By Rafael Santa Maria (PO ’20)
On April 11, Spanish police detained an 18-year-old Italian man accused of sexually assaulting a 17-year-old British national on a Mediterranean cruise ship. However, the suspect was promptly released by a Spanish judge who claimed that Spain had no jurisdiction over the case.
Specifically, the judge argued that Spain could not prosecute the suspect because the crime took place on international waters. Furthermore, the crime did not involve Spanish nationals and the vessel, the MSC Divina, is registered as a Panamanian ship. Citing these international complications, the judge decided to forgo investigation and prosecution.
Spain’s inability to prosecute stems from a 2009 modification to the country’s legal system, which limited Spain’s adherence to the doctrine of universal jurisdiction. First codified in the 1949 Geneva Conventions, universal jurisdiction permits a country to arbitrate certain crimes, even if they were committed outside of the state’s territory or do not involve its nationals. But, as a consequence of the 2009 reforms, Spain mandated that crimes committed outside of its territory could only be heard if they involve Spanish victims or suspects present in Spain.
Unable to hear the case, the judge deferred responsibility to British, Italian and Panamanian courts instead. Still, authorities from these countries have not taken legal action and it remains unclear if or when they will begin investigations. Even worse, the judge simply released the suspect without penalty rather than extradite him to another country to face prosecution.
Unsurprisingly, the judge’s actions faced criticism from non-profit organizations and legal experts. Aleksandra Ivankovic, the deputy director of the non-profit organization Victim Support Europe, lamented the failure to respect the victim’s human rights. Ivankovic pointed out that under European law established by the Istanbul Convention, Italy could assert jurisdiction over the case since the suspect is an Italian citizen.
Additionally, Frederick Kenney, the legal affairs director for the UN’s International Maritime Organization, noted that European Union agreements specifically permit the extradition of suspects for prosecution. Puzzled, Kenney stated, “Why that avenue was not employed is unclear to me.” On the other hand, Kenney also highlighted the ambiguity of the case and conceded that no single law or policy provides definitive answers. Although Kenney acknowledged that extradition should have been utilized first, he nonetheless stated that, “There is no international law that covers this situation at the moment.”
Further complicating this legal snafu is the potential jurisdiction conflicts created by admiralty law. Under admiralty law, vessels are subject to the laws of the country under which they are registered, and jurisdiction cannot be transferred under normal circumstances. In the case of the MSC Divina, this may prevent all countries besides Panama from getting involved, even though the Panamanian government remains indifferent to the situation.
However, admiralty law experts also emphasize that, “there must be more than insubstantial contact between the ship and its flag, in order for the law of the flag to apply.” Considering that the MSC Divina is owned by a Swiss company, and that the crime occurred on international waters between non-Panamanian citizens, it seems plausible that jurisdiction can still be transferred.
Still, the future of the case cannot be determined yet. So far, each country with a potential claim to jurisdiction has avoided investigation and prosecution, most likely to avoid potential conflicts over sovereignty. Despite the cruise company’s claims of “cooperating with the authorities overseeing this investigation,” justice has not been pursued and the suspect remains at large. Fortunately, however, staff from the UK’s Foreign and Commonwealth Office have reportedly provided “support and assistance” to the victim and her family.
Overall, this tortuous case represents a perfect storm of jurisdictional ambiguity and conflict. Because of the complicated web of domestic and international legal entanglements involved, all parties have deferred responsibility and failed to take initiative. Their collective failure has barred the pursuit of justice and highlights the need for greater international legal coordination.