The ICC, Self-created Challenges and Missed Opportunities to Legitimize Authority over Non-states Parties

Abstract The Prosecutor of the International Criminal Court (ICC) has consistently embroiled the Court in situations involving allegations of the commission of crimes by non-state party nationals on the territory of states parties. For the most part, the Prosecutor has assumed the jurisdiction of the Court over non-state party nationals is well-founded by reference to the provisions of the Rome Statute, without any examination as to why or how those provisions bind non-states parties nationals. Where the Prosecutor has specifically sought a legal ruling from the Chambers on the exercise of jurisdiction over non-state party nationals, the Chambers have failed to address the legal issues in a consistent, persuasive and coherent manner. Notably, the Chambers have seen fit to ignore the legal issues as non-issues, sought to sidestep properly addressing non-states parties’ objections by grounding jurisdictional authority in an asserted objective legal personality and further relied upon a conceptualization of the Court as an institution that acts on behalf of the international community as a whole to expansively interpret its scope of jurisdiction, without addressing the potential legal consequences for non-states parties. In so doing, the Chambers have significantly infringed the legal rights of non-states parties without persuasively establishing the legal authority to do so. The import of this failure on the part of Chambers has had detrimental consequences for the Court. The lack of legal clarity surrounding the Court’s relationship with non-state party nationals has emboldened non-states parties’ objections of illegitimacy and muted the effectiveness of the Court’s responses to those objections. The Court is unable to reference persuasive judicial rationales in response.