Note: This lesson should not be considered a comprehensive overview. It was used as a supplement to classes conducted in 2010.
In this lesson, we discussed the basis of criminal jurisdiction of a national court when offenses are committed in the country and abroad. These are:
Jurisdiction based on nationality
Passive Personality Principle
We said that national courts will always have jurisdiction over offenses that took place in its territory. This is called “territorial jurisdiction”. For example, if Kithmini, a Sri Lankan national, shot and injured Fox, a British national in Sri Lanka (SL): the Sri Lankan Police can enter BCIS, arrest her and take her to a SL Court.
We call this situation: objective territoriality. ✐ Read the Lotus case where the PCIJ said that Turkey could exercise jurisdiction over France because a constituent element of the offense – death – occurred in Turkish territory.
Consider this situation: What if Kithmini (in SL) sends a parcel bomb to Fox in UK? In this case, the bomb exploded, or the crime happened, outside SL. Kithmini is in SL: does the SL courts still have jurisdiction?
They can; because, a vital element of the crime took place in SL. In other words, the crime began in Sri Lanka: Kithmini posted the bomb from SL.
We call this situation: subjective territoriality.
We also discussed the situation of cross border shooting.
Remember that there is no problem in enforcing the law in Kithmini’s case (arresting and taking her to Court and punishing her under SL law) because she is in SL. The situation becomes complicated if, say, she had escaped to Namibia and was living there. We will discuss these cases later.
Jurisdiction over offenses that took place wholly outside the State’s territory
We are now at the second principle in the Lotus Case – International law doesn’t prohibit a State from exercising jurisdiction in its territory over acts that took place abroad. If the person who committed the crime is present in that State, the State can arrest her and try her in court (enforce its jurisdiction) even if there is no rule in international law expressly permitting the States to do so.
States have jurisdiction over their nationals over crimes specified in their national law. For example: the Suppression of Terrorist Bombing Act of Sri Lanka gives the High Court the jurisdiction to try a Sri Lankan national who blasts a bomb in a foreign country – even if his only connection to SL is the fact that he is a Sri Lankan. In the Trail of Earl Russel a UK national was convicted of bigamy even though the second marriage took place outside UK. (This is also an example of subjective territoriality principle because the first marriage took place in UK).
It becomes complicated when a person is a dual national, lets say of Australia and SL, and both countries want to enforce their jurisdiction based on nationality. In this case, jurisdiction goes to the country where the person has a genuine link (Nottebohm Case); i.e., where is he living and working, where his home is and his family.
Passive Personality Principle
In this situation, the crime was committed abroad and the person who committed the offense was not a national of that State. In this situation, only the victim is a national of the State which claims jurisdiction. In the Yunis case, US courts decided that they had jurisdiction over Yunis (a Lebanese national) based on the passive personality principle because two US nationals were abroad the Jordanian airline that Yunis hijacked.
In this situation, the crime was committed abroad and neither the person who committed the crime, nor the victims, were nationals of that State. In this case, jurisdiction is asserted on the basis that the security or the interests of the State is affected by an act committed abroad. In Eichmann’s case, the Israeli Court based its jurisdiction on the protective principle and said that the crimes committed by Eichmann against the Jewish people affected the ‘vital interests’ of Israel.
Both passive personality and protective principles are among the less accepted basis of jurisdiction; although, they are increasingly used to get jurisdiction over acts of terrorism committed abroad against nationals (passive personality principle) and against the interests of the State (protective principle).
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