Epilogue to an Endless Debate: The International Criminal Court's Third Party Jurisdiction and the Looming Revolution of International Law

Abstract

Ever since the adoption of the Rome Statute, the debate over third party jurisdiction triggered by US opposition to the International Criminal Court (ICC) has been raging without any obvious outcome in sight. This article takes a look at one of the latest academic formulations of the evolving US stance which suggests that, to the extent that the ICC will adjudicate what are effectively inter‐state matters, it should defer to state sovereignty. The article finds both the legal underpinning and the political rationale to that argument unconvincing as such. As sometimes happens, however, the argument is less interesting for what it says, as for what it reveals about evolving attitudes to the structure of international law. Indeed, it is suggested that part of the current misunderstanding over the ICC is traceable to a fundamental tension within international law between neo‐Grotian and neo‐Kantian trends. A better understanding of that tension can serve to reconstruct a narrative of the dialectics of individual and state responsibility under international law over the past half‐century. The American stance is reassessed in this light, and some of the implications for the future of the ICC and what may yet turn out to be a revolution in international law are outlined.