An Introduction to Jurisdiction in International Law

Introduction to Jurisdiction

• Definition of Jurisdiction: Jurisdiction is defined as the power of the state to regulate affairs according to its laws. Exercising jurisdiction is an assertion of a form of sovereignty.

• Extra-territorial Challenges: Complications arise when jurisdiction is exercised extra-territorially. This leads to overlapping sovereignties. Currently, general international law lacks a developed hierarchy for resolving lawful jurisdictional claims when they overlap.

• International Crimes Context: International law generally allows for jurisdiction over international crimes on broader bases than those used for ordinary domestic crimes. Note that this discussion is focused specifically on international crimes and is not an exhaustive guide to the general international law of jurisdiction.

Forms of Jurisdiction

• The Three Categories: Jurisdiction is divided into three primary categories: legislative (prescriptive), adjudicative, and executive (enforcement).

• Congruency in Criminal Matters: In international criminal law, jurisdiction to prescribe (pass laws) and jurisdiction to adjudicate (bring to court) are generally congruent in scope.

Legislative Jurisdiction

• Scope: This refers to the state's right to pass laws that affect conduct.

• The Common Law Cliché: Some states claim a domestic right to pass legislation covering conduct worldwide. A classic example is the notion that the $UK$ Parliament could theoretically pass a statute making it a crime for a French citizen to smoke on the streets of Paris.

• Constraints:

  • Practicality: Enforcing such laws is difficult.

  • Non-intervention Principle: Over-broad legislative claims can be problematic under international law.

  • State Protests: States increasingly protest unwarranted assertions of legislative jurisdiction, though they often wait until a specific case arises to rely on these objections.

Adjudicative Jurisdiction

• Mechanism: This defines the extent to which domestic courts apply state laws and pass judgment on matters brought before them.

• Crystallization: This form of jurisdiction becomes concrete when a court actually asserts power over specific conduct.

• Intervention Concerns: Passing judgment on crimes committed abroad can be seen as an intervention in the domestic affairs of the state where the offense occurred.

  • Example: Some African states criticized French and Spanish courts for exercising jurisdiction over Rwandans suspected of crimes against other Rwandans. The African Union labeled this an "abuse of the principle of universal jurisdiction" in its $2008$ decision (AU Doc. Decision Assembly/AU/Dec. $199$ ($XI$)).

Executive Jurisdiction

• Definition: This is the most intrusive form of jurisdiction, involving the right to perform legal processes coercively, including arrests, searches, and seizures.

• The Lotus Case Principle: The SS Lotus (France v. Turkey, $1927$) is the accepted authority on executive jurisdiction. It established that states may not exercise power in any form in the territory of another state unless a permissive rule to the contrary exists. Consequently, executive jurisdiction is strictly territorial.

• The Eichmann Precedent: Israel acknowledged that abducting Adolf Eichmann from Argentina in $1960$ without Argentina's consent violated Argentine sovereignty, regardless of the morality of the act.

• Male Captus Bene Detentus: This Latin aphorism ("wrongly captured, properly detained") reflects the principle that an illegal arrest does not necessarily bar a court from exercising adjudicative jurisdiction.

  • The ICTY Perspective: In the Dragan Nikolić case ($2003$), the International Criminal Tribunal for the former Yugoslavia (ICTY) suggested that setting aside jurisdiction due to abduction is usually disproportionate, unless egregious human rights violations occurred. The court must balance the rights of the accused against the "essential interests of the international community" in prosecuting serious humanitarian law violations.

• National Court Positions: Some domestic courts, such as those in the $UK$ (R v. Horseferry Road Magistrates, ex parte Bennett) and South Africa (State v. Ebrahim), have declined jurisdiction in cases of illegal abduction to avoid compounding an illegality, though this is not yet an established principle of mandatory international law.

Conceptual Matters and Proof

• The Lotus Presumption: A common saying in international law, stemming from the Lotus case, is that states can exercise jurisdiction unless a specific rule prohibits them. The $1927$ Permanent Court of International Justice stated that international law leaves states a "wide measure of discretion" limited only by prohibitive rules.

• Shift in Practice: Modern state practice has shifted away from the Lotus presumption. States now typically seek a positive ground under international law to assert jurisdiction rather than relying on the absence of a prohibition.

• The Yerodia Case (Democratic Republic of the Congo v. Belgium): In the first ICJ case where the Lotus presumption was relevant, judges disagreed on its continued validity. Some argued it was no longer relevant to modern jurisdictional claims.

Treaties and Conferred Jurisdiction

• Jurisdictional Concessions: States can legally pass jurisdiction to one another via treaties.

• Transnational Crime Treaties: Many treaties, such as the $1979$ International Convention Against the Taking of Hostages ($Article 5(1)$ and $(2)$), require or permit states to criminalize conduct on broad bases and either extradite or prosecute.

