To What Extent, If at All, Should One Country Enforce the Criminal Law of Another? A Doctrinal Analysis of Extraterritorial Jurisdiction, Structural Impunity, and Multilateral Legitimation

Abstract

This study examines the extent to which one state may legitimately enforce the criminal law of another, a question that sits at the intersection of territorial sovereignty, democratic legitimation, and the structural imperatives of transnational criminal justice. The analysis proceeds in three stages. It first establishes the normative objections that speak against the reception of foreign criminal law—grounded in the territoriality principle, the structural incommensurability of legal systems, and the constitutional guarantee of nulla poena sine lege. It then examines the mechanisms of extraterritorial jurisdiction in German law—the flag, active and passive personality, protective, and universality principles, together with vicarious criminal justice—demonstrating that, whilst sophisticated, these mechanisms leave structural impunity vacuums that advancing globalisation and digitalisation render increasingly acute. Drawing on case studies including the OLG Koblenz Syria judgment, the BGH piracy decision, and the prosecutions of Maduro and the US-Israeli attack on Iran, the study further reveals how extraterritorial criminal jurisdiction risks degenerating into an instrument of geopolitical power projection. The study concludes that a state should have recourse to foreign criminal law exclusively within multilaterally legitimated, contractually secured, and institutionally controlled frameworks—and only where no less sovereignty-impairing means is available.