INTERNATI ONAL CRIMINAL LAWS APPLICABLE I N CRIMINAL INVESTIGATION
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WHAT IS INTERNATI ONAL CRIMINAL LAW?
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SOURCES OF INTERNATIONAL CRIMIN AL LAW THE STATUTE OF THE INTERN ATIONAL COURT OF JUSTICE ARTICLE 38[1] The Court, whose function is to decide in accordance with international law such disputes as are submitted to it, shall apply: (a)international conventions, (b) international custom, (c)the general principles of law recognized by civilized nations; (d) subject to the provisions of Article 59, judicial decisions and the teachings of the most highly qualified publicists of the various nations, as subsidiary means for the determination of the rules of law.
Treaties The term “international conventions” used here can be taken as synonymous to “treaties” ‘Treaty’ means an international agreement conducted between states and governed by international law. The nature of a treaty is either bilateral( between two state) or multilateral ( between more than two States) what is important however, is that a treaty, whether bilateral or multilateral, create legal bi nding obligations for the States that are party to the treaty
CONVENTIONS AS THE BASIS FOR INTERNATIONAL COOPERATI ON
In reviewing on the Prevention of Crime and Treatment of Offenders, the General Assembly was adopted various international Conventions as follows: •United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances (1988 Drug Conventi on).
Cont…….. •United Nations Convention against Transnational Organized Crime (2000) (hereinafter referred to as “the Palermo Convention”). •United Nations Convention against Corruption (2003) (hereinafter referred to as “the Merida Convention”). •International Convention for the Suppression of the Financing of Terrorism (1999) (Terrorist Financing Convention). • International Convention for the Suppression of Terrorist Bombings (1997) (Terrorist Bombing Convention).
TWO LEVELS OF INTERNATI ONAL CRIMINAL LAW -INTERNATIONAL CRIMES PROSECUTED BY INTERN ATIONAL CRIMINAL COURT AND INTERNATIONAL CRIMIN AL TRIBUNALS -TRANSNATIONAL AND INTERNATIONAL CRIMES PROSECUTED NATIONALLY
TRANSNATIONAL CRIMES
Define Transnational crimes Transnational c rimes are crimes that have actual or potential effect across national borders.
The word "transnational" describes crimes that are not only international (that is, crimes that cross borders between countries), but crimes that by their nature involve cross-border transference as an essential part of the criminal ac tivity. Transnational crimes also include crimes that take place in one country, but their consequences significantly affect another country and transit countries
TRANSNATIONAL CRIMES EXAMPLES – COMPUTER CRIMES DRUG CRIMES TERRORISM MONEY LAUNDERING PIRACY HUMAN TRAFFICKING TERRORISM etc
JURISDICTION Defining Jurisdiction Jurisdiction refer to powers exercised by a state over persons, proper ty, or event. -Powers of physical interference exercised by the executive ( arrest of person, seizure of property and so on) -Power of a state’s court to hear cases concerning the persons , property or event in question
CRIMINAL JURISDICTION When state claim criminal jurisdiction in a particular situation, they tend to invoke one or more of the following four principle: •The territorial principle •The nationali ty principle •The protecti ve principle •The universality principle
Cont…… The territorial principle determines jurisdiction by reference to the place where the offence was committed, or where its constituent effec ts took place The nationality principle determines state jurisdiction with reference to prosecute its nationals for crimes committed anywhere in the w orld.
Cont……. The protective principle determines jurisdiction by reference to the national interest injured by the offence.
The universality principle determines jurisdiction over all crimes committed by foreigners abr oad.
QUESTION FOR YOU: DO IT NOW Two nationals of Somalia meet in Kenya and decided to plant an explosive device on a commercial aircraft belonging to an airline registered in Tanzania. The device is planted in Rwanda, explodes over Democratic Republic of Congo; killing those on board, the majority of whom are nationals of Tanzania and Burundi. Which state have claims to jurisdiction and under which principle of international Criminal law?
