Jurisdiction to Adjudicate and Jurisdiction to Prescribe in International Criminal Courts

Direct jurisdiction over individuals, along with responsibilities to them, are outstanding characteristics of the new International Criminal Court (ICC or Court), as they already are of the International Criminal Tribunals for the Former Yugoslavia (ICTY) and for Rwanda (ICTR). This Article raises issues of legitimate power to prosecute and to define criminal law and issues of individual human rights which necessarily arise in any criminal system. This Article is predominantly an analysis of issues of criminal jurisdiction over persons as they are treated in the ICC Statute, as well as in the current ad hoc international criminal tribunals. Part II discusses the sources of international criminal tribunals’ jurisdiction to prescribe from the end of World War II through the proposal of the ICC Statute. Part III describes the limited jurisdiction to adjudicate over individuals in the ICTY and ICTR. Part IV discusses the ICC Statute’s general statement of and limits on jurisdiction to adjudicate over individuals. The subsequent Parts examine personal jurisdiction in the three classes of cases, defined by the manner in which a situation comes before the ICC, as set out in the ICC Statute. Part V addresses two of these, jurisdiction to adjudicate where a situation is referred to the Court by a State or where an investigation is initiated by the prosecutor proprio motu. Part VI addresses personal jurisdiction in situations referred to the ICC by the United Nations (U.N.) Security Council. These latter two Parts necessarily address jurisdiction to prescribe criminal law, as well as jurisdiction to adjudicate allegations of crime, because situations covered by the ICC Statute may involve nationals of States not parties to the ICC Statute, that have not accepted the Court’s jurisdiction