Radhika Misra and Tanya Sharma, two students of the fourth Year, B.A.LL.B.(Hons.) at Dr. Ram Manohar Lohiya National Law University, Lucknow has written about the principles of international law used to determine which country should have jurisdiction with respect to a criminal incident in which multiple nations have an interest. Over to them.

Jurisdiction can be defined as a concept which concerns the power of the state under international law to regulate or otherwise creates an impact upon people, property and circumstances. It further reflects the basic principles of state sovereignty, equality of states and non-interference in domestic affairs.[i]  The most significant aspect of this definition is that it is based on the independence of a state’s sovereignty. This means that a State can construe an incident as per its own Rule of Law or municipal law, which may or may not be consistent with International Law. In the following article, we shall limit our discussion to jurisdictional conflict in international criminal law.

BASIC PRINCIPLES OF JURISDICTION IN INTERNATIONAL CRIMINAL LAW: A CRITIQUE

Criminal offences such as terrorist attacks, humanitarian crimes, hijacking and other such offences wherein two or more nation states are involved, the jurisdiction to prosecute the accused is difficult to determine. For instance, if an Afghani national commits the murder of an American tourist in Pakistan and is caught by the Pakistani police. Pakistan cannot prosecute the Afghan national without seeking the opinions of the other states involved. Herein, the nation of the perpetrator is Afghanistan, the territory where the crime has been committed is Pakistan and the person who has been murdered is an American citizen. As per the existing principles of jurisdiction in International Criminal Law each of these nation states that is United States of America, Pakistan as well as Afghanistan have a jurisdictional basis to prosecute the perpetrator. Due to the absence of well defined principles of jurisdiction as well as a lack of hierarchy between them, conflict abounds.  The objective of International law is to set down rules dealing with the limits of a state’s exercise of governmental functions while conflict of laws (or private international law) attempts to regulate in a case involving a foreign element whether the particular country has jurisdiction to determine the question, and, if it has, then the rules of which country will be applied in resolving the dispute.

As per International Law, criminal jurisdiction can be determined on the basis of five principles. The importance of these jurisdictional principles is that they are accepted by all states and the international community and are said to be consistent with international law. They are the Territorial Principle of Jurisdiction, The Nationality Principle, the Passive Personality Principle, the Protective Principle and the Universality Principle. Though it said that these principles are consistent with international law, they are not consistent with each other. Inconsistency coupled with an overlapping nature is what dilutes these principles.

The Territorial Principle can be defined as a territorial basis for the exercise of jurisdiction. It reflects one aspect of the sovereignty exercisable by a state in its territorial home, and is the indispensable foundation for the application of the series of legal rights that a state possesses.[ii] In other words, a nation state can take action against any offence committed or consummated within its territory. All such crimes committed within the territorial jurisdiction of a state may come before the municipal courts and the accused if convicted may be sentenced as per the rule of law in that nation state. Further, this applies even when the offenders are foreign citizens. However, this principle is not foolproof, as per the European Court of Human Rights in Loizidou v. Turkey, it was observed that although jurisdiction is primarily and predominantly territorial, it is not inevitably and exclusively so and states are free to consent to arrangements whereby jurisdiction is exercised outside the national territory and whereby jurisdiction by other states is exercised within the national territory.[iii] Thus, while jurisdiction is closely linked with territory it is not exclusively so.

The second principle is the Nationality Principle. The concept of nationality can be described as the link connecting the state and the people it includes in its territory. Since the state possesses sovereignty and jurisdictional powers over its territory and its people, it can exercise its jurisdiction over the acts committed by its people in any state or territory in accordance with international law. Common law countries tend to restrict the crimes over which they will exercise jurisdiction over their nationals abroad to very serious ones. In the UK this is generally limited to treason, murder and bigamy committed by British nationals abroad.[iv] Further, the common law countries have never protested against the extensive use of the nationality principle to decide jurisdiction in criminal matters by other states. The Nationality principle though is generally accepted is not infallible. As per this principle, nation states can claim jurisdiction over the offences committed by its nationals but other states wherein the crime has been consummated within their soil may also seek territorial jurisdiction. They may also question the sincerity with which the accused will be penalised. An example of nationality jurisdiction is the US prosecution of Lieutenant William Calley for his role in the My Lai massacre in Vietnam. This case also provides an example of one the criticisms often laid at the door of nationality jurisdiction that prosecution by states of their own nationals for war crimes may tend to be overly lenient.[v]

