Finding Harmony Amidst Disagreement Over Extradition, Jurisdiction, The Role of Human Rights, and Issues of Extraterritoriality Under International Criminal Law

This Article examines extradition and jurisdiction over extraterritorial crime, focusing on the relationship between jurisdiction and extradition in the broader context of human rights law. The authors challenge what they argue are chimerical, although strongly held beliefs in the incompatibility of European and United States criminal justice systems and extradition practices. They argue that cooperation in matters of international criminal law may be enhanced, while protection of human rights is promoted. The authors establish this possibility by breaking down the barriers to understanding that stem from the divergent European versus Anglo-American modes of analysis. The authors first analyze the five traditional bases of prescriptive jurisdiction in the United States. Next, these principles are compared to their counterparts in French and German law. The authors then focus their discussion on the German principle of ubiquity and its United States parallel, which is a combination of both the objective territoriality theory (the effects doctrine) and the subjective territoriality theory, which arises when an element of the crime occurs in the United States. The objective and subjective territoriality theories have expanded to mitigate conflicts resulting from a traditional strict application of territoriality principles. Next, the authors discuss the question of what jurisdictional principles allow extradition when an offense has no specific territorial basis. The protective principle, the passive personality principle, the nationality principle, and the universality principle are analyzed in this context. The authors compare United States application of these principles to that of European states and suggest that the differences are less than usually is purported. The authors also examine the special use of double criminality in extradition cases, which requires simultaneous jurisdiction in two states for an individual to be extraditable. They question its viability in each system. The authors next suggest that the United States Government ought to consider the application of vicarious administration of justice, which is common in European states. The authors then apply these principles to mutual assistance in criminal matters, especially extradition, and discuss two possible situations: first, when only one state proscribes the conduct in question; second, when two or more states proscribe the conduct and one state enlarges the proscription. Theoretical principles, policy perspectives, and contrasting modes of analysis are compared in the context of extradition and mutual assistance. Theoretical problems are indicated and solutions are proposed. The authors conclude that if a strict doctrine of territoriality were the only basis of extraterritorial jurisdiction, then competing jurisdiction would not be a problem although a strict territorial approach would make both the domestic and the internal systems dysfunctional. The recognition and application of active and passive personality principles, along with the protective and universality principles are needed to make criminal law viable in the modern world. Their application, however, causes problems in matters of jurisdiction and cooperation. The authors propose several new ideas to resolve the jurisdictional and substantive problems, including the application of vicarious administration of justice when extradition is not possible