8 July 2021

Dr M. Vagias

JURISDICTION
The contemporary legal regime & selected issues
 Introductory remarks

• Jurisdiction: definition, types and relationship to sovereignty

• State criminal jurisdiction & Intl Courts criminal jurisdiction
− State criminal jurisdiction basic case-law
− Lotus
− Arrest Warrant
− Intl Courts criminal jurisdiction basic case law
− Tadic (ICTY 1995 Appeals Chamber decision)

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 Issues of state jurisdiction

• Challenges posed due to

(1) The state of the law
(2) Contemporary developments in the commission of the
crime and the administration of justice

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 Issues due to the state of the law

The state of the law: how do we identify jurisdictional

excess due to
- Too much state jurisdiction
(i.e. excessive state assertions of jurisdiction in violation of
duty not to interfere in the internal affairs of other states; e.g.
Arrest Warrant Case)
- Too little state jurisdiction
(i.e. excessive state failures to assess jurisdiction in violation
of duty to prosecute and punish – where appropriate –
significant human rights violations; e.g. Senegal v. Belgium
Case)

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 Issues due to contemporary
developments
• Jurisdiction over online offences
• Old wine in new bottles or something genuinely
different?
• Territorial obsession or a slippery slope to
universality?
• Jurisdiction over online storage, traffic and content
(cloud services, Fb, online hate speech,
cryptocurrency in post-launch autonomous satellite
constellations)

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 Solutions?
• 2001 Budapest Convention? Probably not; limited scope of
application (‘cybercrime’); but
• 1st Additional Protocol 2003: art. 6(1) “distributing or otherwise
making available, through a computer system to the public, material
which denies, grossly minimises, approves or justifies acts
constituting genocide or crimes against humanity, as defined by
international law and recognised as such by final and binding
decisions of the International Military Tribunal, established by the
London Agreement of 8 August 1945, or of any other international
court established by relevant international instruments and whose
jurisdiction is recognised by that Party”
• Proposed 2nd Additional Protocol of May 2021 covers cooperation
for the expedited production of data in relation to criminal activity
(any criminal activity – arts 2, 8-9)

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 Tallinn Manual 2.0: Effects doctrine

• Hactivists in Iceland launch a cyber attack against Google

online storage and traffic infrastructure in Ireland. As a result
of the attack, Google shares in the New York Stock Exchange
drop. Because Google shares drop, the IT stock exchange
index in Frankfurt also drops, to the detriment of Italian
investors living in Siracusa. Does Italy have territorial
jurisdiction over the cyber-attack?
• Hactivists in Iceland launch a cyber attack against Bank X in
London. As a result of the attack, Russian depositors located
in Moscow lose 10% of their deposits. Does Russia have
territorial jurisdiction over the cyber-attack?

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 Issues due to contemporary
developments

• Creation of international(-ized) criminal courts and tribunals

vested with criminal law authority (ICTY/ICTR, SCSL, STL,
ECCC, ICC, etc)
• General international criminal law v. system-specific
international criminal law and relationship to jurisdictional
obstacles
• Universal jurisdiction?
• Jurisdiction as an instrument of foreign
(cultural/legal/political) domination?
• Who chooses for the country’s future? National Amnesty v.
international jurisdiction

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 In closing…

Thank you for your attention!

M. Vagias
M.Vagias@hhs.nl

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