The Delegation Theory and the International Criminal Court’s Jurisdiction
Introduction
Since the Rome Statute’s negotiation in 1998 and the International Criminal Court’s (ICC) formal activation in 2002, the ICC has been tasked with investigating and prosecuting the most heinous of international crimes: genocide, war crimes, crimes against humanity, and, since 2010, the crime of agression. In that time, the Court has indicted 70 individuals, resulting in 11 convictions and 4 acquittals [1], predominantly of African leaders [2]. However, the ICC has not been without controversy. In particular, the question of the Court’s jurisdiction, and its source, remain thorny questions not just of academic interest. Instead, as the ICC sets its targets on major heads-of-states of non-Party States, these questions have become flashpoints of concrete legal argument—notably, in the Putin and Netanyahu indictments. Hence, this article seeks to critically appraise the competing theories regarding the ICC’s jurisdiction. In particular, I argue that the ICC’s jurisdiction is purely derivative of what individual states have delegated to it—what I call the delegation theory—and that the ICC has no additional jurisdiction over-and-above that.
The outline is as follows. In Section I, I make the positive case for the delegation theory. In Section II, I respond to the main competing theories that seek to source the ICC’s jurisdiction in either states’ universal jurisdiction or in embodying the international community’s ius puniendi.
Section I: The Delegation Theory
The delegation theory starts from a mundane observation: a state ordinarily possesses the sovereign authority to prescribe, adjudicate, and enforce laws on their territory and over their nationals. Of course, it is certainly within a state’s power to hand-over this authority to a third-party—an occurrence which is far from uncommon in international law. The delegation theory contends that the Rome Statute is no different, deriving its jurisdiction just as almost all other international bodies do. More precisely, the delegation theory holds that the Court attains its jurisdiction solely from what is delegated (given) to it by the state-parties to the Rome Statute. Among theories of the ICC’s jurisdiction, the delegation theory holds the status of the mainstream view, though it is not the sole view [3].
Stripped of this modern application, however, the delegation theory at its core expresses nothing more than principle espoused at the Nuremberg Trials by the International Military Tribunal (IMT):
“The Signatory Powers created this Tribunal, defined the law it was to administer, and made regulations for the proper conduct of the trial. In doing so, they have done together what any one of them might have done singly; for it is not to be doubted that any nation has the right thus to set up special courts to administer law” [4].
That is, the Court’s jurisdiction (both prescriptive and adjudicative) are derivative of what each individual State-party could have “singly” done. Notice that the claim is not that the ICC’s jurisdiction extends only as far as what any individual nation could do, but that it is precisely just the sum of what each individual nation contributes. Hence, the ICC certainly has a greater jurisdictional breadth than any of its individual party-states, but no greater than their sum.
In addition to being the mainstream/received view, the delegation theory is also the minimalist theory. It presupposes no additional jurisdictional regimes beyond those already universally accepted by the positivist (Westphalian) account of states—territoriality and active personality for our purposes [5]. Furthermore, the Rome Statute itself seems to align with a minimalist reading of international jurisdiction. For instance, Article 12, aptly titled “Preconditions to the exercise of jurisdiction”, fixes a hard ceiling for the Court’s jurisdiction, a precondition which must necessarily be satisfied prior to the individual requirements of any case. The implication, seemingly, is that these preconditions are less so peculiarities of the ICC as they are general doctrines of international law. Specifically, Article 12.2 states:
“[T]he Court may exercise its jurisdiction if one or more of the following States are Parties to this Statute or have accepted the jurisdiction of the Court…:
(a) The State on the territory of which the conduct in question occurred or, if the crime was committed on board a vessel or aircraft, the State of registration of that vessel or aircraft;
(b) The State of which the person accused of the crime is a national” [6].
Notably, the Court’s jurisdiction is capped precisely along the lines of traditional, individual state jurisdiction, which is the expected result under the delegation theory. A further clue lies in the ICC’s form. Recall that the ICC is ultimately a treaty-based institution instituted by the Rome Statute (and not, for example, an official arm of the UN). Hence, the ICC’s structure indicates that, absent evidence to the contrary, the Court is but a compact between certain states. It could not impose any additional constraints upon non-Party states, per the Vienna Convention. That the Court remains so constrained is evident in the first line of the preamble of the Rome Statute, which begins humbly with “The States Parties to this Statute.” The onus is, therefore, on the critic of the delegation theory to both demonstrate that additional sources of jurisdiction exist in general, and that the ICC actually derives its jurisdiction from those alternate sources.
