¹ Although Philip Allott might query this, see Allott, Philip, The Health of Nations (CUP, Cambridge, 2003) 62–9.Google Scholar

² See Broomhall, Bruce, International Justice and the International Criminal Court: Between Sovereignty and the Rule of Law(OUP, Oxford, 2003).Google Scholar

³ See, eg, Kirsch, Phillipe and Holmes, John T, ‘The Rome Conference on an International Criminal Court, The Negotiating Process’ (1999) 93 AJIL 2Google Scholar; Bassiouni, M Cherif, ‘Negotiating the Treaty of Rome on the Establishment of an International Criminal Court’ (1999) 32 Cornell International Law Journal 443.Google Scholar

⁴ See nn 14–17, and accompanying text.

⁵ See, eg, Scheffer, David, ‘The United States and the International Criminal Court’ (1999) 93 AJIL 12.Google Scholar

⁶ Art 12(3) also provides for jurisdiction where a State accepts the jurisdiction of the court on an ad hoc basis. It is notable that a State in this situation is obliged to cooperate with the ICC.

⁷ See, eg, Williams, Sharon A, ‘Article 12’ in Triffterer, Otto (ed), Commentary on the Rome Statute of the International Criminal Court(Nomos, Baden-Baden, 1999) 329Google Scholar; Deen-Racsmány, Zsuszsanna, ‘The Nationality of the Offender and the Jurisdiction of the International Criminal Court’ (2001) 95 AJIL 606.Google Scholar

⁸ See eg, Sharon A Williams, ‘Article 13’ in Triffterer, ibid 343.

⁹ See, eg, Prosecutor v Tadić, Interlocutory Appeal on Jurisdiction, IT–94–1AR72, 2 Oct 1995, para 62. Prosecutor v Ntuyuhaga, Decision on the Prosecutor's Motion to Withdraw the Indictment ICTR–96–40–T, 18 Mar 1999; Prosecutor v Kallon and Kamara, Decision on Challenge to Jurisdiction: Lomé Accord Amnesty, SCSL–2004–15 AR 72(E) and SCSL–2004–16–AR72(E) 13 Mar 2004, paras 67–71; Jean-Marie, , Henckaerts, and Louise, , Doswald-Beck, , Customary International Humanitarian Law: Volume I: Rules(CUP, Cambridge, 2005) 604Google Scholar; Kamminga, Menno T, ‘Lessons Learned From the Exercise of Universal Jurisdiction Over Gross Human Rights Abuses’ (2001) 23 Human Rights Quarterly 940.Google Scholar

¹⁰ Akande, Dapo, ‘The Jurisdiction of the International Criminal Court over Nationals of Non-Parties: Legal Basis and Limits’ (2003) 1 Journal of International Criminal Justice 618, 621–34.CrossRefGoogle Scholar

¹¹ Pursuant to its powers under Chapter VII of the UN Charter, and their recognition in Art 13(b) of the Rome Statute.

¹² See, eg, Héctor, Olàsolo, The Triggering Procedure of the International Criminal Court(Martinus Nijhoff, The Hague, 2005) 128–9.Google Scholar

¹³ See Wilmshurst, Elizabeth, ‘Jurisdiction of the Court’ in Lee, Roy S (ed), The International Criminal Court: Issues, Negotiations, Results(Kluwer, The Hague, 1999) 127Google Scholar; Hans-Peter, Kaul and Claus, Kreβ, ‘Jurisdiction and Cooperation in the Statute of the International Criminal Court: Principles and Compromises’ (1999) 2 Yearbook of International Humanitarian Law 143.Google Scholar

¹⁴ ibid 154–5; Wilmshurst, op cit 132–3.

¹⁵ Hans-Peter, Kaul, ‘Preconditions to the Exercise of Jurisdiction’ in Antonio Cassese, Paula, Gaeta, and Jones, John RWD (eds), The Rome Statute of the International Criminal Court: A Commentary (OUP, Oxford, 2003) 583, 613.Google Scholar

¹⁶ ibid 612.

