The Potentially Expansive Reach of the International Criminal Court

Abstract

The prospective reach of the International Criminal Court, in terms of its territorial jurisdiction, was the single most controversial issue to arise during the creation of the Court’s charter. For better or for worse, no case to come before the Court to date has resulted in the need for significant interpretation of the provision that lied at the heart of the controversy. That provision, Article 12 of the Rome Statute, states that the Court has territorial jurisdiction where “the conduct in question” occurred on the territory of a State Party. While application of that requirement has been clear so far, the Court is virtually certain to face challenges regarding its interpretation going forward. In fact, any case to come before the Court involving a cross-border crime – one in which the conduct occurs in one state and the harm occurs in another or in which the elements of the underlying crime are otherwise split between or among states – would likely be sufficient to invite tremendous consternation. This is particularly true where parts of the underlying crime occur on the territory of a non-State Party. This paper explores several theories of territorial jurisdiction and considers whether, or to what extent, each of them should inform options available to the Court. The paper shows just how expansive the territorial jurisdiction of the Court might be and, in doing so, draws attention to the urgent need for scholars to consider of the ideas it puts forth, including the potential need for limiting principles that lie outside the text of the Rome Statute itself.