Jurisdiction of the international Criminal Court: Analysis, loopholes and challenges

Abstract

One of the most fundamental questions of law is whether a given court has  jurisdiction to preside over a given case. Jurisdiction is a critical legal issue  underpinning the prosecution of offenders of international crimes envisaged by the  International Criminal Court(ICC). The ICC must establish proper jurisdiction to  assert judicial and penal authority over such offenders, especially if they are not  citizens of State Parties to the Rome Statute and the crimes they committed were  not committed in the territory of a State Party to the Rome Statute. The issue of  jurisdiction can act to delimit permissible legal responses by concerned  governments or the international community to international crimes. As a result of  hard negotiations, it was agreed that the Rome Statute prohibits the criminal  responsibility of persons for conduct prior to the statute’s entering into force; ICC  may exercise jurisdiction when the crime is committed in the territory of the  member State to the Rome Statute or when the perpetrator is national of the  member State, or when the situation in question is referred to the court by the  United Nations Security Council (UNSC) or when a Non-Party State ad hoc accepts  the court’s jurisdiction. However, this paper argues that the basis of the ICC  jurisdiction creates possibilities for perpetrators of core international crimes to go unpunished contrary to the Preamble of the Rome Statute that such crimes must not go unpunished.

Key words: International Criminal Court, Jurisdiction, International Crimes, State Party and Non-State Party.