An Analysis of the Admissibility of the Kenyan Situation Before the International Criminal Court in Light of the Principle of Complementarity

Armed conflict has driven the evolution of International Humanitarian Law (IHL) to minimize suffering, yet severe violations persist, necessitating effective enforcement mechanisms like the International Criminal Court (ICC), established by the Rome Statute in 1998. The ICC holds jurisdiction over individuals responsible for genocide, crimes against humanity, war crimes, and the crime of aggression. This article analyzes the ICC's jurisdiction over non-member states of the Rome Statute and the validity of the warrant of arrest issued against leaders from such states, specifically Benjamin Netanyahu, Prime Minister of Israel. Although Israel is not a state party, the ICC can assert jurisdiction if the alleged crimes occurred in the territory of a state party or if the situation is referred by the UN Security Council, in line with the principle of complementarity. The issuance of the warrant of arrest against Netanyahu on May 20, 2024, was based on Article 58 of the Rome Statute following alleged war crimes and crimes against humanity in Gaza, a territory of Palestine (a state party to the Rome Statute), providing a strong legal basis. However, its implementation faces political challenges and rejection from some member states, which could violate their obligations under Article 86 of the Rome Statute.

This chapter discusses the applicability of the admissibility criteria in three particular scenarios: vis-a-vis a category of courts which is neither national nor international, namely internationalised courts; vis-a-vis national jurisdictions when a situation has been referred to the International Criminal Court (ICC)Prosecutor by the Security Council; and vis-a-vis the jurisdiction of a state which has referred its own domestic situation to the ICC Prosecutor, i.e. which has made a self-referral. The crimes under the ICC's jurisdiction threaten the peace, security and well-being of the world. The complementarity principle is not merely based on considerations of state sovereignty, but also on considerations of appropriateness, pragmatism and even of human rights vis-a-vis the alleged perpetrator.Keywords: admissibility criteria; complementarity principle; international criminal court (ICC); internationalised courts7; security council referrals

Journal Article On the Principle of Complementarity in the Rome Statute of the International Criminal Court Get access Lijun Yang Lijun Yang Search for other works by this author on: Oxford Academic Google Scholar Chinese Journal of International Law, Volume 4, Issue 1, JUNE 2005, Pages 121–132, https://doi.org/10.1093/chinesejil/jmi014 Published: 01 January 2005

This study aims to reveal how the International Criminal Court (ICC) can exercise its jurisdiction over alleged crimes committed by Israelis under the complementarity regime. This paper discusses the ICC's jurisdiction on the alleged war crimes and crimes against humanity committed by the Israelis against the Palestinians under the complementarity principle which is provided in Article 17 of the Rome Statute. Also, to study the principles of international criminal responsibility for individuals, whether they are military superiors or subordinates, who commit acts that constitute a crime against humanity and a war crime under the Rome Statute. The significance of this study appears in shedding light on the jurisdiction of the ICC over Israeli perpetrators, even though Israel is not a party of the Rome Statute. To answer these questions, a qualitative analysis will be applied as its research methodology where both primary and secondary sources will be thoroughly examined. This article concludes that the Israeli national courts did not conduct genuine investigations or prosecutions domestically under the complementarity principle. Thus, the ICC has the authority to exercise its jurisdiction as a court of a last resort over crimes against humanity and war crimes in Palestinian territories as a party to the Rome Statute.

Restoring the Balance Between the International Criminal Court and National Jurisdictions: A Critical Examination of the Principle of Complementarity in Action

