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The U.S. federal, state, and even local governments have adapted the territorial reach of their criminal laws to permit punishment of ‘‘new and complex crimes’’ when elements of extraterritoriality exist. The proactive extension of its extraterritorial jurisdiction has resulted in transformation of the law of jurisdiction and has led to occasional tension with other governments. While this discussion concerns primarily federal law, similar developments have occurred on a subnational level, where states and even municipalities continually expand their jurisdiction to meet criminal threats from an increasingly borderless world, where technology, transportation, and free-trade developments enable criminals to move money, capital, goods, people, and ideas instantaneously.
This discussion outlines the conceptual bases of jurisdiction and then applies it to recent developments in U.S. law, especially with respect to terrorism, narcotics, and alien smuggling. The article also describes the jurisdiction of military courts-martial, the use of proactive investigative and policing techniques abroad, the limits on the enforcement of foreign penal judgments, and basic principles governing jurisdiction between state and federal courts, and conflict-of-laws in the criminal context.
Generally there is no constitutional bar to the extraterritorial application of domestic penal laws. Prosecutors, if challenged, must be able to show that congressional intent of extraterritorial scope is clear and that the application of the statute to the acts in question does not violate the due process clause of the Fifth Amendment.
Jurisdiction is the power of the state to prescribe and punish crimes, the power of the executive to apply and enforce laws, and the power of courts to adjudicate cases. Since a state’s criminal law has no force and effect beyond its territorial limits, except for universal crimes, a criminal offense committed in one state cannot be prosecuted in another. The threshold issue of whether a court has jurisdiction to resolve a pending controversy is fundamental. A court cannot act outside its authority or jurisdiction. Each court has jurisdiction to determine whether it has jurisdiction. If a court determines it has no jurisdiction to decide the merits of a case, the appropriate action is to dismiss.
The five traditional bases of jurisdiction over extraterritorial crimes are: territorial, nationality, protective, passive personality, and universal. Under the ‘‘territorial theory,’’ jurisdiction applies to conduct or the effect of which occurs within the territorial boundaries of the state. When an element of an offense occurs within a state, that state has jurisdiction based on subjective territoriality. When an effect or result of criminal conduct impacts the state, but the other elements of the offense occur wholly beyond its territorial boundaries, that state has jurisdiction based on objective territoriality. The ‘‘nationality theory’’ bases jurisdiction on the allegiance or nationality of the perpetrator of offenses proscribed by the state of his allegiance, no matter where the offense occurs. The ‘‘protective principle’’ applies whenever the criminal conduct has an impact on or threatens the asserting state’s sovereignty, security, or some important governmental function. The ‘‘passive personality theory’’ applies merely on the basis of the victims nationality. The United States and many other nations have rejected this basis of jurisdiction, although they increasingly have started to invoke it, especially with respect to terrorist crimes. The ‘‘universality theory’’ permits any forum to assert jurisdiction over particularly heinous or universally condemned acts (e.g., genocide and crimes against humanity), when no other state has a prior interest in asserting jurisdiction.
The expansion of the theoretical bases of jurisdiction to prescribe, which is based on the thwarted extraterritorial narcotics conspiracy aimed at importation of narcotics into the United States, has been criticized. Various U.S. judicial decisions have expanded the objective territoriality theory to include offenses intended to have an effect on the United States, such as thwarted extraterritorial conspiracies. The decisions are the subject of criticism because, being thwarted, the offenses never actually cause such an effect. Because the extraterritorial conspiracy is thwarted, it arguably causes no significant effect on the asserting state’s territory and does not give it jurisdiction.
To combat international narcotics trafficking, the U.S. Congress and the courts have expanded extraterritorial jurisdiction In addition to asserting jurisdiction over thwarted extraterritorial conspiracies, they have enacted laws with extraterritorial jurisdiction over new crimes, such as money laundering, even when such crimes have limited connection with the United States.
In the arrest of General Manuel Noriega, the president of Panama, for narcotics offenses, the United States sent troops into Panama, killing innocent civilians to arrest Noriega. The Noriega case is one of the most celebrated modern examples of the expansion of U.S. extraterritorial jurisdiction because of the use of so much force to arrest a head of state for acts that occurred in Panama (Andreas, p. 37).
In August 1986, the United States enacted the Omnibus Diplomatic Security Act of 1986, providing jurisdiction to extradite or prosecute perpetrators of international terrorism. The act provides for the U.S. prosecution of persons who kill U.S. nationals abroad when the offense was ‘‘intended to coerce, intimidate, or retaliate against a government or a civilian population.’’ Hence, U.S. jurisdiction is provided even though the actions occur abroad.
The continued expansion of U.S. territorial jurisdiction to combat organized crime was reflected in U.S. Attorney Zachary W. Carter’s announcement on 7 October 1997 of stricter interpretation of U.S. jurisdiction over its territorial waters with regard to regulating casino boats. The new interpretation required casino boats that sail from New York City to travel at least twelve miles from shore before passengers could start gambling. New York City Mayor Rudolph W. Giuliani had urged federal officials to invoke the twelve-mile start in order to curb organized crime influences (Fried).
