Service Jurisdiction under International Law

Abstract

The extraterritorial criminal jurisdiction that a state exercises over members of its armed forces and various civilians associated with the forces cannot be easily explained in terms of the traditional principles of state jurisdiction under international law. Contrary to popular belief, such jurisdiction has little, if anything, to do with the nationality of the defendant. Concerns for the security of the state also fail to justify the often very expansive service jurisdiction. This article argues that such jurisdiction is designed to maintain the discipline of the armed forces. Furthermore, the exercise of service jurisdiction aims at reducing the chances of the state itself being held internationally liable for the conduct of its forces. Also, service jurisdiction should ensure that the possible immunities granted to foreign service members and associated civilians do not lead to an accountability gap.