Under what circumstances can a person, American or not, be brought to the USA and tried for an activity that occurred overseas? Presumably we request extradition of South American drug kingpins because their product made it into the USA and thus a crime was committed in our borders. What if the activity was not specifically illegal in the country where it occurred?
What’s got me thinking is this whole war-on-terrorism thing. Assuming that, say, a dumbass kid from the west coast were to join a religious army in say, the middle east somewhere, and basically hangs with them until he’s bagged by the US military. Now he’s looking at the death penalty back in the fatherland, uh, I mean homeland.
The crux is, of course: should I not be bragging to guys at work about what I may or may not have done on vacation in Amsterdam last summer??
(Maybe this has been discussed ad infinitum somewhere, but I haven’t been able to find it.)
US has jurisdiction over crimes (criminal not civil) committed by State nationals wherever they may be located (Nationality Principle) Blackmer v U.S.
US has jurisdiction over any criminal activity occurring within its territory (Territorial Principle) The S.S. Lotus (France v. Turkey)
US has jurisdiction over any criminal activity initiated in one State but having substantial effects in US (both states have jurisdiction; however the personal presence of the accused is required–it is easier to try him where he is arrested). Section 403 3rd Restatement of Foreign Relation Law
US has jurisdiction over criminal acts committed against its nationals (Passive Personality Principle) This must be used with another Principle
US has jurisdiction over acts committed outside its territory when it is directed against the security of US.
Universal jurisdiction–no links to territory or nationality, generally reserved for genocide, piracy, and slavery.
By US I mean all States not just US (US is shorter than State).
Information from Govt 446: International Law George Mason University
My first post–woot!
These five (and a half) principles are generally seen as the ones available, but not every nation thinks they’re all appropriate. In fact, prior to Sept. 11th, the U.S. condemned the invocation of Passive Personality and wasn’t a big fan of Universal jurisdiction either. Remember that what usually happens (outside the extradition context) is that the Court system that’s actually going to prosecute the defendant makes the decision as to whether its own jurisdiction is appropriate.
It’s important to note that the exercise of any extraterritorial jurisdiction is controversial and there’s often a period of negotiation between the State Department and the country where the alleged criminal is located.
What hello has cited as the Sec. 403 principle is really an invocation of the Territorial Principle used extraterritorially – to prosecute activities, legal where they were transacted, which have effects in the U.S. For instance, the U.S. has used this to enforce antitrust laws, which are a lot more aggressive in some ways in the States than in, for instance, the UK. There’s a famous suit against Lloyd’s of London wherein certain partners of LLoyd’s made deals in England that were legal in England but, if done in the U.S., would have been illegal here. Since the deal had effects on the international insurance market and therefore U.S. prices for insurance, the U.S. court system felt it had the power to prosecute Lloyd’s on this basis.
Again prior to Sept. 11th, the invocation of Universal jurisdiction was also very rare – although it was sometimes mentioned in the case of genocides, I think most legal opinion was that it wasn’t appropriate for that. The justification for Universal jurisdiction is that the crimes to which is applies are those which threaten not society or world peace, but the very fabric of the system of international relations. The theory being that as long as international commerce and congress are available, you can work out any other problems. Piracy is the big area here, because when the trade and communications routes are unsafe international relations break down. Therefore any country should be able to stop it, regardless of whether they have a specific interest in the particular cargo or persons involved.
That depends on whether the government holding jurisdiction over the foreign resident agrees to the extradition, or can protect the resident against violent, unauthorized removal by US agents. If you’re asking about which “crimes” the US law allows for prosecution of foreign residents, others have already answered that question to some extent, but let me add another “circumstance”:
On 16 July 2001, FBI agents arrested Russian programmer Dmitry Sklyarov at a conference in Las Vegas. He was charged with violating the Digital Millennium Copyright Act, a US law which makes it a criminal offence to publish software that circumvents access controls on digital media. Sklyarov had written a program that allows users of Adobe Systems’ electronic book software to disable restrictions the publisher may have imposed, such as a restriction on having the book read aloud by speech synthesis software. A blind person, for example, could use Sklyarov’s software to listen to an e-book. Despite the fact that the program was never published in the USA, and is perfectly legal in nearly all other countries, including Canada and his native Russia, Sklyarov was indicted and faced up to 25 years in prison plus a $375,000 fine. (He has since plea-bargained.)
So, “copy prevention circumvention” can now join the ranks of piracy, slavery, and genocide as a heinous crime that the US will hunt you down and prosecute you for, even if the incident did not occur in American territory.
Notice that Mr. Sklyarov was arrested only after he entered US space/set foot on US soil. Presumably, if he had never entered the USA, he would not have been detained. (Although, given the actions of such as the MPAA and RIAA, this is not necessarily a sure thing…)
There’s a recent case (past 6 weeks?) of a Canadian citizen who was charged and convicted of breaking a US law while working in Canada.
Once the employee of this multinational firm was transferred to the States, he was picked up, charged, and convicted for trading with Cuba, even though the crime didn’t happen in the US, and it’s not a crime in Canada.
It’s currently going through appeals.
It should be noted though, that if the US had applied to extradite the man in question, he would never have been turned over.
Well, you know International Law taught at a US school might be slanted. I just figured I would answer his question as it was taught to me Thursday night
IIRC Sklyarov made a deal with the prosecution wherein the charges against him were dropped in exchange for his testimony against his employer. Sklyarov was permitted to return home on the condition that he return for the trial.
Don’t be so sanctimonious. Unless it happened while my back was turned, no one’s formed a world government yet. Until that’s done, there’s no “correct” legal principle on the law of extraterritorial jurisdiction. In fact, the U.S. (at least pre-Sept; 11th) was very circumspect in exercising it in most situations. It is not the U.S.'s “opinion” that its jurisdiction extends outside its borders any more than it’s any country’s opinion as to the reach of their own jurisdiction.
I think that if a government wants to try someone badly enough, it will go to whatever lengths necessary to manufacture jurisdiction and to justify forcible extradition. Three notable examples come to mind:
Former Nazi leader Adolf Eichmann was abducted by Israeli agents from his home in South America in 1960 and smuggled to Jerusalem. He was subsequently tried and executed by the government of Israel.
Nicaraguan head of state Manuel Noriega was kidnapped by US Marines and brought to trial in Florida.
Great Train Robber Ronnie Biggs, residing in Rio de Janeiro after having escaped prison in his native Britain, was the target of repeated kidnapping attempts by British bounty hunters. A 1981 attempt succeeded, but Biggs was diverted to Barbados where he was arrested and eventually sent back to Rio on a legal technicality. The UK government wasn’t officially involved, but had the bounty hunters succeeded in returning him, I’m sure a blind eye would have been turned to the illegal abduction.
