British Institute of International & Comparative Law, London

1. Catch Me If You Can: Extraterritorial Jurisdiction & the Conflict of Concurrent Criminal Prosecutions British Institute of International & Comparative Law, London Speaker: Felix K.H. Ng - Partner, Haldanes / International Bar Association

2. (I) Overview • Traditional criminal jurisdictions adopted by Common Law vs. Civil Law countries • Challenges: Lessens significance of borders /MNCs / technology / transnational crimes • Increasing trend of Extraterritorial Jurisdiction (e.g. US FCPA / UK Bribery Act 2010 / Bermuda Bribery Act 2016) • Asian jurisdictions – domestic legislation with extraterritorial reach: • Singapore (Penal Code section 3; Prevention of Corruption Act section 37(1)) • Indonesia (Penal Code of Indonesia Article 4 &5) • Japan (Penal Code 1907 article 2 to 4) • Thailand (Criminal Code 1956 section 8) • Hong Kong (Surrogacy / Bigamy / Bribery etc)

3. (I) Overview • Inevitable Result: Concurrent / Competing Criminal Jurisdictions • Issues:  • Who should prosecute? • Who should extradite? • How could the conflict be resolved? • If the conflict cannot be resolved, would codification help?

4. (II) Jurisdictional Principles • Territoriality • Subjective territoriality (conduct within border) • Objective territoriality (effect within border) 2. Nationality • Active nationality (nationality of offender) • Passive nationality (nationality of victim) 3. Universality - Crimes against international peace & security 4. Protective - Crimes against national interest

5. (III) Extraterritorial Crimes Serious violations of human rights /international peace & security Earlier days – Piracy / Slave Trade Post-Nuremberg trials – Genocide Convention 1948 / Four Geneva Conventions: Genocide / War Crimes UN Convention Against Torture 1984 – Torture Rome Statute 1998 (ICC): Genocide / War Crimes / Crimes Against Humanity  “Universality” principle

6. (III) Extraterritorial Crimes 2. Transnational serious organized crimes • Terrorism • UK Terrorism Act 2000 & 2006 • UK Crime (International Cooperation) Act 2003 • UK Criminal Justice (Terrorism and Conspiracy) Act 1998 • Corruption • UK Bribery Act 2010 & US FCPA1977 (amended in 1998) • OECD Anti-Bribery Convention 1997 & UN Anti-Corruption Convention 2003 •  “Territorial” + “Nationality” + “Protective” principles

7. (III) Extraterritorial Crimes 3. Crimes involving significant moral issues • Surrogacy - HK: regardless of where surrogacy was carried out • Bigamy - HK: regardless of where subsequent illegitimate marriages were carried out •  “Nationality” principle 4. Individualistic offences that affect the reputation of a nation • Sex tourism Child Sex Offences under s. 72 Sexual Offences Act 2003 / Australia’s Commonwealth Crimes (Child Sex Tourism) Act 1994) •  “Nationality principles”

8. (IV) Potential Reform on Extraterritorial Jurisdiction? (i) UK • UK Government Interdepartmental Steering Committee Report 1996: • Offence is serious; • Witnesses & evidence are likely to be available in the UK; • International consensus on the reprehensible nature of the crime & need to take extraterritorial jurisdiction; • Vulnerability of victims – crimes need to be prosecuted; • In the interests of UK’s standing & reputation; • Danger that such offences would not otherwise be justiciable • Satisfying one or more of these criteria - not automatically justify extraterritorial ambit – but action may be justified

9. (IV) Potential Reform on Extraterritorial Jurisdiction? (ii) BELGIUM Belgium - 1993 Act Concerning Punishment for Grave Breaches of International Humanitarian Law Universal jurisdiction – Crimes Against Humanity, Genocide & War Crimes 1999 to 2003: controversial prosecutions against government officials of DRC, Iran, Iraq, Israel (Ariel Sharon), Ivory Coast, Palestinian Authority & US for alleged serious human rights abuses. 2003: Act substantially amended & subsequently repealed New laws requiring a greater connection (e.g. nationality of offender or victim between the alleged crimes and Belgium) Without such connection – only allowed to proceed where alternative jurisdictions do not allow for a fair trial