Click to increase image sizeClick to decrease image size Acknowledgement The author would like to thank Hugh Dyer and David Galbreath for their helpful comments. Notes Sam Zia-Zarifi, ‘Who's Afraid of International Relations?’ Leiden Journal of International Law, Vol.13 (2000), pp.1015–24. Ibid. Tam Dalyell, ‘Blair, the War Criminal,’ The Guardian, 27 March 2003; see also Richard Tyler, ‘Greek Lawyers to Sue Blair for War Crimes’, World Socialist Web Site, 2 June 2003, found at www.wsws.org See Yoram Dinstein, ‘The Distinction between War Crimes and Crimes against Peace’, Israel Yearbook on Human Rights, Vol.24 (1995), pp.1–17. Of course, the unilateral resort to force does not necessarily qualify as aggression. A state may claim that a unilateral act is lawful under customary international law, for instance in the case of humanitarian intervention, or to uphold prior resolutions adopted under Chapter VII of the Charter. In adopting the latter argument the UK government followed a similar line of argument to that used to justify NATO action in Kosovo in March 1999. See Constantine Antonopoulos, ‘Whatever Happened to Crimes Against Peace?’ Journal of Conflict and Security Law,Vol.6 (2001), pp.33–62. ‘Treaty of Peace with Germany’, American Journal of International Law, Vol.13 (1919), p.250; see also ‘International Military Tribunal Judgement and Sentences’, American Journal of International Law, Vol.41 (1947), pp.172–332. See Broomhall, (under review) pp.46–7; Sadat (under review) pp.132–8. Sadat (under review), pp.132–3. G. Gaja, ‘The Long Journey towards Repressing Aggression’, in Cassese et al. (under review), p.428; see also A. Cassese, ‘From Nuremberg to Rome: International Military Tribunals to the International Criminal Court, in Cassese et al. (under review), p.10, fn.23. Dalyall, ‘Blair the War Criminal’ (note 3). Sadat, p.xiii. The ICC assumed non-retrospective jurisdiction over genocide, crimes against humanity and war crimes on 1 July 2002. This was following the 60th ratification of the Rome Treaty earlier that year. The Rome Statute reaffirms the illegality of aggression in principle but specifies in Article 5 that the Court may not exercise jurisdiction until the Assembly of State Parties is able to define it and not within seven years of the Statute entering into force. This political compromise allowed some commentators to claim that the Court exercises ‘dormant jurisdiction’ over the crime of aggression. Kirsch and Robinson, ‘Reaching Agreement at the Rome Conference’, in Cassese et al. (under review), p.78. Marc Weller echoes Sadat in calling the Rome Conference ‘a constitutional moment’. He writes, for instance that the Conference ‘exercised the function of an international constitutional convention’. See ‘Undoing the global constitution: UN Security Council action on the International Criminal Court’, International Affairs Vol.78 (2002), pp.693–712. With the definition of a state's right of self-defence expanding following the use of force after September 11th it is likely that a consensus on aggression is even further away. On the right to self-defence see M. Byers, ‘Terror and the Future of International Law’ in K. Booth and T. Dunne (eds.), Worlds in Collision: Terror and the Future of Global Order (Basingstoke: Palgrave, 2002), pp.118–27. Sadat (under review), p.9. Sadat, (under review), pp.8–9. See also L.N. Sadat and S.R. Carden, ‘The New International Criminal Court: An Uneasy Revolution’, The Georgetown Law Journal, Vol.38 (2000), pp.381–474. K. Sengupta, ‘Guilty of War Crimes – or Victim of a Feud with US Soldiers?’ The Independent, 22 May 2003; Richard Norton-Taylor, ‘Soldier Arrested over Iraqi Torture Photos’ The Guardian, 31 May 2003. M. Cherif Bassiouni and Edward M. Wise, Aut Dedere Aut Judicare: The Duty to extradite or prosecute in international law (Dordrecht: Martinus Nijhoff, 1995) Broomhall (under review), p.4. On this use of Grotian solidarism see F. Mégrét, ‘Epilogue to an Endless Debate: The International Criminal Court's Third Party Jurisdiction and the Looming Revolution of International Law’, European Journal of International Law, Vol.12 (2001), pp.247–68; see also Bassiouni and Wise (note 16), pp.22–42. Broomhall (under review), p.105. Ibid., p.59. Ibid., p.106. See also William Schabas, ‘National Courts Finally Begin to Prosecute Genocide, the “Crime of Crimes” ’, Journal of International Criminal Justice, Vol.1 (2003), pp.39–63. Broomhall (under review), p.109. Ibid., p.112. See also Holmes, ‘National Courts versus the ICC’ in Cassese et al. (under review), pp.667–8. Antonio Cassese, ‘From Nuremburg to Rome: International Military Tribunals to the International Criminal Court’, in Cassese et al. (under review), p.18. See Sadat, pp.21–46; Broomhall, pp.71–6. Cassese (note 24), p.15. Ibid., p.16. James Crawford, ‘The Work of the International Law Commission’ in Cassese et al. (under review), pp.23–34; see also Adriann Bos, ‘From the International Law Commission to the Rome Conference (1994–1998)’, In Cassese et al. (under review), pp.35–65. Sadat (under review), pp.11–12. See P. Kirsch QC and D. Robinson, ‘Reaching Agreement at the Rome Conference’, in Cassese et al. (under review), pp.67–91. Ibid., p.88. W.R. Pace and J. Schense, ‘The Role of Non-Governmental Organization’, in Cassese et al. (under review), pp.105–43. Ibid., p.137. Sadat (under review), p.5. Broomhall (under review), p.5. Mégrét (note 18), p.258. Sadat (under review), p.103. Mégrét (note 18), p.258. For a commentary on the origins of complimentarity and the relevant Articles of the Statute see John T. Holmes, ‘Complimentarity: National Courts versus the ICC’, in Cassese et al. (under review), pp.667–86. Rome Statute, Article 17, accessed at http://www.un.org/law/icc/statute/romefra.htm. J. Ralph, ‘Between Cosmopolitan and American Democracy: Understanding American Opposition to the International Criminal Court’, International Relations Vol.17 (2003), pp.195–212. The term ‘new sovereigntist’ is Peter J. Spiro's. See his ‘The New Sovereigntists: American Exceptionalism and Its False Prophets’, Foreign Affairs, Vol.79 (2000), pp.9–15. In May 2002 the Bush administration ‘unsigned’ the Rome Treaty. In a public statement explaining US policy, Under Secretary of State Marc Grossman stated that the US remained ‘committed to promoting the rule of law and helping to bring violators of humanitarian law to justice, wherever the violations may occur.’ Remarks to the Center for Strategic and International Studies (CSIS), Washington, DC, 6 May 2002, accessed at http://www.state.gov/p/9949.htm. The US government opposes the Rome Statute, however, because it has delegated jurisdiction to an unaccountable court. In other words the US does not necessarily oppose universal jurisdiction for core crimes, but it has insisted that such jurisdiction can only be enforced by national courts. This position can be found in D.J. Scheffer, ‘Staying the Course with the International Criminal Court’, Cornell International Law Journal, Vol.35 (2002), pp.47–100. See also R. Wedgewood, ‘The International Criminal Court: An American View’, European Journal of International Law, Vol.10 (1999), pp.93–107. The subject is addressed in the Cassese volume by Hans-Peter Kaul who was Deputy Head and Head of the German Delegation to the Rome Conference and Preparatory Committee respectively. He argues that ‘the idea of universal jurisdiction entitles states to do collectively what they have the power to do individually’. States ‘may confer this individual power on a judicial entity they have established and sustain together and which acts on their behalf.’ He argues that the principle of universal jurisdiction for the core crimes is well established in customary international law. ‘Consequently, States have a legitimate and acknowledged legal basis to use, if they so wish, the universality approach with regard to core crimes, either in their national criminal jurisdiction or when establishing together a new and complimentary international criminal justice system as during the UN negotiation for the ICC.’ Hans-Peter Kaul, ‘Preconditions to the Exercise of Jurisdiction’, in Cassese et al. (under review), p.591. America's pressure on Belgium to repeal legislation providing for universal jurisdiction suggests that the US statement supporting universal jurisdiction enforced at the level of the state is merely a rhetorical strategy to disguise a policy that puts American national interests ahead of the universal interest. See C.S. Smith, ‘Rumsfeld says Belgian law could prompt alliance to leave’, International Herald Tribune, 13 June 2003’, and ‘Belgians are incensed by American pressure on war crimes law’, International Herald Tribune, 14 June 2003. Broomhall (under review), p.93. See also Jan K. Kleffner, ‘The Impact of Complimentarity on National Implementation of Substantive International Criminal Law’, Journal of International Criminal Justice, Vol.1 (2003), pp.86–113. Darryl Robinson, ‘The Rome Statute and its Impact on National law’, in Cassese et al. (under review), pp.1849–50. Luis Moreno Ocampo, an Argentinian lawyer who helped bring the leaders of his country's former military dictatorship to justice was elected as Prosecutor in March 2003. For detailed commentary on these procedures see Olivier Fourmy, ‘Powers of the Pre-Trial Chambers’ in Cassese et al. (under review), pp.1207–30. P. Kirsch, QC and D. Robinson, ‘Initiation of Proceedings by the Prosecutor’, in Cassese et al. (under review), p.662. For similar arguments see Fernandez de Gurmandi, S.A., ‘The Role of the International Prosecutor’, in Roy Lee (ed.), The International Criminal Court: The Making of the Rome Statute – Issues, Negotiations, Results (The Hague: Kluwer Law International, 1999), pp.175–88. See Ralph, ‘Between American and Cosmopolitan Democracy’ (note 41). Grossman, ‘American Foreign Policy and the International Criminal Court’ (note 42). For this see Ralph, ‘Between American and Cosmopolitan Democracy’ (note 41). See also David P. Forsythe (2002) ‘The United States and International Criminal Justice’, Human Rights Quarterly, Vol.24, pp.974–91. Broomhall (under review), p.68. At the time of writing 90 of the 139 signatories had ratified the Rome Treaty. Sadat notes that opponents of the idea of an independent Prosecutor included not only the US, but also the Russian Federation, China, France, Israel, India, Malaysia, Egypt and Syria. The UK, she notes, was initially undecided. Its decision to join the Like-Minded Groups was a pivotal moment in the history of the negotiations. Sadat (under review), p.94. Rome Statute, Article 16 (note 40). D.J. Scheffer, ‘The United States and the International Criminal Court’, American Journal of International Law, Vol.93 (1999), p.18. Kaul (note 42), p.600. Rome Statute, Article 12 (note 40). Not only did the US vote against the Treaty at the Rome Conference, it has since pursued a strategy to exclude American citizens from the Court's jurisdiction. On the use of Article 16 to negotiate exemptions for UN personnel see C. Stahn, ‘The Ambiguities of Security Council Resolution 1422’, European Journal of International Law, Vol.14 (2003), pp.85–104; on the use of Article 98 to negotiate bilateral agreements promising US citizens immunity from ICC jurisdiction, see S. Zappalà, ‘The Reaction of the US to the Entry into Force of the ICC Statute: Comments on UN SC Resolution 1422 (2002) and Article 98 Agreements', Journal of International Criminal Justice, Vol.1 (2003), pp.114–34. Kaul (note 42), p.607. Sadat (under review), p.118. Ibid., p.106; see also E. Wilmshurst, ‘Jurisdiction of the Court’, in Lee (note 48), pp.127–42. Sadat (under review), pp.120–21. Rome Statute, Article 72 (note 40). H.J. Behrens, ‘Protection of National Security Information in the ICC: A Guide to Article 72 of the Rome Statute’, in Roggemann and S˘arccˇevicˇ (under review) pp.116–17. Rome Statute Article 72 (note 40). W. Schabas, ‘National Security Interests and the Rights of the Accused’, in Roggemann and [Sbreve]arcčevič (under review), p.113. Rome Statute, Article 66 (note 40). Schabas (note 65), p.109.

