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Compared to universal jurisdiction, active nationality jurisdiction remains one of the least understood and written about forms of extraterritorial criminal jurisdiction. This article seeks to offer a normative account of the exercise of criminal jurisdiction by states over their nationals for crimes committed abroad such as sexual offences against minors, bribery of foreign public officials, or medical “circumvention” tourism. It highlights all of the reasons that militate against such assertions of jurisdiction as a matter of policy and law. It goes on to argue that the assertion of criminal jurisdiction over nationals for crimes committed abroad must be understood beyond its permissibility under international law as a modality that manifests the interests of the state of nationality, the territorial (host) state on occasion, the relevant individuals, and, increasingly, the international community.

This essay analyzes the outcome of the International Law Commission (ILC)’s seventy- first session, held from April 29 to June 7 and from July 8 to August 9, 2019 in Geneva, under the chairmanship of Pavel Sturma (Czech Republic). Notably, the Commission completed the first reading of its topic on peremptory norms of general international law (jus cogens). The Commission also completed the first reading of its topic on protection of the environment in relation to armed conflict and completed the second reading of its topic on crimes against humanity. Progress was also made in developing draft articles on succession of states with respect to state responsibility, draft articles on immunity of state officials from foreign criminal jurisdiction, and draft conclusions on general principles of law. Additionally, the Commission held informal consultations concerning model clauses for its topic on provisional application of treaties, the first reading of which was completed in the seventieth session and the second reading of which is expected during the seventy-second session in 2020. The Commission added to its agenda a topic on sea-level rise in relation to international law, which is being addressed in the context of a study group rather than by use of a special rapporteur. It also added two new topics to its long-term work program: (1) reparation to individuals for gross violations of international human rights law and serious violations of international humanitarian law; and (2) prevention and repression of piracy and armed robbery at sea.

The scope of international criminal jurisdiction poses a fundamental challenge for criminal law theory. Prevailing justifications for the state's authority to punish crime assume the existence of connections between the state and either the criminal or the crime that are not always present in the international criminal context. Recognizing this gap, this Article introduces a new theory of what distinguishes international crimes from domestic crimes and justifies the unusual scope of international criminal jurisdiction. As this Article explains, international crimes are unique in the way they undermine international society's structure as a system of sovereign states.

On June 6, 2018, the International Court of Justice (Court) rendered a judgment on preliminary objections in the case of Immunities and Criminal Proceedings (Equatorial Guinea v. France). France had made three preliminary objections: two related to the Court's jurisdiction on the basis of, respectively, United Nations Convention Against Transnational Organized Crime (Palermo Convention) and the Optional Protocol to the Vienna Convention on Diplomatic Protection (VCDR) concerning the Compulsory Settlement of Disputes (Optional Protocol), and the third challenged admissibility for abuse of process and abuse of rights. The Court accepted the first objection regarding jurisdiction on the basis of the Palermo Convention and rejected the other two. This judgment is an important contribution to the development of international law, both regarding the particular instruments at issue and broader questions of law of treaties and international dispute settlement.

This essay analyzes the outcome of the seventieth session of the U.N. International Law Commission held in the summer of 2018 in New York and Geneva. Notably, the Commission completed on second reading two topics: subsequent agreements and subsequent practice in relation to the interpretation of treaties; and identification of customary international law. The Commission completed on first reading two further topics: protection of the atmosphere; and provisional application of treaties. Progress was also made in developing draft conclusions on peremptory norms of general international law (jus cogens), draft principles on protection of the environment in relation to armed conflict, and draft articles on succession of states in respect of state responsibility. The Commission commenced a debate but otherwise did not make progress with respect to its topic on the immunity of state officials from foreign criminal jurisdiction. The Commission, however, added a new topic to its agenda on general principles of law, and added two new topics to its long-term work program, namely on universal criminal jurisdiction and sea-level rise in relation to international law. The Commission did not work on a topic that completed its first reading in 2017 and that, after receiving reactions from governments and others, will likely undergo its second reading in 2019: crimes against humanity.

Published: 30 July 2018 More than any other international criminal tribunal, the International Criminal Court (ICC) has, in its early years, pursued cases against heads of state. The Court issued arrest warrants for President Omar al Bashir of Sudan and for Muammar Gaddafi while he was Libya's head of state, and it charged Uhuru Kenyatta shortly before he became head of state of Kenya. These attempts to prosecute heads of states have not only led to tensions between the Court and the African Union, but also pit the desire to hold senior leaders accountable for grave international crimes against the customary international law principle that certain senior state officials—especially heads of state—have immunity from foreign criminal jurisdiction by virtue of their status, including immunity from arrest and their inviolability when abroad. The research leading to these results has received funding from the European Research Council under the European Union’s Seventh Framework Programme (FP/2007-2013) / ERC Grant Agreement No 340956 - IOW - The Individualisation of War: Reconfiguring the Ethics, Law, and Politics of Armed Conflict.

