International criminal law is a body of public international laws designed to

prohibit certain categories of conduct commonly viewed as serious atrocities

and make perpetrators of such conduct criminally accountable for their
perpetration. Also, international criminal law is the body of laws that establishes
individual criminal responsibility for international crimes such as war crimes,
crimes against humanity, genocide and aggression. The exact definition of an
international crime remains debated, but it is normally understood as an act that
violates fundamental interests of the international community and entails
individual criminal responsibility. The generally accepted core international
crimes are war crimes, crimes against humanity.

The ICJ (international Court of Justice) is the first and only permanent
international court with jurisdiction to prosecute individuals for the international
crimes against humanity, crimes of genocide and crimes of aggression. The
term universal jurisdiction refers to the idea that a national court may prosecute
individuals for serious crimes against humanity, war crimes, genocide and
torture based on the principle that such crimes harm the international
community or international order itself, which individual states may act to
protect. National courts can exercise universal jurisdiction when the state has
adopted legislation recognising the relevant crimes and authorizing their
prosecution. Sometimes, this national agreement such as the Convention
against torture and inter-American convention to prevent and punish
torture, which requires states parties to adopt the laws necessary to prosecute
or extradite any person accused of torture who is within the state party’s
territorial jurisdiction. A national or international court’s authority to prosecute
individuals for international crimes committed in other countries depends on
both the domestic legal framework and the facts of each particular case.

Question

National and international jurisdiction over international crimes

A nation’s supreme authority (sovereignty) and practical authority to administer
justice and over territories, things and persons within its boundaries is known as
the national jurisdiction.

Universal jurisdiction or international jurisdiction is a legal principle that allows

states or international organisation to claim criminal jurisdiction over an
accused person regardless of where the alleged crime was committed and
regardless of the accused’s nationality, country of residence, or any other
relation to the prosecuting entity.

Jurisdiction is an aspect of sovereignty: it refers to a state’s competence under

international law to regulate the conduct of natural and juridical persons. The
notion of regulation includes the activity of all of government: legislative,
executive and judicial.

International crimes include: genocide, war crimes, torture, crimes against

humanity, force disappearance, etc. problems of concurrent jurisdiction, and in
particular with regards to criminal matters are satisfactorily dealt with only
where they have been regulated by treaty. But even these subject-specific
treaties provide for a variety of jurisdictional bases with no clear hierarchical
order. The jurisdictional principles contained in criminal treaties are the product
of national criminal practices and to the extent they are uniformly applied, they
may be regarded albeit with caution as reflecting general principles of national
laws. These are the principles of territoriality, active personality (or nationality),
passive personality, universality and the protective principle.

