2. A/CONF. 183/9 (17 July 1998).

3. For the legislative history and documents, see Ferencz, B.B., An International Criminal Court: A Step Toward World Peace, Vols. 1 and 2 (London, Oceana Publication 1980).Google Scholar

4. The treaty containing the ICC Statute entered into force on 1 July 2002, after ten new states ratified the Statute on 11 April 2002. The total number of States Parties to the ICC is 66.

5. The questions dealt with in this article are intimately linked to issues in other provisions such as: the method of the establishment of the ICC; the trigger-mechanism of the proceedings; many basic principles in the ICC system, such as the complementarity principle; the principle of ne bis in idem; international cooperation and judicial assistance. In order to answer the questions fully, one has to take into consideration all the related provisions in the ICC Statute as a whole, but owing to the limited space of this article, I will concentrate on the examination and introduction of the viewpoints on the source of ICC jurisdiction, and on the observation through Art. 12(2).

6. See Art. 21 and its commentary of Draft Statute made by the International Law Commission (ILC) in 1994 (hereinafter 1994 ILC Draft). Report of the International Law Commission on the work of its forty-sixth session, United Nations General Assembly Official Records, Forty-ninth Session, Supplement No. 10, A/49/10 (1994).

7. These systems will give discretional power to each state in deciding which crimes are subject to ICC adjudication. It was, however, criticized as being too partial to the state-centered approach. See Ratner, S.R. and Abrams, J. S., Accountability for Human Rights Atrocities in International Law: Beyond the Nuremberg Legacy (Oxford, Clarendon Press 1997) p. 181.Google Scholar

8. There is an exception provided in Art. 124 of the ICC Statute. Art. 124 allows the territorial state and the state of nationality of the suspect to declare for a 7 year-period, not to accept the ICC jurisdiction for war crimes even after becoming State Party to the ICC Statute.

9. Opinion of Canada, cited in Lee, R.S., ed., The International Criminal Court: The Making of the Rome Statute: Issues, Negotiations, Result (The Hague, Kluwer Law International 1999) p. 579.Google Scholar

10. The opinion of China, ibid., at pp. 582–583.

11. The opinion of India, ibid., at p. 599.

12. See Sheffer, D., ‘The United States and the International Criminal Court’, 93 AJIL (1999) pp. 18–20.Google Scholar See also Sheffer, D., ‘The U.S. Perspective on the ICC’, in Sewall, S.B. and Kaysen, C., eds., The United States and the International Criminal Court: National Security and International Law (Lanham, MD, Rowman & Littlefield Publishers 2000) pp. 115–118.Google Scholar

13. See Arsanjani, M.H., ‘The Rome Statute of International Criminal Court’, 93 AJIL (1999) p. 26.CrossRefGoogle Scholar

14. See Weckel, P.. ‘La Cour Pénale Internationale: Preséntation générate’, 102 RGDIP (1998) pp. 988–989.Google Scholar

15. Condorelli, L., ‘La Cour Pénale Internationale: Un pas de géant (pourvu qu'il soit accompli)’, 103 RGDIP (1999) pp. 16–17.Google Scholar

16. This understanding was sometimes referred as ‘the conferment-of-jurisdiction rule’ or a system of ‘ceded jurisdiction’ in some discussions in UN. See n. 43, para. 40, below. Also see n. 54. Other writers refer to this as ‘delegated jurisdiction theories’. See Morris, M., ‘High Crimes and Misconceptions: The ICC and Non-Parry States’, in Shelton, D., ed., International Crimes, Peace, and Human Rights: The Role of the International Criminal Court (Ardsley, NY, Transnational Publishers 2000) p. 263.Google Scholar

17. See Report of the Working Group on the Question of an International Criminal Jurisdiction, annex to the Report of ILC on the work of its Forty-fourth Session, General Assembly Official Records, Forty-seventh Session, Supplement No. 10, A/47/10, para. 456.

18. ‘Research in International Law (Under the Auspices of the Faculty of the Harvard Law School), Draft of Conventions Prepared for the Codification of International Law: Jurisdiction with Respect to Crime’, Supplement to the 29 AJIL (1935).

19. Ibid., Introductory Comment. See also Akehurst, M., ‘Jurisdiction in International Law’, 46 BYIL (1972–1973).Google Scholar

20. The term ‘inherent jurisdiction’ is used in vague and sometimes contradictory terms, especially in the early stage of drafting procedures. It is sometimes used to connote automatic jurisdiction or ‘universal jurisdiction’ exercised by the ICC, or for any jurisdiction without the requirement of state consent. But in this article, this term is used to refer to an international criminal jurisdiction not originating from the national jurisdiction of states.

