Eeva has an LLM in Human Rights Law (2007) and specialises exclusively in this wide area of practice where she acts as a consultant and a litigator. She has developed a niche area as a member of the English bar, challenging for international clients the issuance of faux international arrest warrants, abuses of process, use of torture and thefts of property by repressive kleptocrat States at the European Court of Human Rights and INTERPOL. Eeva has developed her expertise from her extensive experience of international institutions having worked at the United Nations, the European Union and the Council of Europe as an Advisor on Human Rights. She was a Visiting Professional at the Immediate Office of the Prosecutor of the International Criminal Court in 2010. She also specialises in supporting the rights of arrestees in the so-called war on terrorism and is a member of a defence team in Guantanamo Bay. As a member of 9BRi she has contributed to the work of David Hammond on the issues of piracy and human rights at sea.
Download PDF Version: Opinion 240216 FINAL
Compatibility of Article 3(2) of Law 7-2014 with International Law
- Increased international threat of terrorism has given rise to a greater desire to apply criminal law across borders. On 20 August 2014 the Prince of the United Arab Emirates (UAE) approved Law 7-2014 on combating terrorism and terrorist activities, gazetted on 31 August 2014 and enacted on 1 September 2014. The list of terrorist entities was issued only on 2 November 2014.
- Article 3(2), concerning the scope of implementation, states as follows:
“The provisions of the present Law shall apply to every foreigner present within the State’s territories after having committed, against another state abroad, any of the offences set forth therein and mentioned in any of the effective international treaties to which the State is a member, in case such foreigner is not extradited.”
- The international application of legislative and judicial jurisdiction requires the relevant laws to be clear and their application consistent. This is required as increasingly the locus of the individual or the alleged crime to which the law is being applied internationally is within the territory of another sovereign State. Where exceptions to the clarity and consistency exist and the law does not apply in a like manner, defensible reasons for this must exist. Above all, the internationally applied laws should be foreseeable.
- This is an opinion on Article 3(2) of Law 7-2014 and its compatibility with international law and the principles of extraterritorial jurisdiction in particular. As is explained below, a careful study of the Article exposes a number of concerns which are of such gravity that they cannot be reconciled with the principles of international law.
- The sovereignty of states represents the basic constitutional doctrine of the law of nations. The corollaries of the sovereignty and equality of states are 1) the prima facie exclusive jurisdiction over a territory and the permanent populations living there, 2) the duty of non-intervention in the area of exclusive jurisdiction of another state and 3) the ultimate dependence upon consent of obligations arising from customary law or treaties.
- Jurisdiction is an aspect of sovereignty and under the law of the nations the overriding presumption is that jurisdiction is territorial and may not be exercised extra-territorially without a specific justification under international law. As a general rule this means that UAE has no jurisdiction to intervene in the territory of another sovereign state.
- This is a notion which is difficult to reconcile with Article 3(2) which maintains that the law 7-2014 shall apply to every foreigner in the UAE who has committed, against another state abroad, any of the offences in this law, in case such foreigner is not extradited.
- the Law allows the use of extraterritorial jurisdiction without justification
- It is beyond doubt that international law generally prohibits the application of law across borders by states, unless specific conditions are met, in specific circumstances.
- For instance, international law provides expressly that all states are entitled to apply their domestic law to alleged pirates. It has been stated in this regard that “whereas according to international law the criminal jurisdiction of municipal law is ordinarily restricted to crimes committed on its terra firma … and to crimes committed by its own nationals where ever committed, it is also recognised as extending to piracy”. Also, Article 13 of the Treaty on International Penal Law 1889 states that “Crimes considered as piracy by public international law fall within the jurisdiction of the State under whose power the criminals come”.
- If international law freely allowed the application by States of domestic law abroad, such express provision allowing it would not have been needed. Moreover, should a general departure from jurisdiction restricted to terra firma be allowed, it would have been certainly allowed in the matter of piracy, which by definition occurs outside territorial jurisdiction, on the high seas.
- Further underlining the matter, Sir Robert Ywedall Jennings, former President of the International Court of Justice, has stated of States claiming jurisdiction extraterritorially: “States do not give themselves unlimited discretion in the matter [of applying their laws]. Their municipal laws – even those of States which make extensive claims to extraterritorial jurisdiction … It seems reasonable to infer from the existence of these principles of extraterritorial jurisdiction, firmly entrenched as they are in the practice of States, that some justifying principle is thought to be necessary to found extraterritorial jurisdiction; that it is not a matter for sovereign discretion.”
- These examples are fleshed out for the purpose of showing that where the UAE claims its domestic law to apply internationally, it would have to be expressly so allowed under the principles or express agreements of international law. As Law 7-2014 and in particular Article 3(2) currently stand, their extraterritorial application is not allowed under the established principles or international agreements.
