Nationality Jurisdiction

States are entitled under international law to legislate with respect to the conduct of their nationals abroad. Many States adopt this head of jurisdiction quite broadly. Nationality is an important basis of jurisdiction in international criminal law, in particular in relation to armed forces stationed overseas who, in the legislation of most States, ‘carry the flag’ abroad with them.

The principle, nonetheless, applies beyond the armed forces, and also covers civilians. Nationality jurisdiction relies on the link between a national and the State to which he or she owes allegiance. For the most part the question of who is a national is relatively uncontroversial and dealt with by the legislation of the State granting nationality.

Equally, the extent to which other States are required to accept that nationality (and thus any jurisdiction based on it) is limited by international law.

For nationality jurisdiction, it is often required that the person over whom that jurisdiction is being asserted was a national at the time of the offence rather than after. Otherwise, it has been claimed, a violation of the nullum crimen sine lege principle could occur. Nevertheless, some States provide for jurisdiction in the situation where suspects later acquire their nationality.

Those States tend to view such an exercise of the jurisdiction as being a vicarious use of the authority of the locus delicti. As a result, the lawfulness of any such use depends on whether the conduct for which the suspect is prosecuted was criminal in the locus delicti (or in international law) at the time of its commission, or if that State makes its opposition to the ‘borrowing’ of its jurisdiction known.

Perhaps the most famous example of nationality jurisdiction was the US prosecution of Lieutenant William Calley for his role in the My Lai massacre in Vietnam. This case also provides an example of one of the criticisms often laid at the door of nationality jurisdiction, that prosecutions by States of their own nationals for war crimes may tend to be overly lenient.

Published under Crime, Law



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