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The Nationality of the Offender and the Jurisdiction of the International Criminal Court

Published online by Cambridge University Press:  06 June 2017

Zsuzsanna Deen-Racsmány
Zsuzsanna Deen-Racsmány*
Affiliation:
Department of Public International Law, Leiden University, the Netherlands
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American Journal of International Law , Volume 95 , Issue 3 , July 2001 , pp. 606 - 623
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Copyright © American Society of International Law 2001

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References

1 Rome Statute of the International Criminal Court, July 17, 1998, UN Doc. A/CONF. 183/9*, corrected through July 1999 fry UN Doc. PCNICC/1999/INF/3*, at <http://www.un.org/law/icc/>, reprinted in 37 ILM 999 (1998) (uncorrected version) [hereinafter ICC or Rome Statute].

2 Id., Art. 12(2) (emphasis added); see also id., Art. 13.

3 UN Doc. PCNICC/2000/1/Add.1 (Nov. 2, 2000), at <http://www.un.org/law/icc/>.

4 See Rome Statute, supra note 1, Arts. 13-14.

5 Such a challenge is arguably possible under id., Art. 19 (2) (c); see also notes 25-28 infra and corresponding text.

6 Randelzhofer, Albrecht, Nationality, in 3 Encyclopedia of Public International Law 501, 502 (1997)Google Scholar.

7 Paul Weis, Nationality and Statelessness in International Law 29 (2d ed. 1979).

8 Nottebohm Case (Liech. v. Guat.), Second Phase, 1955 ICJ Rep. 4, 23 (Apr. 6).

9 See, e.g., Manley, O. Hudson, Nationality, Including Statelessness, [1952] 2Y.B. Int’l L. Comm’n 3, 7–11 Google Scholar, UN Doc. A/CN.4/SER.A/1952/Add.1; Weis, supra note 7, at 169-204; Brownlie, Ian, The Relations of Nationality in Public International Law, 1963 Brit.Y.B. Int’l L. 284, 302–11 Google Scholar.

10 See, e.g., Hudson, supra note 9, at 13-23; 1 Oppenheim’s International Law 886–90 (Robert, Y. Jennings & Watts, Arthur eds., 9th ed. 1992)Google Scholar [hereinafter Oppenheim]; Randelzhofer, supra note 6, at 508-09.

11 Oppenheim, supra note 10, at 890-96; Atle, Grahl-Madsen, Protection of Refugees by Their Country of Origin, 11 Yale J. Int’l L. 362, 370–75, 389–90 (1986)Google Scholar; Frank, E. Krenz, The Refugee as a Subject of International Law, 15 Int’l & Comp. L.Q. 90 (1966)Google Scholar; Louis, I. de Winter, Nationality or Domicile? The Present State of Affairs, 128 Recueil Des Cours 347, 382–83 (1969 II)Google Scholar.

12 Nationality Decrees in Tunis and Morocco (Fr. v. Gr. Brit), Advisory Opinion, 1923 PCIJ (ser. B) No. 4, at 24. For sources confirming this principle, see, for example, European Convention on Nationality, Nov. 6, 1997, Art. 3, Europ. TS No. 166, 37 ILM 44 (1998); Hague Convention on Certain Questions Relating to the Conflict of Nationality Laws, Apr. 12, 1930, Art. 1, 179 LNTS 89. The principle has been claimed to have entered customary international law. See Nissim Bar-Yaacov, Dual Nationality 2 (1961); John, R. Dugard, Diplomatic Protection, UN Doc. A/CN.4/506, at 35, para. 96 (2000)Google Scholar, at <http://www.un.org/law/ilc/sessions/52/52docs.htm>.

13 Oppenheim, supra note 10, at 854-56.

14 Proposed Amendments to the Naturalization Provisions of the Constitution of Costa Rica, Advisory Opinion, Inter-Am. Ct. H.R. (ser. A) No. 4 (1984), 79 ILR 283, 296; Nationality Decrees in Tunis and Morocco, supra note 12, at 24.

15 European Convention on Nationality, supra note 12, Art. 3(2); Hague Convention on Certain Questions Relating to the Conflict of Nationality Laws, supra note 12, Art. 1; Hudson, supra note 9, at 10; Ian Brownlie, Principles of Public International Law 395-96, 401 (5th ed. 1998); Ruth Donner, The Regulation of Nationality in International Law 121 - 67 (2D ED. 1994); J . Mervyn Jones, British Nationality Law and Practice 15 (1956); Haro Frederikvan Panhuys, The Role of Nationality in International Law 161-65 (1959); Alfred Verdross & Bruno Simma, Universeixes Völkerrecht : Theorie Und Praxis 788-90, paras. 1192, 1194-95 (3d ed. 1984); Weis, supra note 7, at 90, 101-27; Fitzmaurice, Gerald, The General Principles of International Law Considered from the Standpoint of the Rule of Law, 92 Recueil Des Cours 1, 196–205 (1957 II)Google Scholar.

