International Criminal Court Jurisdiction Research Articles

Where Security Meets Justice: Prosecuting Maritime Piracy in the International Criminal Court

The International Criminal Court (ICC) was established to prosecute crimes that “threaten the peace, security and well-being of the world”. Maritime piracy has a long history as a threat to international security and was in fact the first international crime. Yet piracy was excluded from the Rome Statute. In the years since the drafting of the Rome Statute, piracy has increased dramatically to become more like the threat it was in the “Golden Age of Piracy”. Criminal accountability for piracy has been minimal, due to logistical and jurisdictional difficulties. This paper offers an analysis of the potential of the ICC for prosecuting pirates: why it should be considered as a potential forum for ensuring criminal accountability for piracy, how piracy fits within the ICC's jurisdiction, and whether or not piracy should be added to the Rome Statute as a stand-alone crime or under the rubric of crimes against humanity.

Immunity of State Officials before the International Criminal Court (ICC): The Indictment of President Al-Bashir

This Article is devoted to discussing the issuing of an arrest warrant by the International Criminal Court (ICC) for Sudanese President, Omar Al-Bashir, in connection to the alleged international crimes, inter alia, genocide, crimes against humanity and war crimes committed in Darfur. After issuing the arrest warrant by the ICC, a number of legal questions have arisen, which this article is devoted to examining. The first question is whether the ICC jurisdiction could be exercised over a serving Head of state of a non-party to the ICC Statute. To what extent are incumbent Heads of state or Government are protected under customary international law on immunities in respect of international crimes? To what extent can such immunities of sitting Heads of state be disregarded by the ICC? Also, this Paper casts light on the relationship between Articles 27 and 98 of the ICC Statute in the light of non-states parties to the Rome Statute. Furthermore, it discusses the obligation of non-state parties to cooperate in giving effect to the arrest warrant by the ICC. Finally, it critically analyses the legality and effects of the Security Council referral to the ICC with respect to the crimes committed in Darfur.

Al-Bashir & the ICC: The Problem of Head of State Immunity

This article considers the law of head of State immunity through an analysis of the indictment of Sudanese President Omar al-Bashir by the International Criminal Court (ICC). Contrary to most commentaries, this essay argues that al-Bashir remains protected by head of State immunity, and that ICC jurisdiction over him can only be maintained through one of two controversial claims: either that the Security Council can override customary international law rules of treaties and immunities, or that the law of immunities already provides an exception that invalidates al-Bashir's protection. This article provides a detailed explanation of why both propositions are unsustainable and require considerable revision of public international law. While the desire to prosecute al-Bashir is understandable, the ICC's legal arguments actually threaten the Court's ability to protect victims by alienating some States Parties and prompting those States and others to reduce co-operation with the Court. It concludes by suggesting that the Court's arguments represent a problematic assertion of its position as an institution of global governance.

Darfur: as Várias Missões de um Conflito Complexo.

The conflict in Darfur represents the worst humanitarian crisis of the new millennium and took place at an extremely introspective time in the UN when all aspects of the peace missions were reviewed and reassessed. Mainly upon release of the Brahimi report published in the year 2000, when the failures in Rwanda, Somalia and Bosnia were conducive to the reassessment of the exaggerated optimism from end of the cold war. However, the complexity of the Darfur conflict demanded again a massive deployment of resources and troops in complex and daring peace missions. This article explores the gradual return to complex operations, first by missions led by regional actors, like AMIS (African Union) and EUFOR (European Union). In this context the complex and multifunctional missions led by the UN return, incorporating the protection of populations at risk, human rights and governance, among other components. That way the hybrid UNAMID and MINURCAT appear with ambitious mandates. The UNAMID has to operate along with the display of the International Criminal Court jurisdiction over an ongoing conflict which will entail new developments and challenges.

