The Most International of International Crimes: Toward the Incorporation of Drug Trafficking into the Subject Matter Jurisdiction of the International Criminal Court


At the 2004 annual meeting of the American Society of Criminology, I presented an article on drug trafficking and its implications for the international legal and social science community. During that presentation, several audience members commented that the analysis would be considerably stronger with international drug data. While there are few reliable sources for this type of information, they do exist. This essay thus represents a current summary of the drug use and abuse prevalence data, both internationally and in the United States. Given the state of the drug problem across the globe, the argument for the incorporation of drug trafficking into the subject matter jurisdiction of the International Criminal Court (ICC) is significantly more persuasive.

The international legal community worked toward the creation of a permanent international criminal court for most of the 20th century. The goal of establishing a permanent institution to prosecute the most egregious violations of international criminal law culminated with the formation of the ICC. Established during the summer of 2002, the subject matter of the ICC includes four categories of offenses – the crime of genocide, crimes against humanity, war crimes, and the crime of aggression. These four categories of offenses are eligible for prosecution before the ICC because they violate fundamental humanitarian principles and, arguably, constitute the most serious crimes of international concern.

The Court’s subject matter jurisdiction (SMJ) is limited to only these four categories of offenses. One other crime of international significance – drug trafficking – is ineligible for prosecution before the ICC. Given the scourge of drug trafficking across the international community and the financial and personal harms that inevitably result from drug-related offenses, this is a shameful exclusion. Part I of this essay discusses the prevalence, associated harms, and costs of illicit drug use worldwide. Cross-sectional and longitudinal data are presented to illustrate the illimitable nature of the problem. Part II reviews the major narcotics conventions authored during the 20th century and the efforts undertaken by the international community to address the international drug problem. Part III presents a history of the ICC and reviews the work undertaken by the ICC to date. Part IV presents the arguments for and against expanding the SMJ of the ICC to incorporate drug trafficking. Given that modern states are part of an interdependent, international community, it seems evident that drug trafficking is, by any objective standard, the most international of international crimes and should fall under the SMJ of the ICC.


International Law

Date of this Version

October 2006