The  Rome  Treaty  for  an  International  Criminal  Court  (ICC)  provides  for the  establishment  of  an  international  court  with  jurisdiction  over  genocide,  war crimes,  and  crimes  against  humanity

Morris, Madeline

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THE JURISDICTION OF THE INTERNATIONALCRIMINAL COURT OVER NATIONALS OF NON-PARTY STATES*(Conference Remarks)Madeline Morris*The Rome Treaty for an International Criminal Court (ICC) provides forthe establishment of an international court with jurisdiction over genocide, warcrimes, and crimes against humanity. The Treaty provides that, in somecircumstances, the ICC may exercise jurisdiction even over nationals of statesthat are not parties to the Treaty and have not otherwise consented to jurisdic-tion. Specifically, Article 12 provides that, in addition to jurisdiction based onSecurity Council action under Chapter VII of the United Nations Charter andjurisdiction based on consent by the defendant's state of nationality, the ICCwill have jurisdiction to prosecute the nationals of any state when crimes withinthe Court's subject matter jurisdiction are committed on the territory of a statethat is a party to the Treaty or that consents to ICC jurisdiction for that case.That territorial basis would empower the Court to exercise jurisdiction even incases where the defendant's state of nationality is not a party to the Treaty anddoes not consent to the exercise of jurisdiction.The United States has objected to the ICC Treaty on the ground that, bypurporting to confer upon the Court jurisdiction over the nationals of non-consenting non-party states, the Treaty would bind non-parties in contraventionof the law of treaties. This objection has given rise to a heated controversy.The question of ICC jurisdiction over non-party nationals poses a genuinedilemma. There are legitimate and very important concerns on each side of thismatter.Let me tell you what I think is at stake. On the one hand, there is thepressing need for justice in cases of genocide, war crimes, and crimes againsthumanity. That need is pressing, if for no other reason, because of the interestof victims in seeing justice done. There is also the important and related factthat the sense that justice has been served may help to break cycles of violencein societies in which revenge and retaliation may otherwise take the place oftrial and punishment. Those reasons are enough to qualify the need for justiceas a pressing need. Perhaps prosecutions also would deter future crimes ofmass violence. That, we do not know. Either way, the need for justice is a* Copyright, Madeline Morris, 1999.** Professor of Law, Duke University.364 ILSA Journal of international & Comparative Law [Vol. 6:363compelling one, and the ICC may make some important contribution in thatcause.This brings us to the issue of the ICC's jurisdiction. The crimes ofgenocide, war crimes, and crimes against humanity are often committed withthe collusion of governments. Those governments are unlikely to consent toICC jurisdiction over their nationals for crimes that the government supportedor condoned. The Rome Treaty responds to that serious problem by providingthat, in some cases, the Court will have jurisdiction even without the consentof the defendant's state of nationality and even if that state is not a party to theTreaty. This sort of jurisdiction makes some sense. It makes sense to give theCourt robust jurisdiction lest a rogue regime should be able to shield itsnationals from justice. And, when viewed from this perspective, it is hard tosee how any state could legitimately object. If the Court's subject matterjurisdiction is limited to established international crimes and the process of theCourt is fair, then no state - party or non-party - should have legitimateobjections to the Court's exercising jurisdiction over its nationals.This reasoning might cause us to see ICC jurisdiction over non-partynationals as relatively unproblematic were it not for the fact that the ICC willinevitably hear two different types of cases. There will be cases involvingstrictly a determination of individual culpability, and cases that will focus onthe lawfulness of the official acts of states. There will, in ICC cases, always bean individual defendant in the dock. But if the conduct forming the .basis forthe indictment was an official act taken pursuant to state policy and under stateauthority, then the case will, in effect, be an adjudication of the lawfulness ofthe state's acts and policies. In such cases, the state whose conduct isquestioned might acknowledge the conduct and maintain that the conduct waslawful; or the state might deny that the alleged acts in fact occurred. In eitherevent, the case will represent an adjudication of the lawfulness of a state'sconduct and, in that sense, will constitute a legal dispute between states.For individual culpability cases, the ICC will share much in common withother criminal courts. For official acts cases, the ICC will resemble much morean international court for interstate dispute adjudication. For the former, robustjurisdiction is appropriate for the reasons I have touched on. For the latter,flexibility and consensuality of jurisdiction are important, as reflected in thejurisdictional regimes of other international courts that adjudicate interstatedisputes, such as the ICJ, the Law of the Sea Tribunal, and the WTO disputesettlement system. The ICC, thus, requires ajurisdictional structure that is bothsufficiently aggressive to make the Court effective in the prosecution ofcriminals and also sufficiently consensual to make the Court a suitableinstitution for the adjudication of international disputes. It is this need for theICC's jurisdictional structure to accommodate these two conflicting require-ments that creates our dilemma.Let me focus for a moment on why compulsory jurisdiction to adjudicateinterstate disputes in an international court may raise serious concerns forstates. Particularly where an interstate dispute concerns an area of unsettledlaw, litigation may entail more risk than states can be expected to accept. If thesubject