Search

I ett nytt beslut slår Högsta domstolen fast att svensk domstol är behörig att pröva det åtal som harväckts mot en schweizisk tidigare företrädare för Lundin Oil för medhjälp till folkrättsbrott i Sudan. Mark Klamberg analyserar beslutet. In a new decision, the Supreme Court has ruled that the Swedish court has jurisdiction to adjudicate on the indictment that has been brought against a Swiss former representative of Lundin Oil for aiding and abetting violations of international law in Sudan. Mark Klamberg analyzes the decision. Ursprungligen publicerad i JP Juridiskt bibliotek.

Around the world, corporate behavior can have harmful impacts, transcending territorial boundaries and traditional commercial settings. Apparent corporate involvement in atrocities and human rights violations raisesquestions about liability. During the second Sudanese civil war (1983-2005), corporations from North America and Europe sought to exploit gasand oil resources in the conflict areas of southern Sudan. There have beenvarious attempts to hold those corporations and their executives liable foralleged involvement in atrocities committed during that conflict. Amongthem is the recent indictment lodged in the district court of Stockholmagainst leading executives of Lundin Energy, a Swedish oil and gas company, for complicity in alleged war crimes in southern Sudan from 1999 to2003. The case has prompted further litigation and scholarly discussion ona variety of related issues in Sweden and elsewhere, including the capacity toprosecute persons residing in other countries under universal jurisdiction,the role of government in authorizing prosecutions, complicity in international crimes, applicability of international humanitarian law, and theSwedish penal provision on war crimes. In exploring the Lundin case andrelevant precedent regarding domestic criminalization of violations of international humanitarian law in a non-international armed conflict, this article argues that the district court does have jurisdiction in the Lundin caseand that questions relating to complicity should be adjudicated pursuant togeneral principles of domestic criminal law.

UN Security Council resolutions are not always clear: they sometimes need to be interpreted. Members of the Security Council may make statements in connection with their votes, termed explanation of votes. Explanation of votes may have at least two functions. First, they may contribute to the formation of customary international law. Secondly, they can be used as a means for interpreting Security Council resolutions in relation to a specific situation or dispute. The present Article examines different trajectories of conversations to show how Security Council resolutions and explanation of votes may protect the status quo in some instances and act as agents of change in others. Har folkrätten någon påverkan? FNs säkerhetsråd och staters beteende

The article describes how the Swedish legislation has evolved on international crimes starting with the Penal Law Reform of 1948 and the subsequent amendments following Swedish accession to the Geneva Conventions with an extended scope in 1954. It continues with mentioning the separate law on Genocide 1964 and the limitation to serious violations in 1986. Finally, it explains the transition from an open-ended penal regulation to an exhaustive list, and the introduction of a provision on crimes against humanity 2014.This article is part of a volume on investigation and prosecution in Scandinavia of international crimes.

The prosecution of international crimes may entail additional challenges in relation to evidentiary matters. The trials held in Sweden have all concerned acts committed outside Sweden in areas of conflict. The consequence is that part of the evidence was collected by other actors than the regular administration of justice, often without the required decisions by a court or other state agency. In addition to questions of whether the collection of evidence follows legal requirements, there will be questions on how the evidence has been handled and stored, i.e. issues related to the chain of custody, which may affect how the authenticity and reliability of the evidence will be assessed.This article examines in a Swedish context issues relating to admissibility of evidence and evaluation of evidence, in particular the challenges and opportunities that come with technological development. There will also be an account of how facts of common knowledge and adjudicated facts may be used.This article is part of a volume on investigation and prosecution in Scandinavia of international crimes.

Although none of the Scandinavian countries have had armed conflicts on their soil since the Second World War, there are in Scandinavia at present war criminals, and witnesses and victims of atrocity crimes. The crimes have been committed in different situations outside Scandinavia and it is only lately that the investigation and prosecution of these crimes have gained adequate attention.This is the foreword to a volume that presents 21 articles on the investigation and prosecution in Scandinavia of international crimes. The foreword explains the metholdogy, i.e. that the articles present decisions and cases tried at domestic level in a thematic manner, by examining some overarching questions. For instance, to what extent and how international law sources are considered and/or implemented in the Scandinavian countries and how the objectives of international criminal law are operationalized in relation to the issue at handbrought into action. The volume is organized into five sections: Introduction, General Principles and Matters of Criminal Law, International Crimes, Procedural Matters, and Comparative Outlook.Considering that countries outside Scandinavia have already, or will, meet similar challenges; the need to exchange experience and scrutinize one’s own assumptions will remain. Thus the foreward makes a call to undertake comparative study of the domestic investigation and prosecution of international crimes, asking how different countries sanction international crimes