The U.S. has broadly extended its extraterritorial jurisdiction to try to ensure that other governments meet their international law obligations to combat transnational organized crime. Under the Foreign Assistance Act of 1961, as amended (the ‘‘FAA’’), the U.S. Department of State is required to prepare an annual International Narcotics Control Strategy Report (INCSR). The INCSR provides the factual basis for the presidential narcotics certification determinations for major drug-producing or drugtransit countries. The law requires that if the United States does not certify a country for its actions occurring totally outside the U.S., then it must suspend most foreign assistance and vote against multilateral development bank lending to that country.
The statute requires that for each country that received international narcotics assistance in the past two fiscal years, a report must be issued on the extent to which the country has ‘‘met the goals and objectives of the United Nations Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances.’’
The convention requires that parties take legal measures to prohibit, criminalize, and punish all forms of illicit drug production, trafficking, and drug money laundering, to control chemicals that can be used to process illicit drugs, and to cooperate in international efforts to meet these goals. The convention also requires signatory countries, such as the United States to take extraterritorial criminal action over narcotics offenses committed on the high seas, and to cooperate in allowing an investigating state to search vessels flying its flag, and otherwise cooperate in investigations on the high seas.
In October 1995, President Bill Clinton in President Decision Directive (PDD) 42 imposed sanctions under the International Emergency Economic Powers Act (IEEPA), blocking the assets of the leaders, cohorts, and front companies of identified Colombian narcotics traffickers in the United State and in U.S. banks overseas. IEEPA authorities required the U.S. Secretary of the Treasury to impose sanctions, including freezing assets held in U.S. financial institutions, against nations and entities deemed a threat to the national security, foreign policy, or economy of the United States. The directive provides a series of new initiatives: (a) identifying nations that are most egregious in facilitating money laundering, and considering sanctions if after negotiation they do not take adequate steps; (b) using the authority of the IEEPA to block the U.S. assets of cartel leaders and front companies and to bar trade between them and the United States as outlined in Executive Order 12978; (c) negotiating an international Declaration on Citizens’ Security and Combating International Organized Crime; (d) developing a legislative package of new authorities to better enable U.S. agencies to investigate and prosecute all aspects of international organized crime; and (e) seeking additional resources to provide increased U.S. anticrime training and assistance to friendly governments.
On 21 October 1995, President Clinton issued Executive Order 12978, under the authority of IEEPA. It finds that the activities of significant foreign narcotics traffickers centered in Colombia and the unparalleled violence, corruption, and harm constitute a usual and extraordinary threat to the U.S. national security and economy. Additionally, U.S. individuals and companies are forbidden from engaging in financial transactions or trade with the identified individuals or enterprises connected to the Colombian Cali Cartel. The Treasury Department identified 359 businesses and individuals whose assets had been blocked since 1995 under authority of the President’s Executive Order. As part of the PDD 42 process, an interagency group is reviewing whether measures can be taken against other international criminal cartels (U.S. Department of State, p. 532).
U.S. extraterritorial jurisdiction has expanded to combat alien smuggling. On 9 November 1995 the report of the Interagency Working Group (IWG), ‘‘Deterring Alien Smuggling,’’ determined that alien smuggling must be dealt with at its source as well as in those transit countries through which migrants are moved to the United States. The IWG recommended programs to disrupt global smuggling by increasing the awareness of foreign governments. The IWG has helped prepare a model antismuggling law for adoption in the Western Hemisphere and recommended that additional human resources be devoted to combating alien smuggling by expanding U.S. overseas enforcement capability. In June 1997 the Immigration and Naturalization Service (INS) announced a major expansion of its offices overseas to ‘‘go to the source’’ of the immigrant smuggling problem (Andreas, pp. 40–41).
Congress vested in U.S. district courts jurisdiction over offenses punishable by federal law that have been committed within the special U.S. maritime and territorial jurisdiction. Such jurisdiction extends to the high seas, to any other waters within the U.S. admiralty and maritime jurisdiction that remains outside the jurisdiction of any particular state, and to any U.S. aircraft while in flight over the high seas, or over any other waters within the U.S. admiralty and maritime jurisdiction outside the jurisdiction of any particular state.
Another means by the which the United States exerts extraterritorial jurisdiction is through courts-martial. The three types of courts-martial are general, special, and summary. General courts-martial adhere to the Uniform Code of Military Justice. They have jurisdiction to try any person who is subject to a trial by a military tribunal for violations of the laws of war. Special courts-martial have jurisdiction to try persons subject to the code for noncapital offenses, and capital offenses under regulations prescribed by the President of the United States, who is also authorized to determine punishment. Summary courts-martial have jurisdiction to try persons subject to the code, except officers, cadets, aviation cadets, and midshipmen, for any noncapital offense. No person may be brought to trial, however, if he objects.