Section II: Universal Jurisdiction and Ius Puniendi
In contrast to the delegation theory, there are various theories which claim paradigmatically that the Court’s jurisdiction extends greater than the territoriality or personality of party States (or states which have ad hoc accepted the Court’s jurisdiction). Notably, such theories invariably rely upon some notion of universal jurisdiction. Following Monique Cormier’s typology, I distinguish between two types of theories [7]. The first argues that the Court retains the universal jurisdiction of its party-States to prosecute certain universal heinous crimes irrespective of their location or the nationality of their perpetrator. Call this the delegated universal jurisdiction theory. The second type argues paradigmatically that the ICC’s jurisdiction extends “beyond than the sum of its parts”, embodying the international community’s collective punitive power (ius puniendi). Call this the international ius puniendi theory.
II.A: Delegated Universal Jurisdiction
Universal jurisdiction is the doctrine which allows states, under limited circumstances, to exercise (prescriptive/adjudicative) jurisdiction over crimes which occur on foreign territory, and with no relation to the State’s nationals. Roger O’Keefe summarizes that universal jurisdiction “amounts to the assertion of jurisdiction to prescribe in the absence of any other accepted jurisdictional nexus” [8]. However, sourcing the ICC’s jurisdiction in the universal jurisdiction of party-States is problematic for three reasons.
First, as suggested by the name I have given this strand of argument, even if the delegated universal jurisdiction theory is true, it is not mutually exclusive with the delegation theory, and indeed, presupposes it. Even taking the delegated universal jurisdiction theory to be true, the Court’s jurisdiction would only go so far as the sum of what each state could individually delegate over. It just so happens, however, that in this case, each state is “delegating” a jurisdiction which has universal scope [9]. Hence, the basic logic or structure of the delegation theory remains intact, even if the particulars of what is being delegated are modified. In either case, the court does not have sui generis jurisdiction “over and beyond” what each state grants it.
Second, it is worth questioning to what extent universal jurisdiction actually exists in customary international law (i.e., if it is evidenced in state practice or opinio juris). Traditionally, the doctrine of universal jurisdiction has been traced starting from the laws entitling all nations to prosecute pirates as hostis humanis generis, and extended following the Nuremberg trials [10]. However, both historical sources for universal jurisdiction are more ambivalent than claimed. To begin with piracy laws, the actual use of universal jurisdiction has been slim, with Lee Casey and David Rivkin observing that “since the year 1705 there have been only three cases ‘of jurisdiction over accused ‘pirates’ being exercised in the absence of a link to some traditional basis for jurisdiction’” [11]. Hence, Alfred Rubin damningly concludes that universal jurisdiction “was at best a rule of international law only…under political circumstances that no longer apply; at worst, it was…part of the rationalization of imperialism” [12]. Neither is Nuremberg a clear-cut instantiation of universal jurisdiction. Although the traditional narrative argues that Nuremberg was an example of the Allied powers exercising universal jurisdiction to try crimes that occurred outside their territory and by non-nationals, Dapo Akande observes that “others have argued that the Allied States that established the Tribunal were exercising sovereign powers in Germany at the relevant time and that the Nuremberg Tribunal was thus based on the consent of the state of nationality” [13]. After all, recall that the Germans had unconditionally surrendered to the Allies, and that the Allies carried de facto sovereignty over Germany. Hence, Nuremberg can hardly be taken prima facie as precedent for state universal jurisdiction.
