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Search: extraterritorial sanctions

05 Dec

...three part functional test for the extraterritorial availability of the Great Writ: "at least three factors are relevant in determining the reach of the Suspension Clause: (1) the citizenship and status of the detainee and the adequacy of the process through which that status determination was made; (2) the nature of the sites where apprehension and then detention took place; and (3) the practical obstacles inherent in resolving the prisoner’s entitlement to the writ." The Court has not emphasized citizenship too heavily in its decisions regading the general availability of...
05.12.12 | |

30 Mar

...offences’ are defined as inter alia extraterritorial offences “which [constitute] an offence under the law of another state [presumably the territorial state] and which would have constituted [terrorism] … had that activity taken place in the Republic”. To my mind, at least, that conditions SA’s UJ in Okah to offences that were also offences under the law of Nigeria (loosely ‘double criminality’). There is another contender for UJ however (section 15(2)), which states in relevant part that any act [NOTE: not ‘specified offence’] committed outside the Republic shall, regardless of...
30.03.14 | |

05 Nov

...to situations affected or potentially affected by the ICJ decision. It is further worth observing that the Constitutional Court while reaching the conclusion that article 2 and 24 of the Constitution prevail over the rule of international law granting sovereign States immunity for acta jure imperii, made it clear that its reasoning was referred to war crimes and crimes committed on Italian soil (Paras 4.1 and 5 of the decision). This said, what relevance can we expect the decision of the Italian Constitutional Court will have for extraterritorial claims? What...
05.11.14 | |

05 Aug

...belligerents, and thus are subject to domestic criminal charges for their mere participation in the conflict (though APII art. 6(5) encourages amnesty). But such participation is not an international crime. For an unprivileged belligerent to kill a U.S. soldier in combat in Afghanistan falls within U.S. extraterritorial jurisdiction, and presumably constituted a domestic-law crime in 2001-02, so it can be tried in a regular U.S. court. Neither can be said, so far as I can see, for otherwise-lawful acts of war committed by unprivileged belligerents against our "co-belligerents." Howard Gilbert...
05.08.08 | |

04 Oct

...So, you rightly ask, what work is the LOAC doing? Why not just apply IHRL directly to the specific factual circumstances surrounding each deprivation of life? Here are a few thoughts: First, the LOAC may apply where IHRL does not. As you know, there is a move to apply IHRL to all extraterritorial killings by state agents, but if that move fails then the LOAC may be the only applicable law in many cases. Second, where both apply, the LOAC provides a floor of protection, a minimal content to “arbitrary”...
04.10.16 | |

22 Aug

...by non-state actors BEFORE the organization, intensity and duration criteria are met. That, to me, seems to be most dynamic area of IHL going forward (and the largest issue surrounding the Tallinn Manual). U.S. policy statements endorse the view that IHL governs acts of national self-defense against extraterritorial non-state actors who pose an "imminent" and "continuing" threat. Others claim human rights law governs even though the U.S. claims it doesn't apply extraterritorially. How that difference of opinion is ultimately resolved has tremendous practical consequences for states and non-state actors alike....
22.08.14 | |

08 Jun

...Israel's considers) there is no occupation there is simply no law to apply (reference to general principles of law will not get someone very far, whereas Israel -- along with other States -- does not recognise extraterritorial application of its ICCPR obligations in accordance with that instruments basic text). In any event, the provisions of the Fourth Geneva Convention that Israel does apply are its humanitarian provisions (see Ajuri and Others v. Israel Defence Force Commander, 125 I.L.R. 537, 547, ¶ 13 (Israel H.Ct.J. 2002)). shmuel Ori, "if (as Israel’s...
08.06.14 | |

04 May

...armed attacks by non-state actors not amounting to armed conflict -- to be governed by human rights law, particularly extraterritorially. In such cases, states may observe IHL as a matter of policy or by analogy but had no requirement to do so as a matter of law. This, I think, is Jordan Paust's position, and somewhat reflects the U.S. position (depending, perhaps, upon the administration). While I respect Kevin immensely, he frequently argues, without citation, that no European country views the law this way. Absent a thorough study, I can't...
04.05.11 | |

17 Feb

...read the text in favor of people who will have state power applied against them. (Consider the Geneva Conventions.) Also, there is I believe a strong plain language presumption with treaties, and I don't thinking banning this kind of arrangement would be an absurd result that rebuts this presumption. Obviously such arrangements have not been thought integral/essential to piracy prosecution, as they have never been used since 2006. Finally, an easy way around the rule is the procedure used for the Lockerbie bombing trial: extraterritoriality. Edward Swaine Eugene, thanks for...
17.02.09 | |

18 Oct

Jordan The Justices better be careful what they state about the 5th Amend.! Jurisdiction over criminal accused has been extraterritorial and based in customary international law, especially with respect to universal jurisdiction and protective jurisdiciton, e.g., seizure of persons on foreign flag vessels accused of international drug trafficking even where there is no proof that they intended to import into the U.S., Mr. al-Libi, etc. Several lower courts have used international law regarding jurisdicvtion to inform the meaning of what process is "due" under the 5th Amend. -- and the...
18.10.13 | |

17 Nov

...of his choice. While sloppy thinking may be endemic to the debate, one hopes the judge will sort things out. "Terrorists" have no more or fewer rights than bank robbers, but a non-citizen captured and held overseas and then tried for some sort of extraterritorial murder is not entitled to certain procedural rules (with regard to things that happened in foreign countries) that would apply to a resident accused of a murder in the US. One may believe that civilian courts would be more likely than military courts to make...
17.11.09 | |

09 May

...the substance of what is being punished to make an accurate evaluation. I am not sure how helpful it is to level broadside attacks based solely on labels. Additionally, I would encourage you to consider my recent Journal of International Criminal Justice article regarding the municipal, common law basis of some offenses in the MCA...and the next one in that Journal (if accepted, currently pending) regarding the propriety of their application to conduct in an extraterritorial armed conflict - particularly given the legality principle (for those unfamiliar, similar to ex...
09.05.09 | |