ULUSLARARASI KAMU HUKUKU I - Deneme Sınavı - 13

In criminal matters also, the “substantial connection” between the alleged offender or the offence with the state exercising jurisdiction is necessary. The state practice discloses four general principles on the basis of which states generally claim criminal jurisdiction. First, the territorial principle, that determines jurisdiction by reference to the place where the offence is committed. Second, the nationality principle, which determines jurisdiction by reference to the nationality either of the persons committing the offence even with respect to events occurring entirely abroad or with reference to the nationality of the person injured by the offence. Third, the protective principle that refers to jurisdiction according to the national interest of the state injured by the offence. Fourth, the universality principle that provides jurisdiction by reference to the nature of the crime.

The territorial principle, that determines jurisdiction by reference to the place where the offence is committed.

The Nuremberg Tribunal imposed death penalty and imprisonment from 10 to 20 years. Out of 22 persons, 12 were given the death sentence, three were given the life imprisonment, four were given imprisonment of various terms, and three were acquitted. The Tokyo Tribunal found all the defendants, except two, guilty of conspiracy to wage a war of aggression. It also awarded death penalty and imprisonment. The legality and propriety of these trials and the judgments were widely criticized on the following grounds:

• The trials were in violation of the principle of nullum poena sine lege (no punishment without law). There were no rules of international law declaring such acts as illegal prior to the Second World War, they were not defined or made punishable and were also considered the acts of state.
• Trials were an imposition of ex post facto law,  giving retrospective operation to a crime that was not punishable at the time of its commission.
• The tribunals were constituted by the victorious powers, whose impartiality in delivering the judgments was doubtful.
• Consisting mainly of judges from the victorious States was in violation of the principle of nemo judex in causa sua (no one can be a judge in his own case).
• The plea of superior orders has great relevance in the discipline of the armed forces, and it was rejected by the Tribunals without any concrete reason.
• One of the arguments of the defendants was that war is waged by states and not by individuals, who are not the subjects of international law. The Nuremberg Tribunal rejected it and pointed out that “international law imposes duties and liabilities upon individuals as well as upon States.

Therefore, the correct option is D.

The nationality principle, which determines jurisdiction by reference to the nationality either of the persons committing the offence even with respect to events occurring entirely abroad or with reference to the nationality of the person injured by the offence

the protective principle that refers to jurisdiction according to the national interest of the state injured by the offence.

The attempts to establish an international permanent criminal court started by the Committee of Jurists in 1920 to try crimes against international public order and the universal law of nations. The League of Nations drafted a Convention for the Creation of an International Criminal Court in 1937 (along with the Convention on the Prevention and Punishment of Terrorism), consisting of five judges and five deputies to be elected by the Permanent Court of International Justice. Therefore, the correct option is A.

The universality principle that provides jurisdiction by reference to the nature of the crime.

The attempts to establish an international permanent criminal court started by the Committee of Jurists in 1920 to try crimes against international public order and the universal law of nations. The League of Nations drafted a Convention for the Creation of an International Criminal Court in 1937 (along with the Convention on the Prevention and Punishment of Terrorism), consisting of five judges and five deputies to be elected by the Permanent Court of International Justice. The Convention failed to come into force due to lack of ratifications. Therefore, the attempt to establish the Court also failed. Therefore, the correct option is B.

According to subjective territorial principle, a state has jurisdiction over a crime when it is commenced within the state but completed or consummated abroad.

Article 36 of the Rome Statute outlines the qualifications and procedure of election of the judges of the Court. The ICC consists of 18 judges. The number may be increased on a proposal of the Presidency, indicating the reasons for the increase. Therefore, the correct option is D.

Under international law, certain degree of exemption and immunity from local jurisdiction is enjoyed by the following:

The candidate should have an excellent knowledge of and be fluent in at least one of the Court’s working languages (which are English and French). Nominations of candidates for election to the Court may be made by any state party to the Statute. Therefore, the correct option is E.

Composition of the ICC The Court is composed of the following organs (Art.34):
• the Presidency;
• an Appeals Division, a Trial Division, and a Pre-Trial Division;
• the Office of the Prosecutor;
• the Registry.

Therefore, the correct option is A.

The obvious reasons for the exercise of territorial jurisdiction, particularly relating to criminal law, are that:

Under customary international law, diplomatic missions have three functions to perform:

• to protect the interests of the sending state and its nationals,

• to negotiate with the government of the receiving state, and

• to report about the conditions of the receiving state.

Crimes against humanity is defined as inhuman treatment (murder or persecution) on racial or religious grounds during war and in occupied territories..

War crimes, i.e., crimes under the laws o war, which included violation of customary and conventional rules and regulations relating to warfare

actus reus (guilty act): action or conduct which is
a constituent element of a crime, as opposed to
the mental state of the accused.

Mens rea: the intention or knowledge of wrongdoing that constitutes part of a crime, as opposed to the action or conduct of the accused.

Ne bis in idem: The old Roman law principle, retained in European law, stating the right not to be prosecuted or tried twice for the same criminal conduct.