The Unanswered “Question of Questions”: The Jurisdictional Competence of the International Criminal Court

Abstract

The negotiation of the International Criminal Court’s jurisdiction proved to be highly controversial during the Diplomatic Conference at Rome in 1998. Despite this, the jurisdiction of the Court has not yet been a major issue in practice. Present situations before the Court, such as the situation in Palestine, however, mean that a re-examination of the Court’s jurisdictional scope is timely. In this vein, it is argued that territorial disputes between a State Party and a non-Party should not act as a bar to the exercise of the Court’s jurisdiction, and that the Court’s territorial jurisdiction may be properly understood as encompassing ‘objective territoriality’. The Court’s territorial jurisdiction, however, cannot be understood as permitting an application of the ‘effects doctrine’. Finally, the issue of nationality jurisdiction is explored, and it is concluded that this jurisdictional basis will be of limited practicality in the Court’s goal of ending impunity. If such a goal is to be achieved, States must be willing to try serious international criminals municipally.