16 Further controversy may arise from the practice of some states of not allowing their nationals to renounce their nationality. While this practice may arguably lead to inequitable results and prejudice to the status of such persons, it is not prohibited by international law and, in the view of the author, such nationality should therefore be considered valid for the application of international criminal law. The fact that the effectiveness of one’s nationality is not taken into account in criminal proceedings lends support to this position. A possible exception could be made for persons whose intention to renounce their nationality is guided by fear of persecution on bases covered by the Convention Relating to the Status of Refugees, July 28, 1951, Art. 33, 189 UNTS 137 [hereinafter Refugee Convention]. In such cases, the rules suggested below on jurisdiction over refugees could be applied.

17 Another nationality-related principle of international criminal law is passive personality, which provides for jurisdiction by states whose nationals were injured by the crime. As it is not among the jurisdictional bases recognized by the ICC Statute, supra note 1, this principle is not discussed here.

18 Brownlie, supra note 15, at 306; Malcolm, N. Shaw, International Law 466 (4th ed. 1997)Google Scholar; Gilbert, Geoff, Crimes Sans Frontieres: Jurisdictional Problems in English Law , 1993 Brit.Y.B. Int’l L. 415, 417 Google Scholar; Robert, Y. Jennings, Extraterritorial jurisdiction and the United States Antitrust Laws, 1957 Brit. Y.B. Int’l L. 146, 153 Google Scholar; Sharon, A. Williams, Article 12, in Commentary on The Rome Statute of The International Criminal Court: Observers’ Notes, Article By Article 329, 340–41 (Triffterer, Otto ed., 1999)Google Scholar.

19 Harvard Draft Convention on Jurisdiction with Respect to Crime, with Comment, Art. 5, reprinted in 29 AJIL Supp. 439 (1935) [hereinafter Harvard Draft Convention]; Gilbert, supra note 18, at 417; Williams, supra note 18, at 340-41.

20 See, e.g., Brownlie, supra note 15, at 306; Van Panhuys, supra note 15, at 127. For a more exhaustive list of justifications, see Harvard Draft Convention, supra note 19, at 519-20.

21 National of Requested State, 6 Whiteman Digest §18, at 865-84; M. Cherif Bassiouni, International Extradition and World Public Order 435-42 (1974); Ivan, A. Shearer, Extradition in International Law 94–132 (1971)Google Scholar; Swart, Bert, Human Rights and the Abolition of Traditional Principles, in Principles and Procedures Fora New Transnational Criminal Law 505, 531–32 (Eser, Albin & Lagodny, Otto eds., 1991)Google Scholar; Williams, supra note 18, at 340-41.

22 Re Gutierrez, 4 S.J.F. pt. 2, at 56 (6a época 1957) (Mex.), translated in 24 ILR 265, 266; see also Harvard Draft Convention, supra note 19, at 520; Gilbert, supra note 18, at 417-18.

23 See, e.g., Brownlie, supra note 15, at 306; Fitzmaurice, supra note 15, at 213.

24 Dominant nationality can be defined as the nationality of the state with which the person has the strongest factual ties. In international arbitrations it was frequently a contentious issue whether the tribunal or commission had jurisdiction over dual nationals. While they tended to assume jurisdiction irrespective of the claimant’s dominant nationality where the other nationality was not that of the defendant state, e.g., Flegenheimer claim, 25 ILR 91 (Ital.-U.S. Concil. Comm’n 1958); Salem case (U.S. v. Egypt), 2 R.I.A.A. 1161, 1188 (1932); see also Dugard, supra note 12, at 54-57, paras. 161-74, dominant (or effective) nationality was often held decisive by a commission established following a general agreement where the two nationalities of a claimant were those of the claimant and defendant states and the defendant objected to jurisdiction in the specific case because the injured person possessed its nationality, e.g., Case No. A/18, 5 Iran-U.S. CI. Trib. Rep. 251, 265 (1984); Esphahanian v. Bank Tejarat, 2 Iran-U.S. CI. Trib. Rep. 157,166 (1983); Mergé claim, 22 ILR 443, 455 (Ital.-U.S. Concil. Comm’n 1955); see also Dugard, supra, at 42-54, paras. 121-61. While the recent case law of the Iran-United States Claims Tribunal has made a significant contribution toward solving this problem, the determination of dominance remains difficult in practice. The Tribunal has identified some criteria, including “habitual residence, center of interests, family ties, participation in public life and other evidence of attachment,” Case No. A/18, supra, at 265, but the uniqueness of each case makes the weighing of relevant factors a delicate exercise for which no clear-cut rules are available. See, e.g., Nemazee v. Iran, 25 Iran-U.S. CI. Trib. Rep. 153,157-62 (1990); Esphahanian v. Bank Tejarat, supra, at 166-68; Golpira v. Iran, 2 Iran-U.S. CI. Trib. Rep. 171, 174 (1983); David, J. Bederman, Nationality of Individual Claimants Before the Iran-United States Claims Tribunal, 42 Int’l & Comp. L.Q. 119, 129–35 (1993)Google Scholar.

25 Rome Statute, supra note 1, Art. 19(2). Article 58 spells out the procedures for issuing an arrest warrant or summons to appear before the court.

