Does Criminal Law Extend Beyond National Borders?
Can a state punish a person for an act committed abroad if that act is prohibited by national law but legal in the country where it was committed?
The question may seem theoretical. In reality, it has important practical implications. Consider, for example, Italian citizens who, wishing to have a child, travel abroad to resort to surrogate motherhood: a medically assisted procreation technique prohibited in Italy, but permitted and regulated in other jurisdictions. Recently, the Italian legislature intervened to expressly punish such conduct, with the stated intent of making surrogacy a "universal crime."
Punishment Across Borders
The problem, however, isn't limited to surrogacy. In the past, many Irish women traveled to the United Kingdom for abortions when termination of pregnancy was still prohibited by law in Ireland. Something similar still happens today in Italy, where, despite the Constitutional Court's interventions on end-of-life care, patients suffering from irreversible conditions continue to turn to Swiss clinics to have access to forms of assisted suicide that aren't permitted or accessible in our country. In all these cases, the question is always the same: can the criminal law of a country apply to deeds committed abroad, when those deeds are legal in the country where they were committed?
An argument in favor of extending criminal law beyond national borders is easy to see: if a trip abroad were sufficient to circumvent a ban imposed by national law, criminal law would risk being easily flaunted. The state therefore has a clear interest in preventing conduct deemed serious enough to warrant punishment under Italian law from being committed with impunity elsewhere.
The Duty of Obedience Conflicts with Democracy
This reason, however, is not sufficient to justify extending the punitive power of the state beyond its national borders. To demand that citizens must always and everywhere obey the criminal laws of their own state presupposes an unconditional duty of obedience towards the state. This conception can perhaps be applicable to an authoritarian state, which conceives the relationship between individual and authority as a relationship between subject and sovereign. It seems far less plausible in a liberal, pluralist and secular democracy, where that relationship is reversed: it is not individuals who exist to serve the state, but the state that exists to safeguard and protect the freedoms of individuals.
The issue can also be looked at from another perspective. When foreigners are in Italy, no one doubts that they are required to abide by the prohibitions imposed by Italian law. Likewise, Italian citizens abroad should guide their conduct by considering the laws of the country where they are located.
The Principle of Double Criminality
This is where the principle of double criminality becomes relevant. According to this principle, the state can punish conduct committed abroad only if that conduct is also considered a crime in the country where it occurred. Naturally, this principle is subject to exceptions. Some conduct is so serious that it justifies state intervention beyond national borders: crimes against humanity, serious violations of fundamental rights and acts that threaten the security of the state. In these cases, the gravity of the offense may justify the application of national criminal law even to acts committed abroad. But these are, precisely, exceptions, not the rule.
The situation is different for types of conduct that are the object of profoundly divergent assessments in modern democratic societies, such as surrogacy, abortion or euthanasia, but also prostitution, drug use or gambling. In these cases, the fact that a state has chosen to prohibit a certain conduct is not, in itself, sufficient to justify the pretense to punish a person who committed the misdeed in a country that has made a different choice, deciding to permit and not punish that same conduct.
Requiring double criminality means taking pluralism seriously: it means recognizing that different legal systems can provide different answers to complex moral and legal questions. It means admitting that, as a rule, the authority of criminal law stops at the borders of the state. And it means taking seriously a founding principle of liberal democracies: criminal law cannot be transformed into an instrument of state control over citizens, but must remain the last resort to protect individual rights and freedoms.
