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If you commit a crime on the border of two different countries*, which will you be charged in?

In addition, for the sake of argument:

  • Both countries want to separately trial the criminal
  • The criminal is a citizen of both countries**
  • The police of both countries appear at the same time
  • The suspect stays on the border after committing the crime.
  • The criminal act is illegal in both countries, but the sentences are different.

  • The countries hate each other
  • It is not a crime against humanity - just a violent crime such as a murder.

*technically, jurisdictions, but then it interferes with the wording of this question

**or, alternatively, the criminal is stateless

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    Where is the suspect arrested? What extradition laws hold between the country of arrest and the potentially prosecuting countries? What is the crime? (E,g, the US will not extradite a person to Saudi Arabia for the crime of apostacy). – user6726 Aug 18 '16 at 19:21
  • @user6726 updated – noɥʇʎԀʎzɐɹƆ Aug 18 '16 at 19:23
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    Since the countries hate each other, if he is in country A when arrested, he will be tried by country A, and if he is in B, then B will try him. If he is straddling the border, it depends on whose people grab him, pull him across the line, and keep him. Whoever actually has him gets to decide. However, if the choice of penalties is e.g. death vs. a fine, and the country with a fine as the penalty really hates the guy, then might let the country with the death penalty have him. Anyhow, there's no overarching legal rule. – user6726 Aug 18 '16 at 22:21
  • Agreed. You're hypo is missing key facts, which is the inherent problem with merely thinking up a legal issue that you believe may not have been elucidated and some other case(s). In this instance, one would need to know exactly which soviern state the crime actually occurred in. Unless somebody committed a crime with 1 foot in each nation state, and if that is the fact he would need to explain how, both countries do not have jurisdiction. Border crimes are typically committed in one jurisdiction or the other. Sometimes hypotheticals simply push the bounds of what's realistic. – gracey209 Dec 22 '16 at 14:00
  • @gracey209 but who would decide who's jurisdiction the accused was in? How do they get evidence for that? – noɥʇʎԀʎzɐɹƆ Dec 22 '16 at 15:50
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The decision will be made by whichever country arrests him first (although a minority of countries allow for the trial of people who break their criminal laws in absentia). Needless to say, if nobody manages to arrest him ever, he will not face any criminal consequences except the issuance of an arrest warrant possibly accompanied by a pre-existing conviction in absentia if arrested in countries that allow for such a proceeding.

Normally, in these circumstances, either country would have jurisdiction under its own laws to prosecute and punish the criminal, and many extradition treaties would not require the extradition of someone who committed a crime punished domestically in the state in whose custody the criminal is as part of the same course of events.

Many countries will not extradite someone if they could face the death penalty in the receiving country. But, sometimes law enforcement in a country with a less serious penalty will intentionally defer to law enforcement in a country with a more serious penalty that is simultaneously trying to arrest him.

Ordinarily, law enforcement is not authorized to use deadly force to arrest someone who is simultaneously being arrested by law enforcement from another country against either the arrestee or the law enforcement from the other country. Indeed, using deadly force against another country's law enforcement officers who are carrying out a lawful arrest in their own country would ordinarily be considered an act of war.

U.S. double jeopardy provisions of the constitution do not prohibit a second prosecution of an offender in these circumstances because of a first prosecution by another sovereign, but many prosecutors in many countries would decline to prosecute someone a second time for the offense that they have already been convicted of in exercise of their discretion, and many judges would consider time served in another country for the same offense as a factor in setting their own sentence.

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Assuming that the crime is of an international nature (e.g. a cybercrime), then there are a few things that may come into play: (and surprisingly, some of these things aren't law-focused)

  • Extradition treaties

    Do the countries like each other? Do they have an agreement to transfer criminals from country to country? Politics may come into play quite heavily here - the transfer of one to be prosecuted may involve a trade off, or some other agreement coming into play. Unless the countries have an extradition treaty, then it may be difficult.

  • International treaties

    Is the crime a crime against humanity? If both countries recognize the authority of the International Criminal Court, then that court will be in charge of prosecuting the crime.

  • Constitutional law - the doctrine of "double jeopardy"

    In some countries, there is often a doctrine of "double jeopardy" - that is, that you can not be prosecuted for the same crime twice. Because of this, it may be unconstitutional in one country for a person to be sent to another country, if they are going to be prosecuted again for that crime. Example: §11(h) of the Canadian Charter of Rights and Freedoms

  • Constitutional law - any violation of rights.

    By sending a person to another country, do we put them in a position where their constitutional rights of the first country are violated.

    Not to sure how to explain this one, so I'm going to explain a real life situation. In Canada, the death penalty is unconstitutional. The United States, wanted Canada, under extradition treaties, wanted two people charged for murder, to be tried in the United States. This posed a constitutional problem: by sending these two people to the US, they may be subject to the death penalty. For Canada to extradite the two people to the US, they sought assurance that the death penalty would not be sought. If you want to learn more, see United States v Burns

These are the most common things to consider. Do remember though, that there are many more.

  • updated the question – noɥʇʎԀʎzɐɹƆ Aug 18 '16 at 19:42
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    The ICC is a court of last resort. It's not going to be taking a case where not one but two governments are ready, willing, and able to prosecute. The point is only to handle cases where the national governments with jurisdiction are not acting, not to supplant national courts on war crimes. – cpast Aug 19 '16 at 6:59

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