26 Id., Art. 19(2) (c). Article 12 spells out the preconditions to the exercise of jurisdiction by the court.

27 Id., Art. 19; Rules of Procedure and Evidence, supra note 2, Rules 58-60. In the exceptional case when the challenge is made after the confirmation of charges and leave for the challenge is granted, this would be the task of the trial chamber. Rome Statute, supra, Art. 19; Rules 58-60 supra.

28 Rome Statute, supra note 1, Arts. 17-19.

29 Harvard Draft Convention, supra note 19.

30 Id. at 533 (emphasis added).

31 The issue under consideration here is not referred to in the reviewed national criminal and penal codes.

32 This view is adopted, for instance, in Hafner, Gerhard et al., A Response to the American View as Presented by Ruth Wedgwood, 10 Eur.J. Int’l L. 108, 116–19 (1999)Google Scholar. In contrast, others have claimed that the delegation of jurisdiction to international judicial bodies should not simply follow the principles establishing national criminal jurisdiction. According to the argument, as the weight of an international judicial decision is much greater than that of a municipal judgment, the exercise of jurisdiction by an international body over nationals of third parties is not acceptable because that may in practice lead to adjudication of interstate disputes if the indictee has committed the crime in his official capacity at the direction of his state of nationality. Morris, Madeline, High Crimes and Misconceptions: The ICC and Non-Party States, 64 Law & Contemp. Probs. 13, 47–52 (2001)Google Scholar. This argument is not unconvincing. Yet, despite similar objections by the United States during the travaux préparatories and since then concerning ICC jurisdiction based on the acceptance of the statute by the territorial state only, see, e.g., Wedgwood, Ruth, The International Criminal Court: An American View, 10 Eur.J. Int’l L. 93, 99–102 (1999)Google Scholar, the statute was nevertheless adopted by the Rome Conference and signed and ratified by numerous states. Thus, unless the ICC or another competent body comes to a different conclusion, the generally accepted thesis is likely to remain the one advocated by Hafner et al. and is the one adopted here.

33 These cases were governed by the protective rather than the active personality principle and were concerned with duties of allegiance arising from some link other than nationality. (Courts often refer to the protective principle to establish jurisdiction over crimes committed abroad against the security of the state. See further Brownlie, supra note 15, at 306.) This may limit their relevance here. However, as an act can be treasonable only if committed by a national or else by a person who owes allegiance to the state, nationality and allegiance are central issues in these cases, see, e.g., Joyce v. Director of Public Prosecutions, 1946 A.C. 347; Rex v. Neumann, 1946 A11SA 1238 (Transvaal Spec. Crim. Ct.), making them interesting in this context. Cf. Brownlie, supra, at 306 (rather than mentioning it in the context of the protective principle, Brownlie cites Joyce as an instance of the application of the nationality principle to aliens owing allegiance, making the distinction between the two principles somewhat ambiguous).

34 In none of the reviewed decisions concerning treason was the dominant nationality or dominant link principle upheld. In contrast, in Kawakita v. United States, 343 U.S. 717 (1952), a (Japanese-U.S.) dual national was held to have committed treason against the United States in support of Japan. The Court failed to consider the issue of dominant nationality. The judges held that the only possible defense was coercion by the other state of nationality. The possibility of a defense based on the dominance of the other nationality can thus be excluded by implication.

35 In the reviewed treason cases involving non-nationals, the accused persons claimed in defense that only nationals could be charged with this crime. In Joyce, supra note 33, the finding of guilt for treason against England was based in part on Joyce’s residence in England prior to having committed the offense (delivering anti-British talks in English on German radio during the Second World War). More significantly, however, the judgment attributed great importance to the fact that, having described himself as a British national for this purpose, Joyce had acquired, and at the time of the commission of the crime abroad was still in possession of, a British passport. Because he was thus under the protection of the Crown, he owed allegiance to it and was found guilty of treason. The Court did not consider his American nationality, or the possible dominance of this link of allegiance, relevant to the case.

In Rex v. Neumann, supra note 33, the decisive link of allegiance was the oath taken by Neumann on enlisting in the armed forces of the Union of South Africa as a volunteer. His domicile in the Union prior to his departure as a member of the armed forces and his family’s continued presence there even at the time he committed the treasonable acts were also taken into account. His German nationality (i.e., that of the country he supported by the acts in question) was not considered relevant.

36 See Neumann, supra note 33; Public Prosecutor v. Drechsler, 13 Ann. Dig. 73 (Sup. Ct. 1946) (Nor.); Re Penati, Foro It. II 1947, 89 (Cass. 1946), 13 Ann. Dig. 74; Public Prosecutor v. Thompson, referred to in id. at 74 (Sup. Ct. 1946) (Nor.); Public Prosecutor v. Karlsson, referred to in id. at 74 (Sup. Ct. 1946) (Nor.).

37 Van Panhuys, supra note 15, at 137; see also Shearer, supra note 21, at 131. Note that van Panhuys did not consider dominant nationality to be decisive in cases where each state of which the individual is a national submits competing requests for his extradition. In support of this view, he referred to the fact that states do not always give precedence to the request by the state of nationality in case of competing requests for the extradition of a person with only one nationality. Van Panhuys, supra, at 137.

