State Jurisdiction Under International Criminal Law

CRIMINAL JURISDICTION

Criminal jurisdiction is a term used in constitutional law and public law to describe the power of courts to hear a case brought by a state accusing a defendant of the commission of a crime. Jurisdiction refers to the power of each state under international law to prescribe and enforce its municipal laws with regard to persons and property.

This power can be exercised in three forms, which correspond to three branches of Government. Legislative or prescriptive jurisdiction relates to the competence to prescribe the ambit of municipal laws. Judicial jurisdiction relates to the competence of courts to apply national laws. And enforcement jurisdiction refers to ability of states to enforce the fruits of their legislations.

With the growth of interstate commerce and movement of persons across international borders since the 18th century, Lord Halsbury’s assertion that “All crimes are local, Jurisdiction is only territorial must be viewed as obsolete today. Until recently there did not exist even a general set of rules delineating conflicts of criminal jurisdiction. While conduct occurring solely on territory of one country could logically fall within that country’s competence, a conflict of criminal laws existed where harmful conduct or its effects were felt in more than one state.

Problems of concurrent legislative jurisdiction, and in particular with regard to criminal matters are dealt only where they have been regulated by treaty and even these subject specific treaties provide for a variety of jurisdictional basis with no clear hierarchical order. Issues of criminal jurisdiction remain a highly contentious area of international relations. Even where a specific conduct has been regulated by a treaty, jurisdiction cannot be said to constitute a settled matter, since not only non states parties might oppose the rule but also state parties may disagree with over its ambit, execution or hierarchical nature.

The importance of criminal...