Kara Sears
The applicability of a country's laws to prosecute foreigners is dependent on the legal framework of the country in question. For instance, in the Philippines, while immigration laws can be used to blacklist or deport foreigners who commit crimes, Philippine law cannot prosecute them. On the other hand, the United States has demonstrated a growing trend of prosecuting foreign citizens for acts committed abroad through the legal principle of extraterritorial jurisdiction. This means that the US can prosecute both US citizens and foreign nationals with no connection to the country for certain crimes committed overseas, as long as there is a US-related impact.
| Characteristics | Values |
|---|---|
| Country | Philippines |
| Prosecution of foreigners | No, but immigration can blacklist foreigners who commit crimes |
| Reasons for blacklisting | Being an "undesirable alien", e.g. physically disabled, illiterate, parentless children under 15, beggars, unskilled migrant workers |
| Other reasons for blacklisting | Threat to public safety, e.g. subversives, anarchists; Violations of immigration law, e.g. improper documentation, overstaying |
| Country | United States |
| Prosecution of foreigners | Yes, under the legal principle of extraterritorial jurisdiction |
| Examples of extraterritorial jurisdiction | RICO statute, Maritime Drug Law Enforcement Act (MDLEA), illicit sexual conduct involving minors |
| Treaties affecting prosecution | Extradition treaties, double criminality, statute of limitations |
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What You'll Learn
US law: prosecuting foreign citizens abroad
US law can be used to prosecute foreign citizens abroad in certain circumstances. This is known as extraterritorial jurisdiction, and it is a concept that the US government has increasingly invoked to prosecute foreign nationals with no connections to the US.
Examples of Extraterritorial Jurisdiction
One example of extraterritorial jurisdiction is the RJR Nabisco case, where the US prosecuted RJR Nabisco, a tobacco company, for allegedly conducting a money-laundering scheme with international drug traffickers. The case discussed the applicability of the RICO (Racketeer Influenced and Corrupt Organizations Act) statute to foreign racketeering activity, and the Supreme Court held that RICO could be applied to foreign individuals or American citizens living abroad. Another example is the prosecution of FIFA officials for worldwide corruption in international soccer, which has withstood jurisdictional challenges despite most of the misconduct occurring outside the US.
Types of Crimes Prosecuted
The US government has brought criminal cases against foreign citizens for a range of offenses, including financial crimes, bribery, war crimes, and violations of banking and commerce laws. Other laws that provide federal courts with extraterritorial jurisdiction involve illicit sexual conduct involving minors and the sale of sexual materials involving minors. Additionally, conspiracy charges, where an individual living abroad conspired to commit a crime in the US, and attempt charges, where an individual overseas attempted to commit a crime in the US, may also fall under extraterritorial jurisdiction.
Practical Considerations
Prosecuting foreign conduct requires the cooperation of the country where the crime occurred, and the US has mutual legal assistance treaties to facilitate joint investigations. However, lack of cooperation, language differences, difficulty accessing evidence, and jurisdictional limits over foreign nationals can pose challenges to US prosecution. Extradition treaties may also impact the ability to prosecute, as some treaties bar the extradition of nationals or require misconduct to be criminal in both countries.
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US law: prosecuting crimes committed abroad
The United States has jurisdiction over crimes committed by its citizens in foreign countries. For example, a US citizen found guilty of insider trading in China can be prosecuted in the United States. Similarly, a US citizen can be prosecuted in the US for receiving a subpoena and failing to appear in court.
US law also has jurisdiction over crimes committed against US citizens, regardless of the nationality of the perpetrator. For example, a Canadian company incorporated in Canada that defrauded American citizens and shareholders with falsified financial statements can be prosecuted by US law. This is because the American Constitution has anti-fraud provisions to protect US citizens from losses arising from securities fraud.
In addition, the United States can prosecute foreign nationals for crimes committed abroad if the crime is against US interests, such as illicit sexual conduct involving minors, the sale of sexual materials involving minors, or crimes that "shock the conscience", such as war crimes. The US can also prosecute under the Racketeer Influenced and Corrupt Organizations Act (RICO), which covers various crimes and makes them punishable under US law, regardless of the nationality of the accused.
Furthermore, the US can prosecute foreign nationals for crimes committed abroad if the crime is against internationally protected persons, such as diplomats, or if the crime is considered a universal crime, such as piracy or crimes against humanity.
However, there are practical barriers to prosecuting crimes committed abroad, such as language differences, difficulty accessing evidence, and jurisdictional limits. The US also has mutual legal assistance treaties with many nations, facilitating joint investigations and extraditions.
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US law: prosecuting US citizens living abroad
US criminal law is primarily based on territoriality, meaning that it only applies to crimes committed within the United States. However, there are certain circumstances in which US law can be used to prosecute US citizens living abroad. This is known as the principle of extraterritorial jurisdiction.