38 See, e.g., American Embassy, Mexico City, to Dep’t of State, Despatch No. 954, Feb. 27,1961 (concerning Alex R. Enojos), Whiteman, supra note 21, at 867-68; Extradition (Albanian National) case, No. 779, 5 Ann. Dig. 281 (Areopagos 1929) (Greece); Extradition (Czechoslovak Request) case, No. 25659/1926, translated in 3 Ann. Dig. 303 (Justice Minister 1926) (Hung.); see also International Criminal Law in the Netherlands 107 (Bert Swart & Andre Klip eds., 1997) (referring to similar Dutch practice) [hereinafter Swart & Klip]. Interestingly, in a few cases, Austro-German Extradition case, 9 BGHSt 175 (1957) (Fed. Sup. Ct. 1956) (FRG), translated in 23 ILR 364; In re Feiner, 9 BGHSt 53 (1957) (Fed. Sup. Ct. 1956) (FRG), translated in 23 ILR 367; Austrian Nationality case, 4 BVerfGE 322 (1955), translated in 22 ILR 430, the defense was also based on the inclusion of the nationality of the requested state, Germany, in the dual nationality of the accused. However, the decisions were based on the fact that the persons concerned were no longer German nationals. They therefore did not discuss the question of extradition of dual nationals in general.

39 Similarly, under the principle of complementarity, Rome Statute, supra note 1, Arts. 17-19, all states of which the suspect is a national (or that can establish jurisdiction on another basis) may prosecute him instead of surrendering him to the court.

40 International Conference on the Unification of Penal Law, Resolution, Art. 8 (1927), quoted in Harvard Draft Convention, supra note 19, Commentary, at 532. The passage reads as follows in English: “The law... (x) would also apply to the foreigner who, at the time of the commission of the act, was a national of. . . (x); it [the law] would also apply to someone who obtained . . . (x) citizenship after the commission of the act” (unofficial translation).

41 Harvard Draft Convention, supra note 19, at 519; see also Van Panhuys, supra note 15, at 130 (interpreting this rule as proof of the lack of relevance of allegiance in traditional international law).

42 Harvard Draft Convention, supra note 19, Commentary, at 532. In the ICC context, the question whether nationality at the time of punishment (as opposed to prosecution) is sufficient is not relevant and will therefore not be dealt with here. While undeniably of importance, the issue whether jurisdiction should depend on the date of application for naturalization or the date of naturalization (the date of application for or grant of asylum in the case of refugees) is also not addressed here.

43 Id.

44 S. v. Mharapara, 1985 (4) SA 42 (High Ct), aff’d, 1986 (1) SA 556 (Zimb.), 84 ILR 1. On nationality at the time of prosecution, see Polyukhovich V. Australia, (1991) 101 A.L.R.545 (Austl.), 91 ILR 3; X v. Public Prosecutor, NJ 344 (Dist. Ct. Middelburg), aff’d, NJ 344 (Ct. App. Hague 1953), translated in 19 ILR 326; Public Prosecutor v. J. S. R., NJ 646 (Ct. App. Hague), rev’d, NJ 646 (Sup. Ct. 1950), translated in 17 ILR 137 (the latter decision not explicitly dealing with jurisdiction based on nationality at the time of prosecution but with the acquisition of nationality subsequent to the commission of the crime).

On jurisdiction based on nationality at the time of the commission of the crime, see Public Prosecutor v. Menten, NJ 26 (Dist. Ct. Amsterdam 1977), NJ 358 (Sup. Ct. 1978), RvdW 109 (Dist. Ct. Hague 1978), NJ 30 (Sup. Ct. 1979), NJ 373 (Dist. Ct. Rotterdam 1980), NJ 79 (Sup. Ct. 1981), translated in 75 ILR 331, 333, 335, 337, 345, 360. Arguably, In re Mittermaier, Foro It. 11946,137 (Cass. 1946), 13 Ann. Dig. 69, also belongs to the latter category. However, this case, which dealt with treason, is somewhat exceptional, as the Italian Criminal Code provision on treason in force at the time explicitly stated that even former Italian nationals could be prosecuted for this crime.

45 See, e.g., Milan, Sahović & William, W. Bishop, The Authority of the State: Its Range with Respect to Persons and Places, in Manual of Public International Law 311, 360–61 (Sorensen, Max ed., 1968)Google Scholar.

46 Harvard Draft Convention on Nationality and Comment, Art. 13, 23 AJIL Spec. Supp. 13, 44 (1929). While this quotation may imply otherwise, the commentary makes it clear that the provision refers to offenses in general, not only those committed against the state.

47 In re S.S. Member Ahlbrecht, 14 Ann. Dig. 196 (Spec. Ct. Cass. 1947) (Neth.) (referring to the relevant part of the judgment in a note at 200).

