Extraterritorial Criminal Jurisdiction Research Articles

Regional fishery management organisation measures and the imposition of criminal and administrative sanctions in respect of high seas fishing

Doctrinal arguments and two examples illustrating the practice of the Spanish courts highlight two risk factors that can undermine the effectiveness of enforcement actions by States in matters involving high seas fishing. Firstly, the absence from treaty law of clearly defined conduct standards and unequivocal criminal enforcement routes to provide a positive basis for the exercise of extraterritorial criminal jurisdiction. Secondly, the transcendence of individual rights and constitutional principles enshrined in domestic constitutional and European Union law and safeguarded by national courts, and their potential for tension with international fisheries conservation objectives. Through a brief analysis of those tensions, the article leads to a reflection on the relevance of legal security considerations to inform the development of international and regional legal frameworks and decision-making mechanisms for addressing high seas illegal and unregulated fishing.

“Do Not Do Abroad What You Would Not Do at Home?”: An Exploration of the Rationales for Extraterritorial Criminal Jurisdiction over a State’s Nationals

AbstractCompared to universal jurisdiction, active nationality jurisdiction remains one of the least understood and written about forms of extraterritorial criminal jurisdiction. This article seeks to offer a normative account of the exercise of criminal jurisdiction by states over their nationals for crimes committed abroad such as sexual offences against minors, bribery of foreign public officials, or medical “circumvention” tourism. It highlights all of the reasons that militate against such assertions of jurisdiction as a matter of policy and law. It goes on to argue that the assertion of criminal jurisdiction over nationals for crimes committed abroad must be understood beyond its permissibility under international law as a modality that manifests the interests of the state of nationality, the territorial (host) state on occasion, the relevant individuals, and, increasingly, the international community.

The Extraterritorial Reach of Tribal Court Criminal Jurisdiction

Conflicts over the jurisdiction between tribal, state, and federal courts arise regularly due to the nature of overlapping sovereignty. The Supreme Court accepts an average of almost three Indian law cases a year and has decided more than twenty Indian law cases with a jurisdictional focus since 1978. As tribes become wealthier, they are increasingly acquiring new lands outside of their existing reservations. This expansion of territory generates new border zones where state and tribal interests converge. The Sixth Circuit recently decided the first federal appellate case dealing with the inherent criminal powers of tribal court jurisdiction over the conduct of Indians on tribal land that is located outside of the tribe’s reservation. The unanimous decision of the Sixth Circuit panel upheld the tribe’s inherent right to extraterritorial criminal jurisdiction, but read into the opinion some limiting caveats that originate from civil, and not criminal, jurisdictional principles. This paper reads the Sixth Circuit’s decision in Kelsey v. Pope as the first in what is surely to be a myriad of conflicts over the extraterritorial jurisdiction of tribal courts. It suggests that while the Sixth Circuit’s approach to tribal sovereignty is generally in keeping with Supreme Court precedent, the court erred by conflating criminal with civil authority and thus over limited its discussion of the inherent powers of tribal courts. Instead the paper suggests that a more consistent reading of the inherent extraterritorial criminal powers of Indian tribes should support jurisdiction over both tribal members and tribal territory unless Congress has expressly circumscribed tribal authority. This broader understanding of extraterritorial jurisdiction is not only simpler to apply, but finds better support in Supreme Court precedent than the convoluted reasoning adopted by the Sixth Circuit.