This chapter describes the dilemma that a transitional government faces, and discusses the validity of national amnesties vis-a-vis other states. It analyses whether national amnesties may be respected under the Rome Statute. The chapter highlights some factors according to which a national amnesty can be evaluated. During the international criminal court (ICC) negotiations, a number of states were of the opinion that the Statute should expressly regulate the status of national amnesties under the complementarity principle. Various specific components that must be addressed in the context of a post-conflict society is presented and analysed, in order to determine whether there might exist alternative, nonprosecutorial mechanisms that might provide justice. The ICC Prosecutor must apply the interests of justice, and the existence of an amnesty as such can hardly be decisive.Keywords: complementarity principle; international criminal court (ICC); national amnesties; national mechanisms; nonprosecutorial mechanisms; Rome Statute; transitional government dilemma

This article examines the legal relationship between the International Criminal Court (ICC) and Ukraine, a non-party to the Rome Statute, focusing on the scope of the Court's jurisdiction to consider Ukraine's referrals regarding serious crimes committed on its territory since 2014. Discussions regarding the extension of the ICC's jurisdiction over Ukraine commenced in 2014-2015 following Ukraine's two requests for recognition of the ICC's ad hoc jurisdiction. Following the full-scale invasion in 2022, the ICC consolidated these proceedings with the ongoing investigation of crimes committed in Ukraine since 2014. This article analyzes how the ICC's jurisdiction applies to Ukraine, the challenges and prospects for cooperation between the ICC and Ukraine in investigating crimes committed by Russian forces, and the broader implications for the international criminal justice system. The authors analyze arguments for and against Ukraine's ratification of the Rome Statute, concluding that the ICC's jurisdictional framework, particularly concerning the crime of aggression, requires refinement.

