Conceptions of Courts and Their Jurisdiction

Abstract

In the summer of 1998, 160 States met in Rome to negotiate the drafting of what would become the Rome Statute of the International Criminal Court. After a month long of arduous horsetrading 120 States decided to adopt the Rome Statute. Pursuant to the Rome Statute, as adopted on 17 July 1998, the icc has jurisdiction over genocide, crimes against humanity, war crimes and aggression. Except for the crime of aggression,1 the icc was endowed to exercise jurisdiction over these crimes through three distinct channels: (1) State referral; (2) the prosecutor initiating an investigation proprio motu; and, (3) the SC referring a situation to the Prosecutor under Chapter vii of the UN Charter.2 The first two trigger mechanisms can be exercised only in situations where crimes were committed in the territory of a State party or by the national of a State party.3 A territorial or national State that is not party to the Rome Statute can still confer jurisdiction on the icc by lodging a declaration with the Registrar of the icc in which it “accept[s] the exercise of jurisdiction by the Court”.4 In contrast, the third trigger mechanism – Article 13 (b) – does not require the consent of either the territorial or national State, but only that the SC acts under Chapter vii of the UN Charter.5 There is, however, the view that “[i] t need not have been this way.”6 Due to the nature of the crimes within the icc’s subjectmatter jurisdiction, several States and scholars argued that the Court could have exercised universal jurisdiction.7 In any event, Article 13 (b) provides the icc with universal jurisdiction – Article 13 (b) does not require the consent of either the territorial or national State. Neither the Statute nor the Court itself seem to make a clear distinction between cases that are triggered by the SC, States or by the Prosecutor– all cases are treated alike – as if the Statute applies to all since its entry into force. As it be will shown below, there is indeed a disagreement over the interpretation and application of the Rome Statute in situations triggered under Article 13 (b). At the heart of this disagreement is the question of