One Step Forward, Two Step Backwards: Addressing Objections to the ICC’s Prescriptive and Adjudicative Powers


The Rome Statute of the International Criminal Court (ICC) permits the ICC to exercise subject-matter jurisdiction over individuals who engage in war crimes, genocide, crimes against humanity, and crimes of aggression. However, under Article 13, the ICC may only exercise personal jurisdiction over persons referred by the Security Council under Chapter VII, or over nationals of a state party, or persons whose alleged criminal conduct occurred on the territory of a state party

This article evaluates the interplay between principles of public international law and international criminal law in determining whether the ICC’s grant of jurisdiction under the Rome Statute is performed within the limits of international law when exercised against non-party nationals. The importance of this inquiry is ever-increasing in light of greater and more expansive breaches of international humanitarian law in the modern world, committed by nations and individuals who have refused to become parties to the Rome Statute.

This paper suggests that the ICC’s grant of authority to exercise jurisdiction over non-state nationals is consistent with customary norms of international law, even where the state of nationality has not consented to the Court’s jurisdiction. This paper concludes that the ICC was established to prevent impunity by reinvigorating national institutions. It is the culmination of historical lessons that teach against non-cooperation. The Nuremburg and Tokyo tribunals along with the tribunals in Rwanda and Yugoslavia were built for the precise purpose of accounting for crimes which transcend national borders. Objections to the Rome Statute, based on national interests and sovereignty fail in light of the crimes sought to be prevented by an International Criminal Court. Without the safety net provided by international cooperation and prevention of crimes, the world risks facing the dangers it promised “never again.”


Human Rights Law | International Law

Date of this Version

October 2006