Jurisdiction and Complementarity

Introduction

For many of us familiar with domestic criminal justice systems in common law countries, the term 'jurisdiction' has a limited meaning. It is a term rarely used in day-to-day practice. Unless you work or practice in a country organised along federal lines, or have experience of international criminal law, the meaning of jurisdiction is usually confined to a discussion of the authority of a court or tribunal to adjudicate over a particular offender or offence. In international criminal law, however, the term often has multiple and inter-linked meanings, which this chapter sets out to disentangle and explain.

Under international law, jurisdiction has been described as having three constituent elements or powers: the power to prescribe, the power to adjudicate and the power to enforce.1

1 Prescriptive jurisdiction is the power of States to make law and to determine the reach of that law.

2 Adjudicatory jurisdiction is a term used to describe the ability to subject a person (or thing) to proceedings in a court of law, which adjudicates upon issues brought before it by parties who have the standing to do so.

3 Enforcement jurisdiction reflects the power of a State to compel compliance with its laws and to redress non-compliance, whether through the courts or the executive, within the jurisdictional reach afforded to either institution by the prescriptive power of the State's law-making institutions.2

These powers are reserved to States and are used to preserve peace within the territory of a State and provide a degree of protection and security for its nationals and their private property from both internal and external threats.

Having described what the constituent elements of jurisdiction are, it is then necessary to understand where, and over whom, jurisdiction can be exercised. We are primarily concerned with the exercise of criminal jurisdiction over individuals (since criminal liability, both at a domestic and international level, usually attaches to an individual rather than a group).3 An additional factor to take into account is the nature of the alleged crime and, in particular, whether it is an international crime.

Where a State, through its law officers or courts, exercises jurisdiction over a crime committed entirely in its own territory by one of its nationals, there is rarely any need to resort to international law and consider applicable principles of jurisdiction. However, the growth of mass transit and global commerce, together with the spread of international crime, has meant that States increasingly seek to exercise jurisdiction beyond their own borders. In doing so, they must have regard to what is permitted in international law, which has developed principles of jurisdiction to ensure that the exercise of domestic penal authority does not conflict with the general desire for harmony and order in...

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