By Teddy Musonda & Kunda Mulenga
International Law - Principles of Jurisdiction
In
the domestic sense, jurisdiction is understood to be authority or power that
the Courts of law have to hear and adjudicate over legal disputes. However, in international
law, the term jurisdiction is concerned with the reach or application of a
State’s law onto persons either within or outside its territory, it relates to
a state’s legal power or control over a specific area or persons. Jurisdiction
is an aspect of a State’s sovereignty, as the right to prescribe and enforce
laws is an essential component of statehood.
It
is fundamental to understand that as a general rule, a State’s jurisdiction is limited
to its geographical territory therefore, it only applies to persons within the State,
this principle is known as the territorial principle. However, international law
provides for principles that allow a state to exert its jurisdiction to persons
outside its territory. Below are the 5 principles to that effect.
1. Territorial principle
According
to the territorial principle, States have exclusive authority to deal with crimes
committed within their territories; this principle has been modified to permit
officials from one State to act within another state in certain circumstances (e.g.,
the Channel Tunnel arrangements between the United Kingdom and France and the
1994 peace treaty between Israel and Jordan). The territorial principle serves
as the principle rule on state jurisdiction. This principle accords a State
with absolute and exclusive right to deal with matters within their territory
without interference. A State is therefore, justified in subjecting its
subjects a foreigner who commits a crime in its territory to its criminal laws.
A
case in which this principle was employed is in the Lotus Case (France v Turkey), in the case, a French Captain who
caused a collision in the high seas thereby resulting in the deaths of Turkish
citizens was tried and convicted in Turkey because the offence took place in
Turkish territory. Even though France had a legitimate claim over the French captain
on the basis of the nationality principle, Turkey could not be estopped from
proceeding with criminal actions against the captain, as the territory
principle grants every State with absolute and complete jurisdiction over
crimes committed in its territory.
2. Nationality principle
The
nationality principle permits a State to exercise criminal jurisdiction over
any of its nationals accused of criminal offenses in another State. In recent
years, it is an emerging trend for states to enact domestic laws to permit the
application of the nationality principle, for instance, the adoption in Britain
of the War Crimes Act in 1991 and the Sex Offenders Act in 1997 allows
Britain to exercise its criminal jurisdiction over its citizens accused of war
crimes and prostitutions in foreign states. It is on this principle that France
in the Lotus Case (France v Turkey) was
basing its argument over exercising its jurisdiction over the French captain.
3. Passive personality principle
The
passive personality principle allows States, in limited cases, to claim jurisdiction
to try a foreign national for offenses committed abroad that affect its own
citizens. This principle has been used by the United States to prosecute terrorists
and even to arrest (in 1989–90) the de facto leader of Panama, Manuel Noriega,
who was subsequently convicted by an American Court of Cocaine Trafficking,
Racketeering, and Money Laundering. The principle is provided for in a number
of conventions, including the International
Convention Against the Taking of Hostages (1979), the Convention on the Prevention and Punishment of Crimes Against
Internationally Protected Persons (1973), and the Convention Against Torture and Other Cruel, Inhuman or Degrading
Treatment or Punishment (1984).
4. Protective principle
The
protective principle, which is included in the Hostages and Air Craft Hijacking Conventions and the Convention On the Safety of United Nations and
Associated Personnel (1994), can be invoked by a State in cases where an
alien has committed an act abroad deemed prejudicial to that State’s interests.
This principle was employed by the United States in the case of United States v Yunis where the convicted,
a Lebanese national, was arrested in Frankfuit, Germany, for his involvement in
the hijacking TWA flight 874 in 1985 which was an American aircraft and the
majority of passengers were American citizens.
The
protective principle essentially permits a state to prosecute a person regardless
to what nation they belong to, for acting against the lawful interest of the
state, the person’s actions must not involve crimes committed against specific individuals
but basically actions that threaten a State’s security or interests. Also make reference
to (United States v Al-Tamimi, United
States v Abu Hamza)
5. Universality principle
The
universality principle allows any State to assert its criminal jurisdiction
over perpetrators without the consideration of the persons nationally or the place
the crime was committed. The following are some of the examples of crimes for which
a person can be prosecuted under this principle: war crimes, crimes against peace,
crimes against humanity (like genocide), slavery, and piracy, this is to say, an
individual who commits the foregoing crimes may be prosecuted by any State. Such
crimes are considered to be crimes against all and they invite universal criminal
jurisdiction to be exercised.
In
2020, Felician Kabunga, a Rwanda Citizen, was arrested by French police with the
help of International Police (INTERPOL) and charged for crimes against humanity
committed against the Tutsis of Rwanda (Rwanda Genocide). The matter is currently
being dealt with by the International Criminal Court at The Hague.
LIMITS ON STATE JURISDICTION
Jurisdictional
immunity exists in certain contexts. Diplomatic personnel, for example, have immunity
from prosecution in the State in which they operate. In the 1960s, however, the
Vienna Convention on Diplomatic Relations
and the Vienna Convention on Consular
Relations stipulated that the level of immunity varies according to the
official’s rank. Immunity is generally more extensive in criminal than in civil
matters. A country’s foreign minister also possesses diplomatic immunity, this
is best described in the Arrest Warrant
case (The Democratic Republic Congo vs. Belgium) where the International Court of Justice (ICJ) held that, foreign
ministers enjoy absolute immunity and inviolability against crimes against
humanity unless the country of nationality revokes diplomatic status, however
this does not mean that protected diplomats enjoy impunity but the court did
not discuss when actions are considered as such. International organizations
possess immunity from local jurisdiction in accordance with international
conventions (e.g., the General Convention
on the Privileges and Immunities of the United Nations of 1946) and
agreements signed with the state in which they are based. Certain immunities
also extend to the judges of international courts and to visiting armed forces.
This Article is Brought to you by:
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(Access to Knowledge )
About the Author:
Kunda Mulenga is a third-year
law student at the University of Zambia and serving as
the Secretary General of the Legal Aid Initiative.