¹⁷ Sadat, Leila Nadya, The International Criminal Court and the Transformation of International Law: Justice for the New Millennium (Transnational, New York, 2002) 118.Google Scholar

¹⁸ Rome Statute, preambular paras 3 and 9.

¹⁹ See, eg, Alexander, Wendt, Social Theory of International Politics (CUP, Cambridge, 1999).Google Scholar

²⁰ Broomhall (n 2) 86–93; David, Turns, ‘Prosecuting Violations of International Humanitarian Law: The Legal Position in the United Kingdom’ (1999) 4 Journal of Armed Conflict Law 1, 3.Google Scholar

²¹ In the UK, for example, service members are being prosecuted for their alleged involvement in the killing of the Iraqi hotel receptionist, Baha Musa, see Attorney-General (Lord Goldsmith) House of Lords Hansard, 19 July 2005, cols WS80–WS81.

²² Admittedly for the last argument, the possibility of this occurring is bound up with the extent that the ICC could be able to effectively exercise jurisdiction over such a person, and, as we will argue, the cooperation regime militates against this.

²³ The advisability or otherwise of including passive personality jurisdiction in the Rome Statute's jurisdictional armoury is beyond the scope of this piece.

²⁴ See also Schabas, William A, An Introduction to the International Criminal Court(2nd edn, CUP, Cambridge, 2002) 75.Google Scholar

²⁵ See, eg, Scheffer (n 5) 17–18.Google Scholar

²⁶ ibid.Ruth, Wedgwood, ‘The International Criminal Court: An American View’ (1999) 10 European Journal of International Law 93.Google Scholar

²⁷ See, eg, Madeline, Morris, ‘High Crimes and Misconceptions: The ICC and Non-Party States’ in Dinah, Shelton (ed), International Crimes, Peace and Human Rights: The Role of the International Criminal Court (Transnational, New York, 2000) 219.Google Scholar For convincing refutation of both arguments see Akande (n 10) 620–40. See also Brown, Bartram S, ‘US Objections to the Statute of the International Criminal Court: A Brief Response’ (1999) 31 New York University Journal of International Law & Politics 855Google Scholar; Monroe, Leigh, ‘The United States and the Statute of Rome’ (2001) 95 AJIL 124.Google Scholar

²⁸ See, eg, Broomhall (n 2) 178–81. For a taste of the tenor of some of the Bush administration's arguments see Bolton, John R, ‘The Risks and Weaknesses of the International Criminal Court From an American Perspective’ (2000–2001) 41 Virginia Journal of International Law 186.Google Scholar

²⁹ Case Concerning the Arrest Warrant of 11 April 2001, ICJ General List 121, 14 02 2002.Google Scholar

³⁰ See, eg, Antonio, Cassese, ‘Is the Bell Tolling for Universality? A Plea for a Sensible Notion of Universal Jurisdiction’ (2003) 1 Journal of International Criminal Justice 589, 592–3Google Scholar; Georges, Abi-Saab, ‘The Proper Role of Universal Jurisdiction’ (2003) 1 Journal of International Criminal Justice 596, 601.Google Scholar

³¹ Fletcher, George P, ‘Against Universal Jurisdiction’ (2003) 1 Journal of International Criminal Justice 580.CrossRefGoogle Scholar

³² Particularly strong defences of universal jurisdiction are Roger, O'Keefe, ‘Universal Jurisdiction: Clarifying the Basic Concept’ (2004) 2 Journal of International Justice 735Google Scholar and Albin, Eser, ‘For Universal Jurisdiction: Against Fletcher's Antagonism’ (2003–2004) 39 Tulsa Law Review 955.Google Scholar

³³ See Naomi, Roht-Arriaza, ‘Universal Jurisdiction: Steps Forward, Steps Back’ (2004) 17 Leiden Journal of International Law 375.Google Scholar

