0ng its goals.
o The sanc0ons were designed to damage Venezuela and hence there is inten0on to harm,
and the consequences were severe. Hence the effects doctrine is a good thing because
Venezuela should be given a remedy.
o Even though the unilateral coercive measures (the economic sanc0ons) do not resemble a
typical crime against humanity, they do cons0tute a crime against humanity in this case,
because they produce the same effects on the territory of another state as the typical
crimes against humanity. There is no stability, medical supplies, and food supplies in
Venezuela, and these effects are felt by the Venezuelan popula0on.
2
, - Arguments against jurisdic0on:
o Jurisdic0on based upon territory because of acts perpetrated outside the territory of a
state party to the extent that such acts were directed at producing effects on the state
party (in this case Venezuela) and did in fact do so does not appear to have been addressed
during the dracing of the Rome Statute. Therefore, it can be argued that it was not
intended to confer jurisdic0on on the ICC based on the effects doctrine.
o In the ICC Bangladesh/Myanmar decision, the ICC listed five doctrines of territorial
jurisdic0on and the effects doctrine was also included, but it is important to note that the
effects doctrine is clearly the most controversial one of the ones listed by the ICC. It can be
argued that the effects doctrine is not applicable in interna0onal criminal law.
o The consequences of the act were indirect, and this makes it problema0c to apply the
effects doctrine because the causality link is not clear.
o For a crime to fall under the jurisdic0on of the ICC, it must be a war crime, a crime against
humanity or the crime of genocide. Venezuela argued that the unilateral coercive
measures (the economic sanc0ons) cons0tuted a crime against humanity. However, in this
case it can be debated whether the measures were directed at the civilian popula0on.
Because the US can argue that the measures were directed at the Venezuelan government
and there was no intent to target the civilian popula0on, the crime cannot be classified as
a crime against humanity. Hence, the ICC does not have territorial jurisdic0on.
According to dr. Holvoet, the referral is not convincing. Venezuela argues that the unilateral
coercive measures (economic sanc0ons) cons0tute crimes against humanity and the effects are felt
on the territory of Venezuela. However, dr. Holvoet argues that Venezuela should not have used
the effects doctrine, but it should have argued that the crimes were actually commi6ed on the
territory of Venezuela because of the imposed sanc0ons. Furthermore, Venezuela should have
argued that the US knew that the unilateral coercive measures would have consequences and that
this contributed to crimes being commi6ed on the Venezuelan territory. Instead of using the effects
doctrine, it was also possible to use the cons0tu0ve elements doctrine and to argue that some of
the cons0tu0ve elements were commi6ed on the territory of Venezuela and not only the effects
were felt on the territory.
So, it is not very likely that the ICC Prosecutor will proceed with the inves0ga0ons. Because it
is an art. 14 Rome Statute-referral by a state, the state has the right to appeal the decision of the
ICC Prosecutor not to proceed with the inves0ga0on before the pre-trial chamber of the ICC.
2. Would the addi0on of jurisdic0on on the basis of passive personality principle in the ICC Statute be
a blessing or a curse for the effec0veness and legi0macy of the ICC? Discuss.
The jurisdic0on of the ICC is based on the territoriality principle and the ac0ve
personality/na0onality principle, but the passive personality principle is not included. Under the
passive personality principle, states can assert jurisdic0on over offences abroad because the vic0m
was the state’s na0onal. On the one hand, the addi0on of this ground of jurisdic0on will broaden
the possible grounds upon which the ICC acquires jurisdic0on. This will subsequently lead to a more
effec0ve approach to (interna0onal) crimes because more cases can be brought to the ICC's
a6en0on and actually inves0gated.
3