The International Law Commision's (ILC's) work on Immunity of State officials from Criminal Jurisdiction, which started ten years ago, has generated over time high expectations. In light of progress in international criminal law, the ILC is expected to strike a reasonable balance between the protection of sovereign equality and the fight against impunity in case of international crimes. It requires the Commission to determine whether or not immunity from criminal jurisdiction applies or should apply when international crimes are at stake. At its 2017 session, the ILC eventually adopted Draft Article 7 on this issue, which proved quite controversial and did not meet states’ approval. The purpose of this essay is to shed some light on the main shortcomings of this provision and to identify possible alternatives that could permit the ILC to overcome the deadlock concerning its adoption.

The International Law Commission (ILC) explains in its 2017 Commentary to Draft Article 7 of its Draft Articles on the Immunity of State Officials from Foreign Criminal Jurisdiction that the draft articles are “intended to apply within an international legal order whose unity and systemic nature cannot be ignored.” The quest for coherence is admirable. It enhances legal certainty and predictability in an evolving area of the law. But a systemic approach can also go too far—stretching analogies and ignoring differences, seeing a trend where there is none. The trajectory of the ILC's work on Draft Article 7 illustrates certain dangers.

Exciting changes are happening in criminal jurisdiction in Indian country at the national level. Due in large part to activism on the part of Native women, Congress has attempted to improve criminal justice on tribal lands. The reforms do not go far enough, however, and many of the recent legal changes have not yet been challenged in the federal courts. This article will preview many of the legal issues likely to ignite a firestorm of litigation and lobbying around issues of crime in Indian country. This article will also wrestle with the difficult question of whether tribal nations should adopt or sustain the typical carceral law and order model used by Anglo-American governments. In an effort to take advantage of the changes in federal law, tribal nations are explicitly required to comply with certain Anglo-American norms. The risks and rewards of such adherence will also be explored.

In July 2017, the UN International Law Commission (ILC) provisionally adopted Draft Article 7 on exceptions to immunity ratione materiae of state officials from foreign criminal jurisdiction, by a recorded vote of twenty-one votes in favor, eight votes against, and one abstention. In the view of the majority of ILC members, immunity ratione materiae does not apply to the six international crimes listed in the draft article—genocide, crimes against humanity, war crimes, apartheid, torture, and enforced disappearance—either because of a limitation or because of an exception. The unusual practice of adopting a draft article by recorded vote demonstrated the deep controversy among the ILC members themselves. After all, exceptions to official immunity lie at the core of the project of “Immunity of State Officials from Foreign Criminal Jurisdiction” that was started a decade ago by the ILC. This divisive Draft Article 7 naturally garnered criticism and equally deep controversy among states in discussions on the ILC's work report at UN General Assembly Sixth Committee in late October 2017.

In the summer of 2017, the UN International Law Commission adopted Draft Article 7 and an associated draft annex for its project on immunity of state officials from foreign criminal jurisdiction. The draft article identifies six “crimes under international law in respect of which immunity ratione materiae shall not apply”: genocide; crimes against humanity; war crimes; crime of apartheid; torture; and enforced disappearance. Given the divergences within the Commission when considering and adopting Draft Article 7 (as evidenced by the plenary debate in 2016 and 2017, the unusual recorded vote on whether to refer the matter to the Commission's drafting committee, and the Commentary), it is difficult to conclude that the Commission is expressing a view that Draft Article 7 reflects lex lata.

The International Law Commission held its sixty-eighth session in Geneva from May 2 to June 10, and from July 4 to August 12, 2016, under the chairmanship of Pedro Comissário Afonso (Mozambique). Notably, the Commission completedonsecond reading a full set of eighteen draft articles with commentaries on the protection of persons in the event of disasters and recommended to the United Nations General Assembly that it elaborate a convention based on the draft articles.Additionally, the Commission adopted on first reading a complete set of draft conclusions, with commentaries, for two topics: identification of customary international law; and subsequent agreements and subsequent practice in relation to the interpretation of treaties. As such, both topics might be completed by the Commission on second reading in 2018.Progress was also made in developing draft articles on crimes against humanity; draft guidelines on protection of the atmosphere; draft conclusions on jus cogens; and draft principles on protection of the environment in relation to armed conflicts. The Commission commenced a debate on a proposed draft article on “limitations and exceptions” to the immunity of state officials from foreign criminal jurisdiction, but, due to insufficient time, the debate will continue in 2017. Furthermore, an additional proposed guideline on the provisional application of treaties was sent to the drafting committee. The Commission decided to add two new topics to its long-term work program: the settlement of international disputes to which international organizations are parties; and succession of states in respect of state responsibility.