The Principle of Complementarity and Libya Challenge to the Admissibility Before the International Criminal Court

In 26 February 2011, the United Nations Security Council (UNSC) referred the Libya situation to the International Criminal Court (ICC). Consequently, three warrants of arrest were issued for Moammar Qaddafi, Saif Al-Islam Qaddafi and Abdullah Al-Senussi. After the assassination of Moammar Qaddafi, Saif Al-Islam and Al-Senussi were arrested. Although, Saif Al-Islam has been captured by Zinitani militants and to this date Libyan authority has not been successful to obtain him from the control of the militants. Considering the situation, Libyan authorities challenged the ICC jurisdiction by invoking constantly to their sovereignty, primacy of national criminal jurisdiction and its ability to investigate their nationals. Therefore this paper assesses the challenge of the Libyan authorities and potential outcome of their challenge before the ICC, focusing on the principle of complementarity provided in article 17 of the Rome Statute. To this end, this paper starts with an overview and examination of various aspects of complementarity principle in the light of the ICC previous jurisprudence which are relevant for the analysis of the Libya situation and Saif Al-Islam case. Also, it will be suggested that even though that the amendment of the Rome Statute article 17 is desirable, the ICC may rely upon article 21 (3) to interpret the statute to meet the human rights standard in cases that the rights of the accused is being violated. The Libya challenge to the admissibility will be analysed first before the various part of the principle apply to the Saif Al-Islam case.

An Examination of the Implication of the Jurisdiction of International Criminal Court Over Non-State Parties

My research work will focus on the examination of the difficulties that poses to the International Criminal Court (ICC) in its work of exercising Jurisdiction over nationals of non-state parties.The Article 13 of Rome statute, the United Nations Chapter VII powers and article 103 confers legal jurisdiction on the ICC to prosecute persons who commits any of the subject matter crime stated in Article 5 of the statute even if they are from non-member states.Various arguments have been advanced that challenges and poses difficulties for the exercise of the given jurisdiction over non-member states especially from the interpretation of Article 12 (2) (a) (3), and 98 of Rome Statute , which some academics argues, makes it illegal for ICC to exercise jurisdiction over nationals of non member states as written and interpreted.Also, the Article 16 provision of the Rome Statute granting deferral powers to the Security Council has been viewed as undue interference in the administration of justice and poses a problem of turning the court into a political tool.Arguments on the withdrawal of Diplomatic and head of state customary law immunity, as enshrined in Article 27 provision of the Rome Statute has been presented by authorities, also the interpretation of the Vienna convention on the law of treaties, with reference to article 34-36 and 38 of no treaty obligation if a state is not party to a treaty, unless the treaty is binding or has assumed the status of customary international law poses more difficulties to the ICC in the exercise of its jurisdiction over non-member states.The above stated and other difficulty that poses to the ICC in its work will be examined, with examples of Security Council referrals to the court on Al Bashir of Sudan, Saif al Islam Gadafi and General Senussi of Libya respectively.Academic journals, books, literatures and writings of authorities in this field will be consulted to research this work. Conclusion will be drawn from the findings.

Jurisdiction over Israeli Settlement Activity in the International Criminal Court

In the wake of the U.N. General Assembly’s recent recognition of Palestinian statehood, the Palestinian government has made clear its intention to accept the jurisdiction of the International Criminal Court (ICC), where it could challenge the legality of Israeli settlements. This Article explores the previously unexamined jurisdictional hurdles for such a case. (To focus on the jurisdictional issues, the Article assumes for the sake of argument the validity on the merits of the legal claims against the settlements.) First, the ICC can only consider situations “on the territory” of Palestine. Yet the scope of that territory is undefined. An “occupation” can arise even in an area that is not the territory of any state – but ICC jurisdiction does not extend there. Thus even if Israel is an occupying power throughout the West Bank for the purposes of substantive humanitarian law, this does not establish that settlement activity occurs “on the territory” of Palestine. Moreover, the ICC lacks the power to determine the boundaries of states, and certainly of non-member states. Moreover, the Oslo Accords give Israel exclusive criminal jurisdiction over Israelis in the West Bank. Palestine cannot delegate to the ICC territorial jurisdiction that it does not possess.Second, the ICC only takes situations of particular “gravity.” Yet settlements are not a “grave breach” of the Geneva Conventions. No international criminal tribunal has ever prosecuted non-grave breaches. The ICC’s gravity measure involves the number of people killed; for settlements it would be zero. Indeed, the ICC prosecutor triages situations by the numbers of victims; settlements do not appear to have direct individual victims. Finally, the ICC would at most only have jurisdiction over settlement activity from the date of Palestine’s acceptance of jurisdiction. Settlement activity in this time frame would not immediately cross the Court’s gravity threshold.The impact of these issues goes beyond a possible settlements case. The controversy over a referral of Israel, a non-member state, raises important questions about the meaning of the ICC Statute. These have great importance for other non-member states, such as the United States. They also demonstrate the extent to which major aspects of the ICC Statute remain vague and undefined.

