Legitimacy and ICC Jurisdiction Following Security Council Referrals: Conduct on the Territory of Non-Party States and the Legality Principle

Abstract

The legality principle is enshrined in the Rome Statute, but the International Criminal Court (ICC) can nevertheless exercise jurisdiction over conduct by nationals of non-party States, that occur on the territory of a State that has not ratified the Rome Statute. When the UN Security Council refers a situation in such a State to the ICC, thereby granting it ad hoc jurisdiction over that specific situation, the ICC basically acts as an “ad hoc tribunal”, based on Chapter VII of the UN Charter. It acts, then, in much the same way as the International Criminal Tribunals for the former Yugoslavia and Rwanda were, and are still, acting. Namely, as a judicial body specifically instituted for one situation. In this contribution it is submitted that the ICC, when prosecuting (war) crimes that allegedly occurred on the territory of non-party States, and were allegedly committed by nationals of non-party States, will have to consider whether the said acts are actually punishable by the Court. The crime of attacking peacekeepers, as charged in the Banda case, is looked at as a case study. It is argued that the ICC should, in a similar fashion as the ICTY has done, apply the so-called “Tadic conditions”, or create an ICC version thereof, to establish its jurisdiction – and thereby enhance its legitimacy.