Author(s): Dodge, William S. | Abstract: This short essay examines the definition of “act performed in an official capacity” in the International Law Commission’s work on the topic of Immunity of State Officials from Foreign Criminal Jurisdiction. International law relies on the concept of “official capacity” in different contexts, and the concept must take its meaning in each context from the purpose it is intended to serve. The fact that a person inflicts pain and suffering in an official capacity within the definition of torture under international law, for example, does not necessarily mean that he is entitled to immunity from foreign criminal jurisdiction for his acts of torture. The essay faults the ILC’s Fourth Report for conflating these different concepts of official capacity and argues that serious international crimes — those crimes over which nations may exercise universal jurisdiction — should not be considered official acts for purposes of immunity.

What follows is a private international lawyer’s response to the thought-provoking ideas put forward by Professor Svantesson on international jurisdiction from a criminal law perspective. This stance may in itself seem (and certainly feels!) paradoxical, since much contemporary academic effort (my own included) has been directed towards a rejection of the public/private distinction in international law. This rejection has been championed both as a normative matter, because so much would be gained from reaching ‘beyond the schism” to overcome the personality split from which the discipline has suffered for over a century, as well as a descriptive matter, since multiple issues, debates, myths and concepts straddle the divide, even if they give rise to specific disciplinary understandings on either side. Both of these observations apply to jurisdiction in all the forms mentioned by Professor Svantesson. Moreover, the need for an intradisciplinary conversation is particularly acute in respect of international limits on criminal jurisdiction, which, as Professor Svantesson’s paper seems to demonstrate, fall somewhere in-between the public and the private models (perhaps seen as logically public, but considered private in France!).

The Nuremberg principles affirmed by the U.N. General Assembly and formulated by the International Law Commission (ILC) provide that “[t]he fact that a person who committed an act which constitutes a crime under international law acted as Head of State or responsible Government official does not relieve him (sic) from responsibility under international law.” Few would dispute this basic principle. More contested is the question of who has authority to impose consequences on individuals for international crimes committed on behalf of states. This is because, if an individual has acted with actual or apparent state authority, imposing consequences on the individual without her state’s consent runs counter to traditional notions of state sovereignty and noninterference.

States have undertaken an international obligation to investigate and prosecute individuals for serious human rights violations and grave breaches of international humanitarian law. However, compliance with that obligation is poor and prosecutions at the national level remain few. The mechanism for enforcement of that obligation is also limited. This article explores the way in which the International Court of Justice (ICJ) can play, and has played, a role in this respect. The jurisprudence of the Court is analysed with regard to three matters: (i) the obligation of states to investigate and prosecute serious crimes at the national level; (ii) national criminal jurisdiction with regard to prosecution of serious crimes, as well as immunities from that jurisdiction; and (iii) the obligation of states to cooperate in criminal matters with other jurisdictions. The Court has adjudicated on some key issues relating to national prosecutions. Some of its findings have, without doubt, enhanced the enforcement of prosecution at the national level, while others have undermined it. Recent cases before the ICJ show an increased willingness by states to use the Court as an avenue for enforcement and, at the same time, the Court has proved more willing to utilise its powers.

The International Law Commission held its sixty-fifth session in Geneva from May 6 to June 7, and from July 8 to August 9, 2013, under the chairmanship of Bernd H. Niehaus (Costa Rica). The Commission devoted most of the sixty-fifth session to discussing three topics: immunity of state officials from foreign criminal jurisdiction, subsequent agreements and subsequent practice in relation to the interpretation of treaties, and protection of persons in the event of disasters. Notably, the Commission provisionally adopted three draft articles and commentaries identifying three categories of senior governmental officials—heads of state, heads of government, and foreign ministers—as entitled to immunity ratione personae from foreign criminal jurisdiction for their public or private acts, an immunity that ceases once they leave office.