21. Prosecutor v. Tadic, Decision on the Defence Motion on Jurisdiction (10 August 1995), para. 42. Printed in 16 Human Rights Law Journal (1995) pp. 426–436.Google Scholar

22. Wolfrum, R., ‘Decentralized Prosecution of International Offences Through National Courts’, in Dinstein, Y. and Tabory, M., eds., War Crimes in International Law (The Hague, Martinus Nijhoff Publishers 1996) p. 236.Google Scholar See also Mohacsi, P. and Polt, P., ‘Estimation of War Crimes and Crimes Against Humanity According to the Decision of the Constitutional Court of Hungary’, 67 Revue International de Droit Pénal (1996) p. 336.Google Scholar

23. Wolfrum, R., ‘The Decentralized Prosecution of International Offences Through National Courts’, 24 Israel Yearbook on Human Rights (1994) p. 186.Google Scholar

24. Although international law has put some obligations on states concerning crimes that violate international law, much of the regulation done by the states is not very different from their treatment of ordinary crimes violating their domestic laws when it comes to the level of the proceedings in the domestic courts. It needs no mention that the regulation of crimes, the enactment and enforcement of criminal law for ordinary crimes, are under the discretion of each state, since the power and right to do so are considered to be the essential part of state sovereignty. Thus, it is an internal domestic matter, not an international one. When a crime is committed, the competence to prosecute, adjudicate the individual criminal responsibility and punish the criminal, all come under the judicial jurisdiction of the states. Every state has freely legislated and applied its domestic criminal law, and its domestic criminal court has played the role of judging and punishing crimes.

25. See Arts. 31 and 32 of the Vienna Convention on the Law of Treaties (1969).

26. Draft Statute for an International Criminal Court prepared by the Committee on International Criminal Jurisdiction, Annex, Report of the Committee on International Criminal Jurisdiction on its Session held from 1 to 31 August 1951, United Nations General Assembly Official Records, Seventh Session, Supplement No. 11, A/2136 (1952).

27. Revised Draft Statute for an International Criminal Court prepared by the Committee on International Criminal Jurisdiction, Annex, Report of the Committee on International Criminal Jurisdiction on its Session held from 27 July to 20 August 1953, United Nations General Assembly Official Records, Ninth Session, Supplement No. 12, A/2645 (1954).

28. The Committee on International Criminal Jurisdiction was established by the UN General Assembly Resolution 489(V) (12 December 1950).

29. Statement made by Mr Röling, (Netherlands), A/AC.65/SR. 12, p. 3.Google Scholar

30. Supra n. 27, at para. 89.

31. This additional sentence was proposed by the delegate of Israel with the intention of making it clear that no state will be bound without its consent. This modification was adopted by the vote of 7 in favour, 2 opposing, and 6 in abstention. Ibid. Also see A/AC.65/SR.16, p. 12.

32. Art. 27 of the 1951 and 1953 Drafts, titled ‘Recognition of Jurisdiction’ provides: ‘No person shall be tried before the Court unless jurisdiction has been conferred upon the Court by the State or States of which he is a national and by the State or States in which the crime is alleged to have been committed.’

33. A/AC.65/SR.12, p.7.

34. Ibid., at pp. 5, 7.

35. Supra n. 26, at para. 69.

36. Ibid., at para. 71.

37. It was voted down by 4 against, 3 in favour, 5 abstentions. Ibid., at para. 72.

38. Statement made by Mr Röling, (Netherlands), A/AC.65/SR. 12, p. 9.Google Scholar

39. Supra n. 27, at para. 97.

40. During the drafting procedure of the Genocide Convention that opened the discussion at the UN for the idea of the ICC, a proposal not requiring consent from the territorial state was submitted, but this proposal was not adopted. Establishment of a Permanent International Criminal Court for the Punishmen t of Acts of Genocide (Appendix 1 of the Draft Convention on the Crime of Genocide), and Establishment of an Ad Hoc International Criminal Court for the Punishment of the Act of Genocide (Appendix II), United Nations Economic and Social Council Official Records, Fourth Session, E/447. In this proposal, reference of a case to the International Criminal Court was left to the discretion of the custodial state of the suspect, and no consent from other states was required.

41. See the declaration made by the delegate of the Soviet Union, after he cast a rejecting vote on the draft provision providing for the jurisdiction of the international tribunal for genocide, E/794, p. 11.