48 Public Prosecutor v. L.J. L., 74 ILR 704, 706-07 (Dist. Ct. Roermond 1976).

49 Para. 65 Strafgesetzbuch (Aust); Penal Code §6, para. 2 (Fin.); see also War Crimes Act, No. 48 (1945), as amended 1988, No. 3 (1949) (Austl.), at <http://scaleplus.law.gov.au> (visited June 19, 2001); War Crimes Act, 1991, c. 16 (UK), at <http://www.hmso.gov.uk/acts/actsl991/Ukpga_19910013_en_1.htm> (visited June 19, 2001). See further text at note 52 infra.

50 Crim. Code para. 7.3.71 (Can.); Code Pénal Arts. 113-16 (Fr.); Strafgesetzbuch [STGB] para. 6(2) (1962 draft) (FRG); STGB §7(2) (1); Penal Code Art. 6(2) (Greece); Penal Law para. 15(a) (Isr.); Wetboek Van Strafrecht Art. 5 (Neth.); Penal Code ch. 2, §2, para. 2 (Swed.) (note, however, that the Swedish Penal Code equates nationals and residents for the purpose of the application of this rule and requires presence in Sweden at the time of prosecution).

51 The Australian Commonwealth Criminal Code as of 1995; the Criminal Code of Bangladesh as of 1994; the Criminal Code of Bosnia-Herzegovina as of 2000; the Criminal Code of the People’s Republic of China as of 1982; the Colombian Penal Code as of 1967; the Danish Criminal Code as of 1987; the French Penal Code as of 1959; the Penal Code of Greenland as of 1970; the Criminal Code of the Hungarian People’s Republic as of 1962; the Indian Penal Code as of 1999; the Italian Penal Code as of 1977; the Criminal Code of Japan as of 1996; the Norwegian Penal Code as of 1996; the Pakistan Penal Code as of 1960; the Polish Penal Code as of 1970; the Romanian Penal Code as of 1973; the Criminal Code of the Russian Federation as of 2000; the Sri Lankan Penal Code as of 1981; the Swiss Penal Code as of 2000; the Turkish Penal Code as of 1998; the United States Code as of 2000, Title 18, Crimes and Criminal Procedure; the Criminal Code of the Socialist Republic of Vietnam as of 1986; the Criminal Code of the Federal Republic of Yugoslavia as of 2000. In the view of the author, it is unclear whether the general reference to nationals in these codes is to be interpreted as excluding jurisdiction in cases of subsequent naturalization.

52 UK War Crimes Act, 1991, supra note 49, Art. 1 (emphasis added); see also Australian War Crimes Act, supra note 49, §11. Covering residents as well as nationals, the Acts establish a jurisdictional basis wider than the traditional scope of the active personality principle. This aspect may be seen as reflecting a recent trend in some states to establish municipal criminal jurisdiction over international crimes on grounds of any “substantial link,” which could reduce the relevance of these sources in the present context.

53 Sakar, Lotika, The Proper Law of Crime in International Law, 11 Int’l & Comp. L.Q. 446, 458–59 (1962)Google Scholar.

54 Polyukhovich v. Australia, supra note 44, 91 ILR at 33 (Brennan, J., dissenting). While addressing the constitutionality of the Australian War Crimes Act, supra note 49, the decision and dissenting opinions contain arguments that are arguably of more general applicability. However, this case can be interpreted as confirming the principle of universal jurisdiction. Michael, P. Scharf, The ICC’s Jurisdiction over Nationals of Non-Party States: A Critique of the U.S. Position, 64 Law & Contemp. Probs. 67, 82 n.83 (2001)Google Scholar. Although its broad jurisdictional basis may reduce the relevance of the Act and this case in the present context, it does not diminish the importance of the specific arguments raised by Judge Brennan.

55 Ram Narain v. Central Bank of India, 18 ILR 207 (High Ct. Punjab 1951).

56 In re D. G. D., 7 Ann. Dig. 335 (Ct. of Thrace 1933) (Greece); Extradition (Czechoslovak Request) case, supra note 38; U.S. Dep’t of State to Spanish Embassy, Dec. 3, 1959 (concerning extradition of José Luis Segimón de Plandolit), Whiteman, supra note 21, at 869; American Embassy to Ministry of Foreign Affairs, Note 2960, 1944 (concerning Francis Xavier Fernandez), id. at 869-70. Dutch practice follows the same principle. See Swart & Klip, supra note 38, at 107. In Federal Republic of Germany v. Rauca, [1983] 145 D.L.R.3d 638 (Ont. C.A.), 88 ILR 278 (Can.), the Canadian nationality of the accused acquired after the commission of the war crimes for which he was sought was considered but did not prevent his extradition to his state of origin, Germany, where the alleged crimes were committed.

57 In re Del Porto, BGE 57112 (1931), 6 Ann. Dig. 307. Note that the Court came to this conclusion on the basis of the principle adopted in legal writings according to which a person who acquired the nationality of his or her state of refuge after having committed a crime elsewhere may not be extradited under the nationality exception.

58 In re Martin M., 3 Ann. Dig. 303 (Crim. Ct. Budapest 1925).

59 The Law and Practice of Extradition 4 (Stanbrook, Ivor & Stanbrook, Clive eds., 1980)Google Scholar. See also examples cited in Whiteman, supra note 21, at 871.

