Issues of Universal Jurisdiction in the Scilingo Case
Issues of Universal Jurisdiction in the Scilingo Case
复制标题
希林戈案中的普遍管辖权问题
DOI:
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发表时间:
2005
期刊:
影响因子:
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通讯作者:
C. Tomuschat
中科院分区:
文献类型:
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作者:
C. Tomuschat
The Scilingo judgment is noteworthy both because it applies the notion of crimes against humanity and because it relies upon the principle of universal jurisdiction. It is, however, argued that the reasoning used by the Audiencia Nacional to conclude that it had jurisdiction under Spanish law over the atrocities committed in Argentina by the accused against other Argentineans is unconvincing. Indeed, the atrocities committed in this case do not qualify as either genocide or terrorism - the only two classes of offences over which Spanish courts have extraterritorial jurisdiction under the relevant Spanish legislation. Furthermore, this paper faults the Court`s assertion that state practice demonstrates the existence of an international customary rule granting national courts jurisdiction over crimes against humanity. Nevertheless, the Court correctly claims that universal jurisdiction must be seen as default jurisdiction, intended to grant extraterritorial jurisdiction whenever the territorial or national state are passive. That said, while the Court is correct to both try and convict the accused, its reasoning is faulty; in the case at issue, the Court`s jurisdiction is based not on passive nationality, but on the grounds that the accused had voluntarily surrendered to the Court.