The Prosecution of Incitement to Genocide in South Africa

The inchoate crime of direct and public incitement to commit genocide was first recognised under the Convention on the Prevention and Punishment of the Crime of Genocide (1948). The creation of the crime was a direct result of the horrific effects of acts of incitement before and during the Second World War. Today the crime is firmly established under international law and is also criminalised in many domestic legal systems. History shows that incitement to crime and violence against a specific group is a precursor to and catalyst for acts of genocide. Consequently, the goal of prevention lies at the core of the prohibition of direct and public incitement to genocide. However, it may be said that this preventative objective has thus far been undermined by a general lack of prosecutions of the crime, especially at the domestic level. This prosecutorial void is rather conspicuous in the light of the new vision of international criminal justice under which domestic legal systems (including that of South Africa) bear the primary responsibility for the enforcement of the law of the Rome Statute of the International Criminal Court (Rome Statute), which in Article 25(3)(e) includes the crime of direct and public incitement to commit genocide. This article provides a brief historical and teleological overview of the crime of direct and public incitement to commit genocide under international law, as well as the definitional elements thereof as interpreted and applied by the International Criminal Tribunal for Rwanda (ICTR). Thereafter it examines the criminalisation of incitement to genocide in contemporary South African law in order to assess South Africa’s capacity to prosecute incitement to genocide at the domestic level. In this regard there are, in theory, various 'legal avenues' for the prosecution of incitement to commit genocide in South Africa, namely: as a crime under the Riotous Assemblies Act 17 of 1956; as a crime under the Implementation of the Rome Statute of the International Criminal Court Act 27 of 2002 (the ICC Act); or as a crime under customary international law pursuant to section 232 of the Constitution of the Republic of South Africa, 1996. The article reflects critically on the viability of prosecuting incitement to genocide in terms of each of these alternatives. The article highlights a number of practical and legal problems as regards the prosecution of incitement to commit genocide under the Riotous Assemblies Act as well as under customary international law. It is argued that the prosecution of incitement to genocide in terms of the ICC Act is preferable, as this would respond directly to an international consensus as regards the unique and egregious nature of genocide by providing for a limited form of extraterritorial criminal jurisdiction. Prosecution under the ICC Act would also reflect the objectives of the Rome Statute pursuant to which South Africa has certain international legal obligations. However, it is submitted that legislative amendment of the ICC Act is needed, since the crime is not explicitly provided for thereby at present. It is submitted that the legislative amendment must provide for the distinct crime of direct and public incitement to genocide in terms of South African criminal law. Such an amendment will remove the existing legal obstacles to the domestic prosecution of incitement to genocide and enable effective prosecution thereof at the domestic level. The proposed amendment will have the effect of strengthening the alignment between South African law and the objectives of the Rome Statute and may have preventative benefits in the long run.

Extraterritorial Jurisdiction, Criminal Law and Transnational Crime: Insights from the Application of Australia’s Child Sex Tourism Offences

Scholars have noted an increased reliance on extraterritorial criminal jurisdiction as a response to transnational criminal activity, the rise in treaty law, and the resultant moral obligations. Meanwhile, existing international legal commentary notes that there are difficulties attached to using extraterritorial offences as the primary tool to deter and combat Child Sex Tourism (‘CST’). While extraterritorial offences are recognised as one (albeit important) part of a spectrum of legal and socio-political sanctions against CST, serious obstacles remain to their effective implementation. Various scholars and commentators have identified the challenges involved in bringing charges related to extraterritorial CST offenses within the jurisdiction of the offender’s citizenship. Frederick Martens is an Australian citizen who was prosecuted under s 50BA of the Crimes Act 1914 (Cth), a provision inserted into the Act to prevent and punish CST. Martens’ experience exemplifies some of the common difficulties arising in prosecuting extraterritorial CST offences. He was convicted of having sex with a minor outside of Australia and sentenced to a term of imprisonment. It later emerged that there was additional evidence that cast significant doubt upon his guilt, and as a result of this fresh evidence, Martens was granted a pardon and released. The case serves as a warning regarding the difficulties of these trials and the dangers of ill-considered prosecutions. Concerns raised by the case are canvassed in the conclusion, including evidentiary concerns, issues inherent to relying on child witnesses, the time delay often involved in prosecuting CST offenders, fair trial concerns, and the problematic application of extraterritorial jurisdiction. This article aims to contribute to the existing body of research on the application of Australian CST laws and the wider international debate concerning the utility of extraterritorial CST offences, and will address certain related controversies regarding the extraterritorial application of criminal laws, including those regarding sexual offences committed by UN Peacekeeping personnel.

All and Nothing: A Framework to Reconcile the Differences in Constitutional Rights Afforded to Foreign National Contractors Abroad

With the fall of the Soviet Union, the War on Terror, and the subsequent wars in Afghanistan and Iraq, the United States military has undergone both structural and conceptual adjustments to defend against the amorphous and asymmetric threats of the twenty-first century. The evolution from massive standing armies designed for traditional and symmetric war to leaner, quicker, and more proficient expeditionary forces reflects the realities of the modern geopolitical dynamic. Yet these changes have resulted in a personnel and operational void that has hampered the United States military’s ability to support long-term operations. The private contractor has stepped in to fill this void — accounting for fifty-nine percent of Department of Defense personnel in Afghanistan during 2010. The rise of the private contractor has resulted in a subtle yet significant development in the rights afforded to those prosecuted under the United States’ extraterritorial criminal jurisdiction while accompanying the military abroad. This Comment provides a framework that reconciles two courts' contrary conclusions and argues that Boumediene’s functional approach prompts the conclusion that foreign national contractors at U.S. military facilities abroad are operating in a sphere of de facto United States sovereignty vis-a-vis criminal jurisdiction. Thus, foreign national contractors should generally be afforded constitutional protections such as the Fifth and Sixth Amendments.