Jurisdiction of International Criminal Court

The essay begins with the evolution of the concept of international criminal court. The concept had its birth in the trial of Hagenbach and then the essay proceeds on to discuss the International Criminal Tribunal for Rwanda and Yugoslavia. Then, the emergence of the ICC with the Geneva Convention and the Nuremberg Convention are also emphasized. The essay also deals with the provisions of Article 12 and Article 13 which deals with the jurisdiction of the International Criminal Court and the issues of commitment of crimes overboard. The essay also deals with the concept of rationae personae and the issue of nullen crimen sine lege and the concept of nulla poena sine lege in the criminal jurisdiction of the ICC. The court also deals with the issues of defining genocide, and the thin line where the jurisdiction of an individual country ends and that of the ICC commences. The influence of the Security Council and the ‘big five’ and the issues of sovereignty are also dealt by the ICC. The ICC and the opposition of the United States of America meted out to the organization only for the sake of hegemony over the other countries. The signing of the Statute and then the revoking the sign by the Bush Administration will try to unearth the latent weakness in the entire system. Finally, the suggestions are given to implement the schemes properly and to properly implement the issues of ‘complementarity rule’.

Penegakan Hukum terhadap Pembajakan di Laut melalui Yurisdiksi Mahkamah Pidana Internasional

The international community, nowadays is facing the most serious problem of the piracy in the sea on a large scale than ever before. Todays piracy is destroying and disturbing the shipping industry worldwide with the modern way. The problem of piracy becomes increase day by day rather than to decrease. It is universally called as hostis humani generis. The piracy today is directed against victims from around the world, creates harms that are felt by the international community, and involves many of the same violation, as like as a murder and hostage-taking, that are used to commit the crimes within the jurisdiction of International Criminal Court (ICC). The main purpose of this paper is to describe the piracy in details which could be seen in some international laws concerning this problem as for UNCLOS 1982 and SUA Convention 1988. This paper also will elaborate how piracy could be called as a crime under international law, as well as the jurisdiction of the ICC. This permanent international judicial body is empowered to prosecute crimes of concern to the international community as a whole, in accordance with the Rome Statute 1998 and ICC is expected to fullfil the impunity as the biggest obstacle for countries to bring the pirates into the justice.

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

For every institution that respects democracy and the rule of law, there has to be checks counter-checks and balances. One of the ways by which the people of a particular country put a checks on the government is by way of regularly constituted elections. This was the position that Kenya as a country found itself in in the year 2007 when the country went into a general election. However, the general election brought more sorrow and anguish than had been contemplated, when the populace of the country, angry and dissatisfied with the results of the election, took to ethnic hatred, killings and violence which saw many individuals killed, while others were displaced. The situation in Kenya attracted international attention more so from the International Criminal Court prosecutor who commenced investigations on the possibility of there having been committed various atrocities within the Kenyan territory at that time. After investigations were concluded, the International Criminal Court prosecutor decided to institute proceedings a proprio motu under Article 15 of the Rome Statute. The commencement of the proceedings was met with resistance by the Kenyan government which launched an admissibility challenge before the court citing the principle of complementarity as provided for in the 10th paragraph of the preamble to the Rome Statute. The principle is to the effect that the International Criminal Court's jurisdiction is complementary to national criminal jurisdictions. It is on this basis that this paper seeks to discuss and analyze the merits and admissibility of the Kenyan situation before the International Criminal Court with regard to the principle of complementarity. The paper begins by distinguishing between jurisdiction and admissibility with regard to the Kenyan situation, and proceeds to have a discourse on the principle of complementarity and its application to the Kenyan situation. The paper concludes by making a definitive finding that the Kenyan situation is properly admissible in the International Criminal Court, the principle of complementarity having duly been considered.

