Jurisdiction

1. Introduction

(1). The jurisdiction of a state describes the power of a state under

international law to exercise its authority over persons and property by the
use of its municipal law. It includes both the power to prescribe rules
(prescriptive or legislative jurisdiction) and the power to enforce them
(enforcement or prerogative jurisdiction). Jurisdiction is fundamental to the
concept of sovereignty. It describes both the extent of sovereign powers
and the scope or limitation of those powers at international level.
Jurisdiction is, therefore, the aspect of state sovereignty which relates to the
legislative, executive and judicial competence of a state. There are three
groups of powers:
1. the power to legislate in respect of persons, property and events;
2. the power of physical interference exercised by the executive (arrest,
seizure of property, etc);
3. the power of the state’s courts to hear cases concerning persons,
property and events.

It is essential to distinguish between these three groups of powers and in

particular between the executive and the judicial competence of a state. The
governing principle is that a state cannot take measures on the territory of
another state by way of enforcement of its national laws without other
state’s consent. For example, a person may commit an offence in country A
and then escape to country B. The country A’s courts have jurisdiction to
try him, but the A country’s police cannot enter country B’s territory and
arrest him. If they did, this would be contrary to the well established rule of
international law that one state may not commit acts of sovereignty on the
territory of another state. So persons may not be arrested, police
investigations may not be mounted, summons may not be served, on the
territory of another state except under the terms of a treaty or with other
consent.

(2). In 1935, the Harvard Law School conducted an extensive study on

jurisdiction in the light of, on the one hand, the increasing need for co-

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operation between states and, on the other hand, the problem arising from
conflicts between states which wanted to exercise their jurisdiction to
prosecute the same criminals. The Harvard Study identified five traditional
bases under which a state is allowed to regulate an individual’s conducts.
They are:
1. the territorial principle;
2. the nationality principle;
3. the protective principle;
4. the passive personality principle
5. the universality principle.
Of these, according to the Harvard study, the principles most widely
accepted were territoriality and nationality. The Harvard researchers also
found evidence in state practice for the protective and universality
principles. Although some evidence of passive personality was apparent,
the researchers were of the opinion that this was insufficient to bring it
within the ambit of customary law.

2. Territorial principle

The essence of this principle is that every state has jurisdiction over crimes
committed in its own territory. This principle has been widely recognized.
Normally, the application of the principle will be straightforward. An
individual, present within a state, committing a crime in that state, will be
subject to the enforcement jurisdiction of that state. In two circumstances,
however, the application of the territorial principle will be more
complicated - where an offence, commenced within the territory of another
state but is completed in the territory of the state concerned and where the
offence is commenced within the territory of the state concerned but only
completed in the territory of another state.
The 1935 Harvard Research Convention approached this problem by
providing that a state would have territorial jurisdiction in respect of acts
which occur in whole or in part within the territory of the state. ‘In part’
was defined as an essential constituent element of the act in question. Thus,
whether the act commenced in the territory (subjective jurisdiction) or was
completed in the territory (objective jurisdiction) the state concerned would
be able to exercise its authority.

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3. Nationality principle

The competence of the state to prosecute and punish its nationals on the
sole basis of their nationality is based upon the allegiance which the person
charged with the crime owes to the state of which he is a national. It is now
universally accepted that a state may prosecute its nationals for crimes
committed anywhere in the world.
It is, however, recognized that the application of the nationality principle
may create parallel jurisdiction, for example, jurisdiction by more than one
state, and possible double jeopardy in cases of dual nationality or where the
territorial and national jurisdiction overlap. Many states, therefore, place
limitations on the nationality principle. For instance, English courts may
only claim such jurisdiction in the case of serious offences such as treason,
murder and bigamy. The UK does not, however, challenge the application
of the principle by other states in less serious criminal cases.

4. Protective principle

Almost all states assume jurisdiction to punish acts prejudicial to their

security, even when they are committed by aliens abroad. Such acts, not
necessarily confined to political matters, include spying, plots to overthrow
the government, forging currency, immigration and economic offences.
For example, the protective principle was accepted by the courts as
providing alternative bases for jurisdiction in both the Joyce Case and the
Eichmann Case (Attorney-General of the Government of Israel v
Eichmann, 1961). In the latter case, the court assimilated the state of Israel
- which did not exist at the time of the offences - to the Jewish people,
holding that the protective principle permitted the Israeli court to exercise
jurisdiction in respect of crimes against the Jewish people.
Although most states use this principle to some extent, thereby confirming
its legitimacy, there is nevertheless the danger that some states may abuse
the principle by giving a very broad interpretation to the concept of
protection.

5.Passive personality principle

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According to this principle, a state has jurisdiction to punish aliens for
harmful acts committed abroad against its nationals. This has been
described as the most difficult principle to justify in theory.

