Preconditions to the Exercise of Jurisdiction over Nationals of non-States Parties

Article 15 Communication by Joshua Kern

1. The so-called Situation in Palestine (the “Situation”) is at Phase 3 of the OTP’s preliminary examination. We understand that no final determinations with respect to jurisdiction, admissibility or the interests of justice have been made. This communication is made further to our communication of 3 July 2019. In that communication we considered jurisdictional issues arising from operation of Article 12 of the Rome Statute given Palestine’s lack of objective Statehood and indeterminate sovereign territorial claim. The communication was limited to consideration of issues arising from application of the internal legal order of the Rome Statute. This communication addresses issues which arise under customary international law from the prosecution of nationals of non-States Parties absent a Security Council referral pursuant to Article 13(b) of the Rome Statute. It is germane to the OTP’s ongoing preliminary examination of the Situation, and the implications which would arise from any decision to authorise an investigation into the alleged conduct of Israeli nationals.

2. At the time of this communication, the ICC is yet to unseal an arrest warrant or transmit a request for the surrender of a non-State Party national absent a resolution of the UN Security Council referring the situation to the Court. Nevertheless, the Court’s organs have provided indications that they consider that the jurisdictional regime prescribed by the Rome Statute permits the Court to do so. The issue has arisen in the Situation in the Republic of Korea (with respect to North Korean nationals), the Situation in Georgia (with respect to Russian nationals), the Situation in Ukraine (with respect to Russian nationals), the Situation in Afghanistan (with respect to US nationals), the Situation in Bangladesh (with respect to Myanmar nationals), as well as in this Situation and the Comoros situation (with respect to Israeli nationals). To date, the Court has proceeded on the basis that it is entitled to exercise jurisdiction in such potential cases, but the issue has never been litigated in an adversarial context. Moreover, the legal reasoning proffered for the permissibility of the exercise of the Court’s jurisdiction over such potential cases has differed.

3. On the one hand, the OTP has proceeded on the basis that the Court’s permission to exercise jurisdiction over nationals of non-consenting States absent a Security Council referral derives from the delegated criminal jurisdiction of States Parties. Alternatively, it has been suggested that the ICC derives its authority from the authority of the Rome Statute itself, the Rome Statute’s universalist orientation, and the right of the ICC to exercise the ius puniendi of the international community as a whole. The issues which arise require consideration of the ongoing scholarly debate concerning the “true nature of the Court’s jurisdiction”, which is material to the scope as well as the legality of any given act through which the ICC exercises jurisdiction.

4. This communication argues that it is the binding norms of customary international law which regulate the relationship between the ICC and non-States Parties. The “true nature” of the ICC’s jurisdiction derives from its authority as an international court to exercise a criminal jurisdiction which customarily vests in States. The ICC, as an international criminal court with a recognised legal personality, exercises an enforcement jurisdiction which cannot prejudice non-consenting States’ enjoyment of their own rights (which includes those rights claimed by a State on behalf of its nationals). State practice and opinio juris demonstrate that international criminal courts have not historically been permitted to exercise jurisdiction over nationals of non-consenting States absent an enabling Security Council decision. This communication argues that under customary international law such consent is a precondition to the exercise of an international criminal court’s jurisdiction, absent the Security Council ‘s imprimatur. A continuing breach renders any subsequent prosecution and trial unlawful and engages the law of international responsibility for unlawful acts, creating exposure to acts of retorsion and countermeasures.

5. The communication is divided into four parts. The first part addresses the “true nature” of the ICC’s international criminal jurisdiction and the interplay between the Court’s sources of authority vis-à-vis non-States Parties, namely customary international law and the Rome Statute itself. It examines the relationship between these sources of authority and the ICC’s international legal personality and considers the Court’s recent jurisprudence on the subject. It proposes a definition of an international criminal court which reconciles (what might otherwise appear to be) opposing concepts of the “true nature” of the Court’s jurisdiction (namely the “delegation” and “universalist” models) by arguing that exercise of the ius puniendi of the international community as a whole is a feature of international criminal courts’ jurisdiction which has customarily been preconditioned on the consent of affected States. It further argues that legal personality is not material to the question of jurisdiction. The second part considers the exercise of jurisdiction by an international criminal court over nationals of non-consenting States. It argues that absent the consent of the State of nationality, customarily the exercise of jurisdiction by international criminal courts has been preconditioned on a decision of the Security Council. Part III addresses the issue of responsibility (and potential liability) for illegally or irregularly obtained custody. Part IV concludes.