What Is Crime of Aggression in International Law?

The creation of jurisprudence of crime of aggression in Kampala Conference is one of the most significant landmarks in the history of International Criminal Law in relation to crime of aggression. However, this regime has certain limitations particularly in regard to the definition and generally in regard to the role of Security Council involvement in the exercise of jurisdiction of International Criminal Court over crime of aggression. It is argued that the foundation of the definition of an act of aggression from Resolution 3314 subjects the determination of criminal liability to political motivations, reducing the judicial independence. The attempt is to critically analyze the elements of definition of crime of aggression as agreed at the Kampala Conference. The agreement reached in Kampala although seems to be contentious has attempted to strike a balance between the imperatives of justice and fundamental political sensitivities. This issue of balance has created certain ambiguities in relation to the status of the crime of aggression under international law and the circumstances under which it will be prosecuted by the ICC. The essay highlights the lacunas in regard to the proposed mechanism for the exercise of jurisdiction by the ICC and the role of Security Council in the trigger mechanism. The essay concludes with an analysis of the effect of the opt-in and opt-out conditions on the bindingness of the amendment. The opt-in and opt-out clause provides States an arbitrary determination of exercise of ICC jurisdiction which could possibly result in continued impunity. It is argued that the higher involvement of Security Council may further resist States to submit to the ICC jurisdiction over aggression on account of perceived lack of independence or susceptibility to political influence.

The Sudanese Conflict: War Crimes and International Criminal Court

The International Criminal Court (ICC) was created to facilitate the prosecution of perpetrators of international humanitarian law something not within the jurisdiction of the International Court of Justice. As an international court, it was not restricted by head of state or diplomatic immunity. In March 2005, the United Nations Security Council under Chapter VII of the UN Charter adopted resolution 1593 which referred the situation in Darfur, Sudan to the International Criminal Court Prosecutor, effectively giving the ICC jurisdiction over Sudan even though Sudan is not part to the Rome Statute. The Resolution is binding on all UN member states, including Sudan. On March 4 2009, ICC judges issued a warrant for the arrest of Sudanese President Omar Hassan al- Bashir. The warrant holds that there are reasonable grounds to believe that Bashir is criminally responsible for five counts of crimes against humanity and two counts of war crimes, referring to alleged attacks by Sudanese security forces and pro- government militia in the Darfur region of Sudan during the government's seven year counter insurgency campaign. This ability to indict a head of state in office raised debates and animosity between the court and African leaders as well as Arab leaders after it indicted Hassan Omar Al-Bashir, the Sudanese head of state. The paper seeks to analyse the extent to which the Sudanese conflict gave rise to situation that constitute war crimes and examine the extent to which the laws have been applied worldwide. In essence, the paper makes an exposition about the law's applicability in the contemporary world. The paper espouse that the Sudanese sets as a test case were a sitting head of state could be brought before the ICC

The Current Situation and the Main Contents of the domestic Reception of International Criminal Law