Recent Developments in International Criminal Law with Regional Perspectives

Contents: Part I: The Crime of Aggression from Nuremberg to the Rome Statute: The historical background, Umberto Leanza Origins of the criminalization of aggression: how crimes against peace became the 'Supreme International Crime', William A. Schabas Will aggressors ever be tried before the ICC?, Muhammad Aziz Shukri The debate within the preparatory commission for the International Criminal Court, Mauro Politi. Part II: The International Criminal Court and the Crime of Aggression: Questions of Definition and Jurisdiction: The definition of the crime of aggression and the ICC jurisdiction over that crime, Mohammed M. Gomaa Aggression and the ICC: views on certain ideas and their potential for a solution, Phani Dascalopoulou-Livada Defining the crime of aggression or redefining aggression?, Ioana Gabriela Stancu Definition of the crime of aggression: state responsibility or individual criminal responsibility?, Elizabeth Wilmshurst The crime of aggression: definitional options for the way forward, Hans-Peter Kaul The exercise of the International Criminal Court's jurisdiction over the crime of aggression: short term and long term prospects, Antonio YA!A+-ez-Barnuevo. Part III: The Crime of Aggression and the Relationship between the International Criminal Court and the Security Council: The respective roles of the ICC and the Security Council in determining the existence of an aggression, Giorgio Gaja Reflections on the role of the Security Council in determining an act of aggression, Saeid Mirzaee Yengejeh The ICC and the Security Council on aggression: overlapping competencies?, Paula Escarameia The ICC and the Security Council: about the argument of politicization, Marja Lehto Conclusions generales, Luigi Condorelli. Part IV: Afterword: The International Criminal Court and the Crime of Aggression: From the Preparatory Commission to the Assembly of States Parties and Beyond: An outsider's view, Giuseppe Nesi An insider's view, Silvia A. FernA!ndez de Gurmendi Index.