- The Law allows the absence of genuine connection of Mr Alaradi to the UAE
- The circumstances where State may apply its legislative or judicial jurisdiction relate to territory, active or passive personality, protective or universal jurisdiction. These categories are, effectively, examples of legally required connections between the State and the person over whom jurisdiction is sought. In the presence of such connection, the State is fully within its rights to exercise its jurisdiction.
- In the increasing internationalisation of criminal law, the normative framework is emerging where a genuine connection is required between the individual who is the subject matter of jurisdiction and the state seeking to claim jurisdiction or reasonable interests of the state in question.
- Key element in the requirement of genuine connection is that the State claiming jurisdiction is obliged to justify its claim over the individual. As stated by Sir Robert Ywedall Jennings: “It would be intolerable if States were permitted without any justifying legitimate interest to attempt to control the doings of foreigners in their own countries.”
- Yet, it must be noted that in this particular framework certain flexibility is allowed simply because significant consideration is given to the rights of other states involved. There are, of course, limits to this flexibility and for example it would not extend to sanctioning a unilateral exercise of jurisdiction over a non-national without an agreement with their state of nationality.
- Intolerably, and in dire violation of the most fundamental principles of international law, Article 3(2) clearly attempts to control the doings of foreigners in other States. It fails to require any nexus what so ever between the individual the jurisdiction is sought over and the UAE. Should the required connection consist of a non-national taking a family holiday in the UAE territory, this proposition would at best be a frivolous one. It is plain that holidaying, as such, cannot constitute a meaningful and genuine connection under international law.
- Consequences of ignoring this requirement are potentially grave. This lacuna in Law 7-2014 could, at its worst, be employed to justify a detention in the UAE of a non-national for alleged offences abroad, but who is in fact not suspected of any crime in his country of nationality or elsewhere.
III. The doctrine of extraterritorial jurisdiction is being applied defectively
- If the State claiming jurisdiction has failed to establish a genuine connection to the individual the jurisdiction is claimed over, it will be nearly impossible for the State to claim to satisfy the principles governing the legal application of extraterritorial jurisdiction.
- In this context, it must be noted at the outset that the contention in Article 3(2) that it shall apply to every foreigner present in the UAE who has committed, against another state abroad any of the offences mentioned in any of the effective international treaties, does not, in fact, assist the UAE in justifying extraterritorial jurisdiction. In general, basic tenets of jurisdiction in international treaties are the nationality and territorial principles. For example, none of the exceptional conditions for jurisdiction in the International Convention For The Suppression of The Financing of Terrorismor the International Convention for the Suppression of Terrorist Bombing would justify jurisdiction in a matter where a non-national is being unilaterally accused of an offence abroad by the UAE and not the State of nationality or any other State, and where no connection whatsoever to the UAE exists.
- Should a meaningful connection exist, extraterritorial jurisdiction can be claimed under various grounds. Most relevantly, under the protective principle, nearly all states assume jurisdiction over non-nationals for acts done abroad which affect the security or other key interests of the state. At a lower level of gravity, under the so called effects doctrine the state in question might justify invoking the protective principle where an extra-territorial offence causes harmful effects in the prescribing state without threatening the security of the state. From this it is plain to see that no such principles or doctrines can be justified in a situation where charges and the prosecution case exclusively concern offences allegedly occurring abroad with no impact on the UAE as to the national security, violation of domestic laws or otherwise.
- Article 3(2) does not aim to claim extraterritorial jurisdiction under these two express headings, the internationally allowed protective or effects principles, nor does it apply as drafted to the UAE nationals. As such, all it amounts to is bad law, void of effective extraterritorial reach.
- Further, applying Article 3(2) to an individual with whom the UAE has no genuine connection, outside the established doctrines of extraterritorial jurisdiction, could only amount to incongruous and wanton legal proceedings.
- Article 3(2) may enable false prosecution
- Article 3(2) maintains that Law 7-2014 shall apply to every foreigner present in the UAE after having committed, against another state abroad, any of the offences set forth therein, in case such foreigner is not extradited.
- Individual suspected of a crime will not be extradited either because the requested State refuses to extradite the individual, or simply because no State seeks the individual’s extradition. If a request for the extradition of the non-national is not made by a foreign State, it would most obviously indicate that the individual is not suspected nor wanted for any offence abroad.
- Yet, bizarrely, Law 7-2014 effectively reserves the right for the UAE to unilaterally prosecute foreign individuals on behalf of a State of nationality or the locus of the alleged crime, but which has not requested this of the UAE and makes no claim that any offence has in fact taken place. Inexplicably, the Law presumes that in such situation the UAE would seemingly be practicably able and legally justified to unilaterally investigate the allegations concerning events in the territory of another State.