• Conferred vs. Universal: While these are often loosely called "universal jurisdiction," they are technically "conferred jurisdiction." States parties agree that other members of the treaty can exercise jurisdiction on their behalf.

• Legality: There is nothing unlawful about this arrangement, though asserting such jurisdiction without a treaty basis or clear customary law would violate international law.

Traditional Heads of Jurisdiction

Territoriality Principle

• Status: The least controversial and most standard basis.

• Scope: Jurisdiction covers all events on the state's territory, including airspace and territorial waters.

• Quasi-territorial Jurisdiction: Includes ships and aircraft registered in the country, as well as leased areas or territories under belligerent occupation.

• ICC and Palestine: The International Criminal Court (ICC) Pre-Trial Chamber $I$ found in $February 2021$ that its territorial jurisdiction extends to Gaza and the West Bank (including East Jerusalem).

• Origin and Completion: Jurisdiction usually exists if a crime originates abroad but is completed on the territory, or vice versa, provided at least one element of the offense occurs there.

  • Rohingya Case: The ICC asserted jurisdiction over the deportation of Rohingya from Myanmar (non-state party) to Bangladesh (state party) because the crossing of the border is an essential element completed in Bangladesh.

• Ubiquity Principle: A theory stating that if any part of a crime (including complicity) occurs in a state, that state has territorial jurisdiction.

• UK Broader Practice: The $UK$ asserts jurisdiction over inchoate conspiracies to commit crimes in the $UK$ even if all conduct occurred abroad.

Nationality Principle (Active Nationality)

• Definition: States may legislate regarding the conduct of their nationals when they are abroad.

• Codification: $Article 12(2)$ of the Bosnia and Herzegovina Criminal Code explicitly applies its legislation to citizens who commit crimes outside its territory.

• Armed Forces: This is a vital basis for jurisdiction over overseas military personnel, who are often said to "carry the flag" with them. This is frequently reinforced by Status of Forces agreements where the territorial state waives its jurisdiction.

• Civilian Application: The principle also covers civilians. For example, Section $9$ of the $UK$ Offences Against the Person Act $1861$ asserts jurisdiction over murders committed by British nationals regardless of the location.

• The Genuine Connection Test: In the Nottebohm case ($1955$), the ICJ ruled that a person must have a "genuine connection" to the state for its nationality claim to be recognized internationally.

• Legal Considerations:

  • Timing: Jurisdiction usually requires the person to be a national at the time of the offense to avoid violating nullum crimen sine lege.

  • Dual Criminality: Some states assert jurisdiction if the suspect later acquires nationality (vicarious authority), but this often requires the conduct to be criminal in both the place of commission (locus delicti) and the prosecuting state.

  • Permanent Residents: Some states extend this to permanent residents, treating them similarly to nationals.

• Named Case: The US prosecution of Lieutenant William Calley for the My Lai massacre in Vietnam is a famous use of nationality jurisdiction.

Passive Personality Principle

• Definition: Jurisdiction exercised by a state over crimes committed against its nationals while they are abroad.

• Controversy: Historically controversial; Lotus case judges generally did not accept it as a customary rule.

• Trend: Practice is increasing, notably in the $US$ regarding terrorist offenses (United States v. Yunis, 1991).

• Acceptance in War Crimes: This principle is more widely accepted for war crimes.

  • Almelo Case: A British military court prosecuted a German national for killing a $UK$ national in the Netherlands.

  • Velpke Baby Home Case: The $UK$ prosecuted Germans for the neglect of Polish children in Germany, extending jurisdiction to nationals of co-belligerent states.

• Timing: Nationality is determined at the time of the offense. Israel's attempt to use this in the Eichmann case for victims who were not Israeli nationals at the time of the crimes was criticized.

Protective Principle

• Definition: Jurisdiction over extra-territorial activities that threaten state security (e.g., spying, selling state secrets, counterfeiting currency or seals).

• Application to International Law: While potentially applicable to aggression, it usually overlaps with territorial or nationality principles.

• Eichmann Critique: Israel asserted this principle, but was criticized because the State of Israel did not exist when Eichmann's offenses were committed.

Universal Jurisdiction

Introduction and Basic Concepts

• Definition: Jurisdiction over a crime regardless of where it was committed, the nationality of the perpetrator or victim, or any other link to the prosecuting state.

• Crimes Covered: Under current practice, states can assert universal jurisdiction over piracy (on the high seas), war crimes, crimes against humanity, genocide, and torture.

• Aggression: Only about $18$ states have universal jurisdiction over aggression, and there are no recorded examples of its use. Cases involving aggression in Ukraine have relied on territorial jurisdiction.

• Purpose: The principle is based on the idea that international crimes affect the international legal order as a whole and that territorial or nationality states may fail to prosecute effectively.

