International Criminal Law
Recognizing the Principle of Objective Territoriality
The principle of territoriality is one of the well-established bases of jurisdiction in international criminal law. The principle is absolute where an alleged crime takes place within the territory of a single state. But, the dilemma starts when the commission of a crime commences in the territory of one state but ends in the territory of another state. In this context, there arise two dimensions of the principle of territoriality i.e. subjective territoriality (where the commission of the crime commenced, not completed) and the objective territoriality (where the crime was completed, but did not start).
The recent 'Request' of the Prosecutor of the International Criminal Court (ICC) on the ruling over the jurisdiction of Rohingya situation raised a strong assertion on whether the ICC may exercise its jurisdiction over the crime of deportation. Being commenced in Myanmar-a non-State party to the Rome Statute, the issue ultimately reached the territory of Bangladesh-a State Party. The Prosecutor's reliance on the objective territoriality in the case requires further confirmation from the Pre-Trail Chamber I of the ICC on June 20, 2018.
Although there is a universal consensus with regard to the state practice on the principle of subjective territoriality, the principle of objective territoriality has been seen as an emerging norm of criminal law. In this regard, it is pertinent to distinguish the 'objective territoriality' from the 'effects doctrine' where the former requires 'the commission of the crime be completed' while the latter requires 'the effect of the crime be touched' on the territory in question.
A crime may be completed within one state, but its effect may be felt in several states which may not necessarily attribute the jurisdiction to the later states. Contrarily, the principle of objective territoriality confers the jurisdiction over the acts to the state in question only because the alleged conduct is deemed to be complete on its territory.
The principle of objective territoriality has its origin in the common law tradition. In 1887, the US State Department's Report on Extraterritorial Crime and the Cutting Case recognized this principle of criminal justice. In International Law, this principle got its basis in the famous Lotus case of the Permanent Court of International Justice (1927). This principle was reaffirmed in the 1935 Harvard Draft Convention on Jurisdiction with Respect to Crime. With the rise of transnational organized crimes, maritime piracy, international terrorism, cyber-crime, etc. the principle has attracted the attention of national and international commentators.
The 'Request of the Prosecutor' of the ICC has enumerated more than twenty international instruments where the objective territoriality has been recognized and these instruments were ratified by at least 188 states. The UN Convention against Transnational Organized Crime 2000 and the UN Convention on the Law of the Sea 1982 are two noteworthy instruments of such nature to which both Bangladesh and Myanmar are States Parties.
In addition, the criminal laws of different states are increasingly incorporating this principle within their domestic laws. The 'Request of the Prosecutor' has made a non-exhaustive list of 12 states where the domestic laws recognized the principle. It also referred to many domestic case laws of different jurisdiction which recognized and relied on the principle.
The age-old penal legislation of Bangladesh, especially the Penal Code 1860 does not recognize the principle of objective territoriality. However, interestingly, many recent legislations are incorporating this principle. For example, Section 4 of the Information and Communication Technology Act, 2006, Section 5 of the Counter-Terrorism Act, 2009, Section 22 of the Competition Act 2012, Section 2 of the Money Laundering Act 2012, Section 5 of the Prevention and Suppression of Human Trafficking Act 2012, are few to make the list.
Article 12(2) (a) of the Rome Statute does not explain the principle of territoriality, it simply states that 'the State on the territory of which the conduct in question occurred.' Since it does not specify whether the alleged conduct is required to occur in part or wholly in a particular territory, there is a space to interpret it in light of a particular element of a crime.
Accordingly, the 'Request of the Prosecutor' interpreted 'territoriality' in reference to the crimes against humanity of deportation. It claimed that since the crime of deportation becomes complete when the deported persons cross the international border, the ICC can also exercise its jurisdiction over the territory of that state.
The outcome of the present 'Request of the Prosecutor' is very vital for the further recognition of this principle in the realm of International Criminal Law. Bangladesh recognizing the principle of objective territoriality in domestic practice, possesses a vital position in contributing to the recognition of this principle through its Observation to be submitted to the ICC due on June 12, 2018.
To discern the ultimate perspective of the principle in the International Criminal Law, we need to wait for the final deliberation of the ex parte Status Conference at the Pre-Trial Chamber I of the ICC on June 20, 2018.
Quazi Omar Foysal is an LL.M. Candidate at the Geneva Academy of International Humanitarian Law and Human Rights, Geneva Switzerland.