- If in the circumstances referred to above the extradition of a foreign national is not sought by another State, it is clear he has no case to answer in the UAE. Any proceedings in the UAE would amount to a false prosecution of a foreign individual for a crime abroad, which no one claims has taken place. It is impossible to fathom how the legal proceedings would be conducted and thus, inevitably, it would amount to nothing but an exercise in futility.
- In the case of Mr Alaradi Law 7-2014 constitutes ex post facto law
- While Law 7-2014 contains significant shortcomings and suffers from lack of clarity, so does its application by the UAE. In general, law must be applied according to certain, clearly established principles and in a systematic manner. Yet in the case of Mr Alaradi it appears that the UAE has decided to take an ad hoc approach in applying the relevant legal norms instead of the systematic one as well as to simply set aside the most fundamental principle governing the application of criminal law.
- The charges against Mr Alaradi are based exclusively on Law 7-2014. However, it is legally untenable that Mr Alaradi would have been arrested under the provisions of Law 7-2014 as is claimed by the UAE, as the law was not in force at the time of his arrest. Having been promulgated in August 2014, the Emirati constitution states that legislation may only be applied after it is officially issued in the Federal Gazette. The government did not publish Law 7-2014 in the Federal Gazette until 31 August 2014 thereby taking effect on 1 September 2014, while Mr Alaradi was seized by UAE State Security officials in Dubai on 28 August 2014 and transferred to Abu Dhabi. Thus, in most simple terms, UAE unlawfully seeks to apply Law 7-2014 to the case of Mr Alaradi retroactively.
- Criminalising acts which were legal at the time they were taken violates the principle of legality and constitutes a breach of the international law, including the Universal Declaration of Human Rights, International Covenant on Civil and Political Rights, the Arab Charter of Human Rights, European Convention of Human Rights, American Declaration of Rights and Duties of Man and the UAE Constitution which unequivocally states that no person may be arrested, searched, detained or imprisoned except in accordance with the provisions of the law. Importantly, the Constitution further states that crimes and punishments shall be prescribed by the law and that no punishment shall be imposed for any act of commission or act of omission which was completed before the issue of the law which provided for such punishment.
- The reasons why retroactive application of criminal law is not allowed are compelling. Indeed, today it is a rare occasion that an application of such a fundamental and universally uncontested principle should be clouded in a country claiming to be governed by the rule of law.
- Most importantly, the guarantee enshrined in the principlethat only the law can define a crime and prescribe a penalty (nullum crimen, nulla poena sine lege) aims to provide effective safeguards against arbitrary prosecution, conviction and punishment. Key principle refuting retroactive legislation is that the individual must know from the wording of the relevant provision and, if need be, with the assistance of the courts’ interpretation of it, what acts and omissions will make him criminally liable. It will by inevitably and profoundly unfair to sanction certain acts if at the time the individual committed the act he had not had any reason to abstain from it. It is also widely accepted notion that all enacted laws may be legal but for a law to be legitimate it must, among other requirements, be clear and foreseeable to an ordinary citizen.
- While the presumption against retrospectivity is unwavering in the international Convention rights as noted above, it is also a strong and widely applied notion of common law fairness. For example, the prohibition on retroactivity in criminal cases is an uncontested principle of the English law. In R v Rimington Lord Bingham stated that retroactivity in criminal law is prohibited under “ two guiding principles: no one should be punished under a law unless it is sufficiently clear and certain to enable him to know what conduct is forbidden before he does it; and no one should be punished for any act which was not clearly and ascertainably punishable when the act was done.” Concerning the principle of legality in an ongoing litigation brought by a private individual against the State, it was stated by Mrs Justice Lang in a case heard at the Queen’s Bench Division of the Administrative Court in the United Kingdom in 2014, that “[r]etrospective legislation may be defined as law making which alters the future legal consequences of past actions and events,” while adding that “The constitutional principle of the rule of law was expressly recognised in section 1, Constitutional Reform Act 2005. It requires, inter alia, that Parliament and the Executive … abide by the principle of legality. Although the Crown in Parliament is the sovereign legislative power, the Courts have the constitutional role of determining and enforcing legality. Thus, Parliament’s undoubted power to legislate to overrule the effect of court judgments generally ought not to take the form of retrospective legislation designed to favour the Executive … unless there are compelling reasons to do so. Otherwise it is likely to offend a citizen’s sense of fair play.” In other words, the basis of the principle against retrospectivity is “no more than simple fairness, which ought to be the basis of every legal rule”.
- From the laws and statements above it can only be deducted that retrospective legislation is contrary to the general principles of criminal law. In this legal and normative framework exceptions to the principle of legality and foreseeability are nowhere to be found. Thus, under the existing legal structure it will not be possible for the UAE to justify the application of Law 7-2014 to Mr Alaradi.