matter is important and the law is unsettled, allowing a third party to,in effect, decide the binding law of the matter is a very perilous course ofaction. Relatedly, compulsory jurisdiction may be problematic insofar ascompromise outcomes of various sorts may be desirable in interstate disputetype cases, but are unlikely to emerge from adjudicated rather than negotiatedresolutions. It is also important to recognize here that the decisions of aninternational court will be more authoritative than would those of anyindividual state's courts. Thus, an international court would have the power tocreate law in a manner disproportionate to that of any state. This may be morelaw-making power than some states are comfortable granting to one interna-tional institution - especially in sensitive areas involving military activities andinternational security. Moreover, the law developed by an international courtwould not be susceptible to revision or reversal through any legislative process,as would be the case in municipal justice systems. States may have legitimateconcerns about the compulsory jurisdiction of such a court. Finally, stateswould need to be more concerned about the political impact of adjudicationsbefore an international court than before an individual state's courts. An even-remotely successful international court will have significant prestige andauthoritativeness. The political repercussions of such a court's determining thata state's acts or policies were unlawful would be very substantial indeed, andcategorically different from the repercussions of the same verdict emergingfrom a national court. States may therefore be put to a choice, in some cases,of either revealing sensitive data as defense evidence or withholding thatevidence and thereby risking severe political costs in case of a guilty verdict.These are, in very abbreviated form, the legitimate and significantconcerns that may give states pause in accepting ICC jurisdiction. This is notto say whether states ultimately should or should not accept ICC jurisdiction.Rather, the point is that the implications of jurisdiction exercised by aninternational court are very different from those of jurisdiction exercised bynational courts. The two kinds of jurisdiction therefore raise very differentconcerns for states.Now, you may say, "It is true that there are these political and policyconsiderations at stake for states, but those are not legal bars to jurisdiction."You may say, "The lawfulness of ICC jurisdiction over non-party nationals isunproblematic, and so states - whatever their policy concerns - are obligedto accept that jurisdiction." Here is where I believe that an error is made.ICC jurisdiction over non-party nationals has been justified as a form ofdelegated jurisdiction. The theory is that states parties, in effect, delegate their2000] Morris 365366 ILSA Journal of International & Comparative Law [Vol. 6:363universal or territorial jurisdiction to the ICC. However, there are verysignificant differences in the consequences and implications of ICCjurisdictionas distinct from state jurisdiction, in the ways I have just described. For thatreason, it should not be quickly presumed that the option of delegating a state'sjurisdiction to an international court is necessarily part of the customary law ofuniversal or territorial jurisdiction. Because different state interests are affectedby state jurisdiction and international jurisdiction, consent to or acquiescencein state-exercised jurisdiction is not equivalent to consent to or acquiescence injurisdiction exercised by an international court.The international law of jurisdiction (universal, territorial, and so on) iscustomary law. It has developed through the consent, acquiescence, andpractice of states. Its legitimacy rests precisely on the fact that, in the courseof the law's development, states have accepted a particular jurisdictionalprinciple as law and have acted accordingly.Unsurprisingly, states decide whether to accept the development ofparticular principles or rules of law based on the implications of those rules forstates' interests, however they define those interests. If the concept of the"incremental development of customary law" is to mean anything coherent, itmust mean that a development can be considered incremental only if thedevelopment would not fundamentally change the impact of the law on states'interests. Customary law, if it is to maintain any claim to legitimacy, cannotproceed by ambush and surprise. We cannot say to states,This "development" of customary law was unforeseeable and not partof what was anticipated as the law developed through state practiceand opinio juris. In fact, this "development" has a significantlydifferent impact on your interests than the rule that it developedfrom.But, nevertheless, you are now bound to accept this innovationbecause it has been deemed incremental.That would not be legitimate, and it also would not work.This is why I believe that the concerns that states may have with ICCjurisdiction are not "mere policy concerns" but are, in fact, of fundamentallegal significance. It cannot be said that the option of delegating states'jurisdiction to an international court is already an established feature of thecustomary law of universal or territorial jurisdiction. And the fact that theimpact of international jurisdiction on state interests is significantly differentfrom the impact of state-exercised jurisdiction means that we cannot label themove to include delegability as an "incremental development."There is no instance of prior state practice involving the delegation ofstates' jurisdiction to an international court without the consent of thedefendant's state of nationality. The International Criminal Tribunals for theMorrisformer Yugoslavia and Rwanda base their jurisdiction on Security Councilpowers under Chapter VII. The Tokyo Tribunal after WWII based itsjurisdiction on Japan's consent. And the Nuremberg Tribunal based itsjurisdiction on the consent of the Allies, acting as the German sovereign. Asthe Nuremberg judgment stated:[T]he making of the Charter [establishing the Nuremberg