The modern record fares little better [14]. Consider the International Court of Justice’s ruling in the 2002 Arrest Warrant case regarding Belgium’s attempt to arrest the Congolese Minister of Foreign under universal jurisdiction. In his separate opinion, Presiding Judge Guillaume writes that “international law knows only one true case of universal jurisdiction: piracy” [15]. He continues that, “at no time has it been envisaged that jurisdiction should be conferred upon the courts of every State in the world to prosecute such crimes…To do this would, moreover, risk creating total judicial chaos…for the benefit of the powerful, purportedly acting as agent for an ill-defined ‘international community’” [16]. Similarly, even if they defend the possibility of universal jurisdiction, Judges Higgins, Kooijmans and Buergenthal, conclude that “there is no established practice in which States exercise universal jurisdiction, properly so called…virtually all national legislation envisages links of some sort to the forum State; and no case law exists in which pure universal jurisdiction has formed the basis of jurisdiction” [17]. And, since then, state practice has only diminished. As Sienho Yee notes, “With Belgium and Spain now having abandoned pure universal jurisdiction by narrowing down their statutes, the universal jurisdiction movement appears to be a moving train without its locomotive” [18]. The point, then, is not that universal jurisdiction necessarily does not exist, but that its customary existence (and its scope) cannot be taken for granted given such sparse examples of state practice. And, presumably, we would like to exist independently of the eventual consensus regarding state universal jurisdiction—given the current lack of decisive evidence.
Thirdly, it is not clear and indeed unlikely that, even if universal jurisdiction did exist and was applicable to all the crimes addressed by the ICC, the Court’s jurisdiction was actually grounded in such delegated universal jurisdiction. Recall that in Article 12, the Rome Statute self-imposes jurisdictional limitations consistent with ordinary, territorial jurisdiction and not with universal jurisdiction. This is no accident; it was a deliberate result of the negotiating process. Indeed, Olympia Bekou and Robert Cryer write, “There were proposals at Rome to give the ICC a more general form of universal jurisdiction…However…[they were] not accepted at Rome, and the final compromise became Articles 12 and 13” [19]. For instance, consider the German proposal, which would have granted the Court jurisdiction over any suspect irrespective if any state was party to the statute, which Elizabeth Wilmhurst reports was “predicated on the assumption that there existed universal jurisdiction under international law…and concluded that the Court should be in the same position to exercise jurisdiction as States themselves…Only the German proposal gave the Court ‘universal jurisdiction’” [20]. Not only was the reliance on universal jurisdiction without state consent controversial, but ultimately led to the failure of the proposal. Indeed, the current iteration of Article 12 is the result of “an approach midway between the proposal of the Republic of Korea and the approach of the United States,” where the Korean proposal was already a moderated version of the German one. Hence, even those who would support granting the Court universal jurisdiction have critiqued the Rome Statute for not granting the ICC such universal jurisdiction [21]. In other words, it seems that Rome definitively ruled out the possibility of the ICC operating under delegated universal jurisdiction. Cormier concludes, “The compromise reached on the final text of the Rome Statute’s jurisdiction provisions makes it clear that the ICC does not have universal jurisdiction” [22].
II.B: International Ius Puniendi
A second strain of arguments contend that the Court has sui generis jurisdictional powers that extend beyond what individual State parties could have delegated to it. Such proposals typically source the Court’s additional jurisdiction from its role in embodying the international community as a whole’s power to punish/adjudicate (ius puniendi). For instance, Leila Sadat argues that the ICC is an “independent international legal personality” [23] whose jurisdiction is “a function of [party States’] collective action at the international level, representing, in other words, a form of ‘collective conferral’” [24]. Additionally, she cites Claus Kreß’s claim that the ICC “enforces the ius puniendi of the international community” [25], and Carsten Stahn’s claim that such international courts are “more than the sum of [their] parts” [26]. However, I contend that such views are mistaken. First, I argue that it is far from clear that a sufficient degree of international ius puniendi even exists under international law so as to ground the ICC’s jurisdiction. Second, even if the international community had some right to punish, it is hardly the case that the ICC automatically embodies its will. Lastly, I respond to Sadat’s arguments in particular.
To begin, as with states’ universal jurisdiction, it is unclear to what extent the international community at large can possess an ius puniendi or right to punish. Recalling that the term “ius puniendi” originally refers to the state’s right to punish, it would seem that an international right to punish is a non-starter absent a world state or other similar sovereign entity. Indeed, this is the primary theoretical challenge that Kai Ambos resolves to address in his defense of an international ius puniendi [27]. In critiquing Gunther Jakobs’ argument that, absent a sovereign, international criminal laws are not genuine “norms,” Ambos claims that the “validity of norms may be predicated on their real, actual existence in a given society, but validity can also be linked to the material (normative or moral) foundation of their claim of being obligatory” [28]. In other words, even if there is no state-like entity which creates an empirical normative order in the international arena, there still exist morally valid norms. But, this argument proves too much: it surely is not the case that every moral duty or claim is reflected in law. Surely, for instance, lying is not always a crime even when it is immoral (and certainly not a crime against international law). Although Ambos points out that moral validity may be necessary (in some cases) to a law’s validity, it cannot imply that moral validity is sufficient.