The Jurisdictional Principles

1. Territorial Jurisdiction: states have no account for their power of

sovereignty to exercise criminal jurisdiction over crimes upon their
territory. If states assume such jurisdiction, it would give them powers
and advantage for evidence and relevant material relating to any criminal
 offense it may also prove to politically expedient where competing claims
for jurisdiction involve delicate questions of interstate relations;
especially where the exercise of extra-territorial jurisdiction would be
viewed as encroachment of another state’s sovereignty. The territoriality
principle operates well and without interstate friction only in a situation
where the elements of an offense had occurred on the territory of the
persecuting state. For example, a person firing a shot across a frontier and
subsequently causing the death of someone on the other side of the
frontier, the principle of territoriality proper gives rise to questions of
primacy between two competing jurisdictions. State practice has
illustrated that in such situations, municipal authorities will resort either
to extra-territorial principles of jurisdiction or consider an element of the
actus reus (firing of the shot) or the ensuring results (death) as having
occurred on their territory thus finding application for the territoriality
principle. This example brings us to the two sub-principles which are:
subjective and objective principles of territoriality to address this
situation.
1.1. Subjective territoriality: this principle states that when an element of
an offense takes place within the territory of a state practicing this
principle, the state may take jurisdiction over the offense. This
principle was regarded into international treaties, although not widely
regarded as a general principle of national law. These were the 1929
Convention for the suppression of Counterfeiting currency and the
1936 Convention for the Prevention of Illicit Drug Traffic, which
bound the contracting parties to assume jurisdiction over the offence,
irrespective of the laws standing were the offense materialized, as long
as an attempt, commission or conspiracy was perpetrated on their
territory. While at the interstate level, such a rule maybe formulated in
accordance with the needs of its drafters in order to effectively combat
 certain illegal activities, such as counterfeiting and drug trafficking, its
application at the national level with respect to municipal offences
seems to warrant that not only a significant portion of the offence
takes place in the claimant’s state, but also that there exists a “real and
substantial link» between the offence and that state. In Libman, the
accused committed fraud in Canada by selling worthless shares over
the telephone to buyers in the US who, as directed, sent the money to
Central America, which was finally received by Libman back in
Canada. The Canadian Supreme court exercised jurisdiction on the
basis of the real and substantial link theory and the perpetration of the
largest part of the offence in Canada. A strong argument for territorial
jurisdiction would best be served if the claimant state were to
demonstrate it had suffered harmful consequences as a result of the
crime concerned.
1.2. Objective territoriality: this principle allows for jurisdiction where
conducts committed abroad produces effects in a third state. The
classic example associated with this principle involved the Lotus case
before the permanent courts of international justice. In this case, 8
Turkish crewmen perished as a result of collision on the high seas
between a French and Turkish vessel. Upon arrival on Turkish
territorial waters, the captain of the Lotus was apprehended and
charged with the death of the crewmen. The majority of the court
ruled that since the Turkish vessel was flying the flag of that country it
was to be assimilated to Turkish territory. Hence, under this theory, it
was as if the ensuing manslaughter was committed in Turkish soil, in
which case it was thereafter justified in exercising jurisdiction over the
French captain. The magnitude of the consequences which different
states require is felt in their territory as a prerequisite to exercising
 objective territorial jurisdiction are issues that have evolved through
municipal case law and legislation.
2. The active personality principle: the active personality principle (or
nationality) of jurisdiction is based on the nationality of the accused
person. It allows states to prescribe legislation regulations on the conduct
pf their nationals abroad and in some cases, it has also been applied to
persons with residency rights. Although the granting of nationality is
considered a matter of domestic law, its application and recognition in
international fora is premised in principles of international laws. The
active personality principle is mostly prevalent in civil law jurisdictions;
it is generally recognised also in common law states.
3. The passive personality principle: criminal jurisdiction under the passive
personality principle is exercised by the state of the nationality of the
victim where the offence took place outside its territory. Assumption of
jurisdiction under this principle was criticised in the early part of the 20 th
century and was not included in the 1935 Harvard Research Draft on
Jurisdiction. The jurisdiction for exercising it in national for a has to do
with each country’s interest in protecting the welfare of its nationals
aboard.
4. The protective principle: it is generally known that every country is
competent to take measures which are in line with the law to safeguard
the national security interests. This implication of state sovereignty is the
basis for the protective or security principle. The necessity for the
proactive principle maybe demonstrated by the lack of adequate measures
in most municipal legal systems through which to criminalise harmful
behaviour or prosecute persons for acts which, although committed
abroad, are directed against the security of a foreign state. The problem
with this theory is that national parliaments enacting the protective
principle may take a very expansive or at least subjective view of what is
 actively injurious to their national interests, for example, state A might
consider that avoiding military service by residing abroad harms national
security because decreases its defensive capacity. If the accused is not in
the custody of the prosecuting state, a request for extradition may hinge
on a denial to extradite in case no offence has been committed in the form
deprehensionis in order to safeguard its own national interest. As
alliances come and go, a similar situation may be accommodated through
the rules of comity by recognising the requesting stat’s protective
jurisdictional competence.

Conclusion

In international criminal jurisdiction, there is always conflict over which

country to take jurisdiction over the offence committed, this conflict of
national and international jurisdiction over international crimes can be highly
resolved with the use of the various principles examined above.
Bibliography

Infor MEA (MMA), https://www.ecchr.eu/en/glossary/universal-

jurisdiction/1998 Amsterdam Treaty amending the Treaty on the European
Union, Art k3 (d), reprinted in 37 ILM (1998), 56, provides that European
Union (EU) states are to prevent conflicts of criminal jurisdiction arising
among themselves.

See G. Gilbert, Crimes Sans Frontiers : Jurisdictional problems in English

law; 63 BYIL (1992), 415, p. 430, who makes reference to the doctrine of
ubiquity, which allows states to assume jurisdiction over an offence, as well
as any connected inchoate offence, if a part of the offense or its effects are
felt in the prosecuting state. Libman V. R. (1986)

Franc vs. Turkey 91927) PCIJ Reports, Ser A No 10.

Op cit, Paust et al., note 12, p.1 24

See Gr Watson, the passive personality principle; 28 Texas ILJ (1993), 1.

See Generally Cameroon, the protective principle of international criminal

jurisdiction, 1994, Aidershot: Brookfield, VT. Op cit, Harvard Research,
note 44, p. 552.