This Article demonstrates the disadvantages of permitting a supranational institution like the International Criminal Court (ICC) to aggrandize its authority by overriding agreements between sovereign states. The Court's constitutive power derives from a multilateral treaty designed to augment sovereign enforcement efforts rather than annul them. Treaty negotiators expressly rejected efforts to confer jurisdiction to the ICC based on its aspiration to advance universal values or a self-justifying teleological impulse to bring perpetrators to justice. Rather, its jurisdiction derives solely from the delegation by States Parties of their own sovereign prerogatives. In accordance with the ancient maxim nemo plus iuris transferre potest quam ipse habet, states cannot transfer jurisdictional authority to the supranational court that they themselves do not possess at the time of the alleged offenses. Upon ratification of the Rome Statute, both Afghanistan and Palestine conveyed jurisdiction to the Court, but the scope of that delegation is limited by their preexisting treaty-based constraints. American forces and Israelis remain subject to the exclusive criminal jurisdiction of their own states for criminal offenses committed on the territory covered by those binding bilateral agreements so long as those treaties remain applicable. Hence, the Rome Statute by its own terms does not automatically extend territorial jurisdiction over American forces in Afghanistan or over Israeli citizens suspected of offenses in the Occupied Territory of the West Bank or in the Gaza Strip. Yet, the Office of the Prosecutor uncritically accepts the premise that ratification of the multilateral treaty conveyed indivisible territorial jurisdiction. The ICC is not empowered to sweep aside binding bilateral agreements between sovereign states. By asserting that it has power to abrogate underlying bilateral treaties, the Court undermines ancient precepts of international law and harms the principles of treaty law. The ICC is not constructed as an omnipotent super-court with self-proclaimed universal jurisdiction based upon the presumption that the Rome Statute operates in isolation from other treaty-based constraints on sovereign prerogatives. This Article examines the conflicts between current Court assumptions and the tenets of the Rome Statute. Its final Parts dissect the foreseeable damage caused by the present policy. The conclusion asserts that the Court cannot unilaterally override the validity of existing jurisdictional treaties. The assertion of such powers would violate the Vienna Convention on the Law of Treaties and muddy the existing debates related to resolving conflicts between equally binding treaty norms.
TABLE OF CONTENTS I. INTRODUCTION II. HARMONIZING THE MULTILATERAL AND BILATERAL VISIONS A. The Jurisdictional Design of the Rome Statue 1. Limitations on the Court's Jurisdiction 2. The Admissibility Framework 3. The Intent of Article 98 B. The Pattern of Preexisting Jurisdictional Allocations 1. Afghanistan 2. The West Bank and Gaza III. THE PROSECUTOR'S APPROACH UNDERMINES THE ROME STATUTE ITSELF A. Protecting a Perpetrator's Human Rights B. Intentional Integration in lieu of Creating a Special (Self-Contained) Regime IV. ADVERSE IMPLICATIONS FOR THE LARGER LAW OF TREATIES A. Disadvantages of a Purely Formalist Approach B. The Danger of Subjective Functionalism V. CONCLUSIONS I. INTRODUCTION
The International Criminal Court (ICC) straddles a jurisdictional fault line that threatens to corrode first principles of international treaty law. The premise of this Article is that the current approach of the ICC Office of the Prosecutor (OTP) in two of its most sensitive jurisdictional dilemmas undermines international law even as it obfuscates the specific tenets found in the Rome Statute of the International Criminal Court (the Rome Statute or the Statute). (1) Upon entry into the ICC Assembly of States Parties (ASP), both Afghanistan and Palestine conveyed territorial jurisdiction to the Court within the meaning of Article 12 of the Rome Statute. But the quantum of that delegated jurisdiction is constrained by their preexisting treaty-based constraints. In both instances, Afghanistan and Palestine entered into binding agreements that ceded exclusive jurisdiction over Americans and Israelis, respectively, for crimes committed on the territory of the state. The subsequent transfer of territorial jurisdiction from the state to the ICC via ratification of the Rome Statute therefore could not have included Americans or Israelis.