The Prosecution of Incitement to Genocide in South Africa

The Prosecution of Incitement to Genocide in South Africa

Prosecutions of Extraterritorial Criminal Conduct and the Abuse of Rights Doctrine

Under international law, states can in certain circumstances institute domestic prosecutions over conduct occurring extraterritorially. Such exercises of extraterritorial jurisdiction sit at the crossroads of domestic and international law and can be highly controversial. This paper considers whether the abuse of rights doctrine is useful in regulating assertions of extraterritorial criminal jurisdiction. Part I introduces the principles of extraterritorial jurisdiction under international law. Part II provides examples of some of the problems that can arise in domestic prosecutions of extraterritorial criminal conduct, compromising the ability of an individual to enjoy a fair trial. Part III considers the effectiveness of the abuse of rights doctrine in providing a paradigm through which to conceptualise these problems and help protect fair trial rights.

The Difficulties of Exercising Extraterritorial Criminal Jurisdiction: The Acquittal of a Dutch Businessman for Crimes Committed in Liberia

AbstractReports of the NGO Global Witness in which the implication of the Dutchman Kouwenhoven in the civil war in Liberia was exposed served as the lead for the Dutch Prosecution Office to start a criminal case against this national. In June 2006, the Dutch businessman Guus Kouwenhoven was convicted in first instance for the violation of an arms embargo, but acquitted of the count on war crimes. On appeal, Kouwenhoven was fully acquitted of all charges. In its judgment quashing the prior conviction, the Dutch Court of Appeal heavily criticized the Public Prosecutor and observed that the case against Kouwenhoven was built on quicksand. Even though not based on universal jurisdiction, the case does illustrate the inherent complexities of exercising extraterritorial criminal jurisdiction. A remarkable aspect of the case is that the Court of Appeal evaluated the evidence presented in a fundamentally different way than the Court of First Instance had done. This might be related to the inherent difficulties of assessing “foreign evidence”. In this note, it is argued that when adjudicating such foreign cases, national judges being unfamiliar with the historical and cultural setting in which the alleged crimes took place, should call upon experts on the region to assist in the evaluation of the evidence. In terms of substance, the case leads to interesting questions as to how charges of illegal arms trade do and should relate to charges of complicity in war crimes.

Should States Have the Right to Punish Municipal Offences Committed Abroad?

This paper provides a philosophical critique of the principles that currently govern extraterritorial criminal jurisdiction under public international law. I start by outlining an interest-based justification for the right to punish offenders which, I suggest, is sensitive to the territorial dimension of the criminal law. On its basis, I argue that the nationality and passive personality principles have hollow foundations; by contrast, this justification fully explains what makes the territoriality and protective principles morally sound. Finally, this paper takes issue with the two most influential justifications for legal punishment available in the literature, i.e., retribution and deterrence. It argues that when pressed against the issue of extraterritoriality, they are committed to conferring upon states universal criminal jurisdiction for municipal offences. Although this does not prove them wrong, it is an implication that few of their supporters would be happy to endorse.

Not-so-innocents abroad: corporate criminal liability for human rights abuses

This article seeks to demonstrate the role that domestic criminal law could play in the regulation of transnational corporations for human rights abuses committed outside their jurisdiction of incorporation. It begins by summarising the US case of Doe I V Unocal Corporation (Doe v Unocal) as illustrative of some of the key issues that arise in cases of this kind. This is followed by a brief summary of the current approaches to regulating the conduct of transnational corporations, before discussing the suggested advantages of domestic criminal liability. The mechanics of corporate criminal liability are then addressed, with particular emphasis on the ways in which liability may be imposed for the conduct of subsidiaries and other independent entities. Principles of extraterritorial criminal jurisdiction are then discussed, along with the importance of international agreement. In conclusion, it is suggested that there is no legal impediment to the enactment of such legislation. The obstacle to reform is therefore not legal, but political.