Due to the impact of internationalization and globalization of foreign crimes is increasing. As a result, the field of criminal law that the state is expanding the scope of cooperation. The Republic of Korea's economic growth since 1990 while human and material exchanges with foreign countries grew, the influence due to the Republic of Korea from committing a crime criminals fleeing abroad is also increasing. The phenomenon of the internationalization of crime while faster terrorism, drug trafficking, human trafficking and international organized crime has also increased. And foreign citizens from increased crime carried a sentence in a foreign country, as well as citizens serving in foreign countries was also increased, as a result, the state of criminal law the principle of substantial part of the correction was inevitable. For international crimes, International Criminal Law traditionally does not conflict with the sovereignty of foreign countries within the area of criminal law applicable to a range of prescribed laws and regulations of the Penal Code is the coverage of place. Today, however, the effect on the results of a foreign court, enforcement, transfer of foreign criminal procedure and criminal judicial cooperation, criminal jurisdiction, including information on international transport prisoners are being expanded. The international criminal court, depending on the expansion of Korea's tendency to create Law of on Extradition and Criminal justice assistance law are implemented. The current July 2009, for criminal justice cooperation treaties with 26 countries was signed, a crime that can be transported into the country and 29 countries and signed treaties. And Romes Statute of the International Criminal Court, Convention on the Transfer of Sentenced CETS No.: 112 for a concrete realization, the International Criminal Court the jurisdiction to punish for criminal law and international transport prisoners and law enforcement is to establish. South Korea and China to increase exchanges between the real human situation, in March 2009 is currently detained in prison, the Republic of Korea, China National convicts 124 people, in May 2009 drafts are currently in prison in the Republic of Korea Chinese prisoners of 622 people, Therefore, the Republic of Korea is admitted to the prison of the Chinese, the most important foreign prisoners are accounted for. South Korea and China in the lively exchanges between the crimes committed by South Korea who was also raised to increase the possibility that prisoners will continue to grow as a result is expected. Prisoners housed in prisons in China are Korean language communication problems, such as treatment issues and are experiencing many difficulties in ensuring the basic rights. So, families of prisoners and prisoners in this area needs improvement, and for transporting prisoners and the results have a high interest in the treaty is being evaluated. Mongolia, South Korea by the practical need for these (Mongolia, 2007.5.28. Signed, August 23, 2008 effective) as second only to China, May 27, 2008 Treaty between the Republic of Korea and the People's Republic of China on the Transfer of Sentenced Persons was signed. And July 6, 2009 Different countries has been confined to prison for convicts sentenced to the punishment of his country's remaining period of the certificate in their home country to send the treaty were exchanged. The treaty for the rest of the prisoners by more than 1 year if they want the rest of the nation's prison and was able to. The of August 5, 2009 Republic of Korea and China becoming effective extradition treaties, mutual legal assistance treaty criminal and civil judicial cooperation and mutual legal assistance treaties with all the major treaties have been effective. In this study, increasing phenomenon of international criminal justice cooperation in accordance with acceptable international criminal law on the domestic level and the main topics discussed extradition system, on the International Criminal Court Rome Statute, the international system and the prisoners transferred the contents of the relevant international conventions and examine the status of agreement. And Law of on Extradition, International Criminal Court jurisdiction over the crime rate on the penalty law, Convicts transported International Law look at some of the key information, and should. Language: ko

The Constitutionality of International Courts: The Forgotten Precedent of Slave Trade Tribunals