In Khurts Bat, the English High Court held that Mr Bat, a Mongolian State official charged with committing municipal crimes on German territory, was not immune from the jurisdiction of German courts and could therefore be extradited to Germany. This article examines the three theories of immunity put forward in that case: (1) special missions immunity, (2) high-ranking official immunity, and (3) State immunity. It focuses on the question of whether State officials charged with municipal crimes may plead immunity ratione materiae from the criminal jurisdiction of a foreign State by examining key examples of State practice.

Since the close of the Cold War, the international community has created a variety of legal institutions designed to step in when state justice systems fail to prosecute genocide, war crimes, and crimes against humanity. The ad hoc criminal tribunals, the hybrid tribunals (such as the Special Court for Sierra Leone), the International Criminal Court (ICC), and the use of universal jurisdiction by national courts are among a new generation of courtly mechanisms designed to hold wrongdoers criminally accountable, state justice systems notwithstanding. These mechanisms represent an era of international judicial involvement in what used to be a more exclusively sovereign matter—the response to mass crimes against civilian populations. Accordingly, they have engendered a slew of scholarship devoted to analyzing their strengths and weaknesses, individually and as a group.

The Rwandan genocide remains one of the most horrific atrocities of the twentieth century, resulting in the death of an estimated 500–800,000 human beings, massacred over a 100-day period. In the fourteen years since the genocide, attempts at justice and reconciliation in Rwanda have involved a delicate interplay between national legal systems and the international legal order. This article examines three fora in which Rwandans have been tried for involvement in the genocide: the International Criminal Tribunal for Rwanda, Rwandan courts including Gacaca tribunals, and French attempts to exercise universal jurisdiction. Using Rwanda as a case study, the article illustrates the issues, concerns, and difficulties that arise when multiple jurisdictions assert a right to exercise criminal jurisdiction over the perpetrators of serious atrocity crimes. Beginning with a discussion of the political context, this article considers what the competing narratives and litigation in various fora have meant for the project of international and transnational criminal justice. Cases involving the commission of atrocities pose unique challenges for the international legal order. As the normative structure of international criminal law has arguably been strengthened, political constraints increasingly come to the fore. As illustrated by Rwanda, universal jurisdiction or other bases of jurisdiction may remain necessary vehicles for justice and reconciliation, or, at the very least, they may serve as a catalyst for change in Rwanda itself.

The expansion of claims of extended territorial and extraterritorial criminal legislative jurisdiction and the increasing facility with which States are able to obtain custody over defendants by way of more effective extradition arrangements is leading to a new problem in transnational criminal law. The result of these developments is that more than one State may have legitimate jurisdiction to legislate for the same conduct and the courts of more than one State may be entitled to exercise judicial jurisdiction over those persons charged with crimes arising from that conduct. For prosecutors, the problem may present itself as one of prosecutorial efficiency—how may the case be proceeded with expeditiously, in particular, in which jurisdiction is a conviction most likely to be secured? Considerations such as the availability of witnesses or the admissibility of evidence may influence the prospects of conviction and prospective punishments may be a factor when deciding in which system prosecutors prefer the case to go ahead. Defendants have different perspectives. In many cases involving extradition to face a charge based on an exercise of extended jurisdiction, the defendant will be removed from the place where he lives and works to another State. There may be adverse consequences for him compared to facing a trial where he is usually located. Criminal proceedings abroad will be in an unfamiliar legal system; bail may be harder to obtain because of a perceived greater danger of flight; the impossibility to continue working during the period in which the trial is being prepared may impose financial hardship; defendants will be removed from their families and social networks for considerable periods.

In July 2006, three bankers, all UK nationals, were extradited to the United States on charges of conspiracy to defraud their one-time employers, a British bank, a subsidiary of Natwest. The conduct took place under the shadow of the ‘Enron’ affair. The defendants were said to have conspired with senior officials of Enron. Enron was the subject of the largest corporate bankruptcy in US history. In comparison the sums involved in the Enron collapse, those at stake in what the papers called the ‘Natwest Three’ case were small, but the involvement of persons implicated in the Enron affair made the defendants of interest to US prosecutors. The cases enjoyed an unusual public profile, partly because the extraditions took place under the unique legal regime which governs US-UK extradition,1 partly because this case was simply one of several cases in which persons charged with what one might loosely call economic crimes were sought by US prosecutors2 and partly because the defendants argued that their offences (which they denied) were allegations of what were ‘really’ English crimes which should have been proceeded with here. Although the extradition aspects have loomed largest, this last matter, possible conflicts of criminal jurisdiction, is the most interesting.

