[Lee Jae-min] Law enforcement beyond borders

One of the common misunderstandings that people have about Interpol is that it operates secret offices at unknown places and sends out special agents all over the globe to catch the bad guys.

In many movies, agents from Interpol are sheriffs of the global village and guardians of the transnational rule of law. This is just wrong. There is no such secret office or agent. It is merely an information-gathering and sharing entity to assist national law enforcement agencies in doing their job within their territories.


The jurisdiction of the national authorities stops at their borders. A “global” law enforcement agency with jurisdiction over crimes committed on a global scale is yet to come. So, here is the dilemma: law enforcement is by nature local, but crimes are increasingly global.

The response by national authorities to this mismatch has been two-pronged. The first is an effort by them to expand their domestic criminal jurisdiction on various grounds. Key operating terms such as “territories” and “nationalities” are interpreted as broadly as possible, so that foreign nationals and activities taking place outside national boundaries are still caught by national jurisdiction for prosecution and punishment. So, global crimes can be punished one way or another. But other countries, whose nationals and their activities are covered by such broad application of one country’s laws, sometimes register displeasure and even claim an illegitimate extraterritorial application of domestic law.

Another response ― a more conciliatory one ― is to establish and tighten the web of cooperation between individual countries’ law enforcement agencies. This is to cure the fragmented nature of the authority of respective national law enforcement agencies by concluding treaties of cooperation. One country makes arrests at the request of another and extradites those arrested. Evidence is gathered and witness arranged for another country’s legal proceedings. Extradition Treaties and Mutual Legal Assistance Treaties are the two most common types of legal instruments concluded by states.

The U.S. government’s indictment of FIFA officials over the allegations of bribes and kickbacks is the most recent example portraying the global nature of crimes with a panoramic view of the two-pronged approach of law enforcement agencies.

Those indicted are mostly foreign nationals residing in other countries ― indeed only two of 14 indicted are U.S. nationals, and seven FIFA officials were arrested in Zurich, Switzerland. Nonetheless, their utilization of bank accounts in the United States for the alleged bribery transaction has prompted the U.S. authorities to exercise jurisdiction. This indicates that utilization of the global financial network ― which is almost inevitable for any sort of transaction these days ― can invite jurisdictions of several states participating in the system, even if a criminal activity itself takes place outside the physical boundary of one country.

This exercise of jurisdiction has triggered, not surprisingly, claims of extraterritorial application of one country’s domestic law. Russian President Vladimir Putin described this indictment as “yet another obvious attempt to spread (the U.S.) jurisdiction to other states,” which was echoed by Sepp Blatter, embattled FIFA president, saying arrest for U.S. financial crimes should be made “in America and not in Zurich.” This contradicts the American stance that something did happen in U.S. territory when its financial system was used by someone, which then gives it the authority to exercise criminal jurisdiction as with any other crime happening on its soil.

Then, there is the issue of U.S.-Swiss Extradition Treaty of 1997. This is the only legal vehicle for the U.S. government to secure the seven officials arrested in Zurich for trial in the U.S. An extradition decision takes a lengthy domestic procedure of a sending state, as we recently saw in a case between Korea and France.

So, many elements of law enforcement activities in the globalized world are being tested in the new development involving the worlds’ most beloved sport. If anything, this also shows that a state with a strong financial infrastructure is better positioned to exercise national jurisdiction in this environment of fragmented, competing national jurisdictions.

By Lee Jae-min

Lee Jae-min is an associate professor of law at Seoul National University. ― Ed.

spot_img

Latest Articles