60 The European Convention on Extradition, Dec. 13, 1957, Art. 6(1) (c), Europ. TS No. 24, at <http://conventions.coe.int> (visited June 19, 2001), states that “[nationality shall be determined as at the time of the decision concerning extradition.” This principle is confirmed in the Convention Relating to Extradition Between the Member States of the European Union, Sept. 27, 1996, Art. 7(1), 1996 O.J. (C 313) 11. The UN Model Treaty on Extradition, Dec. 14, 1991, 30 ILM 1407 (1991), does not define the material moment.

61 The principle nullum crimen sine lege, together with the double criminality rule, may impose further limitations. This question cannot be considered here in detail. Nonetheless, it must be noted that in the new state of nationality the act in question may conceivably have not been criminalized yet at the time of its commission, or was illegal there but not in the state of origin. These possibilities raise the following questions: Would these rules of criminal law prevent prosecution by the new state of nationality in (any of) these cases? Is there a real potential that similar problems will also arise with regard to the jurisdiction of the ICC, for instance, if nationals of a nonparty commit an act in their state of origin that is a crime at the time under the ICC Statute and under the penal code of their new state of nationality (a state party), but not of the state of origin?

62 Under Articles 17-19 of the Rome Statute, supra note 1, the court has the competence to rule on questions of admissibility and jurisdiction.

63 Harvard Draft Convention, supra note 19, Commentary, at 534; see also id. at 533.

64 See, e.g., Slouzak Minority in Teschen (Nationality), 10 Deutsches Recht Vereinigt Mit Juristische Wochen Schrift 2234 (1940 II) (People’s Ct. 1940) (Ger.).

65 Criminal Code Act, No. 12 (1995), para. 70.5(1) (b) (i-ii) (Austl.), at <http://scaleplus.law.gov.au> (nationals and residents) ;Crim. Code paras.7(1), 7(2) (Den.) (nationals and residents) ; Penalcode §6(3) (Fin.) (nationals and permanent residents); Penal Law Art. 15(a) (Isr.), unofficially translated in 30 Isr. L. Rev. 5 (1996) (nationals and residents); Penal Code §12(3) (Nor.) (nationals and domiciled aliens); Penal Code ch. 2, §2(1) (Swed.) (citizens and domiciled aliens); Crim. Code Art. 6(1) (Vietnam) (nationals and permanent residents). The assimilation of residents to nationals may be designed to establish a basis of jurisdiction wider than nationality, approaching universality.

66 Codice Penale Art. 4 (Italy) (assimilating stateless residents to nationals for the purposes of the code); Penal Code Art. 4 (Rom.) (covering stateless residents); Ugolovnyi Kodeks RF Art. 12(1) (Russ.) (referring to permanent resident stateless persons).

Even today the criminal codes of many states do not provide for jurisdiction based on active personality over stateless persons residing within their boundaries. Some of these are the Australian Commonwealth Criminal Code as of 1995 (unless the person is resident at the time of the commission of the act, w§70.5); the Penal Code of Austria as of 2000; the Criminal Code of Bangladesh as of 1994; the Criminal Code of Bosnia-Herzegovina as of 2000; the Criminal Code of Canada as of 1999; the Penal Code of the People’s Republic of China as of 1982; the Colombian Penal Code as of 1967; the French Penal Code as of 1959; the Greek Penal Code as of 1973; the Penal Code of Greenland as of 1970; the Criminal Code of the Hungarian People’s Republic as of 1962; the Indian Penal Code as of 1999; the Criminal Code of Japan as of 1996; the Pakistan Penal Code as of 1960; the Polish Penal Code as of 1973; the Sri Lankan Penal Code as of 1981; the Swiss Penal Code as of 2000; the Turkish Penal Code as of 1998; the United States Code as of 2000, Title 18, Crimes and Criminal Procedure; the Criminal Code of the Federal Republic of Yugoslavia as of 2000.

67 Sahović & Bishop, supra note 45, at 36. Research conducted in connection with this Note has not revealed any municipal or international judgments in which this position was upheld.

68 Van Panhots, supra note 15, at 137. Following the logic of the application of the active personality principle, this approach could justify criminal jurisdiction on the part of the state of (permanent) residence. Contra T v. Swiss Fed. Prosecutor’s Office, BGE 92 I 382 (1966), 72 ILR 632, 633. Van Panhuys proposed in effect universal jurisdiction over stateless persons, arguing that the penal laws of any state could cover crimes committed abroad by a stateless person. He justified this contention by suggesting that in such cases there would be no state whose jurisdiction over the person had to be respected by other states. Van Panhuvs, supra, at 127. No support for this view has been found elsewhere in the reviewed sources.

69 See the report of the committee’s second meeting, UN Doc. A/51/22, Vol. 2, pt. 3 bis, sec. 2(b) (2) (c) (1996), at<gopher://gopher.igc.apc.org/00/orgs/icc/undocs/prepcom2/prepcom_report.IIb> (visited Aug. 14, 2001). This conclusion, however, was reached outside the context of the active personality principle.