Contemporary studies of prosecutorial decision making at the state level are infrequent, and even fewer studies examine the discretionary decisions of federal prosecutors. In addition, virtually no scholarly literature examines the growing overlap between federal and state criminal jurisdiction. This paper advances both theoretical and empirical understandings of the organizational and political contexts in which prosecutorial discretion takes place by exploring the nexus between federal and state criminal jurisdictions. Drawing on interview research in a large urban area with several active federal/state cooperative prosecution programs, we suggest that these cooperative relations open new avenues of discretion for local and federal prosecutors; limit the authority of other court actors, including state judges; and erode the distinctions between federal and local criminal jurisdiction.

In its decision in the Arrest Warrant case,2 the International Court of Justice studiedly refused to address systematically the legality and ambit of a purported exercise in absentia of universal criminal jurisdiction by one State over a government minister of another State. This, coupled with the dicta of certain judges with reservations as to the scope of universal jurisdiction3 and the (at best) lukewarm support for such jurisdiction displayed by certain other judges,4 might be taken as a discouragement to States to engage in similar exercises of jurisdiction. However, the contemporary trend in many developed States in favour of taking measures of extraterritorial enforcement jurisdiction to apprehend and punish the alleged perpetrators of serious international law crimes, coupled with the entry into force of the Statute of the International Criminal Court, indicates that more such attempts are quite likely to be made. Within a year of its decision in the Arrest Warrant case, the ICJ again found itself the forum for a similar dispute. On 9 December 2002 the Republic of the Congo (‘the Congo’) filed an Application instituting proceedings against France5 in circumstances notably resembling those that had prompted the Democratic Republic of the Congo (‘the DRC’) to act against Belgium. Again, the Applicant was an African State protesting against an alleged abuse of universal jurisdiction and failure to respect immunities on the part of its European former colonial ruler. Despite the prima facie similarity between the two cases, however, the chances that the eventual decision in the Certain Criminal Proceedings case will go beyond the Arrest Warrant case to elucidate the doctrine of universal jurisdiction are very slight. This note is confined to considering the circumstances behind the Congolese Application and Request for the Indication of a Provisional Measure, and the Court's response thereto in its Order of 17 June 2003.

For years the majority of those individuals publicly indicted by the International Criminal Tribunal for the former Yugoslavia (ICTY) remained at large due to a lack of co-operation from states whose assistance was required to effect their arrest. In order to assist in this regard, various operations have been undertaken since 1997 by which UN and regional missions have taken steps to assist the ICTY in the difficult task of bringing accused before the Tribunal in The Hague. Such steps were taken in the case of Stevan Todorovic, who was captured and transferred to The Hague by means of an operation shrouded in secrecy and alleged to have involved illegal behaviour on the part of the NATO-led Stabilization Force. The following article discusses the nature of Todorovic's arrest (based on the limited facts available) and his various attempts to have his indictment dismissed due to the nature of his arrest. In so doing, it considers the state of the law regarding the appropriateness of an international judicial body proceeding with the trial of an individual brought before it by potentially illegal means. Although a plea agreement was reached in the case, with the result that the judicial consideration of the issues is limited, important issues are nevertheless raised in the arguments of the Office of the Prosecution and the defence counsel which are likely to recur in similar cases in the future.

Various recent developments within and without the United Kingdom have strengthened the arguments in favour of the adoption of general nationality based criminal jurisdiction. These arise from problems in the application of territorial jurisdiction, increasingly frequent crime-specific reference to nationality based jurisdiction, the development of European Union law, the ever-greater mobility of nationals, the ability to commit crimes remotely, the incorporation of the European Convention of Human Rights and Fundamental Freedoms into United Kingdom law, an evolution in the citizen-state relationship, and the increasing internationalisation of criminal law. It is not suggested that territory should no longer find a central place in the criminal law rather that the original and present arguments in its favour have been greatly weakened and, at the same time, the arguments in favour of nationality based jurisdiction have been strengthened. This article details the present nature of criminal jurisdiction, highlights the deficiencies with territorial jurisdiction and outlines the case in favour of a general nationality based criminal jurisdiction.

In a series of decisions the European Court of Justice [‘the Court’] has ruled that Member States must deploy their law enforcement authorities, including their criminal justice systems, so as to safeguard Community interests from threat or damage. These rulings have received attention from commentators because, amongst other things, they make it explicit that Community law has a tangible impact on matters of criminal law and justice notwithstanding the absence of a criminal legal base in the Community Treaty.