Elsewhere, again arguing from Kant, Ambos makes the normative case for an international community’s ius puniendi grounded in protecting human dignity [29]. The parallel is therefore drawn to the traditional State’s development and justification, where “[t]he international community today finds itself where the Nation-State stood when it came into existence: charged with the building-up and consolidation of a monopoly of power” [30]. But, just as the state ius puniendi codified the moral fallibility of humans in anarchy, the development of an international ius puniendi would presuppose the fallibility of states (in anarchy). Yet, if the argument is that the creation of states were insufficient (or failed) to safeguard the human dignity of their nationals, then why should it be expected for an international community, justified and created in analogous means, to be any different? After all, under Ambos’ view, the international community is normatively nothing more than an enlarged, global state—serving ultimately the same purposes. Therefore, as David Luban puts it, “establishing a pure international criminal law of universal application is a momentous and radical project…For states to call other states “gods that failed” is a Damoclean sword, for they themselves are nothing more than gods that have not yet failed” [31]. That is, the same reason why one would require an international ius puniendi is also what undercuts its justification. And, if it is conceded that the international community could also fail, would it not require another layer/institution further up as a check against it, ad infinitum?
Second, even if the international community could wield its own ius puniendi, it is not clear that the ICC necessarily embodies the international community at large—a term which itself is poorly defined [32]. If there was such an entity as the international community, its referent is unclear: perhaps the only entity that can truly lay claim upon that title is the UN. Surely, for example, a bilateral treaty between Germany and France could not represent the will of the international community at large; nor would just any multilateral treaty count. And, if there is some minimum numerical cut-off, which seemingly there is, it cannot be taken for granted that the Rome Statute meets it [33]. Even though 125 of the 193 UN member states are party to the Rome Statute, there is no reason to think that a 65% coverage is adequate [34]. Considering population, the situation is even worse: over half the world’s population does not reside in states party to the ICC (due to China, India, the US, Indonesia and other large nations). Hence, the ICC hardly passes even a naive litmus test for embodying the international community. As Roger O’Keefe puts it, “Even less do the 123 States Parties to the Statute constitute the international community, when the rights of a State not party to the Statute are at stake…it is the tyranny of the majority or plain hegemony” [35]. Of course, beyond a simple numerical figure, however, there are other qualitative considerations. Here, however, Frédéric Mégret argues convincingly that the ICC cannot necessarily clear those bars either [36]. He argues that “there is necessarily a certain arbitrariness in where one draws the line…It is not clear, in other words, whether, why or how a particular group of States can forge ahead with the adoption of a treaty *inter se…*and claim to have created an institution that manifests the ‘deep will’ of the international community” [37]. In light of these ambiguities, Sadat’s proposal to let “these courts and tribunals determine the proper contours of their own jurisdiction” [38] is surely circular. What’s at stake is precisely whether or not these courts could speak for the international community in claiming its jurisdiction. For that same court to decide on such a matter presupposes that they could speak for the international community. A court established by Canada and the US, for example, could not actually embody the international community’s ius puniendi even if it claimed so. A mere attempt at establishing such a court cannot necessarily constitute a successful attempt.
