Rome Statute: The International Criminal Court

Today we made our first trip to the Peace Palace, the home of the International Court of Justice, Permanent Court of Arbitration, Peace Palace Library, and Hague Academy of International Law.  The Palace itself, as seen in the first picture above, is a a magnificent structure that was built and donated by Andrew Carnegie in the early twentieth century.  We did not, however, go into the Palace, because the purpose of today’s visit was to become acquainted with Peace Palace Library, which houses over a million works on international law.  Compared to the Palace, the Library, as seen in the second picture, was a bit of a let down.  It is composed of a reading room where a few volumes are immediately available.  The vast majority of the volumes, however, are stored elsewhere and only the librarians have direct access to them.  To read them, one must login to a computer with an account given when she first enters, search for a book in their database, and once it has been found, click the “retrieve” button.  It takes about thirty to forty-five minutes for a book to be taken to the reading room.  Although the system is not very efficient, the librarians were incredibly helpful and the collection was excellent.  Upon entering the library, I immediately spotted many books that caught my eye such as Governance Without a State? and The Right to Health in International Law.

I already had a good idea of what topic I wanted to research going into the Peace Palace Library.  My father, an attorney in the US, and I had an argument last week about the jurisdiction of the International Criminal Court (ICC).  He was arguing that the Court has no jurisdiction over nationals of states that have not ratified the Rome Statute and are not part of the UN.  I was defending the Statute, which allows the court to have jurisdiction over a person whose nation has not ratified the Statue or who committed the crime in a country who has not ratified the Statute.  This can only happen when the UN Security Council refers the case to the prosecutor of the ICC.  The issue comes down to consent; does the ICC have jurisdiction over John Smith even though Smith’s country did not ratify, or consent to, the Statue?  With this question in mind, I began searching with keywords such as “Rome Statute” and “jurisdiction.”  I came across an article by Mitsue Inazumi entitled “The Meaning of the State Consent Precondition in Article 12(2) of the Statute of the International Criminal Court: a Theoretical Analysis of the Source of International Criminal Jurisdiction.”  Article 12 of the Statute pertains to jurisdiction over nations who give consent to the ICC’s jurisdiction.  Although the article does not focus on the question I had in mind, it still sheds light on and addresses the issue of prosecuting individuals of non-consenting nations.  For example, the author discusses a few theories of jurisdiction related to the ICC, such as conferred-jurisdiction theory and inherent-jurisdiction theory.  Under the conferred-jurisdiction view, an international court has jurisdiction over a person because that person’s nation consented to the court’s jurisdiction.  On the other hand, under the inherent-jurisdiction view, an international court derives its jurisdiction independently of consent of the person’s nation.  The article addresses many other topics such as automatic jurisdiction, the state-centered approach to the ICC, the strong-ICC approach to the ICC, universal jurisdiction, the Rome Conference, and the nature of the ICC’s jurisdiction.  This was an important article to read, because any proponent of the ICC must address the jurisdiction the Court has over non-consenting individuals, as consent is considered an integral component of jurisdiction.

Later this week, Dr. Arthur Eyffinger will be teaching one of our classes.  He is an expert on the international peace and justice traditions of The Hague and has published many books related to this topic.  As part of our assignment, we are to ask a question based on the books or articles we read today in the Peace Palace Library.  As he is a historian and not a philosopher of law, I will be asking Dr. Eyffinger how the ICC’s jurisdiction over individuals from non-consenting nations fits with the history of international justice.  Was it inevitable that the pursuit of international justice would take us to an international criminal court that has jurisdiction over individuals who do not consent to its jurisdiction?  In other words, was it the next step?  Furthermore, how would historical figures in this field of academia, such as Grotius and Ausser, view the ICC and its jurisdiction?  This question falls under the general topic of philosophy of law as it has to do with basic, yet core principles of jurisdiction.  More particularly, this topic has to do with the complex issue of the jurisdiction of international criminal courts.  In addition, I would like to ask him about his personal feelings of the ICC, how he got into this field, and what is like to be a historian of international law.

Works Cited

http://www.peacepalacelibrary.nl/

Inazumi, Mitsue. “The Meaning of the State Consent Precondition in Article 12(2) of the Rome Statute of the International Criminal Court: a Theoretical Analysis of the Source of International Criminal Jurisdiction.” The Netherlands International Law Review. 49: 159-193.