Shortly after the Second World War the community of States, still shocked by the explosion of violence that had torn the world apart for more than five years, ratified an updated version of the Geneva Conventions in the hope of acquiring a sound legal instrument which would preserve human dignity even in times of war. They undertook to respect the fundamental rights of the individual in armed conflicts, whether international or otherwise, and to limit the use of force to what was strictly necessary to place an enemy hors de combat. Their resolve found confirmation in the two Additional Protocols of 1977.

In a previous issue of this Quarterly Colin Warbrick gave an exposition of the British Order in Council (The United Nations (International Tribunal) (Former Yugoslavia) Order 1996) which implements Security Council Resolution 827. This note gives an alternative view of the scope and legality of that Order.Why. it may be said, should anyone want to raise objection to the Order in Council implementing Resolution 827 when it merely introduced a procedure which ensures war criminals (whether Serb, Croat, or Bosnian) seeking refuge in Britain are promptly handed over to face justice?The answer is that, whilst the immediate purpose of the Order in Council may be unobjectionable, the means by which it has been achieved are out of proportion to that purpose, and open the door to further unconsidered transfers of national powers.

SummaryA recent decision of the Ontario Court of Justice (Provincial Division) involving criminal charges of perjury and attempting to obstruct justice against a consular officer posted in Toronto was the occasion for a comprehensive review of the scope and application of consular immunity in Canada. Contrary to the arguments presented by the attorney general of Ontario and the evidence and opinion of the secretary of state for External Affairs, Canada, the court ruled that the consular officer was immune from the criminal jurisdiction of the Court. The Court concluded that the consular officer’s actions were performed in the exerdse of consularfunctions and that while the impugned acts occurred outside the geographical consular district, the immunity was not compromised. The authors conclude that relief through diplomatic channels, rather than criminal prosecution, is the appropriate mechanism for addressing consular misconduct.

Professor S. Z. Feller, to whom this article respectfully is dedicated, wrote a critical attack on the problem of concurrent criminal jurisdiction. The adverse consequence of more than one state claiming jurisdiction over a given criminal behaviour may be the abduction of the alleged offender by officials of one of these states. This issue was recently raised in the United States Supreme Court in theAlvarez-Machaincase. Chief Justice Rehnquist's holding allowing a U.S. court to try Dr. Alvarez-Machain, who was abducted by U.S. authorities, caused vehement national and international criticism. Subsequently, the United States District Court of Los Angeles acquitted Dr. Alvarez-Machain on 14 December 1992.The long list of abduction cases of recent history, together with the absence of a satisfying solution are alarming. I shall not attempt to cut this “Gordan's knot”, but rather shall focus on an issue that has as yet not been clearly addressed in the current debate.

The local courts of Zambia are the successors to the native courts which the British set up in Northern Rhodesia, as elsewhere in colonial Africa, to administer justice to Africans. However, while the system of native courts originally existed in parallel with the system of English-style magistrates' courts, after independence the native courts (re-named local courts) were integrated into the judicial system, with appeals lying to subordinate courts (i.e. magistrates' courts) of the first or second class. Although it was the ultimate goal of the government to have a fully professionalised judiciary (a policy adopted by Kenya in 1967), it recognised that the local courts still had an important role to play in the administration of justice, particularly in the rural areas. Twenty years later it looks as if their future is secure. If the amount of business transacted by the local courts and the paucity of appeals from their decisions provide an indication of their popularity and effectiveness, they would seem to have proved their worth.Like their predecessors, the local courts have a limited criminal jurisdiction, but the bulk of their business is civil. They have jurisdiction in most civil matters where the claim does not exceed 200 kwacha. Some of these cases are actions for the recovery of a debt, actions for assault or actions for defamation of character (most frequently, accusations of witchcraft), but the majority of the cases could be broadly categorised as “family” cases, including divorce, adultery, seduction and inheritance claims.

1. General: The topic under discussion relates to the incidence of the criminal laws of more than one state applying to the same offence, committed by the same person, and the question with which we are confronted is how—if at all—this phenomenon may be prevented, and, if it is inevitable, and if remedies are called for, what are the available remedies.The topic falls within the orbit of international criminal law as a branch of law comprising the system of norms of domestic criminal law, which regulates matters containing a foreign element, and of international law, which regulates matters containing a criminal element. And indeed, concurrent incidence of criminal laws as aforesaid is the fruit of the regulation by norms of this nature.In order to provide answers to the questions concerning concurrent jurisdiction as a consequence of the concurrent incidence of the criminal laws of several states, it is necessary to answer a preliminary question, i.e., is the problem of concurrent jurisdiction a procedural problem of distribution of the judicial functions amongst the courts of a number of states, or, rather, is it a fundamental, substantive problem, of which judicial competence is only the result?

