The requirement of authorization is due to the structure of the rules on extraterritorial jurisdiction enshrined in the second chapter of the Penal Code. Chapter 2, Section 3 provides for extraterritorial jurisdiction for war crimes based on the universality principle, as well as for any grave crime carrying a minimum penalty of four years in prison. The latter category enables Sweden to fulfill obligations in international cooperation and proactively pursue violations of national interest based on the passive nationality and protective principle. Combined with the absolute duty to prosecute that applies to Swedish prosecutors, the unmitigated effects of such a rule on its own would result in transgressions of international law on jurisdiction and overburdening of the judiciary. As for the atrocity crimes, exercising criminal jurisdiction based on the universality principle is compliant with international law. Nevertheless, procedural and practical difficulties could stem from several states seeking concurrent jurisdiction, for instance the territorial state or third states claiming a direct interest based on the nationality of victims. The authorization as provided for in Chapter 2, Section 5 of the Swedish Penal Code, is thus the second step in a two-tiered test, designed to balance the effect of the relatively wide scope of the general rules to address such conflicts of interest. The provision stipulates that as a general rule and subject to a list of exceptions with a clear nexus to Swedish and inter-Nordic interests, offences committed abroad may only be prosecuted after authorization by the government, or by delegation, the Prosecutor General.
which on the one hand is why a procedure involving government authorization is not surprising or entirely uncalled for. On the other hand, and even though the government does not rule on the merits, vesting the government with such discretion in a criminal investigation inevitably raises issues of twitter database arbitrariness and places the independence of the judiciary in dispute. Consequently, a pre-study within the Ministry of Justice proposes a future modernization of the legislation by placing the power of authorization primarily with the Prosecutor General instead of the government.
Next steps
Authorization down, the prosecutor has yet to serve the defendants final notice of the investigation, and allow for a reasonable time for counselling before proceeding to the decision on whether or not to prosecute. Given the presumed size of the investigation, this could mean a lengthy period of time.
If and when the prosecutor decides to proceed with prosecution, there is no shortage of legal issues to be addressed. The method of incorporation by reference reflects the dynamic nature of international criminal law, while presenting the judiciary with a considerable challenge of interpretation as to the applicable international law. The Act on Criminal Responsibility for Genocide, Crimes against Humanity, and War Crimes of 2014 is based on incorporation by transformation into explicit material elements in domestic law, which serves to alleviate some of the interpretative challenges in the future. Other issues are likely to remain, such as how to adequately assess individual liability within corporations for the crimes concerned. When assessing individual liability within corporations Swedish judges routinely turn to general principles on perpetration and complicity, as codified for instance in Chapter 23, Section 4 of the Penal Code, which states that punishment as provided for an act shall be imposed not only on the person who committed the act but also on anyone who furthered it by advice or deed.