Foreign Criminal and Civil Proceedings

• Author: Mark Freeman, Gibran Van Ert
• Pages: 491-506

With increasing frequency, courts outside the state where gross and

systematic human rights violations occur are conducting criminal tri-

als against those responsible — even where the crime in question

involves foreigners and foreign elements.1Criminal trials by foreign

courts have been particularly significant in cases where the judicial sys-

tem in the state of commission is unable or unwilling to punish the

offender, and where there is no international tribunal with jurisdiction.

Some states also allow victims of extra-territorial human rights viola-

tions to seek and obtain civil redress before their courts. It is only in

the US, however, that civil redress is available for extra-territorial

human rights violations committed by foreign nationals against other

foreign nationals.

The availability of criminal and civil proceedings before foreign

courts is circumscribed not only by a state’s domestic law but also by

various rules of jurisdiction under international law. We begin by

explaining these rules, before turning to consider the use of foreign

courts to remedy human rights violations.

491

FOREIGN

CRIMINAL AND

CIVIL PROCEEDINGS

chapter 18

1 Subject to applicable rules of private international law, a foreign court may be

able to try an international crime using domestic criminal laws (for example, to

try forced disappearance as kidnapping). The focus of this chapter, however, is

on trials for international crimes as such. See S. Ratner & J. Abrams, Account-

ability for Human Rights Atrocities in International Law, 2d ed. (Oxford: Oxford

University Press, 2001) at 181–12 [Ratner, Accountability] regarding the use of

ordinary criminal laws to try cases of gross human rights violations.

A. Jurisdiction

1) Prescriptive Jurisdiction

It is a widely acknowledged rule of international law that states (and

therefore their courts) are generally prohibited from interfering in the

domestic affairs of other states. Yet events or offences occurring in one

state may have a range of connecting factors to another state. Conse-

quently, there exist a number of international principles regarding what

is known as “prescriptive jurisdiction” — a state’s jurisdiction or power

to prescribe conduct. These principles are found not only in the

domestic law of individual states, but also in international treaty and

customary law.2

There are five principles of prescriptive jurisdiction. A foreign

court must be acting under at least one. The first and most important

is the territorial principle, which provides that a court will generally

have jurisdiction over all aspects of a case involving an offence com-

mitted within its national territory. A French court, for example, will

generally have jurisdiction over a murder that was committed in

France, even if the perpetrator and victim were non-nationals.3

If, however, an offence is committed outside of French territory, a

French court (or any other foreign court) might establish jurisdiction

on the basis of one or more of the following four principles:

a) the nationality principle, whereby a French court purports to exer-

cise jurisdiction over an offence committed outside France based

solely on the fact that the alleged offender is a French national,

b) the passive personality principle, whereby a French court purports to

exercise jurisdiction over an offence committed outside France

based solely on the fact that the victim is a French national,

c) the protective principle, whereby a French court purports to exercise

jurisdiction over an offence committed outside France by and

against persons who are not French nationals based on the fact that

the offence was considered to have had a detrimental effect on the

security interests of France, or

d) the universality principle, whereby a French court purports to exer-

cise jurisdiction over an offence committed outside France by and

492 international human rights law

2 For more on prescriptive jurisdiction, see J. Currie, Public International Law

(Toronto: Irwin Law, 2001) [Currie, International Law] at 297–310.

3 See, for example, CAT art. 5(1)(a). It requires states parties to exercise jurisdic-

tion over instances of torture when committed “in any territory under its juris-

diction or on board a ship or aircraft registered in that State.”