It It’s often in many jurisdictional cases, that

It is first of vital
importance, when determining jurisdictional issues in any scenario, to
establish a brief definition of jurisdiction itself. Jurisdiction can be defined
simply as the legal decision-making power of the state. This is essentially the
idea that any law or legal principle can be created by the state with the power
of jurisdiction. If the state does not hold this power of jurisdiction, no laws
or legal principles can be made and subsequently passed in Parliament.

Jurisdiction itself can be
split into 5 branches which are that of; territorial jurisdiction1, nationality jurisdiction,
protective jurisdiction, universality jurisdiction and passive personality
jurisdiction. Now, when resolving a scenario concerning jurisdictional issues,
all five of these branches can be utilised in order to reach a resolve/
resolution.

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It’s essential when discussing
the first scenario constructed around Anton, that his nationality is distinguished
first in order to avoid any other issues arising. This issue can be resolved
via the ‘nationality principle’. The ‘nationality principle’ is a code of law
that allows a sovereign state to convict any of their residents of criminal liability
regardless of whether a crime was committed in their home country or not2. International Law itself
does not set out any requirements as such which should be proven in order to
permit nationality by the state as it is strictly jurisdiction from a domestic
matter. A general ground used by the state is usually formed on the basis of
being a national citizen of the state that your parents were born in.

It’s often in many
jurisdictional cases, that countries that operate under a civil law system, tend
to profess jurisdiction for their national citizens despite the likelihood that
the crime was committed on a territory that they are not a national citizen of.

Another relevant case that can
be applied is the case of A v A 3Despite being a family law
case, the case of A v A4 established the idea the
nationality jurisdiction was difficult to comprehend due to its subjective
manner.

Continuing on, the lack of
knowledge regarding Anton’s background and supposed previous crimes against the
German Jews and gypsies, make it difficult to determine whether or not the
accusations stated above are true or not. What can be determined however, is
the fact that Anton is a foreign resident to the UK, and in turn this means
that his origin and sovereign state will have the sole ability to have him
stand trial in his home country.

Despite this, it seems that
the accusations have only just recently arose which provides a stumbling block
however, the ‘universal jurisdiction principle’ can scope out a better
resolution. Universal jurisdiction is the idea that a sovereign state can
indict those who have committed a serious crime against any international body.
‘War crimes’ come under this set of crimes so universal jurisdiction can be
raised5.

On most occasions, universal
jurisdiction is invoked on the basis that the offender is not a resident to the
state where he committed the crime in question. This can be applied to the
current scenario concerning Anton as it is suspected that he had committed war
crimes in a different country (Germany) to his national country. It is unknown what
Anton’s nationality is, however as Germany operates under a civil law system as
opposed to a common law system, his sovereign state has the option to claim
jurisdiction.

The second scenario focused
around Georg looks to contain various jurisdictional issues from a first
glance. It can first be implied that he is already known to most of the public
of Argentina as being a war criminal. This fact alone relates somewhat to Anton’s
case in the fact that he is known for war crimes. The universality principle
can again be applied. It’s also important to state that with regards to the
criminal act there are no prerequisites between the criminal act and the state
that would like to achieve universal jurisdiction. This is due to the idea that
all states need to be aware of the potential threat as its of ‘universal
importance’ to protect the public from such an issue.

As stated above the case of
Eichmann6 can again by used to
reinforce the true jurisdictional powers of the state. The ‘nationality
principle’ can again be determined. As stated above, he is a national citizen from
Germany. Despite this however, it seems as though the main jurisdictional issue
surrounding the scenario is the abduction of Georg.

The law regarding
kidnapping or abduction of anyone by a state has a broad interpretation from a
variety of locations. The United States for example allow the kidnapping of an
individual from the state as long as the treaty is not breached. In order to
determine whether there was any issue regarding the abduction of Georg, additional
information on who kidnapped him and where the kidnap took place would need to
be in order therefore, it’s impossible to say whether the abduction was carried
out on a basis of the process of jurisdiction.

