Condemned by Law: Assassination of Political Dissidents Abroad
The most common exercise of jurisdiction is territorial jurisdiction, which allows the courts of a state to exercise power over crimes and persons within the bounds of a particular geographic territory.167 Territorial jurisdiction is unquestionably the strongest basis for the exercise of judicial jurisdiction under customary international law because it is inextricably tied to the exercise of sovereignty.168 A state court’s legitimacy to prosecute and enforce laws is at its highest, therefore, when it is exercising its territorial jurisdiction. When the German judiciary arrested and tried five people involved in the Mykonos killings, it was acting on the basis of territorial jurisdiction, since the killings occurred in Berlin.169 Nations that have territorial jurisdiction to try perpetrators of the assassinations detailed in No Safe Haven include Austria, France, Italy, Switzerland and the United States.170
Territorial jurisdiction is not, however, the only recognized form of jurisdiction under international law. Nationality jurisdiction may be asserted by a state whose national is a suspect.171 Though nationality jurisdiction is often considered a subsidiary to territorial jurisdiction, it is nonetheless recognized as a legitimate doctrine falling within the purview of issues connected to the exercise of state sovereignty.172 Another form of non-territorial jurisdiction is passive personality jurisdiction, which allows a state to exercise jurisdiction when its national is a victim of a crime.173 Finally, under protective jurisdiction, a state may claim jurisdiction over crimes that threaten its national security.174
As has previously been stated, international legal standards usually discourage trials conducted in abstentia.175 Therefore, although national and international tribunals often allow investigations and even indictments before the extradition and apprehension of suspects, they have generally required the physical presence and custody of a suspect before the launch of a trial.176 The International Criminal Tribunal for Rwanda (ICTR), International Criminal Tribunal for the Former Yugoslavia (ICTY) and the ICC all require physical custody before suspects can be put to trial.177 The successful exercise of jurisdiction is further complicated by the concept of immunity, which often serves to shield government officials or those carrying out official duties on behalf of a state from criminal prosecution in foreign courts.178
See ANTONIO CASSESSE, INTERNATIONAL CRIMINAL LAW 281-84 (2003).
See MURDER AT MYKONOS, supra note 35, at 8-9, 13, 18-19.
See generally NO SAFE HAVEN, supra note 25.
See, e.g., CASSESE, supra note 167, at 281-84.
Id. at 281-82.
Id. at 282-84. Passive personality jurisdiction is also referred to as passive nationality jurisdiction.
ANTHONY AUST, HANDBOOK OF INTERNATIONAL LAW 42 (2005).
See supra note 113-14 and accompanying text.
See Mbenge, supra note 100.
See, e.g., Goran Sluiter, Geert-Jan Knoops’ Surrendering to International Criminal Courts: Contemporary Practice and Procedures, 8 J. CONFL. & SEC. L. 411, 411-12 (2003) (book review).
ROBERT CRYER, ET AL., AN INTRODUCTION TO INTERNATIONAL CRIMINAL LAW AND PROCEDURE § 20.1.2 (2007). Immunity, however, is not permanent. Because the doctrine is designed to protect the person as a representative of his or her government, the immunity only lasts so long as the person is in office. See, e.g., Case Concerning the Arrest Warrant of 11 April 2000 (Democratic Republic of Congo v. Belgium), ICJ, Judgment, 14 Feb. 2002, para. 75 [hereinafter Arrest Warrant Case]; Pieter H.F. Bekker, World Court Orders Belgium to Cancel Arrest Warrant, Issued Against the Congolese Foreign Minister, ASIL INSIGHTS, Feb. 2002, available at www.asil.org/insights/insigh82.htm (last visited Oct. 31, 2008). While immunity often shields alleged criminals in national courts, it does not appear to be recognized by international criminal courts. In the case of ad hoc tribunal such as the ICTY, for example, immunity is relinquished because there is an overriding obligation to comply with Chapter VII of the U.N. Charter. See Prosecutor v. Blaskic para. 41, Case No. IT-95-14 A (Oct. 29, 1997).