42. Soviet Union and Poland had expressed their opposition to the idea of the ICC by refusing to be members of the Committee. See UN General Assembly Official Records, Fifth Session, A/1639, para. 43.

43. Tenth Report on the Draft Code of Crimes against the Peace and Security of Mankind, prepared by Mr Doudou Thiam, Special Rapporteur, A/CN.4/442 (20 March 1992).

44. The draft provision on the jurisdiction of Thiam's Tenth Report was drafted as follows:

1. All State Parties to this Statute shall recognize the exclusive and compulsory jurisdiction of the Court in respect of the following crimes:

Genocide;

Systematic or mass violations of human rights;

Illicit international trafficking in drugs;

Seizure of aircraft and kidnapping of diplomats or internationally protected persons.

2. The Court may take cognizance of crimes other than those listed above only if jurisdiction has been conferred on it by the State(s) in whose territory the crime is alleged to have been committed and by the State which has been the victim or whose nationals have been the victims.

3. The Court shall not be competent to hear appeals against decision rendered by national jurisdictions.’ Ibid., at para. 36.

45. Ibid., at para. 40.

46. Ibid., at para. 38.

47. Report of the International Law Commission on the work of its Forty-third Session, ILC Yearbook (1991–11) Part 2, A/46/10, para. 126.

48. Ibid.

49. Increased number of terrorist attacks captured the attention of the international community.

50. Especially during the 1970s, many treaties concerned with international crimes were concluded. For example, the Convention for the Suppression of Unlawful Seizure of Aircraft (1970), Montreal Convention for the Suppression of Unlawful Acts Against the Safety of Civil Aviation (1971), International Convention Against the Taking of Hostages (1979), Convention on the Prevention and Punishment of Crimes Against the Internationally Protected Persons, Including Diplomatic Agents (1973).

51. The term ‘universal jurisdiction’ is sometimes utilized to refer to any international jurisdiction. But here this term refers to a jurisdiction exercised by states, and not by other international entity. Because many people do not make the distinction by the exercising entity (a state or other international organ), the conferred-jurisdiction theory based on universal jurisdiction of the states is treated the same as the ‘inherent jurisdiction’ of the ICC. For example, see Vyver, J.D. van der, ‘Personal and Territorial Jurisdiction of the International Criminal Court’, 14 Emory ILR (2000) p. 60.Google Scholar

52. See Report of the Working Group on the Question of an International Criminal Jurisdiction, Official Records of the General Assembly, Forty-Seventh Session, supplement No. 10, A/47/10, Annex to the Report of the International Law Commission, para. 444.

53. Report of the Working Group on a Draft Statute For an International Criminal Court, UN General Assembly Official Records, Forty-Eighth Session, Supplement No. 10, A/48/10, Annex to the Report of the International Law Commission.

54. This was called a system of ‘ceded jurisdiction’ in the Working Group. See supra n. 17, at para. 456.

55. The relevant articles are: Art. 24, Art. 26(2) and (3) of the 1993 Draft. The three systems can be summarized as follows, for the particular category of crime, consent is required from:

1. In the case of crimes under general international law:

The state where the suspect is present and the state of territory in which the crime is committed.

2 In the case of serious crimes prohibited under multilateral treaties listed in the draft statute (e.g., the crime of genocide, the serious breach of the 1949 Geneva Convention and its First Protocol, apartheid, unlawful seizure of aircraft, etc.):

(a) a state having the judicial jurisdiction under the treaty (for the crime of genocide, instead, a State Party of the Genocide Convention), and

(b) If the suspect is present on the territory of the state of his nationality or of the state where the alleged offence was committed, the state where the suspect is present;

3. In the case of a domestic crime regulated under multi-national treaties (mainly drug-related crimes, such as the crimes prohibited under the UN Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic Substance):

The state of the territory where the suspect is present and at the same time the state having a jurisdiction under the treaty.

56. Art. 6 of the Genocide Convention.

57. Supra n. 53, at p. 109. As the basis of this interpretation, the preparatory work of the Genocide Convention was mentioned. Yet, the author's careful examination ofthe drafting works ofthe Genocide Convention reveals no evidence to prove its reasoning. Details are written in Inazumi, M., ‘Criminal Jurisdiction in Article 6 of the Genocide Convention: Arguments During the Drafting Procedure (2)’, 170 Journal of Law andPolitics of Nagoya University (September 1997) (in Japanese).Google Scholar

58. Supra n. 17, at para. 457.

59. 1994 ILC Draft, supra n. 6.

