The exclusion of transnational crimes from the jurisdiction of the International Criminal Court: a travaux préparatoires study

Whereas much ink has been spilled over the four “core” crimes under the jurisdiction of the International Criminal Court, the exclusion of other crimes of international concern has never been researched in-depth and comprehensively. The contribution of offences like piracy, terrorism, and drug trafficking to the establishment of a permanent international criminal institution has been regularly underestimated. By addressing the above issues, this project intends to make an original contribution to the history of international criminal law and justice. However, the study of the International Criminal Court’s legislative history is more of a means to an end rather than an end in itself. First and foremost, it constitutes an interdisciplinary approach to the doctrinal foundations of international criminalisation and a critical appraisal of the fragmentary vision of international criminal law. The first two chapters construct the project’s theoretical framework by delving into the notions of “international crime”, “transnational crime”, and their correlates. The introduction to the unsettled meaning and content of these central concepts, as well as to the inconsistency of the used terminology, validates the relevance and significance of a travaux préparatoires study as a methodological tool. The integration of elements of adjacent disciplines, such as criminology and international relations, underpins the value of a study of the practice and stance of States, international organisations, and civil society as a means for a better understanding of the notion of international crime. The following four chapters, which divide this treatise into distinct chronological periods of progression of international criminal law and justice, scrutinise a large number of primary sources. They comprehensively bring to the foreground the place of the so-called transnational crimes in the formation process of the International Criminal Court and illuminate the dynamic evolution of the concept of international crimes. In light of the historical findings, the last chapter critically assesses the prevailing theories of international criminalisation and draws conclusions about the limited scope of the Court’s jurisdiction. Twenty years after the Rome Statute’s adoption, the world is witnessing the activation of the first amendments to the subject-matter jurisdiction of the Court, alongside the proliferation of hybrid criminal bodies and projects for regional mechanisms. We are experiencing the persistence of international terrorism and piracy, realising the severity of environmental issues and the effects of globalisation on the expansion and transformation of organised crime. The time is therefore ripe for fostering a sincere and thorough reflection among scholars, policymakers, and NGOs about the most appropriate ways to fight the impunity of offenders of international crimes beyond the “core”, as well as about the role of the International Criminal Court in this respect