A war crime may be defined as a serious violation of a rule of international humanitarian law (IHL) which brings about individual criminal liability. To establish whether an act constitutes a war crime it is thus necessary to establish that IHL applied to and regulated the act. Hence, it must also be established that an international or non-international armed conflict existed at the time and place where the act occurred, and that the act had sufficient nexus to the armed conflict. The present article focuses on the classification of conflict and the nexus between the act and the conflict in Swedish legislation and case law in the light of international law.This article is part of a volume on investigation and prosecution in Scandinavia of international crimes.

Twelve trials in Sweden have related to crimes in former Yugoslavia, Rwanda, Syria and Iraq. The first part of the present article gives an overview of and background to these cases. A more detailed account of the legal issues at hand are presented in a thematic manner in other contributions of this volume. For various reasons additional cases have not reached the trial stage. Some are still under investigation, others have been investigated but have been dismissed for lack of evidence and others again have been transferred to other countries. The second part of the article discusses the relevant participants and actors involved in Sweden’s investigation and prosecution of international crimes.This article is part of a volume on investigation and prosecution in Scandinavia of international crimes

Public unrest, terrorist attacks, natural disasters and events of equal severity have in recent years prompted states to declare state of emergency. Sometimes, the proclamation of a public emergency is necessary or at least defendable, for example a natural disaster may call for special measures which could not be taken with full respect for all the obligations under human rights treaties. In other cases, public emergencies can be used as a smokescreen for repressive government policies. Once the necessity for derogation is conceded, it becomes difficult to control whether the suspension of rights amounts to abuse of power. Serious violations of human rights often accompany emergency situations. This study first sets out an analytical framework which seeks to answer two questions: what is the role of the sovereign, i.e. the legislative and executive branches of Government? What do states perceive as threats and what consequences will that have for their policies. Next the legislative framework as provided for in human rights regimes is described. The analytical and legal framework is applied to five recent cases and phenomena: counterterrorism; Arab Spring; migration; Ebola outbreak in Western Africa and economic crises.

Although none of the Scandinavian countries have had armed conflicts on their soil since the Second World War, there are in Scandinavia at present war criminals, and witnesses and victims of atrocity crimes. The crimes have been committed in different situations outside Scandinavia and it is only lately that the investigation and prosecution of these crimes have gained adequate attention.This is the foreword to a volume that presents 21 articles on the investigation and prosecution in Scandinavia of international crimes. The foreword explains the metholdogy, i.e. that the articles present decisions and cases tried at domestic level in a thematic manner, by examining some overarching questions. For instance, to what extent and how international law sources are considered and/or implemented in the Scandinavian countries and how the objectives of international criminal law are operationalized in relation to the issue at handbrought into action. The volume is organized into five sections: Introduction, General Principles and Matters of Criminal Law, International Crimes, Procedural Matters, and Comparative Outlook.Considering that countries outside Scandinavia have already, or will, meet similar challenges; the need to exchange experience and scrutinize one’s own assumptions will remain. Thus the foreward makes a call to undertake comparative study of the domestic investigation and prosecution of international crimes, asking how different countries sanction international crimes

The Office of the Prosecutor (OTP) of the International Criminal Court (ICC) has a unique role in the proceedings before the Court. It is the organ primarily tasked with choosing among the numerous situations and cases under the Court’s jurisdiction. The legal criteria for situation and case selection, provided in the Rome Statute and related regulations, are relatively open as to allow the Prosecutor a considerable degree of discretion. In order to guide this discretion, the Office of the Prosecutor has developed certain policies and strategies. Prosecutorial policy and strategy stands, almost by definition, at a crossroads between law and politics. This Article identifies strategic choices of the OTP in situation and case selection and analyzes them in relation to the ICC’s objectives. There are tensions between the need for predictability and legal certainty on the one hand and for pragmatism and case-by-case flexibility on the other hand. The Article finds that the OTP is downplaying its own discretion by emphasizing the legalistic and apolitical character of its decision-making and bringing the objectives of ending impunity, preventing crimes, and providing redress to victims to the fore. The objectives of restoring peace and security and of contributing to a historical record have been secondary to the OTP’s strategic choices.