This Article highlights the harm caused by unwarranted expansion of the Court's jurisdiction over American forces in Afghanistan and Israeli citizens suspected of offenses in the Occupied Territory (2) of the West Bank and on the Gaza Strip. The current OTP approach would reshape established international treaty norms in fundamental ways. To be precise, the Office of the Prosecutor presumes jurisdiction over American or Israeli nationals in these two controversial situations (3) based on assumptions that undermine the basic tenets of established treaty law. The maxim nemo plus iuris transferre potest quam ipse habet can be traced back more than two millennia. (4) Literally translated as "No one can transfer to another more rights (plus iuris) than he has himself," (5) the concept is one of the bedrock principles of international law, just as it governs kindergarten playgrounds the world over. Surprisingly, there has been almost no recognition of the complex interrelationship between the rights and duties of states arising from entry into the Rome Statute, when such entry squarely conflicts with equally binding bilateral instruments. This Article seeks to fill that void.
Chief Justice John Marshall echoed perhaps the most foundational aspect of international law in Schooner Exchange u. McFadden by noting that "[t]he jurisdiction of the nation within its own territory is necessarily exclusive and absolute." (6) Territorial jurisdiction to make and enforce criminal law is indisputably one of the quintessential aspects of state sovereignty. (7) Any sovereign state retains "exclusive jurisdiction to punish offenses against its laws committed within its border, unless it expressly or impliedly consents to surrender its jurisdiction." (8) The Rome Statute revolutionized the landscape of international law by establishing a complex framework for a permanent supranational prosecutorial authority. Neverthelesss, the Court's authority is not independent or omnipotent. Treaty-based ICC jurisdiction flows exclusively from the delegation of a State Party's sovereign jurisdictional power. Except for the overarching authority of the United Nations Security Council to convey jurisdiction to the Court through binding resolutions under Chapter VII of the UN Charter, the jurisdiction of the ICC, as embodied in Article 12 of the Rome Statute, is based only on derivative jurisdiction granted by states at the time they ratify the multilateral treaty. To be more precise, affirmative Security Council referrals in the form of a Resolution passed under its Chapter VII authority are the only mechanism by which the ICC can exercise universal jurisdiction over offenses.
Properly understood and implemented, the jurisdictional relationship between the ICC and sovereign states represents a tiered allocation of authority to adjudicate because states retain the primacy of jurisdiction under the treaty. The principle that sovereignty can he subordinated when necessary to achieve accountability for crimes that most directly challenge the commonality of values and order shared among nations is the cornerstone of the ICC. Upon ratification of the Rome Statute, both Afghanistan and Palestine accepted the premise of Article 12 that empowers the ICC to exercise jurisdiction over any case where either (a) the actus reus for the alleged crime occurred on the territory of a State Party to the Rome Statute, or (b) the perpetrator is a national of a State Party. Article 12(3) also permits, but does not require, any state that is not party to the ICC to consensually transfer criminal jurisdiction to the ICC. Preceding Palestinian Authority (PA) ratification of the Rome Statute, Mahmoud Abbas purported to create ICC jurisdiction over Israeli citizens based on just such a declaration signed on December 31, 2014. (9) The incompatibility between the jurisdictional provisions of the Rome Statute and the preexisting bilateral treaties described in Part II that simultaneously bind Afghanistan and Palestine represents an important example of normative fragmentation. To date, neither State Party has offered any explanation for why the purported jurisdictional conveyance to the ICC is valid despite the parallel treaty-based constraints on territorial jurisdiction over Americans and Israeli nationals that remain in force.
Members of the ICC Assembly of States Parties (10) have conflicting duties to other sovereign states vis-a-vis those due the Court. The fragmentation of duties is a side effect of the otherwise laudable growth of authoritative lawmakers within international law. The number of states represented in the United Nations, for example, has grown by more than 378 percent since its inception. (11) Further complicating prospects for linear development of norms through treaty provisions designed to resolve conflicts with other state obligations, international organizations are increasingly empowered to negotiate new instruments applicable to sovereign states. (12) In many instances, states consciously use multilateral conferences convened by international organizations as venues for "reaffirming, modifying, or elaborating codified custom." (13) International treaties became the dominant form of international lawmaking in a multipolar world order. (14) Robust academic efforts arose to analyze potential treaty conflicts and...