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Concurrent Criminal Jurisdiction in the International Sphere

Published online by Cambridge University Press:  12 February 2016

S. Z. Feller
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Extract

1. General: The topic under discussion relates to the incidence of the criminal laws of more than one state applying to the same offence, committed by the same person, and the question with which we are confronted is how—if at all—this phenomenon may be prevented, and, if it is inevitable, and if remedies are called for, what are the available remedies.

The topic falls within the orbit of international criminal law as a branch of law comprising the system of norms of domestic criminal law, which regulates matters containing a foreign element, and of international law, which regulates matters containing a criminal element. And indeed, concurrent incidence of criminal laws as aforesaid is the fruit of the regulation by norms of this nature.

In order to provide answers to the questions concerning concurrent jurisdiction as a consequence of the concurrent incidence of the criminal laws of several states, it is necessary to answer a preliminary question, i.e., is the problem of concurrent jurisdiction a procedural problem of distribution of the judicial functions amongst the courts of a number of states, or, rather, is it a fundamental, substantive problem, of which judicial competence is only the result?

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Articles
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Israel Law Review , Volume 16 , Issue 1 , January 1981 , pp. 40 - 74
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Copyright © Cambridge University Press and The Faculty of Law, The Hebrew University of Jerusalem 1981

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References

1 That is to say, the competence of a court of this or the other state, and of a particular court within that state, to try any given offence is conditional, primarily, upon the incidence of the criminal law of the state on that offence. Even when the court is bound to apply the criminal law of another state, it docs so by virtue of domestic criminal law which, for certain purposes, has incorporated the foreign law. When the criminal law is not incident to the matter, this means that the matter is not criminal according to those laws, and only in such a case do the courts lack competence to try the matter.

2 The question of “locus of the offence” would still arise, when not all components of the offence were committed or occurred in the sovereign territory of one state, or as a result of “double” sovereignty over the territory in which the offence was committed, e.g., a ship registered in one state which is sailing in the territorial sea of another state.

3 That is, the transfer of criminal proceedings to the state in the territory of which the offender was apprehended, and even enforcement of liability there, such liability having been imposed in another state.

4 For example, State A claims criminal jurisdiction by virtue of the territorial linkage of the offence to it; State B claims criminal jurisdiction by virtue of the nationality of the victim; State C claims jurisdiction by virtue of the nationality of the perpetrator; and State D claims jurisdiction by virtue of the fact that its security was threatened. And it is possible to describe parallel jurisdictions of an even greater number of states.

5 When the offender or the victim are connected with a number of states by virtue of nationality or domicile, or when the offence was committed within the territories of a number of states.

6 It is not always possible to expell or to extradite the offender.

7 For example, the victim died as a result of bullet wounds in State A, and the shots were fired from the neighbouring State B; or the forged documents were sent from State A and the benefit derived from them was obtained in State B.

8 This is also the approach of the Israel Supreme Court, which ruled: “True, the rule is that the sovereign does not exercise his powers—including the power to punish—other than with respect to an act or omission which occurred in the territory over which it reigns, and as such, an act performed abroad does not generally serve as a determining subject before an Israeli court; however, if the sovereign should wish to extend the scope of his laws, there is nothing to prevent him from doing so”. (Slate of Israel v. Azza'iza, (1970) (I) 24 P.D. 417, 419). For a different opinion, see Dinstein, Yoram, “Criminal Jurisdiction: Boundaries and Limitations” (1971) 1 Iyunei Mishpat 303.Google Scholar

9 Donnediu de Vabres, H., Traité de Droit Criminel et de Législation Pénale Comparée (Paris, 1947) 958Google Scholar: “Le principe de la souveraineté territoriale, entendu strictement, exclut la compétence des juridictions d'un Etat à l'égard des infractions commises par ses sujets en dehors de son territoire. A plus forte raison interdit-il que soient déférés aux tribunaux de ces Etats les étrangers qui se seraient rendu coupables des délits à l'étranger. Cependant, il n'est pas d'époque où le principe territorial, dans cette seconde conséquence, n'ait subit d'importantes dérogations”. Since this opinion was expressed, things have changed to such an extent that jurisdiction over foreign offences does not even call to mind the idea of trespassing on the sovereignty of another state. The best example, and the closest to home, is the development of Israel's policy of punishment for foreign offences.

