The Exercise of Kompetenz-Kompetenz in the Determination of Presumptive Jurisdiction

Abstract

Universal jurisdiction purports to extend judicial power by overstretching jurisdiction. Recourse to implied powers may be justifiable in terms of the need to enforce victims’ rights. The ICC, as arbiter of its own jurisdiction, enjoys such power. Within the framework of admissibility proceedings, it may actually press a State to start or to reopen an investigation. International courts enjoy such inherent powers, but the same may not necessarily apply to domestic courts. In so far as such courts are concerned, the inaction of a State could anyway fall within the rubric of international human rights law. Where a nolle prosequi subsists, the only way a case can be brought to the court’s cognisance is by means of a private prosecution. Many States cater for this. When proceedings are discontinued by the prosecutor, courts should be allowed, de lege, to order prosecutors to continue such proceedings. This, however, could be useless if the prosecutor makes no effort to produce the relevant incriminating evidence. When shielding occurs the role of a domestic criminal court assumes significance. This is because the criminal court could allow the alleged victim to take over by acting as a subsidiary prosecutor. Alternatively, the criminal court should at least acknowledge, in its judgment, that there subsists the suspicion that the accused has been (deliberately) shielded. Its judgment will hence possess a marked declaratory dimension which may be referred to by other courts, be they domestic or international, which subsequently assume a ground of jurisdiction to prosecute the suspect.