60. Arts. 21 and 25 of the 1994 ILC Draft, supra n. 6. Art. 21 provided the state consent precondition as follows: ‘Preconditions to the exercise of jurisdiction

1. The Court may exercise its jurisdiction over a person with respect to a crime referred to in Article 20 if:

(a) in a case of genocide, a complaint is brought under Article 25(1);

(b) in any other case, a complaint is brought under Article 25(2) and the jurisdiction of the Court with respect to the crime is accepted under Article 22:

(i) by the State which has custody of the suspect with respect to the crime (‘the custodial State’); and

(ii) by the State on the territory of which the act or omission in question occurred.

2. If, with respect to a crime to which paragraph 1(b) applies, the custodial State has received, under an international agreement, a request from another State to surrender a suspect for the purposes of prosecution, then, unless the request is rejected, the acceptance by the requesting State of the Court's jurisdiction with respect to the crime is also required.'

61. A/AC.249/1998/DP.2 (23 March 1998).This German Proposal was incorporatedas the ‘Further Option’ of Art. 9 of the final draft statute proposed by the Preparatory Committee on the Establishment of an International Criminal Court (UN Doc. A/CONF.183/2/Add.l), which served as the starting point of the discussion in the Rome Conference.

62. The Preparatory Committee on the Establishment of the International Criminal Court was established by the UN General Assembly Resolution 50/46 (11 December 1995).

63. There are precedents in which a state claiming its universal jurisdiction asked for extradition of the suspect from another state of territory where the suspect was found. These cases are clearly based on the universal jurisdiction in absentia because the states claiming the jurisdiction did not have custody of the suspect. For example, see the case of Demjanjuk in US court, in matter of Extradition of Demjanjuk, 612 F. Supp. 544 (ND Ohio), aff'd sub nom. Demjanjuk v. Petrovsky, 776 F. 2 d 571 (6th Cir. 1985), cert. Denied, 475 US 1016,89 L. Ed. 2 d 312, 106 S. Ct. 1198 (1986). Also there is a case judged by the International Court of Justice, in which Belgium issued an arrest warrant based on universal jurisdiction against the individual who was the Minister of Foreign Affairs of the Democratic Republic of Congo for serious violations of international humanitarian law. Although the legality of the arrest warrant was under consideration, the ICJ did not rule on the issue of legality of universaljurisdiction in absentia. See the Judgment of 14 February 2002, on the Case Concerning the Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v. Belgium), paras. 43, 45, 46.

64. See Randall, K.C., ‘Universal Jurisdiction Under International Law’, 66 Texas L Rev. (1988) p. 788. See alsoGoogle ScholarRestatement (Third) of the Foreign Relations Law of the United States (Minn, St. Paul., American Law Institute Publishers 1987), Comment on Art. 404.Google Scholar

65. Therefore, one can say that the notion of universal jurisdiction of the states and the ICC jurisdiction are mutually related. For example, the fact that the international community urged each state to exercise their universal jurisdiction will be regarded as a ground for including that same crime category within the ICC jurisdiction. The opposite is also true, for those crime categories listed to be subject under ICC jurisdiction, each state is encouraged to exercise universal jurisdiction. See Meron, T., ‘War Crimes Law Comes of Age’, 92 AJIL (1998) p.468.CrossRefGoogle Scholar

66. See, for example, Statement by Mr Cornelio Sommaruga, President of the International Committee of the Red Cross (16 June 1998). Also, Amnesty International, The International Criminal Court: Making the Right Choices, Part 5 (London, Amnesty International 1998) p. 30.Google Scholar Also, Lawyer Committee for Human Rights, ‘Exercise of ICC Jurisdiction: The Case for Universal Jurisdiction’, International Criminal Court Briefing Series, Vol. 1, No. 8 (May 1998) pp. 5–6.Google Scholar

67. A/CONF. 183/C. 1/L.6 (1998).

68. Ibid., at para. 3.

69. See ibid., at para. 4(a).

70. Ibid., at para. 6(b).

71. Ibid., at para. 4(b).

72. Report of the Preparatory Committee on the Establishment of an International Criminal Court, Vol. I, UN General Assembly Official Records, Fifty-first Session, Supplement No. 22, A/51/22, para. 118.

73. Ibid., at para. 119.

74. See A/C.6/53/SR.9 (21 October 1998). The same complaint was also expressed by other delegates. For example, see the statement made by the delegate of Uruguay, A/C.6/53/SR.12 (22 October 1998).