The United States' participation in international courts, and in particular, the potential accession to the International Criminal Court (ICC), which would have jurisdiction over U.S. nationals and U.S. territory, raises serious constitutional questions. These questions were thoroughly analyzed in the course of the debate about the constitutionality of international courts proposed by Britain in the early 19th century. This episode has never been examined by legal scholars or historians, despite its great relevance to a current legal and policy debates. This Article presents that historical debate over the slave trade courts, and draws lessons for the present legal questions. The permissibility of joining international tribunals spans several major constitutional issues: delegating federal powers to supernational institutions; the limits if any on what can be done through the Treaty Power; and vesting judicial power in non-Article III While these are all famously confused and contentious areas of law, a preponderance of scholarly opinion concludes that the Constitution does not bar joining international courts, the ICC included. However, the jurisprudence and literature on these questions has entirely neglected an important evidence. In the wake of the Napoleonic Wars, a network of international tribunals to punish slave trading as created. Many European nations joined these courts. The United States, however, saw the courts as unconstitutional. It refused to join the mixed court system for forty-five years, spanning eleven presidencies. The constitutional objections were formulated by some of the leading statesmen of the early Republic, and even some members of the Founding Generation. They raised several constitutional objections of both structural and individual rights varieties: that the court would not be reviewable by the Supreme Court; and, even more importantly, that it would subject U.S. nationals to criminal trials without jury trial and other Bill of Rights protections. These objections were held unanimously in the distinguished Cabinet of James Monroe; shared by Congress; and undisputed by anyone for decades. This suggests that giving an international criminal court jurisdiction over certain offenses within the ICC's charter would be unconstitutional. This does not mean that U.S. participation in international criminal courts would always be unconstitutional. Those interested in seeing the United States participate in such courts will find in the slave trade court episode not a constitutional straitjacket but rather a guide to tailoring their jurisdiction to avoid constitutional constraints. This Article unpacks the constitutional objections stated at the time and shows that some but not all international criminal courts are likely to be unconstitutional, while non-criminal international tribunals are far less problematic. Aside from the precedential significance, the nineteenth century discussion of why joining such a court would be impermissible speaks directly to today's constitutional jurisprudence in modern terms. It provides surprisingly relevant guidance on questions like the permissibility of non-Article III courts; constitutional restraints on the Treaty Power; and the binding effect of judgments of international Additionally, nearly every argument made today about American exceptionalism in international law and the conflict between domestic and international law was rehearsed nearly 200 years ago.

Extending the International Criminal Court's jurisdiction to corporations: overcoming complementarity concerns

This article argues that the negative impact that transnational corporations may have on the protection and promotion of international human rights can be improved by extending the International Criminal Court's jurisdiction to corporations.Realising this goal would require that the concerns, including complementarity concerns, expressed by Rome Conference delegates be addressed. This article explores a number of ways to address the complementarity concerns and identifies limitations with those approaches. Given these limitations, if state parties cannot be dissuaded of their complementarity concerns, it is argued that a pragmatic response is to adopt an exception-based approach to including corporations within the ICC's jurisdiction — that is, to extend the ICC's jurisdiction to corporations generally, but specifically exclude corporations registered in state parties that do not recognise corporate criminality for the offences subject of the Rome Statute in their national criminal jurisdictions.While an exception-based approach would have its own difficulties, it would enable the ICC's jurisdiction to be extended to corporations generally — a significant development for the protection of international human rights.

A Call for the End of Impunity for Multinational Corporations

In 2002, the first permanent International Criminal Court (ICC) was established. Based on the experience of the International Military Tribunal (the so-called Nuremberg Trials), the International Military Tribunal for the Far East (the so-called Tokyo Trials), the International Criminal Tribunal for the former Yugoslavia (ICTY), and the International Criminal Tribunal for Rwanda (ICTR), the new court is "determined to put an end to impunity for the perpetrators of these crimes and thus to contribute to the prevention of such crimes." Too often in the past the worst perpetrators of the worst crimes were able to hide behind the shield of impunity because of a lack of national prosecutions. The massacres in the former Republic of Yugoslavia and Rwanda in the early nineties were a painful reminder that the hope of "never again!" after WWII has not been fulfilled. On the contrary, killings, mutilations, rapes, torture, and other crimes keep being committed against and by civilians (and unspeakably also against and by children) on the greatest scale. Appallingly, among the major key players in facilitating and even motivating some of these atrocities are indeed business entities. Although in many cases multinational corporations or their subsidiaries are directly involved in human rights violations of the worst kind, neither the host nor the home country show any interest in investigating against them. A joint report by Fafo and the International Peace Academy stated that "[t]here is a climate of impunity surrounding economic activities that promote or sustain conflict and human rights abuse." In fact, these business entities are even outside the jurisdiction of the ICC. This Essay argues that currently international and national law regimes are insufficient in tackling corporate human rights violations and that the ICC's jurisdiction should be extended to legal persons to end the de facto impunity of multinational corporations.

