The Jurisdiction of the International Criminal Court over Nationals of Non-Parties: Legal Basis and Limits

Abstract

This article examines the jurisdiction of the International Criminal Court (ICC) over nationals of states not party to the ICC Statute. The article first addresses the US argument that the exercise of ICC jurisdiction over nationals of non-parties without the consent of that non-party would be contrary to international law. The author considers the principles which support the delegation of criminal jurisdiction by states to international tribunals and discusses the precedents for such delegations. It is further argued that the exercise of ICC jurisdiction over acts done pursuant to the official policy of a non-party state would not be contrary to the principle requiring consent for the exercise of jurisdiction by international tribunals. Finally, the article explores the limits to the jurisdiction of the ICC over non-party nationals. In particular, the article addresses the circumstances in which ICC parties are precluded from surrendering nationals of non-parties to the ICC.