10 75 BFSP 356.

11 XXVII LON T.S. 213.

12 15 K.A. no. 538, 249; CXII LON T.S. 371.

13 13 K.A. no. 460, 303; 520 UNTS 204.

14 25 K.A. no. 840, 273; E/CONF/93.9.

15 K.A. no. 5, 64; 78 UNTS 277;

16 22 K.A. no. 780, 473; 22 UNTS 1641.

17 (1971) 25 L.S.I. 55.

18 22 K.A. no. 781, 490; 10 ILM (1971) 1151.

19 E/CONF/58.6.

20 15 ILM (1976) 1272.

21 1 K.A. no. 5, 64; 78 UNTS 277.

22 (1950) 4 L.S.I. 101.

23 The Attorney General v. A. Eichmann (1961) 45 P.M. 3, 34–43.

24 Id. at 39.

25 Ibid.

27 Similar to the criminal jurisdiction established in Art. VI of the Convention on the Prevention and Punishment of the Crime of Genocide, 1948.

28 See: (1956) 11 Yearbook of the International Law Commission 281. The Report of the Commission stated explicitly that the intention was to change the law based on the Lotus decision “…with the object of protecting ships and their crews from the risk of penal proceedings before foreign courts in the event of collision on the high seas… In such a case, proceedings may take place only before the judicial or administrative authorities of the State whose flag was flown by the ship on which the persons in question were serving, or of the State of which they are nationals.” It would not be superfluous to mention that the decision in the Lotus case was handed down in 1927 by the Permanent Court of International Justice in The Hague. The case arose following a collision between the Lotus, a French ship, and the Boz-Kourt, a Turkish ship, on the high seas, resulting in the deaths of eight Turkish nationals who were aboard the Turkish ship, and the sinking of the Turkish ship. When the French ship reached Constantinople in Turkey, both the French and the Turkish captains were arrested and were tried for negligent homicide. The French Government protested against the subsequent conviction of the French captain, and the Turkish Government agreed that the question of whether Turkey had, in the court proceedings, violated the principles of international law, and if so, which of them, should be brought before the Permanent Court of International Justice in The Hague. The Permanent Court ruled, with the deciding opinion of the President, that Turkey had not violated any such principles by its application of its own criminal law with respect to the acts of the French captain.

29 See Simonnet, Maurice-René, “La Convention sur la Haute Mer” (1966) 34 Bibliothèque de Droit International 112.Google Scholar

30 Simonnet, at 112–19.

31 Inter alia, but Art. 11 of the Convention is particularly concerned with the freedom of navigation; as such, it makes no difference that the Convention dis cusses other matters as well, such as the freedom of fishing, etc.

32 Art. 6, para. 1 of the Convention, lays down the following principle: “Ships shall sail under the flag of one State only and, save in exceptional cases expressly provided for in international treaties or in these articles, shall be subject to its exclusive jurisdiction on the high seas”.

33 The further reference in para. 1 to the State of which the offender is a national, as opposed to para. 3 which refers to the flag state alone, is explained by the fact that para. 1 also deals with disciplinary jurisdiction when other nations supply the foreign fleets with captains and crews from amongst their nationals. Para. 1 gives expression to the interests of these States in being competent to exercise disciplinary action against their nationals who violated their professional duties in the course of action in the foreign fleet. See Simonnet, supra n. 29, at 118. It is interesting to note that Israel, too, regarded the active-personality jurisdiction to which Art. 11 para. 1 refers, as superfluous. In the comments of the Israeli Government on the Draft Convention, it is expressly stated that: “If, as the Commission states in its comment, this addition is made in order to enable states to take disciplinary measures against their nationals with a view to with drawing the certificates issued to them, then, in such cases, the national State should base its disciplinary (but not penal) action on the conviction pronounced by the courts of the State of the flag, and they alone should be competent in the criminal matter” (Yearbook, supra n. 28, at 57).