The Implementation of the ICC Statute in Argentina

Argentina ratified the International Criminal Court (ICC) Statute in November 2000 and adopted an Implementation Law in December 2006. The Law introduces into domestic legislation the crimes falling under ICC jurisdiction by means of renvoi to the Statute. Such procedure avoids the risk of a unilateral definition of the crimes. In addition, the Law provides for a range of penalties including incarceration. Regrettably penalties envisaging restitution, reparation or rehabilitation of the victim are not provided for in the Law. In terms of cooperation with the ICC, the Law establishes mechanisms for an open and efficient relationship with the Court in case of arrests and surrender of persons, as well as requests for assistance and preliminary rulings.

When Law and Reality Clash–The Imperative of Compromise in the Context of the Accumulated Evil of the Whole: Conditions for the Exercise of the International Criminal Court's Jurisdiction over the Crime of Aggression

AbstractThis article assesses the legal and policy arguments for and against determination by the Security Council of the occurrence of a State act of aggression for the purpose of the prosecution of a crime of aggression before the International Criminal Court, investigating several issues largely neglected by commentators and States Parties to date. It concludes that legal and policy arguments overwhelmingly favour independent determination by the ICC, but nonetheless recognises that the constraints of international politics mean it is unlikely the Assembly of States Parties will be able to reach agreement on provisions that allow for such independent determination. As such, the article assesses the merits of existing compromise proposals, before concluding by offering an alternative compromise provision for the conditions under which the ICC can exercise its jurisdiction over the crime of aggression.

The International Criminal Court: What in the World is the Crime of Aggression and Who in the World is to Say?

The International Criminal Court (ICC), created by Statute of Rome, is first of its kind: a permanent international institution charged with mandate of trying individuals for the most serious crimes of concern to international community as a whole. Four crimes fall within jurisdiction of ICC: genocide, crimes against humanity, war crimes, and crimes of aggression. The first three crimes are defined in Articles 5-8 of Rome Statute. Although Statute also recognizes crime of aggression, it precludes Court from exercising jurisdiction over crime until a relevant provision has been adopted into Statute, which: (1) defines crime, and (2) sets forth conditions under which Court may exercise jurisdiction over individuals with respect thereto. To date, state parties to ICC have put forth numerous proposals, both on defining substantive crime of aggression, and on prescribing conditions for Court's exercise of jurisdiction. This Article examines some of these proposals, summarizes arguments made with respect to each, and makes recommendations as to a preferred course of action.

The Efforts to Limit the International Criminal Court's Jurisdiction Over Nationals of Non-Party States: A Comparative Study

AbstractThe purpose of this article is to discuss and compare the multilateral and bilateral efforts to prevent the ICC from exercising its jurisdiction over nationals of states non-parties to the Rome Statute. In particular, the US secured the adoption of Security Council resolutions no. 1422 (2002), 1487 (2003), 1497 (2003), 1593 (2005) and launched a campaign for the conclusion of bilateral non-surrender agreements: the differences between the resolutions and between them and the agreements are analysed. None of the resolutions above can be qualified as an exercise of the Security Council's power to request the ICC not to commence or proceed with investigations or prosecutions under Article 16 of the Rome Statute, as this provision was not conceived to cover future and hypothetical cases. Furthermore, by adopting resolutions 1422 and 1487 and by including the paragraphs on the exclusive jurisdiction of the contributing state in resolutions 1497 and 1593, the Security Council acted ultra vires, since no threat to the peace can be found in order to justify the exercise of Chapter VII powers. The resolutions are also in contrast with the principles and purposes of the UN. As to the bilateral non-surrender agreements, they cannot be qualified as "international agreements pursuant to which the consent of the sending State is required to surrender a person of that State to the Court" as required by Article 98 (2) of the Statute, since they prohibit the surrender to the ICC of any individual who is "present" on the territory of the other party and they do not require the state to which the accused has been transferred to investigate and prosecute the case. Should Italy conclude a non-surrender agreement with the US, it would incur international responsibility. The law giving effect to such an agreement in the Italian legal order would also be in contrast with Articles 10 (1) and 11 of the Constitution.