Sovereignty, Jurisdiction, and Power

• Pages: 43-80
• Author: Beth Van Schaack,Ronald C. Slye

43

Chapter 2

SOVEREIGNTY, JURISDICTION,

AND POWER

International criminal law (ICL), like all of public international

law, implicates the principle of state sovereignty. States have

historically considered scrutiny by international and foreign

tribunals of events within their territory or involving their nationals

to be an infringement on their sovereignty, especially when this

scrutiny takes the form of criminal investigations and prosecutions

of individuals accused of committing international crimes,

particularly when those individuals are state officials. State

authorities often assert the prerogative to decide whether and how to

prosecute their own citizens for crimes they may have committed as

well as criminal acts committed in their territories. As a result,

governments frequently resist exercises of international or

extraterritorial jurisdiction over their nationals or over events that

have occurred within their borders. Yet with the reemergence of

international criminal tribunals on the global stage in the 1990s, and

the increased use of universal jurisdiction occasioned by the

overlapping wars in Syria and Iraq, such scrutiny is increasingly

common. As a result, the enforcement of ICL has occasioned a

reinterpretation of the principle of state sovereignty—a development

that not all states have accepted quietly.

ICL is now applied, interpreted, and developed through three

different types of judicial institutions: domestic, international, and

hybrid. Historically, prosecutions for what we would today call

international crimes primarily occurred in domestic courts, if they

took place at all. Today, international and mixed national-

international (“hybrid”) tribunals have joined domestic courts as

adjudicators of ICL. These multilateral institutions have been

created by two primary means. First, they have been created through

an exercise of state consent, usually with the promulgation of a

bilateral or multilateral treaty, by which a state agrees to subject

individuals within their jurisdictions to prosecution before an

international or quasi-international tribunal. The International

Criminal Court (ICC) and Special Court for Sierra Leone (SCSL) are

examples of this approach. Second, institutions have been created

through the coercive power of the international community acting

collectively through the auspices of the U.N. Security Council. The

two ad hoc criminal tribunals for Yugoslavia and Rwanda exemplify

this approach. Notwithstanding the recent focus on international

institutions, domestic courts remain important fora for ICL

44

THE DISCIPLINE OF INTERNATIONAL

CRIMINAL LAW

Pt. I

development, especially given the increasing acceptance and

prevalence of various forms of extraterritorial jurisdiction.

This chapter provides an overview of the origins of the

institutions in which ICL is adjudicated and various procedural

mechanisms (such as extradition) that effectuate such proceedings.

It also discusses the jurisdictional frameworks at work with

reference to the three types of jurisdiction—prescriptive,

adjudicative, and enforcement—and the classic bases for exercising

jurisdiction—territoriality, nationality, protectivity, and

universality. Finally, it discusses some of the structural limitations

that states impose on these tribunals to cabin juridical power. The

subject matter jurisdiction of the various international and hybrid

tribunals is often quite similar in terms of the crimes that can be

prosecuted. Their jurisdictional power over the individuals and

events of concern varies as a result of the different circumstances and

power dynamics at play during their formation. This chapter serves

as a reminder that although the principle of state sovereignty has

eroded considerably, it remains a potent force in international

relations and the field of international criminal law.

A. Creatures of Consent

This section discusses the most prominent example of the

creation of an international criminal tribunal by consent—the

multilateral Rome Treaty that gave rise to the ICC. It also discusses

the hybrid tribunals and mixed panels that were created by virtue of

international agreements with the United Nations or regional bodies,

although the treaties in question were bilateral rather than

multilateral. Treaty-based institutions have the advantage of high

(or higher) “buy in” by participating states. At the same time, this

requirement that states express affirmative support for the future

institution comes with its own, not insignificant, weaknesses. For

one, important states may choose not to participate, thus weakening

the strength and legitimacy of the tribuna l. In addition, states that

negotiate the terms of these tribunals’ constitutive treaties may

insist on the inclusion of significant structural limitations to control

the amount of discretion, independence, and judicial power these

institutions can exercise and to ensure some measure of state control

over the judicial process. This can result in both a significantly

weaker institution and one vulnerable to political manipulation.

1. The International Criminal Court

The ICC illustrates the strengths and weaknesses of the

consensual treaty-based approach. The ICC was created by a treaty

that was finalized in Rome, Italy, in 1998 (often referred to as the

Rome Statute). The treaty came into force on July 1, 2002, after

Ch. 2

SOVEREIGNTY, JURISDICTION, AND POWER

45

ratification by 60 states. As of August 1, 2025—and following the

withdrawals of Burundi (2017), the Philippines (2019), and Hungary

(2025)—there are 125 state parties to the Court’s constitutive treaty

(one of which being Palestine, which has non-member observer state

status at the United Nations, but not universal recognition).

1

The

refusal of three of the five permanent members of the U.N. Security

Council (China, Russia, and the United States) to join the Court, and

the aggressive opposition mounted by Republican administrations in

the United States against the Court (under Pre sidents George W.

Bush and Donald J. Trump), illustrate one of the weaknesses in the

consensual approach. At the time of this writing, the ICC Prosecutor

is investigating multiple situations that have resulted in arrest

warrants, criminal charges, and proceedings. A number of these

situations—including Uganda; the Democratic Republic of the

Congo; the Central African Republic; Mali; the Comoros, Greece, and

Cambodia (for events in Israeli waters on flagged vessels);

Venezuela; and Ukraine—were brought to the Court by virtue of a

referral by the affected state itself or by other states, such as a 2018

referral of Venezuela by a consortium of the Southern Cone joined by

Canada or the 2022 referral of Ukraine by 43 states. The idea that

states would submit themselves to the Court was not anticipated and

reveals a strength of a consent-based approach. Although each of

these referrals has its own peculiarities, together they illustrate a

high level of reliance by those states on the ICC to address the crimes

committed in their midst.

Drafting the Rome Statute involved juggling a number of

moving parts. With respect to each jurisdictional and substantive law

element, states engaged in protracted and multipolar negotiations,

with self-described Like-Minded States and most nongovernmental

organizations advocating provisions that would ensure a strong,

impartial, and independent institution, while other participants

pushed in the opposite direction by trying to incorporate significant

limitations and checks on the future Court’s power at every turn. Two

of the most contentious issues to arise during the treaty negotiations

concerned the persons over whom, and situations over which, the

Court would have jurisdiction (the so-called preconditions for the

exercise of jurisdiction) and how the Court’s jurisdiction could be

initiated, triggered, or otherwise controlled. Drafters also had to

work out a system of resolving jurisdictional conflicts between the

future Court and the domestic courts of states that may also be

1

The Philippines’ withdrawal from the Rome Statute took effect in 2019, but

the Court retained jurisdiction with respect to alleged crimes that occurred on the

territory of the Philippines while it was a State Party (Nov. 1, 2011–Mar. 16, 2019).

The Philippines arrested ex-President Rodrigo Duterte pursuant to a secret ICC arrest

warrant on March 11, 2025, and transferred him to The Hague to stand trial.