Jurisdiction over International and Transnational Crime

• Author: Robert J Currie, Dr Joseph Rikhof
• Pages: 50-106

50

CHAPTER 2

JURISDICTION OVER

INTERNATIONAL AND

TRANSNATIONAL CRIME

A. INTRODUCTION

It is impossible to engage fully with inter national and tran snational

crimina l law without a solid understanding of jurisdiction. Specif‌ically,

it is important to comprehend both the intern ational law principles

that govern when and how states may exercise criminal jurisdiction,

and the manner in which the domestic law implements, incorporates,

and otherwise interacts with the se principles.

Why is this so? Over a century ago, Lord Hal sbury wrote that “all

crimes are local . . . jurisdiction is only terr itorial.”1 The former state-

ment was not true even at the time; the historical record bears out

that by the late nineteenth centur y both crime and cr iminals were mo-

bile —on foot, by mail, by train, a nd by ship. Malfea sants in old movies

portraying t he American “Old West” often headed to Mexico in order

to escape the domestic law en forcers. It is even less true now, as ad-

vances in transportation and communication technologies have meant

that the world is, at least potentially, the oyster of the modern criminal.

While Lord Halsbury’s latter dictum certainly spoke to the ap-

proach the English crimin al law traditionally took towards jurisdic-

tion, the international perspective was and is fa r more complex. From

early days both domestic and international law regimes were required

to develop means to deal with cr imes that occurred, as La Forest J once

1Macleod v Attorne y-General for New South Wales, [1891] AC 455 at 458.

Jurisdict ion over International an d Trans national Crime 51

put it, “both here and there.”2 States shared among them the desire to

reach and prosecute crimes that had negative effects on whatever they

deemed to be their national interest s, though they often disagreed over

the methods to be employed and the interests to be protected. Cer-

tainly, some elasticity was required, both in terms of making laws that

applied to crimes that had some international or tran snational aspect,

and of enforcing those law s against the perp etrators by obtaining physi-

cal custody of them. However, national chauvinism regarding criminal

law regimes generally mea nt that the exercise of criminal juri sdiction

was hard fought and jealously guarded among states, and the crimi-

nal element was usually able to exploit the gaps that resulted. In more

modern times, conf‌lict often ar ises regarding the application of human

rights to crimi nal process, which varies signif‌icantly among cert ain

groups of states.

Today, the intern ational legal framework displays t he great strides

that have been made in enha ncing inter-state cooperation as govern-

ments have sought to draw the net around international and transn a-

tional crime more tightly. Yet the bulk of the entire edif‌ice still rests, as

it pr obably must, o n try ing to coord inate t he exe rcise of jur isdi ction on

the national level, and the criminals are still able to exploit the weak-

nesses. Many treaties have been concluded that provide some elasticity

of jurisdiction, though these have been done on a crime-by-crime basis

and, with certa in exceptions, bind only those st ates that agree to be

bound. The attempt s at supra-nat ional jurisdiction embodied i n the ad

hoc tribunals, t he International Crim inal Court (ICC), and the various

hybrid courts 3 are admirable, but limited in scope. Jurisdiction still

causes problems, and states need r ules, embodied in international law,

to solve these problems.

From a historical perspective, it might seem odd to start from the

level of international law, since the domestic cri minal law jurisdiction of

states clearly operated, at least in some prototypica l form, well be fore the

f‌irst tentative gropings of the inter-state legal order. Specif‌ic to this text,

it is necessar y to grasp some of the foundations of Canadian cr iminal law,

not to mention our constitutional structure, in order to learn how inter-

national and transnational criminal law manifest themselves in (and as)

Canadian law; certainly, Canadian criminal law can be entirely under-

stood with little, if any, reference to international law source s. However,

it is the interaction of the two bodies of law which is key. As explored in

the previous chapter, both customary and tre aty-based international law

2Libman v The Queen, [1985] 2 SCR 178 at para 63 [Libman].

3 See Chapter 4.

INTERN ATIONAL AND TR ANSNATIONAL CRIM INAL LAW52

are the law of the land to the extent that they bind Canada on the inter-

national level and are implemented or incorporated. Thus, as soon as the

inquiry is taken beyond our borders in some way, jurisdictional prob-

lems emerge: problems that possibly would never occur at the purely

domest ic level, or at le ast cann ot (or shou ld not) be solved without some

recourse to international law. The relationship is symbiotic.

This interrelationship, in turn, makes jurisdiction a very f‌luid con-

cept, as its various features and manifestations are interrelated. Juris-

dictional problems can be ver y complex and diff‌icult to trace through

in a linear manner. This chapter will lay out the basic concepts that

will allow the reader to understand what jurisdiction is and how it

is exercised. It will t hen review the international l aw regarding the

exercise of criminal jurisdiction by states, which will provide greater

insight into the juris dictional issues t hat arise on the domest ic level.

B. ESSENTIAL DEFINITIONS AND CONCEPTS

1) Ju r i sdic t ion D e f‌ine d

The way in which the term “jurisd iction” should be def‌ined depends a

great deal on the context in which it i s used. At domestic law, generally

speaking, “jurisdiction” simply refers to the ability of the state to ex-

ercise some form of power, coercive or otherwise, over pers ons, places,

things (including property), and events. This power may be exercised

by various agencies of the state— the legislature, the executive, the

courts, or regulatory bod ies that receive delegated power from one of

those sources — and is def‌ined and delimited by whatever the powers

of those agencies happen to be.

At international law, “jurisdiction” simila rly refers to the legal pow-

ers of the state, but more important, determines what one state legally

may do vis-à-vi s other state s. It is “the term that descr ibes the limits of

legal competence of a State or other regulatory authority . . . to make,

apply and enforce rules of conduct upon persons.”4

2) Domestic, Extraterritorial, and Concurrent Jurisdiction

The ability and entitlement of a state to exercise its powers i s a func-

tion of state sovereignty. At international law, all states are sovereign

4 AV Lowe, “Jurisdiction” in Ma lcolm Evans, ed, Internat ional Law (Oxford: Ox-

ford University Pr ess, 2003) at 329.