Territorial jurisdiction of a court can be understood as the geographical bounds within which a court has the power to adjudicate. Article 12 of the Rome Statute of the International Criminal Court (Statute) confers territorial jurisdiction on the International Criminal Court (ICC) in cases where “conduct in question” was committed on the territory of a state party to the Statute or by a national of a state party. However, in cases where the alleged crime took place on the territory of a state not party to the Statute, the ICC may only exercise jurisdiction if such a state willingly submits to the jurisdiction of the ICC or if the case is referred to the prosecutor by the United Nations Security Council under Article 13(b) of the Statute.

Yet even in the absence of state consent, the Pre-trial Chamber (PTC) of the ICC chose to initiate prosecutorial proceedings against states not party to the Statute, as seen most recently in the cases of Myanmar and Israel.

In February this year, the PTC announced that the ICC may exercise jurisdiction over territory occupied by Israel since 1967, namely, West Bank, Gaza and East Jerusalem, to investigate potential war crimes. Israel, in this scenario, is not a state party to the Statute.

In the Myanmar case, the PTC held that, in the case of deportation, only one element of the alleged crime must have taken place on the territory of a state party to the Statute. The PTC was of the opinion that the crime of deportation was one that was “inherently transboundary” in nature, and for deportation to have occurred there needs to be a crossing of international borders. In this case, the Rohingyas were deported to Bangladesh, a state party to the Statute, and the PTC held that the preconditions to the exercise of jurisdictions, pursuant to Article 12(2)(a) of the Statute, were fulfilled. This decision in effect extended the jurisdiction of the ICC over the non-party state of Myanmar, not only for the crime of deportation but also for the crime of forced persecution and other crimes.

In the same judgment, two important points were set forth by the ICC. First, the ICC held that “There is no question that this Court is equally endowed with the power to determine the limits of its own jurisdiction” under the doctrine of la compétence de la competence or Kompetenz-Kompetenz, which states that a court has the jurisdiction to determine its own jurisdiction. The second major point was the fact that a part of the conduct in question took place on the territory of a state not party to the Statute does not disqualify the ICC from exercising its jurisdiction on such a state, because such a restrictive interpretation of Article 12(2)(a) of the Statute would be contrary to the objects and purposes of the Statute.

The ICC has previously held that when Article 21(1)(a) of the Statute is silent on a particular matter, Articles 31 and 32 of the Vienna Convention on the Law of Treaties (VCLT) must be contextually read to help with interpretation. Articles 31 and 32 of the VCLT provide the guidelines for interpretation of treaties. Article 31(1) states that treaties must be interpreted keeping in mind their objects and purposes.

The preamble of the Statute states that the purpose of the ICC is “to act against impunity for the most serious crimes of concern to the international community as a whole and which is complementary to national criminal jurisdictions.” However, such power of ending impunity and preventing such crimes is not unrestricted and must operate under “specific, clear and strict conditions of procedure, namely conditions relating to jurisdiction,” thereby implying that the jurisdictional requirement supersedes its objective and purpose.

It is a well-established principle of international law that an international tribunal cannot enforce its jurisdiction over non-party states. Article 34 of the VCLT is understood as a provision derived from the principle pacta tertiis nec nocent nec prosunt, which lays down that treaties cannot create any rights or any obligation over a state that has not consented to such rights and obligations. Therefore, the Statute cannot impose any rights and obligations over non-party states. In accordance with the provisions of the Statute, there are specific instances where the ICC can try nationals of a state that is not a party to the Statute, such as when a crime under the Statute is committed on the territory of a state party. Provisions such as these make it abundantly clear that the ICC operates on the basis of a restricted jurisdiction and not one of universal jurisdiction. Such a proposal, made by Germany and Korea, was expressly rejected by the other countries in establishing the ICC.

There are two other doctrines by means of which it is often argued that the ICC can extend its jurisdiction onto non-party states; the objective territoriality doctrine and the effects doctrine. Objective territoriality and effects doctrines refer to acts done outside the jurisdiction, yet intended to produce detrimental results within the said jurisdiction. The Statute makes no reference to either doctrine; rather it includes the word “conduct,” which is generally interpreted as physical conduct of the perpetrator within the territory of a state party. Furthermore, the International Criminal Tribunal for Rwanda (ICTR) had recognized the effects doctrine, which makes it clear that if the drafters of the Statute wished to incorporate the same into the Statute they could have since the ICTR and ICTY are widely considered to be precursors to the ICC and have greatly influenced the Statute itself.

Therefore, the power of the ICC to exercise jurisdiction over a state is contingent on the consent of the state for the same. Bare perusal of certain provisions of the Statute makes it clear that the jurisdiction of the ICC is not universal and may not be exercised in absence of the state’s consent. Moreover, interpreting Article 12(2)(a) in a way that would allow the ICC to exercise jurisdiction over non-party states would mean allowing the ICC to exercise universal jurisdiction, a proposal that was explicitly rejected during the drafting of Article 12(2)(a) by the committee. Moreover, the ICC is founded upon a treaty governed by the Statue. The purpose of the treaty is defeated if the ICC is allowed to exercise jurisdiction over non-party states.

Utkarsh Dubey is a second-year law student at National Law University, Jodhpur, India.

Suggested citation: Utkarsh Dubey, Jurisdiction of the International Criminal Court Over Non-party States: Legitimate or Ultra Vires?, JURIST – Student Commentary, May 19, 2021, https://www.jurist.org/commentary/2021/05/utkarsh-dubey-icc-jurisdiction-over-nonparty-states/.

This article was prepared for publication by Katherine Gemmingen, Commentary Co-Managing Editor. Please direct any questions or comments to her at commentary@jurist.org