Historically, judicial cooperation in criminal matters has been the response to the inherent constraints linked to the conception of criminal law as an expression of the sovereignty of the State over its own territory. The application of criminal law in the territory of the State to all persons with...
Historically, judicial cooperation in criminal matters has been the response to the inherent constraints linked to the conception of criminal law as an expression of the sovereignty of the State over its own territory. The application of criminal law in the territory of the State to all persons within it, whatever their nationality, appears as an essential expression of sovereignty. Undoubtedly, it can be affirmed that where there is sovereignty there is ius puniendi.
The strict application of the forum delicti commissi criterion and the territorial delimitation of ius puniendi prevented the effective prosecution of crimes with crossborder elements. Being the application of criminal law (substantive and procedural) a matter of public order, the need inevitably arose among States to relate to and cooperate with each other at the international level in order to respond to these situations and thus avoid impunity.
As a first reaction, States began to establish precarious bilateral cooperation mechanisms to respond to requests for judicial assistance from other States, often in the framework of their foreign policy relations. The functioning of these mechanisms, mainly focused on extradition and based, among others, on the principle of reciprocity, depended to a large extent on the health of current and historical diplomatic relations between the countries involved. This in practice was a burden to the achievement of real and effective cooperation.
The growing international interdependence and the improving mobility and communications led to an emerging consciousness that certain particularly serious forms of crime were transnational in nature, challenging the sovereignty-based criminal jurisdiction on which the international order was then built. That was the case of terrorism due to the increasing number of terrorist attacks perpetrated during the interwar period. As a response to these events, in the 1920s and 1930s, several bilateral extradition and judicial assistance treaties were established and/or were revised to exclude certain terrorism acts from the category of political offences. Furthermore, under the auspice of the League of Nations, two different multilateral conventions were drafted to fight against terrorism: the Convention for the prevention and punishment of terrorism and the Convention for the creation of an international criminal court, although neither of these conventions entered into force.
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