³⁴ On the interplay between legal argumentation and political antipathy in this area see Orentlicher, Diane F, ‘Politics by Other Means: The Law of the International Criminal Court’ (1999) 32 Cornell International Law Journal 489Google Scholar. For a strong defence of the ICC on jurisdiction see Louise, Arbour and Morten, Bergsmo, ‘Conspicuous Absence of Jurisdictional Overreach’ in Herman, AM von Hebel, Lammers, Johan G, and Jolien, Schukking (eds), Reflections on the International Criminal Court: Essays in Honour of Adriaan Bos (TMC Asser Press, The Hague, 1999) 129.Google Scholar

³⁵ Lu, Jianping and Wang, Zhixiang, ‘China's Attitude Towards the ICC’ (2005) 3 Journal of International Criminal Justice 608, 610–12.Google Scholar

³⁶ Although China did express its concurrence with US concerns over the ICC during the discussion around the adoption of Security Council Resolution 1593, See UN Doc S/PV.5158, p 5.Google Scholar

³⁷ See, eg, Usha, Ramanathan, ‘India and the ICC’ (2005) 3 Journal of International Criminal Justice 627.Google Scholar

³⁸ As much is implied, ibid 631.

³⁹ ie if the ICC had universal jurisdiction, without Russia's ratification of the Rome Statute. On the general position see Bakhtiyar, Tuzmukhamedov, ‘The ICC and Russian Constitutional Problems’ (2005) 3 Journal of International Criminal Justice 621.Google Scholar

⁴⁰ ICC/ASP/3/Res.1.

⁴¹ The links between Jurisdiction, cooperation and other issues are made very clear in, eg, Kaul and Kreβ (n 13); Arsanjani, Mahnoush H, ‘Reflections on the Jurisdiction and Trigger Mechanism of the International Criminal Court’ in von Hebel et al (n 34) 57; Bert Swart and Göran Sluiter, ‘The International Criminal Court and International Criminal Cooperation’ ibid 92; Arbour and Bergsmo, op cit.Google Scholar

⁴² Rome Statute, Art 13, 15. See generally Olásolo (n 12) chs 2–3.

⁴³ See, eg Bolton (n 28).

⁴⁴ The truly surprising phenomenon of self-referrals does not alter this point, although admittedly it does prove that international criminal law has the capacity to outstrip expectations.

⁴⁵ Which the vast majority of the 499 communications to the Prosecutor between July 2002 and July 2003 did, see ICC Press Release 16 July 2003, pids.009–2003–EN.

⁴⁶ Law of 16 April 1993 Relating to the Repression of Grave Breaches of the Geneva Conventions, as Amended, (1999) International Legal Materials 921, Art 7. For an overview see Damien, Vandermeersch ‘Prosecuting International Crimes in Belgium’ (2005) 3 Journal of International Criminal Justice 400.Google Scholar

⁴⁷ See, eg, Ratner, Steven R, ‘Belgium's War Crimes Statute: A Postmortem’ (2003) 97 AJIL 888.Google Scholar

⁴⁸ See Robert, Cryer, Prosecuting International Crimes: Selectivity and the International Criminal Law Regime (CUP, Cambridge, 2005) 215–20.Google Scholar

⁴⁹ To which Rule 48 also requires the Prosecutor to refer to in making decisions in relation to proprio motu decisions.

⁵⁰ See generally John, Dugard, ‘Possible Conflicts of Jurisdiction With Truth Commissions’ in Antonio, Cassese et al. , (eds) (n 15) 693Google Scholar; Scharf, Michael P, ‘The Amnesty Exception to the Jurisdiction of the International Criminal Court’ (1999) 32 Cornell International Law Journal 507Google Scholar; Darryl, Robinson, ‘Serving the Interests of Justice: Amnesties, Truth Commissions and the International Criminal Court’ (2003) 14 European Journal of International Law 481.Google Scholar

⁵¹ The extraordinary specificity which has characterized the early budgets of the ICC ought to be sufficient to calm the most tremulous critic of the Rome regime of prosecutorial discretion, see, eg, Proposed Programme budget for 206 prepared by the Registrar, ICC–ASP/4/32.

⁵² Annex to the ‘Paper on Some Policy Issues Before the Office of the Prosecutor: Referrals and Communications’ 1.