By contrast, Sadat argues the ICC does indeed constitute a successful attempt. First, she claims that “states ‘confer upon’ or ‘accept’ the jurisdiction of international courts and tribunals…because they need and want those courts and tribunals to do things that they cannot do in their national systems” [39]. Sadat provides the example of the ICJ, where “states established the International Court of Justice (ICJ) precisely because, by and large, they cannot hear disputes between sovereign states in their national courts” [40]. However, this argument conflates the distinction made in Section I. It remains equally true under the delegation theory that a court has powers exceeding any one of its individual States-Party. France, for instance, would not have the power to try Italy, owing to the equality of states. However, it does not follow that a tribunal between France and Italy has any sui generis jurisdiction—it only gained its jurisdiction over Italy because Italy delegated it over. It is precisely the act of “accepting” the Court’s jurisdiction which grants the Court jurisdiction over that State (or its nationals)—the Court could not have had that jurisdiction prior to it. The distinction is clear when considering third-party states. Under Sadat’s view “every tribunal is a self-contained system” [41] which is “constrained [only] by their constitutive documents” [42]. And yet, surely our hypothetical Franco-Italian tribunal would have no jurisdiction to try issues pertaining to Spain, even if its constitutive document allowed it to do so. Nor would its unliteral deciding it could do so be legitimate. At stake is the issue of state consent: since none of the states individually could have the jurisdiction to try Spain, how could their collective have the jurisdiction to do so? Secondly, Sadat’s claim that “international courts and tribunals exist as independent international organizations” [43] is also irrelevant. An entity’s functional/material independence from any nation does not mean its jurisdiction is independent or self-derived. Nor does it bear on whether the ICC embodies the international community’s ius puniendi. The mere fact that an organization is international does not imply it speaks for all of the international community. That this is so is evident from the ICC’s treaty structure; even if the negotiation process was decided via majority vote as Sadat points out, individual states ultimately retained the individual right to decide whether or not to ratify the treaty.
Finally, Sadat argues that while “[i]n terms of prescriptive jurisdiction (ratione materiae), the Court’s jurisdiction would be universal…the negotiators superimposed jurisdictional preconditions in Article 12 of the ICC Statute over this prescriptive universality [for adjudicative jurisdiction]” [44]. In other words, Article 12 is to be read as a restriction after-the-fact of the inherent powers the ICC always had. This reading is constrained by two issues [45]. First, jurisdiction ratione materiae is not co-extensive with prescriptive jurisdiction. That the Court was given jurisdiction over these subject matters cannot imply that it automatically has all jurisdiction over these subject matters. Second, as O’Keefe argues, “in the criminal context, the distinction [between prescriptive and adjudicative jurisdiction] is generally unnecessary. The application of a state’s criminal law by its criminal courts is simply the exercise or actualization of prescription: both amount to an assertion that the law in question is applicable to the relevant conduct” [46]. What’s more, this distinction is not explicitly found within the text of the Rome Statute. Rather, Sadat has to deduce this from the provision on UN Security Council referrals, claiming that “it is problematic to have the Security Council apply Rome law to the nationals of non–States Parties” [47]. However, the situation with UN referrals can be readily explained as another case of delegation from the UN to the ICC. As members to the UN, states have already tacitly consented to the Security Council’s authority, and there is nothing preventing the UNSC from delegating this jurisdiction as other states would [48]. While Sadat rightly points out that the UNSC cannot legislate customary international law, this does not make the Rome Statute’s crimes customary international law or jus cogens. Nothing in international law prevents the UNSC from applying a standard upon members of the UN, even if that standard is not strictly jus cogens. That is, the limitation on the UNSC is negative: they cannot legislate new international law but they certainly can enforce other standards, which, by virtue of being member-states, members of the UN have consented to.
Conclusion
To conclude, the delegation theory of the ICC’s jurisdiction argues that the Court’s jurisdiction is predicated purely based on what individual states have delegated to it. As I have argued, not only is the simplest and majority theory of the ICC’s jurisdiction, it is the correct one. It is the theory which follows most immediately from the Rome Statute’s actual text (specifically Article 12), and expresses the uncontroversial principle that states ought to be able to do collectively what they individually could have done. Additionally, I have argued that alternative theories that grant the Court additional jurisdiction, premised either on delegated universal jurisdiction or a collective right of the international community to punish (ius puniendi), face serious challenges in the face of both the Rome Statute’s text and history, as well as the contours of customary international law. Namely, both alternate theories depend on legal doctrines which are either ill-defined or not universally accepted, and were rejected at the Rome negotiations. Hence, the delegation theory remains the only sure grounding of the Court’s jurisdiction. Although this theory limits the Court’s jurisdiction, this cannot be taken as an argument against the delegation theory. Rather, it is only after having established the necessary legal realities that we may begin to make progress.