Next is the most controversial jurisdictional principle in International criminal law, the Passive Personality Principle.  Under this principle, a state may claim jurisdiction to try an individual for offences committed abroad which have affected or will affect nationals of the state. The leading case on this particular principle is the Cutting case in 1886.[vi] The overall opinion has been that the passive personality principle is rather a dubious ground upon which to base claims to jurisdiction under international law and it has been strenuously opposed by the US[vii] and the UK, although a number of states apply it. It has been opposed as the concept of passive personality favours powerful States at the expense of weaker States. There have been concerns that it could lead to people being subjected simultaneously to the laws of many different States, which would include prohibitions of which they are understandably unaware.[viii]

The fourth principle of jurisdiction is the Protective Principle of jurisdiction. This principle provides that states may exercise jurisdiction over aliens who have committed an act abroad which is deemed prejudicial to the security of the particular state concerned. It is a well-established concept, although there are uncertainties as to how far it extends in practice and particularly which acts are included within its net.[ix] The principle is justifiable on the basis of protection of a state’s vital interests, since the alien might not be committing an offence under the law of the country where he is residing and extradition might be refused if it encompassed political offences. However, it is clear that it is a principle that can easily be abused, although usually centred upon immigration and various economic offences, since far from protecting important state functions it could easily be manipulated to subvert foreign governments. Nevertheless, it exists partly in view of the insufficiency of most municipal laws as far as offences against the security and integrity of foreign states are concerned.

Although the principle could be used to justify the assertion of jurisdiction over aggression, and was asserted by Israel as one of the bases of jurisdiction over Adolf Eichmann,[x] practically all its imaginable uses in relation to international criminal law overlap with territorial, nationality or passive personality jurisdiction. The assertion of the protective principle in Eichmann was criticized on the basis that, irrespective of its right to prosecute him, the State of Israel did not exist during the Holocaust.[xi]

The final principle of jurisdiction recognized by International criminal law is the Universality Principle of jurisdiction. Under this principle, each and every state has jurisdiction to try particular offences. The basis for this is that the crimes involved are regarded as particularly offensive to the international community as a whole. There are two categories that clearly belong to the sphere of universal jurisdiction, which has been defined as the competence of the state to prosecute alleged offenders and to punish them if convicted, irrespective of the place of commission of the crime and regardless of any link of active or passive nationality or other grounds of jurisdiction recognised by international law.[xii] Therefore, crimes which can lead the universality principle to be invoked are piracy, war crimes and crimes against humanity. This principle of jurisdiction though is easy to invoke, it is difficult to substantiate. The principle is based on the presumption that offences such as war crimes and crimes against humanity affect the international legal order as a whole[xiii]. Though some states may recognise this threat, not all states will respond fairly and effectively to allegations of international crimes. Furthermore, international law grants all States the right to prosecute international crimes.

Conflict in jurisdiction therefore may only occur where the same rule of law is interpreted or applied in a divergent manner by different international judicial bodies, a situation, which will be rather the exception, since the majority of international judicial bodies have been created within a special, even very special, context to decide disputes arising in this context. Nevertheless such conflicts are possible.[xiv] In international law, sovereignty is a prized virtue, a virtue which becomes a vice in deciding as to which particular jurisdictional principle will precede in a case where conflict exists between two or more jurisdictions. Though it is difficult to decide as to which jurisdiction shall be invoked, certain cases have laid down a possible solution. In the case of In US v. Yunis (No. 2)88 a Lebanese citizen had hijacked a Jordanian airliner and was arrested by US agents in international waters. Further, he was prosecuted in the US for his alleged involvement in the hijacking. USA had based its jurisdictional claim on the basis of the universality principle and the passive personality principle. The International Court of Justice observed that though the passive personality was the most controversial of the jurisdictional principle in international law, ‘the international community recognises its legitimacy’.[xv] Throughout the years, US had opposed this principle but after this incident it was accepted by US and the international community. In the instant case, there was a friction between two jurisdictional principles, which was finally resolved by accepting the passive personality principle by the international community. This principle is now invoked in case of terrorist and internationally condemned crimes.[xvi]

CONCLUSION

In international law, conflict in jurisdiction can do much harm. This conflict should be amicably resolved by the concerned nation states. A possible solution to this has been given by the President of the ICJ, Judge G. Guillaume, as per him the ICJ should serve as a central organ to which questions of interpretation and application of international law may be referred directly by other courts and tribunals or by means of the request for an advisory opinion by the Security Council (SC) or the General Assembly (GA) according to Article 96 para 1 of the Charter. This can easily be done as ICJ is the only international court with universal jurisdiction ratione personae and ratione materiae.[xvii] Therefore, each particular case must be looked at very thoroughly and should be well reasoned. If every case is subjected to such scrutiny it will lead to well defined and infallible principles of jurisdiction in international law.