Diplomatic Protection and International Criminal Law: Can the Gap Be Bridged?

Abstract

The concepts of nationality and allegiance are central to the doctrine of diplomatic protection as well as to certain institutions of (horizontal) international criminal law such as jurisdiction over treason, passive and active personality jurisdiction, and the non-extradition of nationals. In this sense, there appears to be a clear parallel between these two fields of international law. Yet most scholars – including John Dugard – tend to place and keep diplomatic protection and international criminal law in distinct conceptual compartments, never addressing them in relation to each other. This study considers whether this prevailing strict doctrinal separation is necessary and justified – in other words, whether diplomatic protection and international criminal law are, or can, or should be bridged.