⁵³ See Kaul, and Kreβ, (n 13) 155.Google Scholar

⁵⁴ See, eg, Lionel, Yee, ‘The International Criminal Court and The Security Council: Articles 13(b) and 16’ in Lee, (ed) (n 13) 143, 147–8.Google Scholar

⁵⁵ See, eg, Holmes, John T, ‘Jurisdiction and Admissibility’ in Lee, Roy S (ed), The International Criminal Court: Elements of Crimes and Rules of Procedure and Evidence (Transnational, New York, 2001) 321, 326.Google Scholar

⁵⁶ See, eg, Payam, Akhavan, ‘The Lord's Resistance Army Case: Uganda's Submission of the First State Referral to the International Criminal Court’ (2005) 99 AJIL 403.Google Scholar

⁵⁷ Situation in Uganda, Decision to Convene a Status Conference on the Investigation in Uganda in Relation to the Application of Art 53, ICC–02/04–01/05, 2 12 2005, para 7.Google Scholar

⁵⁸ See Robert, Cryer, ‘Sudan, Resolution 1593 and International Criminal Justice’ (2006) 19 Leiden Journal of International Law 195, 209–10.Google Scholar

⁵⁹ ibid 211–13.

⁶⁰ ie when, of the territorial, nationality, passive personality or custodial State, only the custodial State has ratified the Rome Statute.

⁶¹ It is true that Art 15 is not limited to ‘situations’, but it is limited to ‘crimes within the jurisdiction of the Court’ (Art 15(1)). In this instance, where custody is the only link, all other offenders not in the custody of State parties would not have committed crimes ‘subject to the jurisdiction’ of the ICC, thus would be beyond the reach of the Prosecutor's powers.

⁶² It also shows that were the ICC Statute to be altered to permit such jurisdiction, further changes to the Statute would have to be considered.

⁶³ In relation to State-based referrals, there are situations in which this could, and would, be challenged.

⁶⁴ And that is the sole basis of jurisdiction.

⁶⁵ Antonio, Cassese, ‘On the Current Trends towards Criminal Prosecution and Punishment of Breaches of International Humanitarian Law’ (1998) 9 European Journal of International Law 2, 13.Google Scholar

⁶⁶ See James, Crawford, ‘An International Criminal Court?’ (1997) 12 Connecticut Journal of International Law 255, 256.Google Scholar

⁶⁷ See the Rome Statute, Art 63

⁶⁸ Which reads: ‘States Parties shall, in accordance with the provisions of this Statute, cooperate fully with the Court in its investigation and prosecution of crimes within the jurisdiction of the Court.’

⁶⁹ This differs from the relevant provision of the ad hoc Tribunals for the former Yugoslavia and Rwanda where Art 29 of the ICTY Statute (Art 28 of the ICTR Statute) is the sole, but all-encompassing provision.

⁷⁰ See also Rome Statute, Art 59(1)(7).

⁷¹ Antonio, Cassese, International Criminal Law (OUP, Oxford, 2003) 358.Google Scholar

⁷² See, eg, Kimberly, Prost, ‘Article 88’ in Triffterer, (ed) (n 7) 1069.Google Scholar

⁷³ Prosecutor v Tihomir Blaškić, Judgment on the Request of the Republic of Croatia for Review of the Decision of Trial Chamber II of 18 July 1997, 29 Oct 1997, (IT–95–14–AR108bis), para 26 refers to the obligation as being erga omnes, but this is not strictly accurate. As was noted in Prosecutor v Bagosora, Decision on Defence Motion to Obtain Cooperation From the Vatican Pursuant to Art 28, ITCR–98–41–T, 13 May 2004, para 3, there is no obligation on non-UN Member States to comply.

⁷⁴ Arts 34–8 Vienna Convention on the Law of Treaties (1969) 1155 UNTS 331.Google Scholar

⁷⁵ Art 87(6) provides for requests for cooperation to International Organisations. The ICC has entered into an agreement on cooperation with the EU, see ICC Press Release ICC-CPI-20060410–132–En 10 Apr 2006.

⁷⁶ See also Rule 44E.

⁷⁷ The wording used (‘The Court may invite …’) is indicative of this.

