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Extraterritoriality and extradition

  • Legislation should prohibit the practice of taking girls out of a country where a harmful practice is illegal to a country where the practice is allowed.
  • Legislation should provide that persons who commit a harmful practice or procure, aid or counsel another who is not a resident of the country to commit the harmful practice outside of the borders of their country shall be pursued, prosecuted and punished. 
  • Drafters should not require that the harmful practice be a crime in the country where it was committed in order to be able to prosecute individuals for behavior related to the harmful practice. 
  • Drafters should allow for extradition of perpetrators of harmful practices. 
  • Drafters should review diplomatic protocols to ensure that victims have access to consular assistance in third countries. Drafters should ensure that policies governing diplomatic assistance to dual nationals heed the country of habitual residence or greatest ties rather than defer to notions of state non-responsibility.

Examples (the following can also be found within the section on Female Genital Mutilation):

(a) causes that child to be sent or taken out of New Zealand; or
(b) makes any arrangements for the purposes of causing that child to be sent or taken out of New Zealand.      

(2) Every one is liable to imprisonment for a term not exceeding 7 years who, in New Zealand, aids, incites, counsels, or procures the doing, outside New Zealand, in relation to any person who is a New Zealand citizen or is ordinarily resident in New Zealand, of any act which, if done in New Zealand, would be an offence against section 204A, whether or not the act is in fact done.          

(3) Every one is liable to imprisonment for a term not exceeding 7 years who, in New Zealand, incites, counsels, procures, or induces any person who is a New Zealand citizen or is ordinarily resident in New Zealand—  

(a) to submit, outside New Zealand, to any act which, if done in New Zealand, would be an offence against section 204A; or
(b) to acquiesce in the doing, outside New Zealand, on that person, of any such act; or
(c) to permit any such act to be done, outside New Zealand, on that person,—
whether or not, in any case, the act is in fact done.

  • UK: Female Genital Mutilation Act 2003, Sec. 3 and 4:
    3     Offence of assisting a non-UK person to mutilate overseas a girl’s genitalia
    3(1): A person is guilty of an offence if he aids, abets, counsels or procures a person who is not a United Kingdom national or permanent United Kingdom resident to do a relevant act of female genital mutilation outside the United Kingdom.
     
    3(2): An act is a relevant act of female genital mutilation if—        

 (a) it is done in relation to a United Kingdom national or permanent United Kingdom resident, and
 
(b) it would, if done by such a person, constitute an offence under section 1 [definition of the offence of FGM].        

  4     Extension of sections 1 to 3 to extra-territorial acts 
 4(1): (1) Sections 1 to 3 extend to any act done outside the United Kingdom by a United Kingdom   national or permanent United Kingdom resident.

…( c ) under the age of eighteen years, with the intention that an act be committed outside Canada that if it were committed in Canada would be an offence against section . . . 268 [criminalizing excision] . . . in respect of that person.

Penalty: Level 4 imprisonment (15 years maximum).
(2) In proceedings for an offence under subsection (1), proof that-

(a)  the accused took the person, or arranged for the person to be taken from the State; and
(b)  the person was subjected, while outside the State, to prohibited female genital mutilation-

is, in the absence of proof to the contrary, proof that the accused took the person or arranged for the person to be taken from the State with the intention of having prohibited female genital mutilation performed on the person.

 

Promising Practice: Norway – New rules for entering into marriage outside Norway

Norway promulgated new rules governing marriages outside of Norway when at least one of the spouses is a Norwegian citizen or permanent resident. A marriage that takes place outside of Norway will not be recognized in Norway if:

  • One of the parties is under the age of 18 at the time of the marriage;
  • The marriage is entered into without both parties being physically present during the marriage ceremony, e.g. a marriage by proxy or telephone marriage; or
  • One of the parties is already married.

If any of these factors are present, the couple may be denied family reunification to live in Norway.  Conditioning validity of the marriage on the spouses’ ages at the time of marriage, rather than at the time of the application for family reunification, is an important safeguard against child marriages. The rules are available in Norwegian, English, Somali, Sorani, Arabic and Urdu.

Diplomatic Protocols

Drafters should review diplomatic protocols to ensure that victims have access to consular assistance in third countries. Drafters should ensure that policies governing diplomatic assistance to dual nationals heed the country of habitual residence or greatest ties rather than defer to notions of state non-responsibility. Women and girls who possess dual citizenship are particularly at risk of being denied access to consular assistance. A State Party to the Convention on Certain Questions relating to the Conflict of Nationality Laws (1930) is barred from offering “diplomatic protection to one of it nationals against a State whose nationality such person also possesses” (Art. 4).  Drafters whose states have ratified this convention may find it deters assistance to victims of harmful practices such as forced marriage who have been removed from their country of residence to another country of nationality for purposes of forced marriage.  Drafters should take note of commentators’ view that the principle articulated in Article 4 is premised on the outdated doctrine of non-state responsibility; dominant and effective nationality principles provide that, regardless of dual nationality, the state to which the person has the greatest connection may offer diplomatic protection. (See: Sara Hossain and Suzanne Turner, Abduction for Forced Marriages, Rights and Remedies in Bangladesh and Pakistan, Int’l Fam. L., April 2001 (noting that commentary in the Explanatory Report of the European Convention on Nationality provides that a state may offer diplomatic protection to one of its nationals who holds dual nationalities)) 

States offering diplomatic protection to victims of harmful practices, such as forced marriage, in other countries must ensure appropriate guidelines and trainings are in place for consulate officials. Recommendations include: providing appropriate guidelines to consulate officials, in particular regarding assisting dual nationality holders and not contacting relatives in the country of residence; training for consulate staff on women and girls’ human rights; establishing a database to monitor forced marriage cases; developing an intervention protocol modeled on child abduction responses; entering into consular agreements with other countries to ensure victims are guaranteed protection. (See: S. Hossain and S. Turner, Abduction for Forced Marriages, Rights and Remedies in Bangladesh and Pakistan, Int’l Fam.L., April 2001, 1-64, pp.15-24) 

(See: Forced and Child Marriage Section)