34 This requires supplementation, and consequently, the whole process of the deve lopment of criminal jurisdiction on the basis of the other principles discussed in this article.

35 1948 Official Gazette, 1st supplement, 61. Sec. 2A was added in (1956) 10 L.S.I. 31, and it states: “Any vessel or aircraft, wherever situated, which is registered in Israel shall, for the purpose of the jurisdiction of the courts, be deemed to be a part of the area of the State of Israel”.

36 Sec. 4 of the Penal Law (Offences Committed Abroad) (Consolidated Version) 1973 (27 L.S.I. 32) now sec. 7 of the Penal Law, 1977 (L.S.I. Special volume).

37 Or the state of which the offender is a national.

38 1. Each Contracting State shall take such measures as may be necessary to estab lish its jurisdiction over the offence and any other act of violence against passengers or crew committed by the alleged offender in connection with the offence, in the following cases:

(a) when the offence is committed on board an aircraft registered in that State;

(b) when the aircraft on board which the offence is committed lands in its territory with the alleged offender still on board;

(c) when the offence is committed on board an aircraft leased without crew to a lessee who has his principal place of business, or, if the lessee has no such place of business, his permanent residence, in that State.

2. Each Contracting State shall likewise take such measures as may be necessary to establish its jurisdiction over the offence in the case where the alleged offender is present in its territory and it does not extradite him pursuant to Article 8 to any of the States mentioned in paragraph 1 of this Article.

3. This Convention does not exclude any criminal jurisdiction exercised in accordance with national law. (22 K.A. no. 780, 473; 22 U.S.T. 1641).

39 See Feller, S.Z., “Criminal Jurisdiction over Aircraft Highjacking” (1972) 7 Is.L.R. 207.CrossRefGoogle Scholar

40 See a positive answer to this question in Dinstein, Y., “Criminal Jurisdiction over Aircraft Highjacking” (1972) 7 Is.L.R. 195.CrossRefGoogle Scholar

41 The full texts are as follows:

Art. 8.

1. The offence shall be deemed to be included as an extraditable offence in any extradition treaty existing between Contracting States. Contracting States under take to include the offence as an extraditable offence in every extradition treaty to be concluded between them.

3. Contracting States which do not make extradition conditional on the existence of a treaty shall recognize the offence as an extraditable offence between themselves subject to the conditions provided by the law of the requested State.

42 The text is as follows:

2. If a Contracting State which makes extradition conditional on the existence of a treaty receives a request for extradition from another Contracting State with which it has no extradition treaty, it may at its option consider this Convention as the legal basis for extradition in respect of the offence. Extradition shall be subject to the other conditions provided by the law of the requested State.

43 Following is the text of Art. 7, which lays down this rule:

The Contracting State in the territory of which the alleged offender is found shall, if it does not extradite him, be obliged, without exception whatsoever and whether or not the offence was committed in its territory, to submit the case to its competent authorities for the purpose of prosecution. Those authorities shall take their decision in the same manner as in the case of any ordinary offence of a serious nature under the law of that State.

44 All the same, it would not be superfluous to add that in this way, expression is given, on the plane of criminal jurisdiction, to the essential universal nature of the offence of “unlawful seizure of aircraft”. The factor stamping the offence with its universal nature is, of course, the international character of the interest protected by outlawing the offence, and the characteristic feature of the univer sality is the undertaking of the nations of the international community to punish this offence by exercising the lex loci deprehensionis, irrespective of where the offence was committed. The social value endangered by commission of the offence is “the confidence of the peoples of the world in the safety of civil aviation” and “the operation of air services” (Preamble to the Convention); the under taking “to make the offence punishable” is also international (Art. 2 of the Con vention); and the “jurisdiction [of the State] over the offence in the case where the alleged offender is present in its territory” is also universal (Art. 4 para. 2 of the Convention). We must, therefore, agree that unlawful seizure of aircraft falls into the category of crimes against the law of nations—delictum juris gentium—even if the Convention dealing with punishment of the offence contains no formal declaration to this effect.