⁷⁸ Göran, Sluiter, ‘The Surrender of War Criminals to the International Criminal Court’ (2003)25 Loyola of Los Angeles International and Comparative Law Review 605, 610.Google Scholar

⁷⁹ Although SC referral is provided for in Art 13(b), no mention is made of cooperation in this Article. The only reference to cooperation in cases of referral is Art 87(7) which deals with failure to cooperate following a SC referral.

⁸⁰ Sudan has signed, but not ratified the Rome Statute.

⁸¹ Operative para 2.

⁸² This resolution also confirms that there is no customary obligation on States to cooperate with the Court; such a suggestion is canvassed, however, in Claus, Kreβ and Kimberly, Prost, ‘Article 87’ in Triffterer, (ed) (n 7) 1055, 1063–4.Google Scholar

⁸³ Again, absent an obligation imposed on UN members by Security Council Resolution.

⁸⁴ Rome Statute, Arts 89(1) and 93(1).

⁸⁵ ibid Arts 89(2), 94, and 95.

⁸⁶ ibid Arts 93(1)(1), 93(3), 93(4), 90, and 98.

⁸⁷ See, eg, Antonio, Cassese, ‘The Statute of the International Criminal Court: Some Preliminary Reflections’ (1999) 10 European Journal of International Law 144, 164–7.Google Scholar

⁸⁸ See, eg, Schabas (n 24) 130.Google Scholar

⁸⁹ See Paolo, Benvenuti, ‘Complementarity of the International Criminal Court to National Jurisdictions’ in Flavia, Lattanzi and Schabas, William A (eds), Essays on the Rome Statute of the International Criminal Court (II Sirente, Ripa Fagano Alto, 1999) 21, p 50.Google Scholar

⁹⁰ See 10^th Preambular para, Arts 1 and 17 ICC Statute.

⁹¹ Art 17 ICC Statute.

⁹² See (n 93).

⁹³ Which is not the case in relation to at least the DRC self-referral. The DRC has transferred Thomas Lubanga Dyilo to the custody of the ICC, see ICC Press Release ICC-CPI-20060302–125–En, 17 Mar 2006. On some of the reasons for the DRC's self-referral (which are equally applicable to cooperation) see Burke-White, William W, ‘Complementarity in Practice: The International Criminal Court as Part of a System of Multi-Level global Governance in the Democratic Republic of Congo’ (2005) 18 Leiden Journal of International Law 557.CrossRefGoogle Scholar

⁹⁴ Paper on some policy issues before the Office of the Prosecutor, Sept 2003, available at <http://www.icc-cpi.int/otp/policy.php> 6.

⁹⁵ See, eg, Anne-Marie, Slaughter, A New World Order (Princeton UP, Princeton, 2004)Google Scholar. For cogent critique of aspects of Slaughter's theory see, however José, Alvarez, ‘Do Liberal States Behave Better? A Critique of Slaughter's Liberal Theory’ (2001) 12 European Journal of International Law 183.Google Scholar

⁹⁶ On which, see Garro, Alejandro M, ‘Nine Years of Transition to Democracy in Argentina: Partial Failure or Qualified Success?’ (1993–1994) 31 Columbia Journal of Transnational Law 1, 12–14.Google Scholar

⁹⁷ Declarations pursuant to Art 87(1)(a) of Albania, Argentina, Belgium, Croatia, Cyprus, Finland (although Finland permits other appropriate authorities to be contacted by the Court), Germany, Honduras, Iceland, Liechtenstein, Lithuania, Namibia, Netherlands, Norway, Romania, Sweden, Switzerland, and FYROM (available at <http://untreaty.un.org/ENGLISH/bible/ english-internetbible/partI/chapterXVIII/treaty 11.asp>).

⁹⁸ Declarations of (Ministry of Foreign Affairs) Argentina, Mexico, Peru, and Uruguay, (DRC, Estonia, France (or the Ministry of Justice), Lithuania (or the Ministry of Justice)) (all available ibid). Austria, Brazil, Georgia, Hungary, Latvia, Luxembourg, Malta, Poland, Portugal, Slovakia, Timor-Leste, and the UK have expressed no preference.