The Commentary on the Law of the International Criminal Court (CLICC) provides a provision-by-provision analysis of the Rome Statute and the Rules of Procedure and Evidence of the International Criminal Court. It is available as a book in hardcopy, an e-book and as an online commentary. It enables the user to find case-law, doctrine and comments efficiently and without cost.

Electronic surveillance is an important tool for law enforcement and may contribute to counter-terrorism efforts. The present article examines, from a comparative privacy perspective, systems of electronic surveillance which involves the retention and/or access of large quantities of data and/or communication. This includes data retention of traffic data and signals intelligence, the latter occasionally described as mass surveillance or strategic monitoring. It is concluded that the Fourth Amendment to the United States Constitution offers a greater protection than Article 8 of the European Convention for the protection of Human Rights (ECHR) to the extent that searches and seizures require probable cause and a warrant. This requires that the measure is covered by the notions “search” or “seizure”, which may explain why law enforcement agencies which use warrant-less surveillance tend to define the notions “search” or “seizure” narrowly. This has implications for the content/non-content distinction. The constitutional protection under the Fourth Amendment has an all-or-nothing character. In comparison, Article 8 of the ECHR does not require probable cause and warrant but it has a broader scope. Thus, there is no problem to expand the scope and protection of Article 8 to content as well as traffic data.

Western Sahara is occupied by Morocco. The referendum on the territory’s final status set forth by the United Nations Mission for the Referendum in Western Sahara (MINURSO) has repeatedly been postponed and the so far brokered proposals have been rejected by both parties. Since the Moroccan occupation the Saharawis have been continuously repressed through arbitrary arrests, enforced disappearances, and attacks of the civilian population, persecution and oppression of peaceful demonstrations. The violation of fundamental human rights is an ongoing issue. It is argued that these violations may constitute crimes against humanity, further on this article suggests that the international community should act as soon as possible to end Moroccan impunity and to make greater efforts for a just and lasting solution of the question of Western Sahara.

Electronic surveillance law is subject to a paradigm shift where traditional principles are reconsidered and the notion of privacy has to be reconstructed. This paradigm shift is the result of four major changes in our society with regard to 1) technology; 2) perceptions of threats, 3) interpretation of human rights and 4) ownership over telecommunications. The above-mentioned changes have created a need to reform both the tools of electronic surveillance and domestic legislation. Surveillance that was previously kept secret is now subject to public debate. The article focuses on systems of “mass surveillance” such as data retention and signal intelligence and whether these are consistent with the European Convention on Human Rights.

I juni 2008 antog riksdagen lagstiftning som innebar en reglering av signalspaning i etern och en rätt för Försvarets radioanstalt att även spana mot kabelkommunikation. Lagförslaget gav upphov till en debatt där lagstiftningens förespråkare betonade behovet av en effektiv försvarsunderrättelseverksamhet och den precision med vilket signalspaning kan bedrivas med vilket enskilda med ”rent mjöl i påsen” skulle vara fredade. Kritikerna liknade FRA:s tillgång till den kabelbundna kommunikation vid ”massavlyssning”, pekade på utvidgningen av FRA:s mandat för signalspaning och oklarheter i avgränsningen mot polisiär verksamhet. Debatten fördes ofta i termer av avlyssning vilket skapat föreställningen att FRA läser och lyssnar på all kommunikation när tekniken och lagstiftningen även medger andra former av övervakning/underrättelseverksamhet. Vidare fanns en fokus på FRA:s försvarsunderrättelseverksamhet där inhämtning av signaler är förhållandevis smal, när myndighetens breda inhämtning av signaler sker inom dess relativt ouppmärksammade utvecklingsverksamhet. Artikeln uppmärksammar särskilt regleringen av dessa två verksamhetsgrenar, FRA:s verktyg för bearbetning av kommunikation och försvarsunderrättelseverksamhetens avgränsning mot polisiär verksamhet.

The district court of Stockholm convicted on 18 December 2006 Jackie Arklöv for a crime against international law. It was the first and, until the present date, the only time liability for an international crime has been tried before a Swedish court. This comment presents the law applied by the Court, draws attention to the principles of legality, ne bis in idem, and discusses whether a national court in a dualistic legal system can impose criminal responsibility with reference to customary international law.

The present article concerns individual criminal responsibility under international law. It is based on a lecture at the Summer School of the Grotius Centre for International Legal Studies, held by Reinhold Gallmetzer in The Hague on 5 July 2005. Reinhold Gallmetzer has turned his presentation into the present article and Mark Klamberg has written the second part on the ICC.