10. (IV) Potential Reform on Extraterritorial Jurisdiction? (iii) SPAIN • Spanish laws of 1995 – Extraterritorial jurisdiction over international crimes e.g. Genocide, Terrorism & Piracy. • 1998 – General Augusto Pinochet in UK for medical treatment – Arrest Warrant & Extradition Request to UK for torture allegations in 1970’s • Subsequent years – investigations into China’s human rights abuses in Tibet / Israeli attack on Hamas leader in 2002 / torture in Guantanamo Bay • 2009 – legislation amended: “Crimes Against Humanity” expressly included as criminal offence & jurisdiction limited to cases where: • Alleged perpetrators are present in Spain; • Victims are of Spanish nationality; • Some relevant links to Spanish interests; • No jurisdiction if another competent domestic court or international tribunal has commenced proceedings that amount to an “effective investigation and prosecution”

11. (IV) Potential Reform on Extraterritorial Jurisdiction? Control on Exterritorial Jurisdiction: More restrictions based on Nationality (active & passive) + Protective principles “Complementarity” principle akin to ICC Minimize risks of widespread extension of extraterritorial jurisdiction yet unenforceable legislation

12. (V) Conflict of Concurrent Criminal Jurisdictions Extraterritoriality  two or more states exercise jurisdictions on a single crime  conflict of concurrent jurisdictions arises Code for Crown Prosecutors in England / Prosecution Code in HK – 2 essential elements in commencing prosecution: (i)Sufficiency of Evidence; (ii) Public Interest Domestic Legislations / Codes: No specific guidance re: under what circumstances & how extra-territorial prosecutions should be carried out

13. (V) Conflict of Concurrent Criminal Jurisdictions International Treaties - little guidance on which state has priority and how to resolve competing jurisdictional conflicts: (i) Bribery: UN Convention 2003 – if state parties learn that more than one of them are investigating the same conduct, they are to “consult one another with a view to coordinating their actions” OECD Convention 1997 – “consult with a view to determining the most appropriate jurisdiction for prosecution”

14. (V) Conflict of Concurrent Criminal Jurisdictions (ii) Sex Tourism: Council of Europe Convention on the Protection of Children Against Sexual Exploitation and Sexual Abuse 2007 - where more than one state claims jurisdiction over an alleged offence, “the Parties involved shall, where appropriate, consult with a view to determining the most appropriate jurisdiction for prosecution.”

15. (V) Conflict of Concurrent Criminal Jurisdictions (iii) Terrorism: • 2002 EU Framework Decision on Terrorism – a more comprehensive consultation provision: “with the aim, if possible, of centralizing proceedings in a single Member state”….. “and should take into account the following factors: • the territory in which the acts are committed; • Member state of which perpetrator is a national or resident; • Member State of origin of the victims; • Territory of which perpetrator was found”

16. (V) Conflict of Concurrent Criminal Jurisdictions Issues: (1) Uncertainty & Unpredictability Accused unable to which forum and what laws he will be subjected to (2) Multiple Prosecutions of the Same Conduct Ne bis in idem – “double jeopardy”: person should not be prosecuted more than once for the same conduct Section 14(7) ICCPR – protection against double jeopardy limited to multiple prosecutions in one state, but not between states Art 20 of Rome Statute of ICC – protection only applies to genocide, crimes against humanity, war crimes & crimes of aggression (3) Right to Fair Trial compromised – if tried in a forum non conveniens

17. (VI) Is Codification the answer? (1) Hierarchy of jurisdictions – Priority to Prosecute Territoriality – strongest nexus: state sovereignty over their own territories Universal – weakest claim – exercisable only in absence of a stronger jurisdictional claim Other Factors in between: Effective prosecution & fair trial / location of the accused / presence of witnesses & evidence / location of victims etc

18. (VI) Is Codification the answer? (2) “Subsidiary / Complementary approach” States with weaker jurisdictional claims (e.g. protective or universal principles) can only prosecute if states with stronger jurisdictional claims(e.g. territorial or nationality) have failed or refused to act Akin to ICC – not intend to “supplant” the state’s jurisdiction, but to “complement or supplement”.

19. (VI) Is Codification the answer? (3) “Custody approach” Custodian States of offenders - under obligation to prosecute or to extradite. E.g. if offender is Custodian State’s national / not covered by extradition regime / dual criminality requirements not satisfied  Custodian State must prosecute

20. Thank You! Felix Ka-ho Ng Partner, Haldanes 7/F Ruttonjee House, 11 Duddell Street, Central, Hong Kong Website: www.haldanes.com Email: felix.ng@haldanes.com