When Interpol Comes Calling…™
International Crimes in National Courts
Traditionally, states have exercised jurisdiction over individuals suspected of international crimes based on one of three theories:
- Territoriality—The offense was committed within the borders of the state
- Passive Nationality—The victim was a national of the state
- Active Nationality—The perpetrator is a national of the state
Even in the absence of national or federal statutes criminalizing the international crimes of genocide, war crimes, and crimes against humanity (and possibly aggression, torture, terrorism, etc.), there are several important developments in the prosecution of international crimes in national courts.
- The "duty of every State to exercises its criminal jurisdiction over those responsible for international crimes" in the Preamble of the Rome Statute has resulted in the adoption of laws criminalizing Rome Statute offenses in some individual states.
- Customary international law may be invoked as a ground for asserting jurisdiction over international crimes under the general principle that states are free to exercise jurisdiction over criminal acts performed outside their territory whenever no specific international treaties or rule restrict such freedom. This principle was first enunciated in the Lotus decision (France v. Turkey, Permanent International Court of Justice, Sept. 7, 1927).
- As the ad hoc courts begin to execute their completion strategies, they have emphasized that portion of their mission that requires support of judicial self-sufficiency in the target countries. For example, by January 2006 the ICTY transferred 28 cases to Bosnian and Serbian national courts for investigation and prosecution—24 before indictments had issued and 4 after ICTY indictment. It is expected that additional referrals will be made during the last 4 years of the Tribunal’s activity. For additional information, refer to the fact sheet published by the ICTY.
A less frequently invoked type of jurisdiction is extraterritorial jurisdiction. According to this concept, a national court may assert jurisdiction over its own citizens or nations for crimes they commit in violation of national laws outside the borders of the country claiming jurisdiction.