 

Territorial jurisdiction can
also be discussed as its unknown where the crimes themselves took place. The
territorial principle provides the foundation for territorial jurisdiction
which states that whatever state the crime was committed in, the courts of said
state and that state only has the sovereignty to impose jurisdiction on the
individual7. Territory does not solely
mean just land mass but can also mean territorial sea.

Finally, the scenario
concerning Tamerlan seemingly looks to contain a variety of jurisdictional
issues. The first jurisdictional issue to consider is territorial jurisdiction.
As previously stated above, the territorial8 principle gives a
sovereign state the authority to convict one of their nationals of a crime even
if the crime carried out was pulled off in another state. Tamerlan is said to
be an Azeri national so is a citizen to Azerbaijan. He is also a known
terrorist yet the state of Azerbaijan has refused to bring him to trial.
Tamerlans state of Azerbaijan has the law-making power to refuse the individual
so this is no longer an issue.

The nationality principle can
then be discussed. Nationality jurisdiction is of great importance as this sets
out the guidelines as to what is legal and illegal between the individual and
the state9. Due to there being no set
procedures with regards to the granting of nationality by a state, the
Azerbaijani government is left to themselves to anticipate whether or not
Tamerlan can be granted nationality10.

The universality principle can
also be reviewed. Due to the seriousness of the crime of planting the bomb in
the hotel lobby, this can be seen under the universality principle as a widespread
matter despite the bomb not being initiated. It could also be said that it’s a matter
of public policy as Tamerlan was allowed a holiday and was not even questioned
on the matter by any legal professional.

Despite there not being need
for any connections between the criminal act partaken by the individual and the
state, it is evident that there is a connection between the criminal act and
the state as the act itself took place it the nationals home country. The
criminal act is of great concern for all states and would come under the topic
of ‘war crimes’.

For both the United Kingdom and
the United States, security jurisdiction can be considered. Security
jurisdiction allows the state to anticipate breaches and threats which would
affect the security of the state11. The threat corresponds
to the bomb that was placed by Tamerlan and the fact that it was placed in not
only a public lobby but one of which held both British and United States
citizens which are those who are foreigners to the state.

The other principle which is
of great significance to develop and evaluate is the passive personality
principle. This principle allows the sovereign state to use their jurisdiction
to an individual or group who is acting outside their territorial boundaries in
order to protect the security of the state. The kidnapping of Tamerlan could be
said to be using their jurisdiction efficiently due to the potential threat of
Tamerlan if his plane lands in any other country. The passive personality
principle and the universality principle seem to have coincided well in this
scenario.

To conclude, the first scenario
concerning Anton and the question whether Anton should be held on trial in
England is solely up to his sovereign state of wherever he is a national
citizen in.  Regarding the second
scenario revolving around Georg, the act of kidnapping requires additional
information with regards to who and where the kidnapping took place so there is
no way of telling whether Georg will stand trial in Israel. Finally, the case
of Tamerlan. As Azerbaijan do not want their citizen on trial in their country
it can be said that Tamerlan could be placed on trial in the United States due
to lack of state to individual relationship.

1 The
Lotus case, PCIJ, Series A, No. 10 (1927).

2 The Nationality Decrees in Tunis and Morocco
case, PCIJ, Series B, No. 4 (1923)
24.

3 A
v A UKSC 2013 3 WLR 761

4 A v A UKSC 2013 3 WLR 761

5 Attorney General of Israel v Eichmann,
36 ILR 277

6 Attorney General of Israel v Eichmann,
36 ILR 277

7 The Lotus case, PCIJ, Series A, No. 10 (1927).

8 The
Lotus case, PCIJ, Series A, No. 10 (1927).

9 The
Lotus case, PCIJ, Series A, No. 10 (1927).

10 The Nationality Decrees in Tunis and Morocco
case, PCIJ, Series B, No. 4 (1923)
24.

11 Joyce
v Director of Public Prosecutions, 15 ILR 91