70 See, e.g., International Convention for the Suppression of Terrorist Bombings, Jan. 9, 1998, Art. 6(2) (c), 37 ILM 249 (1998); Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances, Dec. 20, 1988, Art. 4(1) (b)(i), 28 ILM 493 (1989) (this provision concerns all aliens habitually resident on the party’s territory); Convention for the Suppression of Unlawful Acts Against the Safety of Maritime Navigation, Mar. 10, 1988, Art. 6(2) (a), 27 ILM 668 (1988); International Convention Against the Taking of Hostages, Dec. 17, 1979, Art. 5 (1) (b), 1316 UNTS 205 (“if the State considers it appropriate”).

71 Sept. 28, 1954, 360 UNTS 130.

72 Trial Chamber Two of the International Criminal Tribunal for the Former Yugoslavia (ICTY) rejected the defense motion for the release of Slavko Dokmanović, which claimed that the arrest and rendition of the accused was illegal. Prosecutor v. Dokmanović, Motion for Release, No. IT-95-13a-PT (Oct. 22, 1997). Cf. Prosecutor v. Barayagwiza, Motion for Orders to Review and/or Nullify Arrest and Provisional Detention, No. ICTR-97-19-I (Nov. 3, 1999), at <http://www.ictr.org> (reversing the trial chamber and ruling that abuse of process compelled the appeals chamber to order the accused’s release and dismiss the indictment) (visited June 19, 2001). It could be argued that the Dokmanović decision lends support to the notion that the illegality of the grant of nationality and bad faith in the proceedings do not affect the jurisdiction of the court. Yet, as there is a significant difference between securing the presence of the accused by acting in bad faith or by arguably illegal means (a challenge that the trial chambers also considered unfounded) and establishing personal jurisdiction over the accused in a similar manner, in the view of the author Dokmanović is irrelevant in this context.

73 One of the most recent studies covering stateless persons proposes a similar solution in the context of diplomatic protection for dealing with the relationship between stateless persons and the state in which they habitually reside. Dugard, supra note 12, at 57-60, paras. 175-84. Even though diplomatic protection and criminal jurisdiction concern distinct fields of law, their common origin in allegiance and the fact that Dugard’s proposals reflect a change in international law concerning the status of stateless persons may lend some support to the rule suggested here.

74 If the person goes through a subsequent bona fide and voluntary naturalization in a state, the rule stated for change of nationality, see text at notes 61-62 supra, would apply without reservation. Similarly, prosecution by the state of origin would be possible if the person became stateless by losing the nationality of a state after the commission of the crime.

75 Under Article 21(1) (b) of the Rome Statute, supra note 1, the court may apply rules and principles of international law.

76 Vienna Convention on the Law of Treaties, May 23, 1969, Art. 31 (1), 1155 UNTS 331 (emphasis added). The provision reflects customary international law. See Territorial Dispute (Libya/Chad), 1994 ICJ Rep. 6, 21-22, para. 41 (Feb. 3).

77 On this principle, see, for example, Andrew Ashworth, Principles of Criminal Law 80-82 (3d ed. 1999). Even though the status of the principle is somewhat ambiguous, id. at 81, its application is required by the Rome Statute, supra note 1, Art. 22(2), with respect to the definition of crimes.

78 Arguably, since the object and purpose of the ICC Statute is to try the worst war criminals, the court would be justified in interpreting “nationality” broadly. See Vienna Convention on the Law of Treaties, supra note 76, Art. 31(1). However, the aim of the drafters and states parties to the statute was to prosecute war criminals on the basis of the active personality or the territorial principle in the absence of a Security Council referral. Thus, in the view of the author, a liberal interpretation of the relevant provisions that would provide for ICC jurisdiction on the basis of any substantial link could not be justified under the teleology of the statute, as it would approach universal jurisdiction, a principle rejected by the majority of states in Rome.

79 Refugee Convention, supra note 16, Art. 33; see also Guys, Goodwin-Gill, The Refugee in International Law 149–50 (2d ed. 1996)Google Scholar.

80 Goodwin-Gill, supra note 79, at 147-50. Case law indicates that failure to extradite is not based on the treatment of the refugee as a national for the purposes of extradition. See, e.g., T v. Swiss Fed. Prosecutor’s Office, supra note 68; Re Rubio, 40 ILR 212 (Sup. Ct. 1962) (Chile); Re Colafic, J.C.P. 1963, II, 13126 (CA Paris 1961), 44 ILR 187. These decisions dealt with and denied the applicability to extradition of the Refugee Convention, supra note 16, Art. 12(1), which provides for the treatment of refugees as nationals in matters of civil jurisdiction.

81 As most contemporary conflicts are noninternational, territorial, active, and passive personality jurisdictions are often possessed by the same state.

