TABLE OF CONTENTS I. INTRODUCTION A. Universalist v. Delegation-Based Foundations of ICC Jurisdiction B. Limits of the Nemo Dat Quo Non Habet Doctrine 1. Limits of the Symmetry Requirement 2. The Distinction Between Prescriptive Jurisdiction and Enforcement Jurisdiction C. Situational Differences I. INTRODUCTION
It is a pleasure and a privilege to provide a few reflections on Michael Newton's thought-provoking essay on "How the ICC Threatens Treaty Norms." His article marks an important piece of scholarship. It reflects significant concerns about the reach and function of the International Criminal Court (ICC) that merit further attention and explanation in ICC practice. Newton makes a provocative argument. He argues that the ICC might undermine sovereign law enforcement efforts and exceed its powers if it exercises jurisdiction over American forces in Afghanistan or Israeli offenses in the West Bank or the Gaza Strip. This argument is not entirely new. It is part of a broader strand of critique that has been voiced against the Court since the entry into force of the Rome Statute. (1) I approach these critiques from a slightly different angle. I would argue that the type of "threats" (2) that he formulates are a sign that the ICC becomes more effective, and that it functions, as it is supposed to work-namely as a system of accountability that induces pressures to investigate and prosecute core crimes. (3)
ICC critique has evolved in stages over the past decade. Initially, the ICC was criticized for jurisdictional overreach in relation to third parties. (4) The United States has led a global campaign to limit the effects of ICC jurisdiction. The major arguments against these concerns have been powerfully addressed in scholarship. (5) In the start-up phase of the Court, the ICC avoided any jurisdictional confrontation. It discarded many of the fears voiced against it by powerful states. It focused on situations with uncontested jurisdictional titles, based on referrals of States Parties, the Security Council (which can refer situations that occur in non-States Parties) or voluntary acceptances of jurisdiction under Article 12 (3) of the Rome Statute (The Statute). Investigations were limited to easy targets: non-Western powers or non-armed groups. This has led to criticisms in relation to under-reach, selectivity, or political bias. (6) The Court was attacked by voices of the Global South for an undue focus on Africa and its reluctance to investigate potential crimes committed by major powers in Iraq or Libya. (7) The ICC justified this approach by citing gravity considerations or resource constraints.
In contemporary practice, the tide is shifting. The Court engages increasingly with the conduct of Major Powers, either based on territorial jurisdiction (e.g., Afghanistan--United States; Georgia-Russia) or the nationality of defendants (e.g., Iraq-United Kingdom). All of these situations are still at a relatively early stage of proceedings. No individuals have been targeted. In certain contexts (e.g., Palestine), it is still uncertain whether there will be any investigations. The ICC will only act if there are no genuine domestic investigations and prosecutions. Affected states have multiple options to challenge ICC jurisdiction. But there are fears that the ICC may threaten established protections and overstep its boundaries.
It is thus increasingly clear that the Court will be criticized for whatever it does. (8) It will be blamed by one constituency if it acts, and by another if it fails to act. I would argue, that this tension is not a "negative," but a "positive" one. (9)
Michael Newton's article deserves credit for highlighting some of the difficult dilemmas that arise in the application of international criminal justice in situations where crimes occur on the territory of a State Party to the ICC Statute. The territorial state often faces difficulties to investigate or prosecute, in light of capacity constraints or impediments to exercise jurisdiction over foreign nationals (e.g., SOFAs or agreements under Article 98 of the Statute). At the same time, state practice suggests that there is not always a full and effective follow-up on violations by the state of the nationality of the offender. (10) The crucial question is how such accountability problems should be addressed: through trust in the exercise of jurisdiction of the state of the offender, or the prospect of ICC jurisdiction.
Newton makes a powerful argument in favor of the primacy of domestic jurisdiction, based on bilateral treaty arrangements between the territorial state and the state of the nationality of the offender. Critics would argue that Newton's argument should be rejected since it would enable states that are not party to the Statute, such as the United States or Israel, to unilaterally preclude the ICC from exercising jurisdiction. (11) The novelty of Newton's claim lies in the fact that he challenges ICC jurisdiction from the perspective of treaty law and the theory of delegation. (12) He claims that the ICC cannot exercise jurisdiction in cases where the State Party had "contracted out" certain types of jurisdiction at the time of accession to the Statute. He invokes the old Latin maxim from property law "nemo dat quod non habet" to support this claim.
I would argue that this claim merits differentiation. I will focus on three key issues. My first concern is that Newton misrepresents the foundation of ICC authority. He derives ICC jurisdiction entirely from theories of delegation, while disregarding alternative universalist foundations. Although it might be politically sensitive for the ICC to exercise jurisdiction over nationals of non-States Parties in contexts such as Afghanistan or Palestine, this option is not necessarily precluded by international law. Second, Newton overstretches the implications of the nemo dat quod non habet doctrine. I would argue that the conflict that Newton describes raises an enforcement problem, rather than an authority problem. A closer distinction needs to be drawn between "prescriptive jurisdiction" and "enforcement jurisdiction." A contractual arrangement of a territorial entity with a third state, such as a SOFA, limits the exercise of jurisdiction (i.e., enforcement). But it does not necessarily extinguish the prescriptive jurisdiction of that entity (i.e., the general power to assert jurisdiction). Third, I would argue that the situations in Afghanistan and Palestine pose different problems from the perspective of the nemo dat quod non habet argument. They must be more closely distinguished.
Universalist v. Delegation-Based Foundations of ICC Jurisdiction
Newton's starting point is compelling. ICC authority is grounded in state consent. The Statute is designed to strengthen domestic jurisdiction. Many agree that it should ideally be interpreted in harmony, rather than in conflict with other treaties. Article 98 of the Statute confirms the intention of the drafters to limit legal conflicts between the...