6.Universality Principle (Universal jurisdiction)

Under this principle a state may exercise jurisdiction in respect of persons

accused of international crimes committed anywhere in the world and
irrespective of the nationality of the perpetrator and of the victim. The
reasoning behind this principle is that some crimes are so universally
repugnant that their perpetrators are considered as enemies of all mankind.
The prosecuting state acts, therefore, on behalf of all states.

(1). International crimes

Offences which may be tried under the principle of universal jurisdiction

are those which are considered sufficiently heinous to be crimes against the
entire community of nations and therefore their repression becomes a
matter of international public policy.

The Statute of the International Criminal Court (ICC), which sets out only
the most serious violations of international law, provides that the
International Criminal Court has jurisdiction in respect of genocide, war
crimes, crimes against humanity and the crime of aggression. It is
submitted that the following offences are recognized under customary
international law as international crimes: piracy, slavery, crimes against
peace, war crimes, crimes against humanity, genocide and torture.

a. Piracy

Customary international law allows a state to try pirates. This offence is

usually committed on the high seas rather than within the territorial waters
of any nation. The nationality and passive personality principles are not
practical alternatives because it is difficult to establish the nationality of the
pirates and the state apprehending the pirates will not necessarily the state

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of the victims.
b. Slavery

The most comprehensive international instrument abolishing slavery and

the slave trade was adopted under the auspices of the League of Nations.
The Convention on the Abolition of Slavery and the Slave Trade 1926
declared as its main objective: “the complete suppression of slavery in all
forms and of the slave trade by land and sea”.

b. War crimes and crimes against humanity

In 1950 the ILC adopted a report on the “Principles of International Law

Recognized in the Charter of the Nuremberg Tribunal and in the Judgment
of the Tribunal”. Its Principle VI codifies the three categories of crimes set
out in the Charter of the IMT (International Military Tribunal) as crimes
under international law. The four 1949 Geneva Conventions and the two
1977 Additional Protocols further define war crimes and impose a duty on
a contracting state to extradite or to try alleged offenders and punish them
if appropriate under the principle of universal jurisdiction. The Statutes of
the ICTR (International Criminal Tribunal for Rwanda) and ICTY
(International Criminal Tribunal for the Former Yugoslavia) and the
International Criminal Court (ICC) recognize war crimes and crimes
against humanity as international crimes.
The most spectacular example of a state relying on the principle of
universality was the trial of Adolf Eichmann who was illegally abducted by
members of the Israeli secret service, by order of the then Prime Minister,
to stand trial in Israel. He was charged under the Nazi and Nazi
Collaborators Punishment Law 1950 with 15 counts of war crimes and
crimes against humanity. Under the Nazi regime Eichmann, by his own
admission, was in charge of ‘cleansing’ or forcing the emigration of
150,000 Jews from Austria. From 1942 he was one of the main persons
responsible for Hitler’s ‘final solution’, that is, the systematic execution of
some six million Jews. After the war he escaped to Argentina and lived
there with his family for ten years before being abducted. He was found
guilty by the Israeli court and was executed on 31 May 1962.
Eichmann challenged the jurisdiction of the Israeli court on the grounds

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that: he was illegally abducted and Israel had no right to hold them; he was
charged with crimes that did not exist at the time he committed them; and
he stood trial in a country that did not exist at the time of the commission
of the alleged crimes. All his arguments were rejected. The court stated that
the crimes committed by Eichmann were international crimes in nature and
therefore it applied the universality principle of jurisdiction.

d. Genocide

The crime of genocide is relatively recent in origin. It evolved from crimes

against humanity. In 1948 the General Assembly adopted the Convention
on the Prevention and Punishment of the Crime of Genocide. In its Article
II the Convention defines genocide as involving “intent to destroy, in
whole or in part, a national, ethnical, racial or religious group”, such as
killing members of the group, causing serious bodily or mental harm to
them, deliberately inflicting on the group conditions of life calculated to
bring about its physical destruction in whole or in part, imposing measures
intended to prevent births within the group and forcibly transferring
children of the group to another group.

d.Torture

The UN General Assembly has adopted a large number of resolutions

recognizing it as a crime under international law. However, subsequent to
the judgment of the ICJ in the Case Concerning the Arrest Warrant of 11
April 2000: Democratic Republic of the Congo v Belgium (2002) the
prohibition of torture as a norm of jus cogens has been considerably
weakened. If the prohibition of torture is, indeed, the highest norm in the
hierarchy of norms of international law it prevails over the rule which gives
Heads of State, when in office, immunity from jurisdiction in a situation
where they are accused of serious human rights abuses, in particular acts of
torture. The ICJ in the above judgment decided otherwise. The Court
clearly stated that under customary international law a minister of a foreign
state, for as long as he remains in office, enjoys absolute immunity from
any act of authority by another state, regardless of the gravity of the
charges involved. Accordingly, national courts have followed the above

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judgment of the ICJ and have, on the ground of state immunity, dismissed
civil lawsuits alleging, among other things, torture by Heads of State and
other high ranking state officials.