Footnotes
[1] “Defendants” International Criminal Court, https://www.icc-cpi.int/defendants.
[2] Sascha-Dominick D. Bachmann and Naa A. Sowatey-Adjei, The African Union-ICC Controversy Before the ICJ: A Way Forward to Strengthen International Criminal Justice?, 29 Wash. Int’l L.J. 247 (2020).
[3] Monique Cormier, “Delegation of Jurisdiction: The Concepts,” in The Jurisdiction of the International Criminal Court over Nationals of Non-States Parties, 36–70, Cambridge: Cambridge University Press, (2020), 36. See also Dapo Akande, The Jurisdiction of the International Criminal Court over Nationals of Non-Parties: Legal Basis and Limits, Journal of International Criminal Justice, Volume 1, Issue 3, December 2003, Pages 618–650.
[4] Opinion and Judgment, International Military Tribunal at Nuremberg (Oct. 1, 1946) in The Trial of German Major War Criminals. Proceedings of the International Military Tribunal sitting at Nuremberg, Germany, Part 22 (1995).
[5] See Anne Lagerwall, Marie-Laurence Hébert-Dolbec, ‘Universal Jurisdiction’ (last updated July 2022) in H Ruiz Fabri (ed), The Max Planck Encyclopedia of International Procedural Law (OUP 2019–2023), ❡2-3.
[6] Rome Statute of the International Criminal Court, Art. 12(2)
[7] Monique Cormier, “Universality as a Legal Basis for ICC Jurisdiction,” in The Jurisdiction of the International Criminal Court over Nationals of Non-States Parties, 159–95. Cambridge University Press, 2020.
[8] Roger O’Keefe, “Universal Jurisdiction: Clarifying the Basic Concept,” Journal of International Criminal Justice 2, no. 3 (September 1, 2004), 745. Here, when I refer to universal jurisdiction, I mean what is also sometimes called “pure” universal jurisdiction. “Pure” universal jurisdiction is in contrast with “treaty-based” universal jurisdiction, under which states party to certain treaties (such as the 1949 Geneva Conventions) can exercise prescriptive jurisdiction over situations in other Party-States territories.
[9] For an example of such an appeal, see Hoover, Dalila V., “Universal Jurisdiction not so Universal: A Time to Delegate to the International Criminal Court,” Cornell Law School Inter-University Graduate Student Conference Papers (2011), Paper 52.
[11] Lee A. Casey and David B. Rivkin Jr., “The Dangerous Myth of Universal Jurisdiction,” in A Country I Do Not Recognize: The Legal Assault on American Values, 135-183. Hoover Institution Press, 2005. (Quoting Alfred P. Rubin’s The Law of Piracy).
[12] Alfred P. Rubin, The Law of Piracy, 390-91. (Cited in Casey and Rivkin, 2005).
[13] Dapo Akande, The Jurisdiction of the International Criminal Court over Nationals of Non-Parties: Legal Basis and Limits, Journal of International Criminal Justice 1, no. 3, December 2003, 627. For an example of such an argument, see Casey and Rivkin, 2005 supra note 11 at 142-149, and Madeline Morris, High Crimes and Misconceptions: The ICC and Non-party States, 64 Law and Contemporary Problems 13-66 (Winter 2001), 36-42.
[14] For a response to the assertion of universal jurisdiction in the Pinochet, Eichmann, and the Alien Tort Statute, see Casey and Rivkin, 2005, supra note 11 at 149-173.
[15] Case Concerning the Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v. Belgium), Separate Opinion Of President Guillaume, I.C.J. Reports 2002, Section 12. However, the waters are equally muddy when it comes to state practice over piracy. See Eugene Kontorovich and Steven Art, “An Empirical Examination of Universal Jurisdiction for Piracy” Northwestern Faculty Working Papers 38, (2010). They find, “Under normal circumstances (prior to 2008) nations used [universal jurisdiction]...in a negligible fraction of cases (no more than 0.53%, a total of four cases).”
[16] Separate Opinion Of President Guillaume, Section 15.
[17] Case Concerning the Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v. Belgium), Joint separate opinion of Judges Higgins, Kooijmans and Buergenthal, I.C.J. Reports 2002, Section 45.