⁹⁹ Many of whom have identified diplomatic channels as the relevant ones, See, eg, declarations of Andorra, Australia, Belize, Colombia, Egypt, France, Greece, Italy, Mali, Marshall Islands, New Zealand, Panama, Samoa, and Sierra Leone (all available ibid). This method leaves discretion in the ICC who to address correspondence to, and the diplomatic channels who to deliver it to.

¹⁰⁰ Art 87(1)(a) and (3) ICC Statute.

¹⁰¹ See Situation in Uganda, Decision on Prosecutor's Application for Unsealing of the Warrants of Arrest ICC–02/04–01/05, 13 Oct 2005 [hereinafter ‘Unsealing Decision’] paras 14, 17, and 20. There are concerns that the level of protection may not prove enough, see Situation in Uganda, Decision to Convene a Status Conference Related to Safety and Security in Uganda, ICC–02/04–01/05, 25 Nov 2005.

¹⁰² See Prosecutor v Krstić, Judgment, IT–98–33–T, 2 Aug 2001, para 78.

¹⁰³ See Prosecutor v Tadić, Order for the Prosecution to Investigate the False Testimony of Dragan Opacić IT –94–1, T, 10 Dec 1996.

¹⁰⁴ See Unsealing Decision para 14, which cites the Prosecutor's argument that unsealing the warrants was ‘a feasible and powerful means of garnering international attention and support for arrest efforts, thus further ensuring the protection of victims, potential witnesses and their families’.

¹⁰⁵ The arrest warrant for Lubanga Dyilo was only made public after the plane carrying him to the Hague left DRC airspace, see Prosecutor v Lubanga Dyilo. Decision to Unseal the Warrant of Arrest Against Mr Thomas Lubanga Dyilo and Related Documents ICC–01/04–01/06–37, 17 Mar 2006.

¹⁰⁶ Hans-Peter, Kaul, ‘Construction Site for More Justice: The International Criminal Court After Two Years’ (2005) 99 AJIL 370, 383.Google Scholar

¹⁰⁷ Unless the Security Council has required them to do so.

¹⁰⁸ As Lattanzi, criticizing the German proposal observed, ‘Dans chaque phase de son activité, la Cour pénale Internationale, 'instar de deux Tribunaux pénaux institués par le Conseil de sécurité, aura besoin de la collaboration des Etats. Elle devra done agir avec la collaboration au moins de certains des Etats ayant un lien avec le crime et ne pourra pas agir centre leur volonté See Flavia, Lattanzi, “Compétence de la Cour Pénale Internationale et Consentement des Etats’ (1999) 103 Revue Générate de Droit International Public 425, 433.Google Scholar

¹⁰⁹ See also (n 52).

¹¹⁰ Its practice in relation to the ICTY does not give great reason for hope. See, eg, Statement by the President of the Security Council, S/PRST/1996/23; and, Statement by the President of the Security Council, S/PRST/1996/34. The closest the SC has come to explicitly requesting compliance Res 1207, 17 Nov 1998, S//RES/1207 (1998). Equally, the Council, in referring the situation in Darfur to the ICC exceeded expectations, so perhaps there is room for (very) cautious) optimism.

¹¹¹ The argument is critiqued along the lines that follow, in Schabas, William A, ‘The International Criminal Court: The Secret of its Success’ (2001) 12 Criminal Law Forum 415, 418–19.CrossRefGoogle Scholar

¹¹² Kofi Annan ‘Preface’, in Lee (n 13) ix, ix.

¹¹³ Indeed, one of the problems the ICC will face is the ‘impunity gap’ in the situations it deals with, as it cannot prosecute any more than a small sample of offences in any one conflict, and cannot force other States to do so.

¹¹⁴ See Schabas (n 118) 417–19. Although the question of passive personality jurisdiction is, strictly, beyond this article's parameters, the temptation to note that granting such jurisdiction might have prompted more ratifications (from States seeking to protect their nationals) is irresistible.