PRIOR to the advent of British colonialism in Nigeria, there were no citizenship laws applicable to the territories now comprised in Nigeria. British nationality laws first became applicable to Nigeria in 1861 when, by treaty, the island and territory of Lagos were ceded to the British Crown. The inhabitants of Lagos then acquired the status of British subjects. Subsequently, the remaining parts of the country came under British protection and the inhabitants thereby became British protected persons-a status which was first statutorily defined by the British Nationality Act 1948.1 Before Nigeria became a sovereign State on October 1, 1960, there was no Nigerian citizenship, and the local legislature had no power to create a local citizenship. However, the question of Nigerian citizenship was among the fundamental matters discussed at the Constitutional Conferences which immediately preceded independence. The independence Constitution of 19602 contained provisions relating to Nigerian citizenship which followed the general pattern of citizenship laws in Commonwealth countries. Chapter II of the 1960 Constitution distinguished between persons who on October 1, 1960, became Nigerian citizens by operation of law and those acquiring such citizenship at birth on or after that date. There were also provisions on the acquisition of Nigerian citizenship by registration, the loss of Nigerian citizenship by the possession of dual citizenship, the Commonwealth citizenship and the limitation of criminal jurisdiction over citizens of other Commonwealth countries in respect of extra-territorial offences. Section 15 of the Constitution empowered Parliament to make provisions for the acquisition of Nigerian citizenship by other modes not provided for in the Constitution and for the deprivation and renunciation of Nigerian citizenship. Parliament was also given power to provide for the acquisition of Nigerian citizenship by registration. In the exercise of these powers, Parliament enacted the Nigerian

Malaŵi has two sets of courts which run completely parallel to each other. One set forms the Judicial Branch of the Government and consists of magistrates’ courts (which have original civil and criminal jurisdiction only), the High Court (which has unlimited original and appellate civil and criminal jurisdiction) and the Supreme Court of Appeal (which has original criminal jurisdiction for contempt of court but otherwise has appellate civil and criminal jurisdiction). The Supreme Court of Appeal is a final appellate court in this set of courts. These courts are here called Received Courts because they apply the received (English) common law as the basic law.The other set of courts is a section of the Ministry of Justice (which is part of the Executive Branch of the Government). The set consists of Traditional Courts of Grades A and B, the Traditional Appeal Courts (which hear and determine appeals from Traditional Courts of Grades A and B), District Traditional Courts, Regional Traditional Courts and the National Traditional Appeal Court (which hears and determines appeals from Traditional Appeal Courts, District Traditional Courts and Regional Traditional Courts). The civil and criminal jurisdiction of Traditional Courts is set out in the warrant establishing the Court and is supplemented from time to time by published ministerial orders under the authority of the Traditional Courts Act (the 1962 Act). The National Traditional Appeal Court is a final appellate court in this set of courts.

The period covering the first seven years of Malawi's independence (1964–1971) stands out as one of the most controversial in the country's postcolonial legislative history. It was during this period, for example, that the local or “Native” Courts of the colonial era were transformed into the now controversial Traditional Courts and given an existence separate from and independent of the High Court, as well as extensive criminal jurisdiction encompassing offences like murder and manslaughter and, subsequently, treason and sedition which were hitherto the preserve of the High Court. At the same time, the participation of lawyers in traditional court processes and the right of legal representation were curtailed under the pretext of ensuring that the course of justice would not be subverted by the frequent invocation of “technicalities” which lawyers are wont to invoke because of the alien and esoteric nature of their training. This paper is not concerned with the “law” of the Traditional Courts in Malawi which, elsewhere, continues to excite appropriate scholarly interest, but with another equally controversial law of the same period whose formulation was buttressed by similar antipathy towards the legal profession. This law introduced a special and rigorous regime for the prosecution and punishment of thefts in the public service.