Status-of-forces (SOFAs) agreements were created to aid in the determination of which courts have jurisdiction over visiting forces. These agreements established ‘‘concurrent jurisdiction,’’ which allowed courts-martial to adhere to both the jurisdictions of the ‘‘sending’’ and ‘‘receiving’’ states. The ‘‘sending’’ state (e.g., the United States over its troops in Germany) retains its ability to perform its military mission by reserving the right to try persons for offenses against the nation or its property (e.g., theft by a U.S. serviceman against U.S. government property), and for offenses borne out of official duty. The ‘‘receiving state’’ retains its territorial sovereignty and jurisdiction over all other offenses (e.g., violent crimes against German nationals) (Bassiouni, p. 119).
The United States and other states engage in proactive policing extraterritorially, such as the use of surveillance, undercover sting operations, controlled deliveries of contraband (whereby the delivery of the contraband is allowed in order to trace and detect the involvement of upperechelon criminals), and the use of liaison officers whereby federal agencies station officials permanently in foreign countries. States try, as much as possible, to abide by the internal law of the foreign state when conducting investigations.
Traditionally, the United States has not recognized and executed the penal laws of another country. To the extent that authority to recognize foreign penal judgments has existed in the U.S. (e.g., through treaty or statute), such recognition has been restricted. The limited authority to recognize and enforce foreign penal judgments combined with the traditional suspicion with foreign criminal procedure has resulted in decisions that substantially limit the effect accorded criminal judgments abroad. Few statutes specifically refer to convictions in courts of a foreign sovereign. Some statutes expressly exclude such convictions, while most are silent or ambiguous.
As between state and federal courts, a federal court has original jurisdiction over all violations of federal law. In cases where one act constitutes an offense against both a state and the United States, both the federal and state courts have jurisdiction of the offense, unless the U.S. Constitution or an act of Congress gives exclusive jurisdiction to the federal courts. A federal court can obtain jurisdiction over a defendant’s nonfederal offense where there exists a joinder of a codefendant who is charged with federal violations. If a constitutionally authorized federal nexus exists, the federal government can prosecute crimes anywhere in the United States.
The same act may constitute a crime under a state statute and violate a municipal ordinance. As a result, the courts of the state as well as of the municipality may have jurisdiction over the offense, assuming that the municipality has authority to enact the ordinance. Where two courts have concurrent jurisdiction over the same subject matter, the court that first obtains jurisdiction retains it until the end of the controversy, to the exclusion of the other courts.
The United States and other states employ a type of conflict-of-laws, which is a formula to determine which country’s laws to apply in a specific case, or limit the exercise on jurisdiction to prescribe in criminal matters. Even when they have jurisdictional bases, a nation may not exercise jurisdiction to prescribe law with respect to a person or activity having connections with another state when the exercise of such jurisdiction is unreasonable. A state or court will consider various factors in this determination, such as the link of the activity to the territory of the regulating state, that is, the extent to which the activity occurs within the territory, or has substantial, direct, and foreseeable effect upon or in the territory; the connections, such as nationality, residence, or economic activity, between the regulating state and the person principally responsible for the activity to be regulated, or between that state and those whom the regulation is designed to protect; and the likelihood of conflict with regulation by another state.
Proof of jurisdiction beyond a reasonable doubt is an integral element of the state’s burden in a criminal prosecution. The state can fulfill its burden of showing that jurisdiction properly lies in a state court by presenting evidence that any or all of essential elements of the alleged offense took place in the state.
In the future a shrinking world guarantees that criminal jurisdiction between national governments and state and local governments will inevitably overlap. Additional means will be required to resolve conflicting jurisdictional claims and negotiate agreements and mechanisms to cooperate in the investigation, adjudication, and supervision of international crimes and criminals.
- American Law Institute. ‘‘Restatement of the Foreign Relations Law of the United States,’’ § 403. In Restatement of the Law, 3d ed. Washington, D.C.: American Law Institute, 1980.
- ANDREAS, PETER. ‘‘The Rise of the American Crimefare State.’’ World Policy Journal 14 (1997): 37, 40.
- BASSIOUNI, M. CHERIF, ed. International Criminal Law, 2d ed. Ardsley, N.Y.: Transnational Publishers, Inc., 1999.
- BLAKESLEY, CHRISTOPHER. Terrorism, Drugs, International Law, and the Protection of Human Liberty. Ardsley-on-Hudson, N.Y.: Transnational Publishers, Inc., 1992.
- Executive Order No. 12978, 60 Fed. Reg. 54, 579 (1995).
- PAUST, JORDAN; BASSIOUNI, M. CHERIF; WILLIAMS, SHARON A.; SCHARF, MICHAEL; GURULÉ, JIMMY; and ZAGARIS, BRUCE. International Criminal Law Cases and Materials. Durham, N.C.: Carolina Academic Press, 1996.
- TORNARITIS, CRITON ‘‘Individual and Collective Responsibility in International Criminal Law.’’ In International Criminal Law. Edited by Cherif Bassiouni. Springfield, Ill.: Charles C. Thomas, 1973. Pages 119–155.
- S. Department of State. International Narcotics Control Strategy Report. Washington, D.C.: Government Printing Office, 1997.
- ZAGARIS, BRUCE. ‘‘U.S. International Cooperation Against Transnational Organized Crime.’’ Wayne Law Review 44 (1998): 1402– 1464.