82 This problem is well illustrated by the case of Léon Mugesera, a Rwandan national who was granted asylum in Canada. Before fleeing from Rwanda, Mugesera had publicly incited genocide against the Tutsi in 1992. After this became known, in 1998 the Canadian Immigration and Refugee Board found Mugesera guilty of direct and public incitement of genocide and deprived him of his resident status. In 1996 his extradition was requested by Rwanda. As he had committed crimes falling under the exception in the Refugee Convention, supra note 16, Art. 1 (F), the IRB could withdraw his refugee status and he could be extradited to Rwanda. However, “Canada intends neither to judge Mugesera before its criminal courts” (following a policy decision not to exercise universal jurisdiction) “nor to extradite him to Rwanda” (for fear of criticism by nongovernmental organizations and international human rights bodies based on the state of the Rwandan justice system) “so that he can stand trial there. Absent a request from an enthusiastic Spanish prosecutor, Mugesera may well escape a criminal trial.” William, A. Schabas, Case Report: Mugesera v. Minister of Citizenship and Immigration, in 93 AJIL 529, 533 (1999)Google Scholar. As the case did not fall within the temporal jurisdiction of the ICTR, the Tribunal did not have jurisdiction over it.

83 See Stern, Brigitte, Case Report: In re Javor, In re Munyeshyaka, 93 AJIL 525, 529 (1999)Google Scholar; Wedgwood, Ruth, National Courts and the Prosecution of War Crimes, in 1 Substantive and Procedural Aspects of International Criminal Law 390, 401 (Gabrielle, Kirk McDonald & Olivia, Swaak-Goldman eds., 2000)Google Scholar; McKay, Fiona, Universal Jurisdiction in Europe Google Scholar, at <http://www.redress.org> (visited June 19, 2001).

84 Krenz, supra note 11, at 109.

85 Prosecutor v. Tadić, Judgment, No. IT-94-1-A, paras. 163-66 (July 15, 1999), 38 ILM 1518 (1999); Prosecutor v. Blaškić judgment, No. IT-95-14-T, paras. 125-27 (Mar. 3, 2000); Prosecutor v. Delalić, Judgment, No. IT-96-21-T, paras. 245-59 (Nov. 16, 1998) [hereinafter Celebicicase]. All three judgments are available online at <http://www.un.org/icty> (visited June 19, 2001).

86 Tadić, supra note 85, para. 165; see also id., paras. 164-65 nn.204-05.

87 Id., para. 166. While made in a different context, these conclusions confirm a change of attitude in international law concerning the status of refugees and the validity of their nationality under international law. See also Dugard, supra note 12, at 57-60, paras. 175-84.

88 See codes listed in note 65 supra.

89 See, e.g., Luke, T. Lee, Consular Law and Practice 358 (2d ed. 1991)Google Scholar; Grahl-Madsen, supra note 11, at 381.

90 At first glance, the ICTY’s opinions in the Tadić, Celebici, and Blaškić cases, supra note 85, appear to contradict this position. While the link of a refugee with his state of origin may in fact be less strong and real than the one between him and his state of asylum, this is not the point at issue here. Rather, it is suggested that the grant of asylum reflects a less substantial commitment by the state of asylum than a grant of nationality; hence, on the basis of a mere grant of asylum, this state should not be entitled to derive the totality of the rights from this act that international law provides it over its nationals.

91 See note 72 supra.

92 Special Rapporteur Dugard’s report to the International Law Commission on diplomatic protection, supra note 12, lends support to this option. On the relevance of this source in the present context, see note 73 and corresponding text supra.

93 See text at notes 73-74 supra. The same principle was proposed to be applied to stateless persons and their state of permanent residence, see text at note 62 supra.

94 Refugee Convention, supra note 16, Art. 1 (F) (a).

95 See quotation and text at note 84 supra.

96 This problem was demonstrated in the decision of the Austrian Supreme Court in the Cvjetković case in 1994. The Court based its jurisdiction over the accused partly on the fact that there was no functioning criminal justice system in the country where the crime had taken place. Re Dusko C, Oberster Gerichtshof, No. 150s99/94 (July 13, 1994), at <http://www.ris.bka.gv.at/jus/>; see also McKay, supra note 83.

97 See Refugee Convention, supra note 16, Art. 1(C); see also note 74 supra.

98 These principles are proposed to guide jurisdiction over refugees in the sense of the 1951 Refugee Convention, supra note 16. The OAU Convention Governing the Specific Aspects of Refugee Problems in Africa, Sept. 10, 1969, Art. 1(1), 1001 UNTS 45, also defines as refugees

every person who, owing to external aggression, occupation, foreign domination or events seriously disturbing public order in either part or the whole of his country of origin or nationality is compelled to leave his place of habitual residence in order to seek refuge in another place outside his country of origin or nationality.

In fact, such people may constitute the majority of contemporary refugees. But as long as there is no persecution or severance of allegiance, the author believes that the active nationality principle should be applied in its traditional form.

99 See note 78 supra. Once a treaty amendment concerning the role of the state of asylum in granting the court jurisdiction over refugees is initiated, the principles discussed above would not restrict the freedom of state parties to the statute, and they could provide for the right of the state of asylum to consent to the court’s Jurisdiction even over crimes committed before the grant of asylum.

100 See note 32 supra.

101 See Rome Statute, supra note 1, Arts. 17-19.

102 Id.; Rules of Procedure and Evidence, supra note 2.

103 Rome Statute, supra note 1, Arts. 121, 123.

104 Id., Arts. 17-19.