Extraterritorial Jurisdiction: What's it About?

by Muireann O Brian, Legal Consultant, ECPAT International

Territorial sovereignty is an important principle of international law.  It means that states claim control over their citizens within the territorial limits of the state, and over its ships and planes.  Offences committed within the state, or on ships and aircraft belonging to the state, will be tried in the courts of the state.

 When offences are committed abroad, the state where the offender is found may be required to send him back, or extradite him, to the country where the offence was committed in order to stand trial.  Some countries will extradite on the basis of a treaty with the requesting country, and some have legislation that allows extradition to be granted on the request of a foreign government.  However, some countries object to extraditing their nationals, and for this reason they will prosecute their national at home for an offence committed abroad, rather than send him back to the place where the offence took place.  This is called the exercise of extraterritorial jurisdiction.

 For a case to be prosecuted extraterritorially, several conditions must be taken into consideration.  These are:

 Double criminality: The offence committed abroad is often required to be also an offence in the national’s own country.

 Double jeopardy: A person cannot be tried twice for the same offence, so if an offender has been prosecuted where the offence was committed, he usually cannot be tried again in his home country for that offence. 

Complaint: In most countries a prior complaint of the victim, or a formal request for prosecution from the foreign government, is necessary before the offender’s country will prosecute him.

 Applicable law: In most countries, the national law will be applied to the prosecution.  But some countries will apply the law of the place where the offence was committed if it is more lenient than the national law.

 There are three types of extraterritorial jurisdiction applicable to offences against children.

 Some countries apply extraterritorial jurisdiction to offences committed by their nationals abroad as a general principle.  Such countries include Japan, Netherlands, Norway, Sweden and Switzerland.  There are no special provisions to deal with crimes connected with child sex tourism; the jurisdiction is simply there under the general category of serious crimes that can be prosecuted at home, even though they were committed abroad.

 Some countries that apply extraterritorial jurisdiction as a matter of general principle have facilitated prosecution of offences against children.  Countries such as Belgium, France and Germany have adjusted their legislation to make it easier to prosecute a case where children are the victims.  The Netherlands, for example, does not require a complaint by the victim or the foreign government to be made; Dutch prosecutors can pursue a case on their own initiative.  In France, legislation has brought all serious sexual offences against children into the category of crime that could be prosecuted at home, without any need for a prior complaint, and no double criminality requirement.

Some countries have legislated specifically for crimes of child sex tourism.  This includes Australia, which by the Crimes (Child Sex Tourism) Amendment Act of 1994 extended the existing extraterritorial jurisdiction to offences against children committed abroad.

When designing or extending extraterritorial jurisdiction so that crimes of child sexual abuse can be pursued in the offender’s own country, there are a number of ways in which the jurisdiction can be made more efficient.

The principle of extraterritoriality should be capable of being applied not only to nationals but to all habitual residents of a country.  Legal entities should also be covered, such as companies that organize or encourage child sex tourism.

  The jurisdiction should cover all offences of sexual exploitation and sexual abuse against children.

  Child victims should be protected up to age 18.

 There should be no double criminality requirement.

 There should be no need for a formal complaint by the victim/or the foreign state.

 The principle of double jeopardy should apply only where the offender ,vas acquitted, or fully served the sentence of the court.

 Time restrictions on prosecution should run only from the time the victim reaches the age of 18.

 Prosecutors who refuse to prosecute a case involving a child victim should be required to justify that decision.  The victim should have a right of appeal against a refusal.

 Proof of age of a victim should be capable of being established by medical or scientific opinion if documentary proof is not available.

 Evidence of child victims should be able to be taken by video-link or through measures which don’t require them to be removed from their own surroundings.

 NGOs should have the capacity to represent the interests of foreign child victims.

Differences in language, culture, and police and legal systems make extraterritorial jurisdiction difficult to apply in practice.  Although a crime took place in country ‘N the evidence has to be gathered by the police of country ‘B’ where the trial will take place.  Criminal evidence has to be obtained and preserved under very strict conditions for the burden of proof to be discharged in court, so the police can encounter many difficulties.  Several government departments may also be involved.  Training for lawyers, judges, prosecutors and police in understanding and applying the jurisdiction is important.  Embassy personnel need clear guidelines for dealing with their offending nationals abroad, and training on how to supply information.  Cooperation between jurisdictions is vitally important: law enforcers have to cooperate to explain their rules of evidence to each other.  Mutual legal assistance treaties are essential to ensure this cooperation.  Treaties allow for the taking of testimony of persons in the requested state, the provision of documents, records or evidence, serving of documents, and locating witnesses.  Without a treaty, a requesting state has to rely on the goodwill of another state.

Given the difficulties in its application, extraterritorial jurisdiction should be regarded as a subsidiary tool of international law, available only when other avenues are not open.  The normal course of events is that an offender should be tried in the country in which he committed the offence.  That is where the victim is situated, and where witnesses and other evidence are available.  Therefore, where an offender has escaped the jurisdiction where he committed the offence, extradition back to that country is the best option.

Extradition agreements between countries can set out conditions to ensure fair treatment for offenders, and are a faster and less expensive option for the offender’s own state.  The Optional Protocol to the Convention on the Rights of the Child on the Sale of Children, Child Prostitution and Child Pornography requires states parties to deem sexual offences against children be included in existing extradition treaties, and to include them as extraditable offences in future treaties.  The Protocol itself will provide a legal basis for extradition where one state requests an extradition from another with which it has no treaty.  As the Protocol becomes ratified by states, we will see a streamlining of extradition agreements and processes, so that child sex offenders can be returned for trial to the place the crime was committed.