Jurisdiction over International and Transnational Crime

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

51

CHAPTER 2

JURISDICTION OVER

INTERNATIONAL AND

TRANSNATIONAL CRIME

A. INTRODUCTION

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

criminal law without a solid understanding of jurisdiction. Specif‌ically,

it is important to comprehend both the international law principles that

govern when and how states may exercise criminal jurisdiction, and the

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

wise interacts with these principles.

Why is this so? Over a century 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 criminal.

While Lord Halsbury’s latter dictum certainly spoke to the approach

the English criminal law traditionally 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. Certainly, some elasticity

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

had some international or transnational aspect, and of enforcing those

laws against the perpetrators by obtaining physical custody of them.

However, national chauvinism regarding criminal law regimes generally

meant that the exercise of criminal jurisdiction was hard fought and

jealously guarded among states, and the criminal element was usually

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

often arises regarding the application of human rights to criminal pro-

cess, which varies signif‌icantly 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 certain exceptions, bind only those states that agree to be

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

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

hybrid courts3 are admirable, but limited in scope. Jurisdiction still

causes problems, and states need rules, 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 criminal law jurisdiction

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 crim-

inal law, not to mention our constitutional structure, in order to learn

how international and transnational criminal law manifest themselves

in (and as) Canadian law; certainly, Canadian criminal 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 international 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 Crime53

bind Canada on the international level and are implemented or incor-

porated. Thus, as soon as the inquiry 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

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 very 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 then review the international law regarding the

exercise of criminal jurisdiction by states, which will provide greater

insight into the jurisdictional issues that arise on the domestic level.

B. ESSENTIAL DEFINITIONS AND CONCEPTS

1) Jurisdiction Def‌ined

The way in which the term “jurisdiction” 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 bodies 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, determines what one state legally

may do vis-à-vis other states. It is “the term that describes 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 is a func-

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

equals, and each has 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.