- Law 7-2014 suffers from debilitating lack of clarity and while still new, this would imply that it will inevitably be applied unsystematically. The lack of clarity is not defensible. The Law is not foreseeable, as is required of criminal law, in a sense that it will most certainly be applied in an inconsistent manner.
- The Law fails in its entirety to justify any exercise of extraterritorial jurisdiction and omits a key requirement of a genuine connection between the State and the individual. It also appears to potentially allow a false prosecution where the individuals would rightly have no case to answer.
- Any criminal law containing defects will have grave consequences, so does Law 7-2014. It imposes tough penalties on violators, including the death penalty and life imprisonment. It does not align with international legal norms, and the law if used to prosecute Mr Alaradi will certainly result in legal tragedies. Inevitably, in light of the present conditions and the defects in the law, it is my view that all proceedings against Mr Alaradi should be immediately discontinued.
- If the prosecution against Mr Alaradi does continue, the relevant international organisations and treaty bodies safeguarding the right to a fair trial and humane treatment, to which the UAE is a party, should promptly address this legal tragedy and hold the UAE to account for violating the legal standards contained therein.
9 Bedford Row
 In re Piracy Jure Gentium, United Kingdom Privy Council , also reported as A.C. 586; At 589, per Viscount Sankey Lord Chancellor of Great Britain
 Treaty on International Penal Law, adopted by the First South American Congress on Private International Law on 23 January 1889
 Sir Robert Ywedall Jennings, ”Extraterritorial Jurisdiction and U.S. Antitrust Laws” (1957) 22 BYIL 146 at p 150
 Dr Michael Akehurst, “Jurisdiction in International Law” (1972-3) 43 BYIL 145 at p 167
 See, Nottebohm case (Liechtenstein v Guatemala), International Court of Justice Reports (1955); Kingdom of Greece v Julius Bar and Co (1956) 23 International Law Reports 195; Application of the Convention of 1902 Governing the Guardianship of Infants (Netherlands v Sweden), International Court of Justice Reports 1958, Judge Moreno Quintana on p. 109, Judge Winiarski on p. 135-6, Judge Cordova on p. 145 and Judge “ad hoc” Offerhaus on p. 155
 Sir Robert Ywedall Jennings, ”Extraterritorial Jurisdiction and U.S. Antitrust Laws” (1957) 22 BYIL 146 at p 151
 See, European Agreement for the Prevention of Broadcasts Transmitted from Stations outside National Territories, 22 January 1965, 634 UNTS 239.
 United Nations International Convention for the Suppression of the Financing of Terrorism, adopted 9 December 1999; See Article 7
 United Nations International Convention for the Suppression of Terrorist Bombing, adopted 15 December 1997; See Article 6
 Nusselein v Belgian State (1950) 17 ILR 136, Public Prosecutor v L (1951) 18 ILR 206; Re van den Plas (1955) 22 ILR 205; Rocha v United States, 288 F.2d 545 (9th Cir, 1961); Italian South Tyrol Terrorism Case (2) (1970) 71 ILR 242; Arrest Warrant, International Court of Justice reports 2002, President Guillaume p. 37, Judge Rezek p. 92
 Article 11(2)
 Article 15(1)
 Article 15
 Article 7
 Articles 25 and 26
 Article 26
 Article 27
 See Camilleri v Malta, European Court of Human Rights, Application no. 42931/10, 22 January 2013, p. 34; Scoppola v. Italy (no. 2), European Court of Human Rights, Application no. 10249/03, 17 September 2009, p. 93-94
 See Del Rio Prada v. Spain, European Court of Human Rights, Application no. 42750/09, 21 October 2013, p. 79; Scoppola v. Italy (no. 2), European Court of Human Rights, Application no. 10249/03, 17 September 2009, p. 93-94
 See Del Rio Prada v. Spain, European Court of Human Rights, Application no. 42750/09, 21 October 2013, p. 77-80; Coëme and Others v. Belgium, European Court of Human Rights, Application nos. 32492/96, 32547/96, 32548/96, 33209/96 and 33210/96, § 145, ECHR 2000‑VII, p. 145; E.K. v. Turkey, European Court of Human Rights, Applicatin no. 28496/95, 7 February 2002, p. 51
  1 AC 459, p. 33
 R. (on the application of Reilly) v Secretary of State for Work and Pensions  EWHC 2182 (Admin). p. 51
 R. (on the application of Reilly) v Secretary of State for Work and Pensions  EWHC 2182 (Admin). p. 82
 L’Office Cherifien des Phosphates v Yamashita-Shinnihon Steamship Co. Ltd  1 AC 486 , per Lord Mustill at 525