The jurisdiction of the International Criminal Court over nationals of non-party states

Abstract

The Rome Statute for the International Criminal Court (‘ICC’) provides that nationals from states not party to the Statute may, in certain circumstances, be prosecuted by the ICC. Some non-party states vehemently object to the fact that the ICC, a treaty body, can exercise jurisdiction in situations where the state of nationality has not consented to the terms of the treaty. While the source of the ICC’s jurisdiction is the Rome Statute, the Statute on its own does not provide a legal justification for the scope of the Court’s jurisdiction. This thesis addresses the overarching question: On what legal basis is the ICC authorised to exercise jurisdiction over nationals of non-party states?

A general consensus has emerged among international criminal law scholars that in situations referred to the Court by states parties or in investigations initiated by the prosecutor, the legal basis for the ICC’s jurisdiction over nationals of non-party states is predicated on states parties delegating jurisdiction to the Court. But there are multiple situations in which the question of whether there is a legal basis for prosecution of nationals of non-party states is not as straightforward as simply proclaiming that the territorial state has delegated its jurisdiction to the Court.

This thesis provides a systematic and comprehensive analysis of the ICC’s jurisdiction over nationals of non-party states in order to determine whether there is a legal basis for the ICC to prosecute such nationals in all scenarios allowed by the Rome Statute. In situations that come before the Court via a state party referral or through a Prosecutor-initiated investigation, I argue that delegation of jurisdiction provides a legal basis for the ICC’s prosecution in all scenarios with the exception of incumbent senior state officials from non-party states, who remain immune from the Court’s jurisdiction. In situations that are referred to the Court by the UN Security Council, the legal basis for the ICC’s jurisdiction over nationals of a non-party state is predicated on the indirect consent of the relevant non-party state by virtue of that state’s membership of the UN. There remain, however, some questions about whether certain Council actions in relation to the ICC are intra vires the UN Charter.

Ultimately, I demonstrate that the ICC has missed a number of opportunities to clarify the legal basis for its jurisdiction over nationals of non-party states. Going forward it will be essential for the Court to respond to challenges to its authority over non-party nationals by providing a sound—and comprehensive—explanation as to how and why its jurisdiction is grounded in international law.