Extraterritorial criminal jurisdiction: Its impact on criminal justice

Public international law recognizes the right of states to protect themselves and their subjects against threats and damage from within their territory and outside. In the international sphere, the means and methods of national protection are restricted by the extraterritorial jurisdiction of courts and the laws they enforce. Criminal justice today is being confronted on an ever increasing scale by international criminal offenses that impinge on domestic concerns: drugs, securities and financial manipulations, money laundering, and terrorism, to mention only a few. This article discusses some of the issues that arise under the United States Constitution when criminal justice agencies are called upon to enforce U.S. laws beyond U.S. territorial limits. The principles of extraterritorial jurisdiction are discussed along with a number of United States court cases pointing to the importance of this new area of criminal justice.

Extraterritorial criminal jurisdiction

INTRODUCTIONAmerican lawyers know all about the limits the Constitution places on jurisdiction in civil cases, like Pennoyer v. Neff1 or International Shoe.2 But constitutional limits on criminal jurisdiction have been much more obscure. This is because, for most of the nation's history, criminal prosecutions have been purely local affairs. When New York prosecutes a New York resident for a crime she committed in New York, questions of jurisdiction can be taken for granted; they do not warrant attention. But no longer. Over and over during the past few decades, the federal government has launched ambitious international prosecutions in the service of U.S. national security goals- prosecutions of terror leaders operating in Pakistan or Libya, of notorious global arms dealers working in Russia or Spain, and of violent drug lords based in Afghanistan or Colombia. These extraterritorial prosecutions seek to hold defendants accountable for their actions abroad, wholly outside the sovereign territory of the United States. And they force us to ask and answer a fundamental question that has long been latent in the law: Namely, what are the outer boundaries that the Constitution places on criminal jurisdiction?To answer this question, the lower federal courts have spent decades crafting a sprawling new due process jurisprudence, which allows a federal criminal law to reach extraterritorial conduct only if that conduct has a connection or to the United States. And at first glance, this new jurisprudence seems sensible. In an analogous context, the Supreme Court has long required what amounts to a nexus.3 In particular, before state civil law is permitted to reach extraterritorial conduct-before, say, the tort law of Minnesota is allowed to reach a car accident in Wisconsin-due process requires a connection between the source of the law (Minnesota) and the event in question (the accident).4 And leading scholars have argued that there is no reason not to subject federal criminal law to these same due process limits.5I argue, however, that the new due process jurisprudence that has been developed in the criminal context is fundamentally wrong. It is only in extremely rare cases that due process, properly understood, requires a nexus to the United States as a predicate to the exercise of criminal jurisdiction. As things stand, though, due process is generally-if not exclusively-being brought to bear in precisely that class of cases to which it should not be applied. The real world costs of this are severe. Forcing the United States to forego major extraterritorial prosecutions harms global public safety. And in the name of protecting defendants' presumed interests, the new due process jurisprudence may end up badly undermining them, by incentivizing a turn to harsher, alternative national security measures-drone strikes, for example, and military detention in Guantanamo Bay. This Article argues that none of this is necessary. A coherent due process jurisprudence protects both the liberty of criminal defendants and U.S. national security.Due process generally limits the law's extraterritorial reach for two reasons. The first is a concern for intergovernmental structure, for keeping sovereigns from interfering with each other. The second is a concern for protecting individual defendants from unfairness.As I argue, the first concern, for intergovernmental relations, cannot be used to justify due process limits on the extraterritorial application of federal criminal law. Structural concerns about what will or will not lead to a rupture between national governments have long been understood as ultimately the province of the popular branches, not the courts. These structural concerns should not be implicitly constitutionalized-by transposing them into a due process jurisprudence whose purpose is to limit the popular branches and, if necessary, to override their decisions. Moreover, the Constitution already fixes the boundaries of federal law's reach-in Article I. …

The Extra-Territorial Criminal Jurisdiction of English Courts

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Extraterritorial Criminal Jurisdiction of a Sovereign over Its Nationals

Extraterritorial Criminal Jurisdiction of a Sovereign over Its Nationals

Extra Territorial Criminal Jurisdiction in British Canada

Extra Territorial Criminal Jurisdiction in British Canada