EXTRA TERRITORIAL JURISDICTION

 Jurisdictionis an attribute of State

sovereignty;
 Competence of a State to govern
persons and property by its
municipal laws;
 Primarily exercised on a territorial
basis;
 Exception to exercise of
jurisdiction: for instance
diplomats are immune;
 In some instances a State
exercises jurisdiction outside its
own territory
 This is what is called EXTRA
TERRITORIAL JURISDICTION.
 Territorialprinciple;
 Nationality principle;
 Protective or security principle;
 Universality principle; and
 Passive personality principle
 Events and people within a State’s
boarders are subject to that State’s
Municipal law;
 What of crimes commenced in one
State and completed in another?
 The State of commencement has
jurisdiction under “subjective”
territorial principle;
 The State of “injury” has jurisdiction
under “objective” territorial principle.
 Regarding a dispute between France &
Turkey about a collision in
international waters. Turkey
prosecuted a French officer for
manslaughter when The Lotus reached
Turkey. France argued that Turkey did
not have a right to Jurisdiction under
International Law. The Court denied
the claim.
 The PCIJ Stated that the starting point is
Sovereignty of the State. There is a
presumption that the state can do anything.
 The Court rejected the French govt’s claim
that the ‘flag state’ had exclusive
jurisdiction.
 The PCIJ further stated that the damage to
the Turkish vessel entitled Turkey to
exercise jurisdiction based on the objective
territorial principle.
 A State may exercise jurisdiction on its
nationals wherever they may be even
when offences were committed abroad.
 Mostly utilised in civil law countries than
common law ones.
 Exercise of jurisdiction under nationality
principle does not preclude exercise of
jurisdiction by State where offence was
committed under territorial principle.
 A State may exercise jurisdiction for
offences although committed abroad
are injurious to it.
 It doesn’t matter if those offences are
committed by non nationals.
 The principle is still not well defined.
 Examples Case of Eichmann, Lord Haw
Haw, Abdul Malik (Kenyan taken to
US.)
 Eichmann was a suspected notorious
Nazi war criminal who was kidnapped
in Argentina and taken to Israel for
trial for the holocaust crimes.
 Lord Haw Haw was an American who
held British passport which he
fraudulently obtained. He was found
guilty of treason for propaganda
broadcast from Germany to Britain
 Exercised under defined situations in
CIL or by international conventions.
 Belgium is the biggest proponent.
 Subject of wrong interpretations as
giving jurisdiction to all States to try
all crimes even by foreigners
committed abroad.
 Case law: Congo v. Belgium (Yerodia
Case)
 The following are situations for
exercise of jurisdiction:
• Piracy
• War Crimes
• Genocide
• Other specific crimes under
conventions eg Torture
 The principle evolved with this offence
 Under CIL all states have jurisdiction
provided alleged offender was arrested
either on the high seas or within the
State exercising jurisdiction’s territory
 Codified by the 1958 Geneva Convention
on the High Seas.
 Reiterated in Article 101 of 1982
UNCLOS
 Case law: Court of Appeal Judgment on
Piracy (Kenya) *find it.
 Article 101 of UNCLOS defines piracy
as consisting illegal acts of violence or
depredation which is committed for
private ends on high seas or beyond
the territorial control of any state.
 Eichmann case:
The Court claimed jurisdiction on:
…a universal source – which vests
right to prosecute and punish crimes
of this order in every State within the
family of nations…
 Article 6 of the Charter of Nuremberg
Military Tribunal which established
crimes against peace, violation of laws
and customs of war, CaH as
international crimes is now regarded
as CIL.
 Judgment of the tribunal is also
regarded as CIL.
Genocide has been unanimously
condemned by the UNGA.
 1948 convention on the prevention
and punishment of the crime of
Genocide is considered as reflecting
CIL.
 ICTR, ICTY have tried persons for
Genocide
 International community has through
conventions made certain reprehensible
criminal conducts international crimes:
• 1971 UN Res. 2784 characterised
Apartheid as a CaH and 1973
International Convention on the
Suppression and Punishment of
Apartheid
• 1970 Hague Convention on the
Suppression of Unlawful Seizure of
Aircraft
• 1971 Montreal Convention for the
Suppression of Unlawful Acts against
the Safety of Civil Aviation
 The Hague and Montreal conventions
were in response to aircraft hijacking
which was acute in the 60s.
• 1974 Convention on Prevention and
Punishment of Crimes against
Internationally Protected Persons
Including Diplomatic agents
 1979 International Convention Against
taking of Hostages
 1984 UN Convention against Torture
and other Cruel, Inhuman and
Degrading Treatment and Punishment
 1988 Convention against Illicit Traffic
in Narcotic Drugs.
 International conventions do not
create international universal
jurisdiction except where the
particular crime has acquired the
character of international crime under
CIL.
 The conventions create obligations
amongst state parties.
 Exercise of jurisdiction in respect of
an alien outside of jurisdiction for an
act against one of its nationals.
 Not widely accepted as basis for
jurisdiction by common law countries.
 US applies it in regard to terrorist
activities and attacks on its diplomatic
representatives and other officials.
 Handing over of an alleged offender
by one State to another.
 Normally effected through bilateral
treaties.
 Politically motivated crimes excluded.
 Bilateral treaties not necessary when
two States are parties to conventions
requiring extradition or punishment.
 Aut dedere aut judicare – extradite or
prosecute
 Used for serious offences.
 Offence must be designated as a
crime in the two countries. (Double
Criminality)
 Some States refuse extradition on
grounds that the extradited person
could be subjected to capital
punishment.
 Unlawful arrest does not affect
jurisdiction of Court hearing the case.
 However in Toscanino case US Court
of Appeal stated that the Court was
divested of its jurisdiction when the
accused had been brought before the
Court through illegal conduct of
enforcement agencies
 The position in the Toscanino case
was reversed by the SCOTUS in US v.
Huberto Alvarez Machan where the
SCOTUS rejected that IL prohibited
abduction for bringing an accused to
justice. It applied the case of Kerr v.
Illinois.
 The South African Supreme Court in
State v. Ebrahim dealt with the same
issue and held that IL prohibited SA
Courts from exercising jurisdiction
where the criminal defendant was
kidnapped by agents of the State from
Swaziland even if Swaziland had not
complained.
 Does trial or conviction of a person by
one State preclude another State from
trying the same person for the same
conduct in exercise of jurisdiction
under any of the principles?
 Under IL the answer is NO. There is no
rule against “double jeopardy”.
 Article 13 of Havard Draft Convention
– not binding creates a rule against
double jeopardy for aliens.