75. Art. 17 of the ICC Statute.

76. Comment on Art. 12 by Williams, S.A., in Triffterer, O., ed., Commentary on the Rome Statute of the International Criminal Court (Baden-Baden, Nomos Verlagsgesellschaft 1999) p. 340.Google Scholar

77. See Scharf, M.P., ‘The United States and the International Criminal Court: The ICC's Jurisdiction Over the Nationals ofNon-Parry States: A Critique ofthe U.S. Position’, 64 Law and Contemporary Problems (2001) pp. 110–118. Scharf's position can be interpreted as recognizing conferred-jurisdiction theory based on territorial jurisdiction and universal jurisdiction.CrossRefGoogle Scholar

78. Art. 31 of the Vienna Convention on the Law of the Treaties.

79. Art. 32 of the Vienna Convention on the Law of the Treaties permits to consider the preparatory work as the supplemental element in interpreting a treaty provision.

80. Morris, , op. cit. n. 16, at pp. 253–257.Google Scholar Morris criticizes the conferment of territorial jurisdiction, but she acknowledges the conferment of active personality jurisdiction in the precedents of the Nuremberg and Tokyo tribunals. Yet, it is interesting to note that, as mentioned in the present article, the 1951 and 1953 Drafts, which were discussed clearly after those tribunals, explained that the consent of the state of the nationality of the suspect is not for that purpose.

81. See the Preamble of the ICC Statute.

82. Of course, because of this non-specification, the ICC might encounter a problem in deciding whether a case is admissible or not, since the ICC has to look at several states having the jurisdiction over the same case.

83. See Morris, , op. cit. n. 16, at pp. 235–253. It is referred to as the ‘delegated universal jurisdiction’ in that article.Google Scholar

84. See Scharf, , loc. cit. n. 77, at p. 105.Google Scholar

85. As pointed out before, the German Proposal itself is unclear as to whether its position is conferred-jurisdiction theory based on universal jurisdiction of states or inherent-jurisdiction theory. See section 3.3.2

86. Williams, , op. cit. n. 76, at p. 335.Google Scholar

87. See Van der, Vyver, loc. cit. n. 51, at pp. 73–78.Google Scholar For the same reason, an accusation of infringing the complementarity principle is also not proper for the inherent-jurisdiction theory.

88. Morris, , op. cit. n. 16, at p. 236.Google Scholar

89. Morris, , op. cit. n. 16, at pp. 237–243.Google Scholar Reasons that the states might reject the idea of ‘delegated universal jurisdiction’ are mentioned in that article: states’ preference of diplomatic and other methods of dispute settlement over the ICC; concerns over the political impact of adjudications before the ICC; and concerns over the authoritative power of the ICC in shaping the law.

90. It was explained that the ICTY and ICTR resulted from the powers of the UN Security Council, and the Nuremberg and Tokyo Tribunals were based on the consent of the state of nationality of the suspect. See Morris, , op. cit. n. 16, at pp. 244–252.Google Scholar

91. Morris, , op. cit. n. 16, at p. 253.Google Scholar

92. President Guillaume stated that ‘universal jurisdiction in absentia is unknown to international law’. See his Separate Opinion to the Judgment of 14 February 2002 on the Case Concerning the Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v. Belgium), para. 9.

93. Judge Van den Wyngaert concluded that there is no conventional or customary international law prohibiting universal jurisdiction in absentia. See his Dissenting Opinion to the Judgment of 14 February 2002 on the Case Concerning the Arrest Warrant ofl 1 April 2000 (Democratic Republic of the Congo v. Belgium), para. 58.

94. Opening Address by Scheffer, David, ‘SYMPOSIUM: Universal Jurisdiction: Myths, Realities, and Prospect’, 35 New England L Rev. (2001) pp. 239–240.Google Scholar

95. Kim, Young Sok, ‘The International Criminal Court: The Preconditions to the Exercise of the Jurisdiction of the International Criminal Court: With Focus on Article 12 of the Rome Statute’, 8 Michigan State University-DCL JIL (1999) p. 62.Google Scholar However, Kim held that because the ICC is a treaty body and not a sovereign state, the ICC should be based upon jurisdictional nexus with a state. See Ibid., at p. 79. Kim reviews the legislative history of the Rome Conference, and concludes that the ICC Statute's Art. 12 should have been taken from the Korean Proposal.

96. See Art. 36 of the Statute of the International Court of Justice (1945).

97. Seen. 94.

98. Brownlie, I., Principles of Public International Law, 4th edn. (Oxford, Clarendon Press 1990) p. 311.Google Scholar