The Protective Principle of International Criminal Jurisdiction

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1 The Protective Principle of International Criminal Jurisdiction IAIN CAMERON Senior Lecturer in Law Uppsala University Dartmouth Aldershot. Brookfield USA. Hong Kong. Singapore. Sydney

2 Contents Foreword Abbreviations xiii xiv 1 The subject matter of the book 1 Introduction 1 2 Defining the protective principle 2 3 The background to the present study Jurisdiction under international law Jurisdiction in the field of criminal law and some remarks regarding the scope of the present study International criminal law The distinction between the jurisdiction of the courts and the spatial scope of the criminal law The principles of international criminal jurisdiction The ideologies of systems of jurisdiction 22 4 Methodology and aims of the study 23

3 2 The protective principle in context 1 Introduction 30 2 The reason why states make claims to exercise jurisdiction based upon the protective principle 31 3 The reasons why states' claims based upon the protective principle should be limited 32 4 A brief history of the protective principle 35 5 Some characteristics of the protective principle The relationship of the principle with the right of self-defence The non-cooperative nature of the principle The unpredictability and flexibility of the protective principle 49 6 The relationship of the protective principle with the other principles of jurisdiction Localisation of crime and the protective principle Overview and terminology The doctrine of ubiquity and the effects principle The active personality principle and the protective principle The flag principle and the protective principle The passive personality principle and the protective principle The principle of universality and the protective principle The representation and distribution of competence principles and the protective principle The principle of ne bis in idem and the protective principle 84 VI

4 7 The protective principle, extradition and mutual legal assistance in criminal matters 90 8 The protective principle, "quasi-territoriality" and enforcement jurisdiction 93 3 Sweden 1 Introduction and a note on citation 96 2 A historical overview of protective principle jurisdiction in the Swedish Criminal Code 97 3 The system of jurisdiction provided for in the present Swedish Criminal Code Overview Territory Localisation Quasi-territoriality The principal forms of extraterritorial jurisdiction Subsidiary forms of jurisdiction Prosecution Other legislation dealing with jurisdiction An example of the rules in practice Public international law and Swedish jurisdictional claims The ambit of the Swedish criminal law Nationally limited crimes The concept of the protected interest (skyddsintresse) The meaning of "crime against the Swedish nation" Why define crime against the Swedish nation? Doctrine and travaux preparatories 129 VII

5 6.3 Case law Policy arguments for taking a restrictive view of crime against the Swedish nation Which crimes are included in the category of crime against the Swedish nation? Introduction Crimes against the person Property offences Crimes involving public danger Crimes of falsification Perjury, false prosecution and other untrue statements Crimes against public order Crimes of public activity Crimes of lese-majesty Crimes against state security Crimes of misuse of office Conclusion Afterword: the report of the criminal law committee of the Nordic Council Denmark 1 Introduction and a note on citation The system of jurisdiction in the code Territoriality Quasi-territoriality and flag jurisdiction Active personality principle jurisdiction Subsidiary forms of jurisdiction Prosecution 170 Vlll

6 3 The role of the protective principle Offences against the independence, security, Constitution or public authorities of Denmark Offences the legal protection of which depends on a personal connection with the Danish state Norway 1 Introduction and a note on citation The system of jurisdiction of the present code Territorial jurisdiction Quasi-territoriality and flag jurisdiction Jurisdiction over nationals and resident aliens Generally Section 12, para. 3(a) Section 12, para. 3(b) Section 12, para. 3(c) Jurisdiction over non-resident aliens Generally Protective principle offences in section 12, para Universality/representation offences in section 12, para. 4(a) Representation jurisdiction Prosecution Other jurisdictional rules The compatibility of the Norwegian system with international law The proposed system Generally Territoriality and quasi-territoriality Jurisdiction over nationals and domiciled aliens 205 ix

7 5.4 Jurisdiction over aliens Conclusions on the protective principle in the proposed system United States of America 1 Introduction and a note on citation The system of jurisdiction in the United States regarding extraterritorial crime Overview Overcoming the presumption of territoriality: congressional intent Localisation of crime Generally Localisation of the crime of conspiracy Active personality principle jurisdiction Passive personality principle jurisdiction Universality principle jurisdiction Prosecution Initial implications of the system of jurisdiction for the protective principle Protective principle offences under American law Sources Methodology Protective principle offences in Title Export control offences Drug smuggling (1) Drug smuggling (2) Conclusions Afterword: the United Kingdom and the United States compared Overview 295

8 5.2 Territory and localisation Flag and quasi-territorial jurisdiction Offences applicable to nationals Offences applicable to nationals and aliens Special forms of jurisdiction Prosecution Extradition and mutual assistance Conclusions 303 International law and the protective principle Introduction Customary international law principles and general principles of law The implications of the Lotus case 3.1 Criminal jurisdiction and domestic jurisdiction 3.2 The limited relevance of the Lotus case to jurisdictional claims today A duty of notification and consultation The prescriptive function of the principles of jurisdiction The meaningful contact 6.1 Doctrine 6.2 The protective principle and general state practice XI

9 7 The rule of reasonableness or balancing of interests The principle of abuse of rights Human rights restrictions Application of the principle of non-intervention to issues of jurisdiction Conclusion: Controlling the use and abuse of the protective principle 1 Introduction Identifying and limiting abuse of the protective principle Controlling the use of the protective principle 358 Bibliography 363 Index 391 XH

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