When a host state does not prosecute a U.S. national who commits a violent crime abroad, the United States does not exercise jurisdiction. Should the United States eschew nationality jurisdiction, when it may provide the only basis for prosecution? Part II of this article traces the evolution of nationalitybased criminal jurisdiction in U.S. law and asserts that the United States has in fact embraced such jurisdiction in the past, usually to ensure that U.S. offenders abroad were tried by U.S. courts rather than foreign tribunals. Part III examines the current U.S. jurisdictional scheme, which relies on foreign states to prosecute U.S. offenders abroad, and concludes that the scheme is inadequate because foreign states often cannot or will not prosecute. Part In further argues that only nationality-based jurisdiction could extend to all crimes committed by U.S. nationals abroad. Part IV asserts that the establishment of nationality-based criminal jurisdiction would be consistent with the U.S. Constitution and with international law. Finally, Part V sets forth practical considerations that should inform the establishment and exercise of nationalitybased criminal jurisdiction.
Geoffrey R. Watson, Offenders Abroad: The Case for Nationality-Based Criminal Jurisdiction, 17 YALE J. INT’L L. 41 (1992).