Tribunal]was the exercise of the sovereign legislative power by the countriesto which the German Reich unconditionally surrendered; and theundoubted right of these countries to legislate for the occupiedterritories has been recognized by the civilized world.Thus, the Nuremberg Tribunal relied on the right of the Allies to exercisesovereign prerogatives in Germany as the basis for its jurisdiction. There areexcellent arguments for the view that the Nuremberg Tribunal should not havedone so. But that is what it did. Its jurisdiction may have been flawed for thatreason -but that would mean only that its jurisdiction was flawed, not that thejurisdiction rested on some basis other than the one stated by the court.The net result is that none of the four modem international tribunals hasexercised the delegated jurisdiction of states in the absence of consent by thedefendant's state of nationality. Therefore, there appears to be no prior instanceof state practice to support the ICC's exercise of universal or territorialjurisdiction delegated to it by states without the consent of the defendant's stateof nationality.Now, you may say, "You're quibbling. If each of the states parties to theICC Treaty would have the right to prosecute these defendants, then surelythose states can get together and prosecute them in an international court whichthey create." You may say, "Even if there are no prior instances of statepractice of such delegated jurisdiction, the innovation is 'incremental' - statescan prosecute in their national courts or in an international court - it's such aminor change."But, here is precisely where we see that, from the point of view of states'interests, the implications of the innovation are very significant and not minoror incremental at all. States, for the reasons I have briefly elaborated, may beunwilling to have their interstate disputes adjudicated by an international court,even while those same states may accept universal and territorial jurisdictionand, thus, accept the prosecution of their nationals in the courts of otherindividual states.Thus, when we speak of the delegation of states' jurisdiction to aninternational court, we are speaking not of an "incremental development" butof a substantial and significant legal change. Such substantial changes cannotand should not be accomplished through labeling them as minor or incremental2000]368 ILSA Journal of International & Comparative Law [Vol. 6:363developments in customary international law. An attempt to characterize amajor change as a minor change is bound to meet with resistance, just as wehave seen in the ICC context.Before closing, I would like briefly to address two different arguments,sometimes raised in this context, that I think we probably need not detainourselves with. I will mention them here in passing, though I say much moreabout them in my paper.' The first of these arguments is that the Rome Treatyhas itself created new customary law permitting jurisdiction over non-partynationals. That claim seems to me to be very premature, for reasons that I taketo be self-evident. If I am wrong about that and there is disagreement on thepoint, I would be happy to discuss it.The other argument sometimes made is that the terrorism treatiesdemonstrate that states can create otherwise non-existentjurisdiction in treatiesand then apply that jurisdiction to non-parties. The terrorism treaties do,indeed, provide that states parties will have, in effect, universal jurisdictionover the crimes covered in the treaties. But, as I discuss at some length in thepaper,2 this does not indicate that states can create jurisdiction that they wouldnot have individually by signing a treaty, and then impose that jurisdiction onnon-parties. The better interpretation of the significance of the terrorismtreaties is that those treaties, in effect, propose new customary law. Non-partystates can respond to that proposal by acquiescing in or objecting to thejurisdiction. If they acquiesce, then the jurisdiction defined in the treaties will,in time, become customary law. If non-parties object, then the bid to createnew custom will likely fail. So far, in the case of the terrorism treaties, we haveseen acquiescence. That has not been true regarding the jurisdictionalprovisions of the ICC Treaty - and therein lies the relevant and crucialdistinction. Once again, I would be happy to discuss the terrorism treatiesfurther but, in truth, I think that they are off point.What I think is really relevant here, in conclusion, is that there aremeaningful concerns about the compulsory adjudication of interstate disputesthat might cause a state to reject the jurisdictional regime of the Rome Treaty.These concerns cannot, I believe, be dismissed as being non-legal in character.Rather, the fact that the ramifications of international jurisdiction and state-exercised jurisdiction are very different is entirely relevant to and, indeed, callssharply into question, the lawfulness of ICC jurisdiction over non-partynationals.1. See Madeline Morris, High Crimes and Misconceptions: Tile ICC and Non-Party States,forthcoming 63 LAW & CoNTEMP. PROBS - (2000).2. See id.2000] Morris 369For these reasons, I believe that, as I began by saying, what we have is agenuine dilemma - not excuses or pretexts, but legitimate concerns on eachside. I feel deeply, as we all do, the need for enforcement of the body of lawintended to reduce the human suffering caused by genocide, war crimes, andcrimes against humanity. I want for us to make progress on the particularobstacle to an effective ICC that we are considering today. I believe that westand a chance of doing so only if we see realistically the valid concerns onboth sides of this issue and take those concerns seriously into account inexamining whether there may be a workable resolution.

The Jurisdiction Of The International Criminal Court Over Nationals Of Non-Party States (Conference Remarks)

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The Jurisdiction Of The International Criminal Court Over Nationals Of Non-Party States (Conference Remarks)

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