Search

This paper analyses some key issues related to EU secondary law provisions regarding extraterritorial exercise of criminal jurisdiction by Member States over EU-harmonised offences. Two main research objectives have been examined: firstly, a theoretical systematisation of the phenomenon at stake; secondly, an assessment of its actual reach. The analysis firstly deals with the classical taxonomy of prescriptive, adjudicative and enforcement jurisdiction. It is then suggested that the extraterritorial application of EU criminal law entails a peculiar overlap between original and vicarious jurisdiction, as well as an intersection between territorial extension and effects-based jurisdiction. The paper then analyses the criteria used by the EU legislature to stretch Member States’ criminal jurisdiction beyond the EU’s external borders in light of Scott’s taxonomy, with a view to highlighting the emerging trends. Secondly, the paper underlines the emergence of an EU-own scope for extraterritorial jurisdiction, wider than the one designed by both International Crime Control Treaties and pre-Lisbon Framework Decisions. Finally, the paper calls upon an in-depth assessment of the practice related to the prosecution of EU-harmonised offences. Such an analysis would reveal if potential deal-breaking conflicts of jurisdiction between Member States and third States could lead to a reconsideration of the EU’s extraterritorial approach in criminal law.

The EU and its Member States have resorted very often to the externalisation of migration policies with the aim of preventing the access of irregular migrants and persons in need of international protection to the territory of the Member States. The transfer of responsibilities to third countries in the management of migration does not exonerate the EU and its Member States from the infringements of human rights that might take place on the territory of third countries. The aim of this chapter is to analyse the implications arising from the transfer of responsibilities to third countries in the management of migration and, in particular, the cooperation developed with Libya in recent years.

The first part of this chapter explores the concept of jurisdiction in relation to the extraterritorial applicability of human rights treaties. If the threshold of jurisdiction is reached, the same rights and obligations as within state territory in principle also apply extraterritorially. Yet, it may be impossible for states to ensure human rights in the same way. The content and scope of extraterritorial obligations therefore has to be determined in a way that can ensure realistic application in extraterritorial circumstances. Hence, a set of legal, practical and power-related factors is introduced to be able take the state’s capacity into account. The second part of this chapter uses these factors to translate territorial obligations to prevent gross human rights violations, as defined in Chap. 2, to extraterritorial obligations based on jurisdiction. States have: (i) Long-term obligations to prepare for extraterritorial operations through the state’s own legislative and administrative framework. Plan and equip extraterritorial operations in a way that allows them to function in accordance with a state’s human rights obligations. Occupying powers may have to adjust the host-state’s legislative and administrative system if it is not in line with requirements under international human rights law; (ii) Short-term obligations and obligations to prevent continuation by taking measures to prevent and halt violations/offences in the course of extraterritorial operations; and (iii) Obligations to prevent recurrence by investigating, prosecuting and punishing violations by state officials and ensuring the prosecution of offences by non-state actors within their extraterritorial jurisdiction.

Several times, the African Union has voiced concerns regarding the alleged “abuse” of the principle of universal jurisdiction. The Union refers in particular to the prosecution of ‘African leaders’ before European courts which, in the view of the Union, could endanger international law, order and security. Against this background, the author examines the exercise of universal jurisdiction in Africa as well as in Europe over accused from Africa. While there is support for the assumption that so-called low-cost accused are exposed disproportionally to universal jurisdiction, there is no evidence of a geographical or racial bias. The author points to three current trends in the exercise of universal jurisdiction: the decline of universal jurisdiction in Europe, the ‘reversion’ of universal jurisdiction and the regionalization of universal jurisdiction. The latter trend is demonstrated in particular by the prosecution of Hissene Habre ‘on behalf of Africa’ before the Extraordinary African Chambers in Senegal. The author suggests that the regionalization of universal jurisdiction may represent a novel mode of extraterritorial jurisdiction, which has the potential to ease European-African tensions in the area of international criminal justice.