7. Universal jurisdiction based on customary international law

Whether or not a prosecuting state may exercise universal jurisdiction

solely on the basis of customary international law depends on the
relationship between its municipal and international law. In monist
countries international law forms part of national law. Consequently, no
domestic legislation is needed to enact in respect of crimes under
customary international law. The situation is different in dualist countries.
Another difficulty may arise in countries which accept that international
law forms part of municipal law but special legislation is required for
national courts to exercise jurisdiction in respect of international crimes.
Under US law no person can be tried in the federal courts for international
crimes unless Congress enacts a statute defining such crimes and providing
for their punishment.
Since the establishment of the ICTR and the ICTY national prosecutors in
many countries have carried out investigations based on universal
jurisdiction or have arrested suspects at the request of states conducting
such investigations. The ratification of the Statute of the International
Criminal Court (ICC) by contracting states requires amendments to the
municipal law of such states, namely the establishment of universal
jurisdiction in respect of international crimes. This may be a strong
incentive for many states to amend their legislation in this area.

8. Universal jurisdiction based on treaties

Treaties define international crimes and contain specific provisions in

respect of the international jurisdiction of contracting states. A contracting
state exercises its jurisdiction on the basis of the terms of the treaty rather
than on any generally accepted principle of customary international law.
The key elements of most of the treaties dealing specifically with crimes of
an international nature, for example, the Hague Convention for the
Suppression of Unlawful Seizure of Aircraft 1970 or the Rome Convention

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for the Suppression of Unlawful Acts against the Safety of Maritime
Navigation 1988 are as follows:
(1).The provision of definition of international crimes.
(2).The establishment of an obligation on a contracting state to make acts
considered as international crimes offences under their municipal legal
systems.
(3).The requirement that a contracting state must be in a position to
establish jurisdiction over these crimes. Invariably, territoriality and
nationality are indicated as mandatory bases of jurisdiction. Other
principles are permitted as optional grounds of jurisdiction.
(4).The offences created are deemed to be extraditable offences.
(5).The imposition of a duty on a contracting state to either extradite or
prosecute the offender.

9. Concurrent jurisdiction

The existence of different grounds of jurisdiction inevitably means that

several states may have concurrent jurisdiction. Where more than one state
has jurisdiction, it seems that priority to exercise enforcement jurisdiction
depends solely upon custody.

10. The effects doctrine

The effects doctrine holds that state A may claim jurisdiction if conduct
initiated in state B is having an effect within state A. This jurisdiction is
claimed even though all the conduct may have taken place outside state A.
The principle is wider than the objective territorial principle, because in the
latter case some elements of the offence have taken place in the state
claiming jurisdiction. At the same time, the effects doctrine is wider than
the protective principle, because the latter is restricted to matters central to
the security and defense of the state, while the former doctrine extends to
commercial operations.
The effects doctrine has been growing in prominence in recent years,
particularly in the enforcement of competition law, or anti-trust law as it is
sometimes described in the United States. One of the problems in this area
is that states have different traditions in the enforcement of competition

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law.
However, from the 1960s extra territorial claims by law enforcement
agencies in the United States led to blocking legislation in other countries.
This response had led to a modification in the approach by the courts in the
United States. It now seems that for jurisdiction to be claimed: (i) the effect
must be substantial, (ii) that the exercise of the jurisdiction should be
reasonable, and (iii) that the claims of other states should be considered as
well as the relationship of the parties with the United States (Timberlane
Lumber Co v Bank of America (1976)).
In any event, exercising jurisdiction on the basis of ‘the effects doctrine’
could be controversial. First, the conduct may often be lawful in the state
where it is undertaken. This distinguishes it from cases under the protective
principle, where injurious (harmful) acts committed in state A and directed
against the organs of state B are normally unlawful both at the place of
inception and under the general rules of customary international law.
Second, as indicated above, application of the principle brings the courts of
one state into conflict with foreign governments and foreign nationals.
Third, attempts by courts in states such as the United States to apply the
effects doctrine have led to blocking legislation being passed by other
states, so leading to discord within the wider international community.
Fourth, conflict is to some extent inevitable because the ‘effects’ doctrine
has largely been applied in the area of commercial law where different
states take different views as to the nature of commercial conduct. What is
lawful in state A may be unlawful in state B. Fifth, it has to be admitted
that some trading blocs (such as the EU) while complaining about the
effects doctrine are not averse to invoking it in their own courts.