Extraterritorial jurisdiction allows the United States to prosecute US citizens for crimes committed outside of the country. This can occur when Congress explicitly states that a law has extraterritorial applications, or when the conduct in question has a direct impact on the United States. For example, if a US citizen commits insider trading while on vacation in China, they can still be prosecuted under US law. Similarly, if a US citizen is involved in a conspiracy to commit a crime in the United States while living abroad, they can be charged with conspiracy charges under US law.
The Supreme Court has also held that certain statutes, such as the RICO statute, have extraterritorial reach. This means that foreign individuals or American citizens living abroad can be prosecuted in the United States under these statutes, even if the conduct had no direct impact on the country. For example, the RICO statute has been applied to foreign racketeering activity, including money laundering and corruption in international soccer.
In addition to prosecuting US citizens, extraterritorial jurisdiction also allows the United States to prosecute foreign nationals with no connection to the country. This is often done through banking laws and the chain of commerce. For instance, the United States has prosecuted Swiss banking officials for their involvement in money laundering and drug trafficking, arguing that their conduct affected the US banking and regulatory system.
When prosecuting crimes committed abroad, the United States faces several challenges, including the need for cooperation from foreign governments, language barriers, and difficulty accessing evidence. Extradition treaties may also come into play, with some treaties barring the extradition of nationals. Despite these obstacles, the use of extraterritorial jurisdiction by the United States is increasing, demonstrating the long reach of US law.
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Philippines law: prosecuting foreigners
Philippine law does not allow for the prosecution of foreigners. Instead, the country's immigration authorities use a blacklist system to deal with crimes committed by non-citizens. Foreigners who commit crimes in the Philippines may be blacklisted or deported. Reasons for blacklisting include being an "undesirable alien", such as a person who is physically disabled, illiterate, a parentless minor under the age of fifteen, a beggar, homeless, or an unskilled or manual labour migrant worker. Foreigners who are considered a threat to public safety, such as subversives, anarchists, and those affiliated with groups that aim to overthrow the government, are also blacklisted. Violations of Philippine immigration law, such as improper documentation or overstaying, will also result in blacklisting.
The Philippine Bureau of Immigration (BI) may consider the participation of foreign nationals in demonstrations or political rallies as anti-government and a violation of the terms of admission, which can result in detention or deportation. Foreigners are also subject to local laws, and violating these laws, even unknowingly, may result in expulsion, arrest, or imprisonment. For example, penalties for possession, use, or trafficking of illegal drugs are strictly enforced and can result in significant prison terms, substantial fines, or even life imprisonment.
The Philippines has an extradition treaty with the United States, which allows for the extradition of individuals for certain offences. The treaty also recognises the jurisdiction of US courts to hear criminal cases involving offences committed outside the US if the crime had effects in the country or if there was clear Congressional intent to assert such jurisdiction. However, the Philippine government's ability to prosecute extraterritorial offences is more limited.
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Extradition treaties: barring extradition of nationals
Extradition treaties are agreements between two countries to surrender fugitives from justice to the country where they are wanted in exchange for diplomatic assurances that the surrendered person will be prosecuted or punished for the crimes they have committed. The first US extradition treaty was with Ecuador and came into force in 1873. Since then, the US has entered into extradition treaties with 116 countries. These include Austria, Belgium, Bulgaria, the UK, France, and many others. The most recent US extradition treaty is with Croatia and has been in force since 2022.
Some countries with extradition treaties with the US have refused to extradite. These include Cuba, Bolivia, Ecuador, Egypt, Iceland, Nicaragua, Pakistan, Switzerland, Venezuela, and Zimbabwe. The US does not have an extradition treaty with China, Indonesia, Iran, Kazakhstan, Mongolia, Russia, Taiwan, Ukraine, Vietnam, the Gulf Cooperation Council states, most African states, and most former Soviet states, among others.
Treaties generally require that a formal extradition request be submitted within a deadline, typically between 40 and 60 days after the provisional arrest. The principle of "dual criminality" underlies most extraditions and is reflected in all recent US extradition treaties. It reflects the internationally accepted understanding that a requested state will only extradite a person for prosecution or punishment if the alleged or proven conduct, had it occurred in the territory of the requested state, would also be deemed criminal. In other words, the crime must be regarded as serious in both the requesting and requested countries, and the seriousness of a crime is measured by the potential punishment. Treaties will generally require that the extraditable crime be punishable under the laws of both countries by at least one year of imprisonment.
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Frequently asked questions
Yes, the US can prosecute foreigners for acts committed abroad under the legal principle of extraterritorial jurisdiction. This is especially true if the crime has a US-related impact or if the foreigner is a national of a country that has an extradition treaty with the US.
This is the concept that US law can be applied to prosecute both US citizens and foreign nationals for acts committed outside of the US. Congress has enacted laws that explicitly provide courts with extraterritorial jurisdiction, such as the Maritime Drug Law Enforcement Act (MDLEA).
The US Government’s prosecution of FIFA officials for participating in a world-wide criminal enterprise of corruption in the international soccer world. Another example is the RJR Nabisco case, in which the US Supreme Court held that the RICO statute could be applied to foreign racketeering activity.
