The Right to Punish Crimes Committed Abroad: What Are the Scope and Grounds of a State's Criminal Jurisdiction?

In a typical criminal case, the state in which the crime was committed is the state that seeks to prosecute and punish the offender. If Jones robs a bank in France, then he is prosecuted before a French court under French law. However, in some cases, criminal prosecution and punishment are ‘extraterritorial’, in the sense that the prosecution and punishment take place under the laws and legal authority of a state other than the one in which the crime was committed. If Jones counterfeits Canadian currency in his French house, then France can extradite him to Canada for prosecution under Canadian law. Moreover, cases heard by international criminal courts are similarly extraterritorial, because the state in which the crime took place is not conducting the prosecution or imposing the punishment under its laws and legal authority. If Jones commits crimes against humanity in Serbia, he can be turned over by Serbian authorities for prosecution before the International Criminal Court under international law. There is a literature going back centuries that examines the philosophical underpinnings of criminal punishment and addresses the question of why a state is justified in imposing punishment on those who violate its laws. Almost all of this literature presupposes a typical case of punishment in which the state where the offence was perpetrated is the state imposing the punishment. But extraterritorial punishment deviates from the typical case, and the deviation raises questions about penal jurisdiction that many theories of punishment do not consider. These questions have become especially important in light of remarkable developments in international criminal law over the past two decades, including the creation of the International Criminal Court (ICC), the establishment of international tribunals to decide cases arising out of the Rwandan genocide and (2011) 2(3) Transnational Legal Theory 447–453