The Self-assumption of Jurisdiction: An Abuse of Process or a Necessary Evil?

Abstract

The self-conferment of jurisdiction by domestic criminal courts, especially when universal jurisdiction is being relied upon, should not be construed to mean that such courts are acting ultra vires. It has become a necessary evil. The recent expansion of universal jurisdiction is a commendable development especially because international courts and tribunals have not always been up to the job for reasons which are not always imputable to them, Omar Al Bashir being a typical case in point. It does not necessarily entail an abuse of process. Domestic prosecutions need to be encouraged. The ensuing uncertainty as to where an individual will be prosecuted and as to where an individual should be prosecuted is the by-product of the failure of international law to set up a clear hierarchy which establishes the proper prosecuting forum. The default allows practical factors, such as the whereabouts of the suspect and the domestic application of aut dedere aut judicare rule by the custodial State, to determine the prosecuting forum. The value of positive complementarity is best appreciated when States embark onto prosecuting. Criminal courts and human rights courts could claim to be endowed with inherent powers. The compétence de la compétence doctrine has been used by the IACtHR, amongst others. The principle of mandatory prosecutions, the escalation of which owes its existence to the increasing crystallization of the aut dedere aut judicare rule and to the complementarity principle of jurisdiction, seems to be gaining impetus rapidly. Grounds for refusal of extradition should be restrictively interpreted.