Approaches to Universal Jurisdiction

• Pure (Absolute) Universal Jurisdiction: Asserting jurisdiction (investigating or requesting extradition) when the suspect is not present in the territory (jurisdiction in absentia).

• Conditional (Qualified) Universal Jurisdiction: Jurisdiction is only exercised when the suspect is present in the state (jurisdiction with presence).

• Status: Many states limit jurisdiction to presence for practical reasons of "international courtesy" or prudence, though some scholars argue the distinction is conceptually non-existent.

Historical Evolution and Key Cases

• Post-WWII: The $UN$ War Crimes Commission argued that any independent state has the right to punish war crimes. Cases like the Zyklon B case (Tesch and others) are often justified by this.

• $1949$ Geneva Conventions: $Article 49$ of Convention $I$ requires states to search for and bring perpetrators of grave breaches before their courts "regardless of their nationality."

• Adolf Eichmann Trial ($1961$): Israel's primary claim was universality, asserting that the crimes were delicta juris gentium (offenses against the law of nations) and required every country's judicial organs to give effect to criminal interdictions.

• John Demjanjuk: Extradited from the $US$ to Israel in $1985$ to face trial as a suspected camp guard at Treblinka. He was acquitted in Israel when his identity as "Ivan the Terrible" was doubted, but later convicted in Germany in $2011$ as a guard at Sobibor.

• 1990s Legislation: The $UK$ War Crimes Act $1991$ and Australia’s War Crimes Amendment Act $1888$ asserted jurisdiction over WWII offenses by individuals who later became residents. This is viewed by some as a form of universal jurisdiction since jurisdiction crystallizes at the time of the offense.

The Rise, Retrenchment, and Expansion

• Pinochet Litigation ($1998-1999$): Spain sought the extradition of General Pinochet from the $UK$. Commentators saw this as the globalization of human rights law.

• Belgium’s Extreme Law: In $1993$ (revised $1999$), Belgium allowed for universal jurisdiction over genocide, crimes against humanity, and war crimes regardless of where they occurred. It did not require the suspect's presence and allowed private parties to initiate proceedings.

• Political Fallout: Belgium faced investigations against leaders like Ariel Sharon, Yasser Arafat, Fidel Castro, and Hashemi Rafsanjani. Pressure from the $US$ (after attempts to indict George H. W. Bush and Dick Cheney) led Belgium to repeal the broad law in $2003$.

• The Yerodia Case (ICJ): The Democratic Republic of Congo challenged Belgium's arrest warrant for its foreign minister. The ICJ focused on immunities, but separate opinions showed a court divided on the lawfulness of universal jurisdiction in absentia.

• Spanish Retrenchment: Spain convicting Adolfo Scilingo ($2005$) and Ricardo Cavallo were successes, but legislative changes in $2009$ limited jurisdiction to cases with a Spanish link or where no other state was investigating (subsidiarity).

• Quiet Expansion: Despite the high-profile Belgian/Spanish retreats, universal jurisdiction is expanding. Germany ($Code of Crimes Against International Law, Art. 1$), Canada ($Section 8$), and the $UK$ have adopted more systematic (though often discretionary) universal jurisdiction frameworks.

Practical Problems with Universal Jurisdiction

• Lack of Cooperation: There is no automatic obligation for territorial or nationality states to assist in investigations or provide evidence.

• Dependency on Territorial States: Successful cases (e.g., the "Butare Four" in Belgium, Zardad in the $UK$) often occur with the cooperation of the territorial state.

• Standard of Proof: Many cases fail to reach the criminal standard of proof due to the lack of evidence in the forum state (e.g., Duško Cvetković in Austria).

• Inter-cultural Difficulties: Translation problems and evaluating the credibility of witnesses from different cultural backgrounds are significant challenges.

• Forum Shopping and Ne Bis In Idem: Multiple prosecutions in different states for the same facts are possible, potentially violating the rights of the defendant as the ne bis in idem principle (not being tried twice) often does not operate between separate sovereign states.

Policy-Based and Political Criticisms

• Foreign Policy Impact: Prosecutions can damage international relations, leading states to implement hurdles like requiring executive or government lawyer consent.

• Interference with Peace Processes: Universal jurisdiction may upset domestic amnesties or peace balances in emerging democracies. However, proponents argue erga omnes obligations mean international crimes are everyone's concern.

• Selectivity and Neocolonialism: Critics (including ICJ Judges Guillaume, Rezek, and Bula-Bula) argue that universal jurisdiction is a tool used by powerful nations against weaker ones, often described as neocolonial intervention.

• "No Safe Haven" Approach: Recent trends suggest a shift from states acting as "global enforcers" to ensuring their own territory is not a "safe haven" for international criminals.