[18] Sienho Yee, Universal Jurisdiction: Concept, Logic, and Reality, Chinese Journal of International Law 10 no. 3, (September 2011), 530.
[19] Olympia Bekou and Robert Cryer, “The International Criminal Court and Universal Jurisdiction: A Close Encounter?” International and Comparative Law Quarterly 56, no. 1 (2007), 50-51.
[20] Elizabeth Wilmhurst, “Jurisdiction of the Court,” in The International Criminal Court: The Making of the Rome Statute: Issues, Negotiations and Results, ed. Roy S. Lee (Kluwer Law International, 1999), 132-3.
[21] See Bekou and Cryer supra note 19, pages 49-52. For instance, they write, “There have been a number of criticisms of the ICC on the basis that it was not granted universal jurisdiction.” They also discuss in particular the criticisms of Hans-Peter Kaul and Leila Sadat.
[22] Cormier, “Universality as a Legal Basis for ICC Jurisdiction,” 167.
[23] Leila Nadya Sadat, The Conferred Jurisdiction of the International Criminal Court, 99 Notre Dame L. Rev. 549 (2024), 555.
[24] Ibid., 558.
[25] Ibid., 557.
[26] Ibid., 555.
[27] See Kai Ambos, Punishment without a Sovereign? The Ius Puniendi Issue of International Criminal Law: A First Contribution towards a Consistent Theory of International Criminal Law, Oxford Journal of Legal Studies 33, no. 2 (Summer 2013), Section 3.
[28] Ibid., 301.
[29] Ibid., 304-14.
[30] Ibid., 298.
[31] David Luban, Fairness to Rightness: Jurisdiction, Legality, and the Legitimacy of International Criminal Law (July 1, 2008). Georgetown Public Law Research Paper No. 1154117, page 11.
[32] See, Christian J. Tams, ‘International Community’ as a Legal Notion, Global Cooperation Research Papers, No. 21 (2018), University of Duisburg-Essen, Käte Hamburger Kolleg/Centre for Global Cooperation Research (KHK/GCR21).
[33] That is, I claim a minimum numerical number of states or percentage of population is necessary but probably still insufficient for a body to constitute the international community. In any case, the ICC doesn’t even meet this first hurdle.
[34] “The States Parties to the Rome Statute,” International Criminal Court, https://asp.icc-cpi.int/states-parties.
[35] Prosecutor v. Al-Bashir (Appeals Hearing) ICC-02/05-01/09-T-8 (14 September 2018), 56, cited in Frédéric Mégret, “The International Criminal Court: Between State Delegation and International Jus Puniendi”, Max Planck Yearbook of United Nations Law (2020).
[36] See Mégret, 2020, at pages 16-27.
[37] Ibid., 26.
[38] Sadat, 2024 supra note 23, at page 555. However, notice that at page 556 she clarifies that this pertains to “tribunals established on an ad hoc basis or as subsidiary organs of international organizations.” But, of course, what’s at stake is precisely whether the ICC is genuinely an international organization (in the necessary sense for international ius puniendi).
[39] Ibid., 552-3.
[40] Ibid., 553.
[41] Ibid., 565.
[42] Ibid., 554.
[43] Ibid., 554.
[44] Ibid., 570.
[45] Indeed, this reading is hampered by the arguments made above. Namely, if the Article 12 restrictions on the ICC’s jurisdiction are merely diplomatic or political impositions, then they are contingent and not necessary features of international law. Hence, under Sadat’s analysis, our hypothetical Franco-Italian court (or perhaps one featuring an expanded founding group) could have a legitimate jurisdiction over Spain or other non-States parties.
[46] O’Keefe, 2004, supra note 8, at page 737.
[47] Sadat, 2024, supra note 23 at page 570 (note 93).
[48] See Dapo Akande, “International Law Immunities and the International Criminal Court,” The American Journal of International Law 98, no. 3 (2004), 417: “Because of the universal membership of the United Nations and because decisions of the Council are binding on all UN members, the provisions of the ICTY and ICTR Statutes are capable of removing immunity with respect to practically all states.” That is, the UNSC set-up tribunals of the ICTR and ICTY do not require additional state-consent, as membership to the UN has already delegated such jurisdiction.