An Introduction To The International Criminal Court - Institute for ...

jurisdiction and admissibility 73
(passive personality), and universality. 23 Territory is the most common, if
for no other reason than that it is the only form of jurisdiction where the
State can be reasonably sure of actually executing the process of its courts.
In the Lotus case, Judge Moore of the Permanent Court of International
Justice indicated a presumption favouring the forum delicti commissi. 24 One
of the earliest criminal law treaties, the Treaty of International Penal Law,
signed at Montevideo on 23 January 1889, stated that: ‘Crimes are tried
by the Courts and punished by the laws of the nation on whose territory
they are perpetrated, whatever may be the nationality of the actor, or of the
injured.’ 25 Sometimes territory may be given a rather broad scope, so as to
encompass acts which take place outside the State’s territory but which have
a direct effect upon it. 26 Jurisdiction based on nationality of the victim or the
offender, as well as on the right of a State to protect its interests, is somewhat
rarer. The Permanent Court of International Justice, in the Lotus case, left
unresolved the issue of the right of States to exercise jurisdiction based
on the nationality of the victim (passive personality jurisdiction) rather
than that of the offender (active personality jurisdiction), 27 which is well
established.
Universal jurisdiction – quasi delicta juris gentium – applies to a limited
number of crimes for which any State, even absent a personal or territorial
link with the offence, is entitled to try the offender. In customary internationallaw,thesecrimesarepiracy,
28 theslavetrade,andtrafficinchildrenand
women. Recognition of universal jurisdiction for these crimes was largely
predicated on the grounds that they were often committed in terra nullius,
where no State could exercise territorial jurisdiction. More recently, some
multilateral treaties have also recognised universal jurisdiction for particular
offences such as hijacking and other threats to air travel, 29 piracy, 30 attacks
23 United States v. Yunis, 681 F. Supp. 896 at 900–1 (DDC 1988). See Yoram Dinstein, ‘The
Universality Principle and War Crimes’, in Michael N. Schmitt and Leslie C. Green, eds., The Law
of Armed Conflict: Into the Next Millennium, Newport, RI: Naval War College, 1998, pp. 17–37.
24 SS Lotus (France v. Turkey), PCIJ, 1927, Series A, No. 10, p. 70.
25 (1935) 29 American Journal of International Law 638.
26 United States v. Noriega, 746 F. Supp. 1506 (SD Fla. 1990). See Lynden Hall, ‘ “Territorial”
Jurisdiction and the Criminal Law’, (1972) Criminal Law Review 276.
27 SS Lotus (France v. Turkey),note24above.
28 United States v. Smith, 18 US (5 Wheat.) 153 at 161–2 (1820).
29 Hague Convention for the Suppression of Unlawful Seizure of Aircraft, (1971) 860 UNTS 105;
Montreal Convention for the Suppression of Unlawful Acts Against the Safety of Civil Aviation,
(1976) 974 UNTS 177.
30 Convention on the Law of the Sea, (1994) 1833 UNTS 3, Art. 105.