THE POWER OF THE UNITED NATIONS SECURITY COUNCIL TO REFER COUNTRY situations to the International Criminal Court (ICC) has been hailed, particularly among international human rights activists, as a chance to expand the reach of international criminal justice by offering the opportunity to hold accountable perpetrators of atrocities who might otherwise be exempt from prosecution and punishment. The historic referral of the situation in Darfur in March 2003 was widely welcomed as an important step in the fight against impunity as was the Security Council's later, and more controversial, referral of Libya in February 2011. In principle the expansion of the reach of accountability is something to be welcomed, but it is important to recognize the costs of this expansion as well as the danger that they may outweigh the intended benefits. When the ICC was established in 1998, it was heralded as a significant step forward for international justice, a permanent court that would aid in the fight against impunity for genocide, crimes against humanity, war crimes, and eventually aggression, and that would expand the reach of international justice beyond the hybrid and ad hoc mechanisms that had been established in the preceding years. To date, 122 states have become parties to the Rome Statute, accepting the ICC's jurisdiction over humanity's worst crimes, albeit in a form that is complementary or secondary to the jurisdiction of national courts. The Rome Statute includes a number of provisions that are particularly celebrated in the human rights community, not least Article 13(b) that grants the Security Council the power to refer country situations to the court, thereby placing even nonsignatory states under the court's jurisdiction in cases where the Council, acting under Chapter VII of the UN Charter, finds a threat to international peace and security. This, in a sense, simply confirms the powers previously exercised by the Council when it created the ad hoc tribunals for the former Yugoslavia and for Rwanda, among others. But referrals to the ICC engage a whole new set of issues. Along with the referral power, the Security Council was also granted powers to defer an ICC investigation or prosecution for a renewable period of twelve months under Article 16. Unsurprisingly, this provision has been far more contentious among those seeking to advance the legal protection of human rights, and international criminal justice as a whole, with many viewing it as providing an unwelcome opportunity for political interference in a judicial body as well as reducing the scope for accountability. So far, the Security Council has referred only two cases to the ICC--those of Darfur in 2005 and Libya in 2011--and has not yet exercised its Article 16 deferral powers to stay an active investigation or prosecution. In the cases of both Sudan and Libya, the Council's decision to act in the face of evidence of significant and widespread human rights violations was, particularly in the West, largely applauded by those who have actively supported the development of human rights and international criminal tribunals. Both cases demonstrate the primary benefit of Council referrals, which is that they expand the reach of accountability to cases where the ICC would normally not have access--cases where the suspects are either not nationals of a country that has ratified the Rome Statute, or where the crimes under scrutiny were not committed on the territory of a ratifying party. Yet for all the good that Security Council referrals do in expanding accountability and combating impunity, there is a danger they could, and already do, undermine the wider aims of international criminal justice. Such referrals not only could erode the legal principles at the heart of this project, not least the fundamental tenets of the rule of law, but also on a more practical level could provoke a backlash against the ICC over the perceived use of international justice as a bargaining chip or tool to gain political powers. …

Until the entry into force of the Rome Statute, the definition of the crime of aggression was not also found in it. This leaves the International Criminal Court (ICC) without jurisdiction over crimes of aggression. The absence of ICC jurisdiction over crimes of aggression has resulted in military aggression that has not been processed by the ICC during the time when the proxy war / cold war was initiated. This means that the violation of delicto jus gentium juice is allowed even after the ICC has been established. This study aims: (1) to identify and identify the definition, limitations, and jurisdiction of the ICC for crimes of aggression; and (2) to determine the enforcement of ICC jurisdiction over crimes of aggression after the Kampala Amendments were adopted into the Rome Statute. The research method uses a type of normative research with a statutory approach and a historical approach. The results show that the ICC's definition, limitations, and jurisdiction over the crime of aggression have existed in the Rome Statute since Kampala Amendments were adopted into the Rome Statute. However, until now the enforcement of the ICC's jurisdiction over crimes of aggression has not been carried out concretely.

The International Criminal Court (ICC) was established for ensuring the effectiveness of bringing the perpetrators of international crimes to justice. In addition, the ICC plays its role in order to promote the rule of law in the international community. To archive these ultimate goals, the Rome Statute of the International Criminal Court outlines its role as a court of the last resort by emphasising states themselves are primarily responsible for the prosecution of international crimes. The main duty of the Court is to complement the proceedings at the national level of the state concerned (the principle of complementarity). The ICC will step in to intervene to investigate and prosecute the crime of genocide, crimes against humanity, war crimes, and the crime of aggression, only when the justice cannot be achieved at the national level due to the unwillingness or the inability of the state concerned. The principle of complementarity is outlined article 17 of the Rome Statute as the criteria for admissibility of a case. The complementarity determination will be done at two main stages of the ICC proceedings: the preliminary examination stage and the admissibility stage. At the preliminary proceedings, the Court will determine the principle of complementarity, for the authorization of an investigation into a situation. Then, at the admissibility stage, the complementarity test will be assessed, for rendering the admissibility determination of a case. In this regard, the Court will determine national proceedings of the state concerned, the same-case test (person and conduct), the willingness, and the ability of the state concerned. If all of these criteria for admissibility are satisfied, the Court will render the case inadmissible. This dissertation aims at examining the complementarity provision under the Rome Statute, analysing the dynamic application of the principle by the Court during 2002-2018, and scrutinising the problems and challenges faced by the Court. The result of the analysis demonstrates the dynamism of the application of the principle of complementarity. However, the inconsistency of the dynamic application, in turn, challenges the effectiveness of the ICC complementarity system as well as the credibility and legitimacy of the entire ICC system. The study, therefore, aims at providing appropriate measures to ensure more effective and more coherent of the application of the principle of complementarity by the ICC.

