Domestic Prosecution of International Crime
The concept of prescription, adjudication, and enforcement of the law stems from the word ‘Jurisdiction’. The word “jurisdiction” is a legal term for power, literally the power to “speak the law.” Essentially, it refers to the territory within which a court or government agency may properly exercise its power, as illustrated in Ruhrgas AG v. Marathon Oil Co. et al., 526 U.S. 574 (1999). Hence, one of the most fundamental questions of law is whether a given court has jurisdiction to preside over a given case.
Any court possesses jurisdiction over matters only to the extent granted to it by the Constitution, and/or legislation of the sovereignty on behalf of which it functions (ex: a state court in Mississippi may need statutory permission by the Mississippi legislature to hear certain types of cases). The question of whether a given court has the power to determine a jurisdictional question is itself. Such a legal question is referred to as “jurisdiction to determine jurisdiction.”
The question, ‘’whether a person can be prosecuted domestically for crimes committed abroad’’ is the basis of the concept of extraterritoriality or extraterritorial jurisdiction. Extraterritorial jurisdiction (ETJ) is the legal ability of a government to exercise authority beyond its normal boundaries. Any authority can claim ETJ over any external territory they wish. Like jurisdiction, the word “extraterritorial” requires elaboration. Also, like jurisdiction, it is a legal construct whose use can vary depending on the point being made. For a nation to have the authority to enforce its laws beyond its borders, three types of international extraterritorial jurisdiction must be present. They include prescriptive jurisdiction, enforcement jurisdiction, and adjudicative jurisdiction.
The first, prescriptive jurisdiction, is the authority to write long-arm statutes, which are laws that give a sovereign state the ability to extend its authority past its borders. In 1927, the Permanent Court of International Justice in the League of Nations issued a ruling in the Lotus case which gave member nations the right to write extraterritorial jurisdictional legislation. This fairly permissive rule gives each nation the right to pass such legislation as it sees fit. However, whether that nation can enforce that law outside their border is another question.
As regards enforcement jurisdiction, the Lotus case, which gave that authority to create legislation, also limits the enforceability of those laws. Enforcement jurisdiction deals with the ability of a nation to enforce any legislation it may pass; for example, by being allowed to arrest a suspect located outside its borders. This is based on the concept of territoriality, meaning that while each nation is sovereign within its borders and can write legislation without interference from other nations, its enforcement of those laws in foreign countries is greatly restricted.
Adjudicatory jurisdiction is the third type of international extraterritorial jurisdiction. It represents the authority of the court over the person charged with committing a crime. It refers to a State’s authority to decide competing claims. As prescriptive and adjudicative jurisdiction do not coincide, States may have legitimate prescriptive jurisdiction over a situation based on a permissive principle, but lack adjudicative jurisdiction, e.g., because the defendant has no contacts with the State, or because the parties to a private contract have chosen another adjudicative forum. Hence, it can’t convict them of a crime.
The principles of adjudicatory jurisdiction have been well-developed in the conflict of laws (private international law). In Europe, in civil and commercial matters, adjudicatory jurisdiction is mainly tied to the place of domicile or residence of the defendant. The United States, for its part, historically had more liberal rules of adjudicatory jurisdiction. ‘Minimum contacts’ of the defendant with the forum sufficed for a finding of personal jurisdiction, and even ‘tag’ jurisdiction, based on the defendant’s transitory presence in the forum, was accepted. More recently, however, the U.S. Supreme Court has required that the defendant be essentially ‘at home’ in the forum state, thereby narrowing the gap with Europe.
This concept is increasingly used by the United States to prosecute both US citizens living and working abroad, as well as foreign nationals who have no connection to the United States. A recent U.S. Supreme Court case sheds light on extraterritorial jurisdiction.
The celebrated case of RJR Nabisco, Inc. vs. The European Community, 136 S.Ct. 2090 (2016), while not a criminal case and involving criminal attorneys, discusses extraterritorial jurisdiction at some length. In RJR Nabisco the European Community alleged that RJR Nabisco conducted a money-laundering scheme with international drug traffickers involving the sale of narcotics and the black-market sale of RJR cigarettes in Europe. The Supreme Court held unanimously that the Racketeer Influenced and Corrupt Organizations Act (RICO) could apply to criminal actions occurring outside the United States.
In analyzing the factors, the courts must look at when determining if extraterritorial jurisdiction is appropriate from the case of RJR Nabisco where the Supreme Court set forth the test for extraterritorial jurisdiction. It stipulates that when determining whether extraterritorial jurisdiction applies, federal courts must examine the following:
Has Congress expressly stated that law applies outside the United States? If so, extraterritorial jurisdiction is appropriate, assuming the statute in question does not violate due process or other Constitutional protections.
Even if Congress has not expressly stated that law has extraterritorial applications, American laws may still apply to conduct that occurred overseas if some conduct relevant to the statute’s focus took place in the United States.
As regards the offenses that might give rise to extraterritorial jurisdiction, The US Congress has enacted some laws that explicitly provide courts with extraterritorial jurisdiction. Many of these laws invoke maritime law, such as the Maritime Drug Law Enforcement Act (MDLEA). Other criminal statutes relate to offenses taking place in airplanes or offenses taking place in federal buildings in foreign installations. Other laws explicitly providing federal courts with extraterritorial jurisdiction involve illicit sexual conduct involving minors, and the sale of sexual materials involving minors.
Generally, public international law recognizes the right of states to protect themselves and their subjects against threats and damage from within their territory and outside. 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. The implication of this is that the principles of extraterritoriality will always be relevant.