After twenty years of operation, we know that the International Criminal Court (ICC) works in practice. But does it work in theory? A debate rages regarding the proper conceptualization of the Court’s jurisdiction. Some have argued that the ICC’s jurisdiction is little more than a delegation by states of a subset of their own criminal jurisdiction. They contend that when states ratify the Rome Statute, they transfer some of their own prescriptive or adjudicative criminal jurisdiction to the Court, meaning that the Court cannot do more than the state itself could have done. Moreover, they argue that these constraints are imposed by international law itself. This Article disagrees, contending that states “confer upon” or “accept” the jurisdiction of international courts and tribunals like the ICC not to transfer a subset of their own power to those entities, but because they often want and need those courts and tribunals to do things that they cannot do in their national systems. International law not only allows them to do this: it encourages it. This is true for many international courts and tribunals created by treaties and by the United Nations; this Article contends that it is equally true for the ICC. This Article demonstrates that this theory of “collective conferral” supports the ICC’s recent caselaw on jurisdiction and immunities, which is consonant with principles of general international law, the Rome Statute itself, and the values and concerns that drove states to establish the Court in 1998.
Leila Nadya Sadat,
The Conferred Jurisdiction of the International Criminal Court,
Notre Dame L. Rev.
Available at: https://scholarship.law.nd.edu/ndlr/vol99/iss2/3