MADELINE MORRIS [*] I INTRODUCTION The Rome Treaty for an International Criminal Court (ICC) [1] provides for the establishment of an international court with jurisdiction over genocide, war crimes, and crimes against humanity. [2] Those crimes often are committed by or with the approval of governments. It is unlikely that a government sponsoring genocide, war crimes, or crimes against humanity would consent to the prosecution of its national for his or her participation. Therein lies the problem with an international criminal court that may exercise jurisdiction only if the defendant's state of nationality consents. The very states that are most likely to be implicated in serious international crimes are the least likely to grant jurisdiction over their nationals to an international court. The ICC Treaty avoids the dismal prospect of an international criminal court that cannot obtain jurisdiction over international criminals. The treaty provides that the ICC may exercise jurisdiction even over nationals of states that are not parties to the Treaty and have not otherwise consented to the court's jurisdiction. Article 12 provides that, in addition to jurisdiction based on Security Council action under Chapter VII of the United Nations Charter and jurisdiction based on consent by the defendant's state of nationality, the ICC will have jurisdiction to prosecute the national of any state when crimes within the court's subject-matter jurisdiction are committed on the territory of a state that is a party to the treaty or that consents to ICC jurisdiction for that case. That territorial basis would empower the court to exercise jurisdiction even in cases where the defendant's state of nationality is not a party to the treaty and does not consent to the exercise of jurisdiction. [3] The United States has objected to the ICC Treaty on the ground that, by purporting to confer upon the court jurisdiction over the nationals of non-consenting non-party states, the treaty would bind non-parties in contravention of the law of treaties. [4] This objection has given rise to a heated controversy that has focused on the particulars of the international law of treaties and of jurisdiction. On close inspection, however, we can detect a more basic issue struggling to make its way to the surface. The fundamental issue concerns the nature of the ICC as an international institution. The jurisdictional structure of the ICC is based on a view of the ICC as a criminal court, tout court. In this view, the job of the ICC is to adjudicate the guilt or innocence of individuals accused of recognized international crimes. With this model in mind, it makes sense to give the court meaningful powers of compulsory jurisdiction, lest perpetrators of serious international crimes should escape justice. From this perspective one might reason that, if the court's subject-matter jurisdiction is limited to established international crimes and the process of the court is fair, then no state-whether party or non-party-should have legitimate objections to the court's exercise of jurisdiction over its nationals. The deficiency of this approach is that it reflects only one of the two types of cases that the ICC will be called upon to decide. In addition to the cases that are concerned solely with individual culpability, there will be ICC cases that focus on the lawfulness of official acts of states. Even while individuals, and not states, will be named in ICC indictments, there will be cases in which those individuals are indicted for official acts taken pursuant to state policy and under state authority. These official-act cases may well include cases in which an official state act is characterized as criminal by the ICC prosecutor (acting, very possibly, on a referral from an aggrieved state), while the state whose national is being prosecuted maintains that the act was lawful. One can readily imagine ICC cases in which the act forming the basis for the indictment was a military intervention, deployment of a particular weapon, recourse to a certain method of warfare, or other official conduct that the responsible s tate maintains was lawful. …

The ICC Rulings in the Libyan Cases and Related Due Process Implications of the Complementarity Relationship with Domestic Prosecutions