CRIME is a wrong not merely against the individual but also against society. It is not surprising, then, that changes in social structure during the last few hundred years have been accompanied by altered conceptions of crime and, hence, of criminal jurisdiction. Until the late sixteenth century, crime was still regarded as a local wrong against individuals and a sin against God. The emergent Nation-State intervened only incidentally to punish the criminal, and the bases of criminal jurisdiction were broader than purely territorial interests. Jurisdiction would be assumed by the court of either the forum domicilii, the forum delicti commissi or the forum deprehensionis.1 Where these differed, the forum in which two elements coincided would assume jurisdiction, and where all three conflicted, possession of the body of the criminal was considered sufficient for jurisdiction. The absence of any notion of State sovereignty at that time is illustrated by the fact that neither nationality nor the protection of the State (" the protective principle ") were considered as principal bases of criminal jurisdiction.In the early seventeenth century, when Bodin's Republic was becoming the ideological justification of the Renaissance State, through the concept of sovereignty, criminal jurisdiction began to be based rather on the principle of territoriality. In a pre-industrial age, when crimes were necessarily simple and limited in their effect, and international movement was restricted, it was a reasonable presumption that the preparation and completion of a crime, and the presence of the criminal would coincide in one place, and that this place would be the one most harmed by the commission of the crime. The State within whose territory the crime was committed was, therefore, the one which assumed jurisdiction.3

1. In his article “Criminal Jurisdiction over Aircraft Hijacking”, Dr. Y. Dinstein analyzes the provisions of the Convention for the Suppression of Unlawful Seizure of Aircraft, of December 16, 1970—hereinafter referred to as “the Hague Convention”. This convention deals with States' jurisdiction with regard to the offence of “hijacking”, as defined by Article 2 of the convention, in accordance with the nature of their connection with the offence committed. The learned writer, in the course of his analysis, postulates three premises. The first premise is that Article 4 of the Hague Convention lays down an order of preference with respect to the jurisdiction of the States referred to in that Article. The second premise is that this order of preference is reflected in the order of the paragraphs of Article 4 which specify which are the states in question (paragraphs 1 and 2). The third premise is that the Hague Convention does not provide for universal jurisdiction in respect of the offence of hijacking.

The Committee on International Criminal Jurisdiction appointed by the General Assembly of the United Nations met in Geneva in August, 1951. Its report, accompanied by a Draft Statute for an International Criminal Court, has been submitted to the, governments of Member States for comment before June 1, 1952.

Concomitant with the stationing of United States armed forces in friendly foreign countries is an increasing concern over, and appreciation of, the legal issues arising from their presence. The most controversial question concerns exercise by the host state of criminal jurisdiction over personnel of the visiting United States force. The House Foreign Affairs Committee after extensive hearings refused to accede to critics’ demands that this exercise of criminal jurisdiction by foreign countries be officially denounced, and by a vote of 19–10 tabled the condemnatory resolutions.1 Congressional concern remains strong, however, and the issue is not dormant.

I will begin this investigation by summarising Mommsen's views on the powers of governors, as I understand them. According to Mommsen, the task of the Republican governor was to administer civil justice and to maintain the obedience of subjects and slaves. He was as little a criminal judge as the Roman praetor, whose title he originally bore. His capacity to employ coercitio against non-citizens (and citizens also, until the appeal laws and the Sempronian law were issued) was derived from his military imperium and was quite distinct from criminal jurisdiction. Criminal justice was dispensed for aliens by the local communities and for Roman citizens in the provinces by the courts in Rome.With the Empire came two innovations (Mommsen thought). First, local autonomy was restricted. Subject cities lost to the governor their prerogative of imposing serious penalties; even Roman municipia surrendered much of their criminal jurisdiction. Secondly, military imperium, already checked by Republican laws (above), was further limited by the Augustan law on public violence. This development, implying in itself that the governor had become a fully-fledged criminal judge, ensured that capital jurisdiction over citizens was concentrated, as before, in Rome.

The cause célèbre of King v. William Joyce, subsequently reported as Joyce v. Director of Public Prosecutions, was concerned to a large extent with matters of interest for international law, and it is mainly from this point of view that it is proposed to discuss it in the present article. Obviously the case is also of considerable importance both for criminal law, in so far as it is concerned with the crime of treason, and for constitutional law inasmuch as it bears directly on the question of the nature and the obligations of allegiance. However, it is probable that the case books which will claim it most insistently will be those of international law. For the decision in Rex v. Joyce is not only an authority on certain aspects of allegiance owed by aliens and of the right of a State to assume jurisdiction over acts committed by aliens abroad. It sheds light on such questions as the nature of diplomatic protection of citizens, the right of a State to protect diplomatically persons who are not its citizens, the obligation of allegiance of so-called protected persons, and some others. Not all these questions were judicially answered, but they loomed large in argument and imparted to the proceedings the complexion of a case concerned predominantly with international law. In view of this it may be pertinent to preface this article by drawing attention to a point which appears to be a mere matter of terminology but which, it is believed, raises an issue of wider significance.