Jurisdiction over International and Transnational Crime

• Author: Joseph Rikhof/Robert J Currie
• Pages: 51-107

51

CHA PTER 2

JURISDICTION OVER

INTERNATIONAL AND

TRANSNATIONAL CRIME

A. INTRODUCTION

It is impossible to engage fully with i nternational and t ransnational

crimina l law without a solid understanding of juri sdiction. Specif‌ically,

it is important to comprehend both the international law principles that

govern when and how states may exercise cr iminal jurisdiction, and the

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

wise interacts with these principles.

Why is this so? Over a centur y ago, Lord Halsbury wrote that “all

crimes are loca l . . . jurisdiction is only territorial.”1 The former statement

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

late nineteenth century b oth crime and crimina ls were mobile — on foot,

by mail, by trai n, and by ship. Malfeasants in old movies portraying the

American “Old West” often headed to Mexico in order to escape the

domestic law enforcers. It is even less true now, as advances in tra nspor-

tation and communication technologies have meant that the world is, at

least potentially, the oyster of the modern cri minal.

While Lord Halsbur y’s latter dictum certainly spoke to the approach

the English crim inal law traditiona lly took towards jurisdiction, the

international perspective was and is far more complex. From early days

both domestic and international law regimes were required to develop

means to deal w ith crimes that occurred, as L a Forest J once put it, “both

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

INTERNATIONAL AND TRANSNATIONAL CRIMINAL LAW52

here and there.”2 States shared among them the desire to reach and pros-

ecute crimes that had negative effects on whatever they deemed to be

their national intere sts, though they often disagreed over the methods to

be employed and the interests to be protected. Cert ainly, some elasticity

was required, both in ter ms of making laws that applied to crimes that

had some international or tr ansnational aspect, and of enforcing those

laws against the per petrators by obtaining physica l custody of them.

However, national chauvinism regardi ng criminal law regimes generally

meant that the exercise of criminal juri sdiction was hard fought and

jealously guarded among states, and t he criminal element was u sually

able to exploit the gaps that resulted. In more modern times, conf‌lict

often arises regarding the application of human rights to cr iminal pro-

cess, which varies sig nif‌icantly among certain groups of states.

Today, the international legal framework displays the great strides

that have been made in enhancing inter-state cooperation as govern-

ments have sought to draw the net around international and trans-

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

as it probably must, on trying to coordinate the exercise of jurisdiction

on the national level, and the criminal s are still able to exploit the weak-

nesses. Many tre aties have been concluded that provide some ela sticity

of jurisdiction, though thes e have been done on a crime-by-crime ba sis

and, with certa in exceptions, bind only those states th at agree to be

bound. The attempts at supra-national jurisdict ion embodied in the ad

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

hybrid court s3 are admirable, but limited in scope. Juri sdiction still

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

to solve these problems.

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

level of international law, since the domestic crim inal law jurisd iction

of states clearly operated, at least in some prototypic al form, well before

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 cri m-

inal law, not to mention our constitutional structure, in order to lear n

how international and tr ansnational criminal law mani fest themselves

in (and as) Canadian law; certai nly, Canadian crimin al law can be

entirely understood with little, if any, reference to international law

sources. However, it is the interaction of the two bodies of law which

is key. As explored in the previous chapter, both customary and treaty-

based internat ional law are the law of the land to the extent that they

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

3 See Chapter 4.

Jurisdict ion over International and Transnat ional Crime 53

bind Canada on the inter national level and are implemented or incor-

porated. Thus, as soon as the inquir y is taken beyond our borders in

some way, jurisdictional problems emerge — problems that possibly

would never occur at the purely domestic level, or at least cannot (or

should not) be solved without some recourse to international law. The

relationsh ip is symbiotic.

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

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

dictional problems can be very complex and diff‌icult to trace through

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

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

is exercised. It wil l then review the international law regarding the

exercise of crimi nal jurisdiction by states, which will provide greater

insight into the jurisdictional issues th at arise on the domestic level.

B. ESSENTIAL DEFINITIONS AND CONCEPTS

1) Jurisdiction Def‌ined

The way in which the term “juris diction” should be def‌ined depends a

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

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

cise some form of power, coercive or otherwise, over persons, 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” similarly refers to the legal pow-

ers of the state, but more important, determine s what one state legally

may do vis-à-vi s other states. It is “the term that des cribes the limit s

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 Concur rent Jurisdiction

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

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

equals, and each ha s a duty not to interfere with the domestic affairs,

4 AV Lowe, “Jurisdiction” in Malcol m Evans, ed, International Law (Ox ford :

Oxford Universit y Press, 2003) at 329.