University of Notre Dame

The Conferred Jurisdiction of the International Criminal Court

January 16, 2024

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The Conferred Jurisdiction of the International Criminal Court

Leila Nadya Sadat*

After twenty years of operation, we know that the International Criminal Court (ICC) works in practice.  But does it work in theory?  A debate rages regarding the proper conceptualization of the Court’s jurisdiction.  Some have argued that the ICC’s jurisdiction is little more than a delegation by states of a subset of their own criminal jurisdiction.  They contend that when states ratify the Rome Statute, they transfer some of their own prescriptive or adjudicative criminal jurisdiction to the Court, meaning that the Court cannot do more than the state itself could have done.  Moreover, they argue that these constraints are imposed by international law itself.  This Article disagrees, contending that states “confer upon” or “accept” the jurisdiction of international courts and tribunals like the ICC not to transfer a subset of their own power to those entities, but because they often want and need those courts and tribunals to do things that they cannot do in their national systems.  International law not only allows them to do this: it encourages it.  This is true for many international courts and tribunals created by treaties and by the United Nations; this Article contends that it is equally true for the ICC.  This Article demonstrates that this theory of “collective conferral” supports the ICC’s recent caselaw on jurisdiction and immunities, which is consonant with principles of general international law, the Rome Statute itself, and the values and concerns that drove states to establish the Court in 1998.

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© 2023 Leila Nadya Sadat. Individuals and nonprofit institutions may reproduce and distribute copies of this Article in any format at or below cost, for educational purposes, so long as each copy identifies the author, provides a citation to the Notre Dame Law Review, and includes this provision in the copyright notice.

* James Carr Professor of International Criminal Law, Washington University in St. Louis; Visiting Fellow, Schell Center for Human Rights, Yale Law School; Special Adviser on Crimes Against Humanity to the ICC Prosecutor.  This Article is written solely in my personal capacity and does not represent the views of any organ or personnel of the International Criminal Court.  I would like to thank William Aceves, Susan Appleton, Kathleen Claussen, Nancy Combs, M.J. Durkee, Oona Hathaway, Rebecca Hollander-Blumoff, Mark Janis, Patrick Keenan, Claus Kreß, Christopher Lenz, David Luban, Saira Mohamed, Goran Sluiter, Beth Van Schaack, David J. Scheffer, and Carlos Vazquez, as well as workshop participants at the University of Connecticut Law School, Georgetown Law School, the ICC Scholars Forum, Washington University School of Law, William & Mary School of Law, and 9 Bedford Row.  I am deeply appreciative of the superb research assistance of students Kelly Adams, Markus Baldermann, Anna Boos, Jordan Michael Terry, and Sam Rouse and Washington University Law Librarians Tove Klovning and Kathie Molyneux.