45 22 K.A. no. 781, 490; 10 ILM (1971) 1151.

46 It should be noted that the Protocol of March 25, 1972, in which the Single Convention on Narcotic Drugs, 1961, was amended, adopted several of the arran gements found in the 1970 Hague Convention and the 1971 Montreal Convention.

47 The said Art. 3 is as follows:

1. The State of registration of the aircraft is competent to exercise jurisdiction over offences and acts committed on board.

2. Each Contracting State shall take such measures as may be necessary to establish its jurisdiction as the State of registration over offences committed on board aircraft registered in such State.

3. This Convention does not exclude any criminal jurisdiction exercised in accordance with national law. (21 K.A. no. 695, 65; 2 ILM (1963) 1042).

48 The article states:

A Contracting State which is not the State of registration may not interfere with an aircraft in flight in order to exercise its criminal jurisdiction over an offence committed on board except in the following cases:

(a) the offence has effect on the territory of such State;

(b) the offence has been committed by or against a national or permanent resident of such State;

(c) the offence is against the security of such State;

(d) the offence consists of a breach of any rules or regulations relating to the flight or manoeuvre of aircraft in force in such State;

(e) the exercise of jurisdiction is necessary to ensure the observance of any obligation of such State under a multilateral international agreement.

49 See Feller, S.Z., “Reception of the Tokyo and the Hague Conventions by Israel Law” (1971) 3 Mishpatim 371.Google Scholar

50 12 K.A. no. 410, 190; 516 UNTS 205.

51 It is noteworthy that the incidence of domestic criminal law on the basis of the universal principle also embodies a certain interest of the State, i.e., its interest, as a member of the international community of civilized nations, to protect the values vital for the existence of the community.

52 We would mention once again that if the alleged offender is convicted, but has not yet borne his punishment, either partially or in full, and he is not extradited, whatever be the reason, in order to serve his sentence, then there is no reason for the criminal jurisdiction of the State to lapse.

53 For example, Art. 6 of the European Convention on Extradition, December 13, 1957.

54 See e.g. sec. 3, subsec. 2 of the Swiss Penal Code; sec. 10A of the Israeli Penal Law also instituted, to a certain extent, vicarious criminal jurisdiction. See also European Conventions: on the Supervision of Conditionally Sentenced or Conditionally Released Offenders (1964), 51 E.T.S. 1964; on the Punishment of Road Traffic Offences (1964), 52 E.T.S. 1964; on the International Validity of Criminal Judgments (1970), 70 E.T.S. 1970; on the Transfer of Proceedings in Criminal Matters (1972), 73 E.T.S. 1972.

55 See James Coker, R., “The Status of Visiting Military Forces in Europe: NATO-SOFA: A Comparison” in A Treaty of International Criminal Law (1973) compiled and edited by Bassiouni, and Nanda, , Vol. 2, p. 115Google Scholar; Graaf, N.N.A. De, “Consequences of International Military Co-operation” in Le droit pénal international (1965)Google Scholar, Recueil d'études en hommage à J. M. Van Bemmelen, p. 155.

56 See e.g., Agreement Between the Parties to the North Atlantic Treaty Regarding the Status of their Forces, June 19, 1951, T.I.A.S. No. 2846.

57 See sec. 7 of the Agreement.

58 See e.g., sec. 19 of the Supplementary Agreement to the Agreement Between the Parties to the NATO-SOFA, August 3, 1959, T.I.A.S. No. 5351.