Extraterritorial criminal jurisdiction in international law: time for an empirical examination

This chapter examines the ways in which states assert extraterritorial criminal jurisdiction over non-nationals for actions carried out beyond national borders. The study provides the comprehensive empirical examination of state practice that has been noticeably lacking in almost a century. It draws on the largest research sample of state practice to date and is unique in its focus on (1) domestic legislation of states that are representative of major legal traditions of the world; (2) 62 trials that proceeded to completion in domestic courts involving at least one allegation of crimes against international law during the period since the Eichmann trial in 1961 to 2017; and (3) the creation of extraterritorial jurisdiction in 42 treaties adopted since 1949 and the corresponding preparatory works. The study finds that states assert five main categories of extraterritorial criminal jurisdiction. The findings raise serious questions about the extentstate practice may be reconciled with the dominant paradigm on jurisdiction in international law, which has long been unclear, underpinned by elements of conceptual confusion and discussed under a shroud of empirical uncertainty. The findings provide the compelling empirical insights needed to begin to clarify, and more accurately understand, what states do and why they do it, and to rethink jurisdiction in international law beyond the dominant paradigm, while contributing to the discourse on the subject and future legislative and policy-oriented initiatives that need to take into account state practice.