The Ash Twins Blog

Jurisdiction from the nationality of the victim has been called elsewhere “the passive nationality principle,” but I prefer the less opaque “victim-nationality jurisdiction.” It is the legal mechanism by which countries gain jurisdiction over crimes perpetrated against their own citizens regardless of where the crime occurs.[1] While victim-nationality has historically been opposed by the United Kingdom and the United States,[2] it has become more common in the last few decades, especially as part of multilateral agreements on terrorism.

Victim-nationality jurisdiction serves a state’s self-interest in protecting its citizens from harm even when they are abroad. Each of these citizens, through tax contributions, helps fund the extra criminal infrastructure necessary for prosecuting crimes committed abroad. While potentially costly, it theoretically should deter crimes against the country’s nationals wherever they travel.

The effectiveness of victim-nationality jurisdiction as a roaming deterrent has not been systematically investigated, but there is reason to doubt that effectiveness. Unless the exercising state’s nationals advertise their nationality at all times when traveling abroad, prospective offenders will not recognize the prospective victim’s nationality and thus fail to register the increased expected cost from punishment. Presuming that offenders could perfectly distinguish visitors on nationality, this theory also assumes that criminals have perfect information about which states exercise victim-nationality jurisdiction. This is also improbable. For victim-nationality jurisdiction to effect a palpable deterrent, some critical mass of countries would have to implement it such that there was always some cognizable chance that committing a crime against a visitor would result in prosecution by the visitor’s home-country.

This disconnect might be explained by psychological reciprocity instincts: humans have a strong retrospective retributive instinct against those who have injured members of their in-group, regardless of the ex ante deterrent effect. The possibility of impunity in cases where a fellow citizen has been injured triggers an autonomic adverse reaction in one’s countrymen. As a democratic whole, therefore, we elect leaders who will follow victim-nationality jurisdiction, regardless of its deterrent efficacy.

Nationality is a noisy signal, so victim-nationality jurisdiction could actually serve to increase deterrence for crimes against all individuals. If this be the case, then victim-nationality jurisdiction is an instrument of state cooperation and contributes to a public good of transnational criminal deterrence. Realistically, though, it doesn’t serve to deter crimes against all people, but rather increases deterrence for crimes against people who look like they are probably from a country that follows victim-nationality jurisdiction. Because European nations are more likely to enact victim-nationality jurisdictional mechanisms, then, individuals of European descent may be less attractive victims for crime throughout the world. Race-based differences in crime-victimization rates would be evidence of this dynamic. Of course, this increased expected cost of crime must be balanced against the expected benefit, and it’s possible that countries with victim-nationality jurisdiction might also have, on average, wealthier citizens. If that’s the case, victim-nationality jurisdiction might just serve to equalize deterrence for a country’s citizens and thereby enable them to go abroad without disproportionate fear of crime.

The interesting implication of victim-nationality jurisdiction is that, counter to most tourism advice, tourists from those countries implementing victim-nationality jurisdiction should actually advertise their nationality. This signal would deter prospective criminals. Indeed, in theory, these tourists should be safer even than locals, because crimes against them could be punished by either the government of the country where the crime occurred or the government of the victim’s home-country. Empirical data bearing on which effect is controlling are not currently available.

[1] European Committee on Crime Problems, “Extraterritorial criminal jurisdiction,” Council of Europe (1990).

[2] See Cutting (1886).