THE INTERNATIONAL LEGAL BASIS APPLICABLE IN CRIMINAL INVE STIGATION 1. TREATIES ON MUTUAL ASSISTANCE IN CRIMINAL MATTERS. ü UN Model Treaty on Mutual Assistance in Criminal Matters. ü SADC Protocol On Mutual Legal Assistance in Criminal Matters.
2: TREATIES ON EXTRADITION ü UN Model Tr eaty on Extradition ü Southern African Development Protocol on Extradition
Communit y
TREATIES ON MUTUAL ASSIS TANCE IN CRIMINAL MATTERS
The term “Mutual legal assistance in criminal matters is a process by w hich States seek and pro vide assistance in gathering e vidence for use in c riminal cases.
Cont……… Mutual legal assistance is any assistance given by the requested State in respect of investigations, prosecutions or proceedings in the requesting State in a criminal matter, irrespective of whether the assistance is sought or is to be provided by a court or some other competent authori ty.
GROUNDS FOR PROVIDING MUTUAL LEGAL ASSISTANCE
Basically the Mutual Legal Assistance shall be provided in the subject of investigation, prosecution, or proceedings in the requesting State. Assistance to be provided includes: a.locating and identifying persons, property, objects and items; b. serving documents, including documents seeking the attendance of persons and providing returns of such
Cont……. c. providing information, documents and records; d. providing objects and temporary transfer of exhibits; e. search and seizure; f. taking evidence or obtaining statements or both; g. authorizing the presence of persons from the requesting State at the execution of
Cont………. h. ensuring the availability of detained persons to give evidence or to assist in possible investigations; i.facilitating the appearance of witnesses or the assistance of persons in i nvestigations; j. taking possible measures for location, restraint, seizure, freezing or forfeiture of the
CENTRAL AUTHORITIES: The Communicating Parties in the Case for Domestic Expertise in an International World
Each State Party shall designate a central authority that shall have the responsibilit y and power to receive requests for mutual legal assistance and either to execute them or to transmit them to the competent authorities for execution. qAttorney General qJudiciary qPolice (INTERP OL) qPrison
Extradition DEFINE EXTRADICTION Extradition is the formal process whereby a State requests the enforced return of a person accused or convicted of a crime to stand trial or serve a sentence in the requesting State. OR
Extradition is the formal process by which one jurisdiction asks another for the enforced return of a person who is in the requested jurisdiction and who is accused or convicted of one or more criminal offences against the law of the requesting jurisdiction.
INTERNATIONAL COOPERATION TOOLS :
In many respects , international cooperation tools are interdependent and include:
ESSENTIAL CONDITI ON FOR EXTRADITION The principle of double criminality is when an offence declared as criminal offence by both countries. The rule of speciality or use limitation is designed to ensure that the offence or offences for which the requesting State seeks the return of the suspect to answer pursuant to the extradition request are the only offences for which the suspect will have to answer in the requesting State.
Cont…. Conditions: the conditions and terms mentioned in the treaty between two countries should strictly be implemente d by the country required extradition. Evidence: there must be proper and sufficient evidence showing that the person extradited committed that offence. Procedure: the country to which the accused is extradited should follow the procedure and trial according to the law of that land.
REFUSAL OF AN EXTRADI TION REQUEST However, in practice extradition may be refused by the requested state. The following are some of the grounds upon which extradition may be refused ü Non-extradition of nationals-Generally the state do not allow extradition for they own citizen üExistence of the death penalty in the requesting state üMilitary Criminality extradition is not allowed in the case of Military criminals üReligious Criminality extradition is not allowed in the case of Religious criminals üThe political offence exception to extradition
ADVANTAGES OF TREATIES IN CRIMINAL INVESTIGESTION
1.Treaties have been utilized as a basis for international cooperation throughout the world for many years. On the spectrum of international cooperation, they represent the most formal vehicle that can be used, in criminal investigation. 2.Treaties allow for a focusing of effort and for either cooperation on certain types of offences or the consideration of regional concerns and the legal systems of a specific region. 3.Treaties also oblige the parties to cooperate w ith one another under international law, provided that the request falls within the terms of the treaty.
