"The Legal Basis for the Exercise of Jurisdiction by the International Criminal Court and the Preparatory Work of the Rome Statute (VII/Final)," Journal of International Relations and Comparative Culture, Vol. 19, No. 2 (March 2021), pp. 99-107.
Authors: Kitano Yoshiaki 
Published: March 2021

The aim of this paper is to discuss the legal basis for the ICC’s exercise of jurisdiction while viewing this topic as one of the issues demonstrating the current status of general international law concerning the creation of obligations for non-party states. The results of the examination of the preparatory work of the Statute can be summarised as follows.Firstly, it was generally accepted that, under the current law of treaties, the proposed Statute could not create obligations for non-party states without their consent. Moreover, Article 12 of the Statute cannot be interpreted to provide for an obligation of non-accepting states. Therefore, it can be said that, when adopting the Statute, states were not trying to create an obligation for non-party states without their consent, and that it is not appropriate to criticise Article 12 on the basis of the rule of the law of treaties whereby a treaty does not create obligations for a non-party state without its consent.Secondly, with regard to the legal basis for the ICC’s exercise of jurisdiction in the cases of the state parties’ referral or Prosecutor’s initiative, it must be conceded that most states accepted the last-minute compromise on the state-consent requirements for the proposed ICC’s exercise of jurisdiction without discussing its legal basis adequately. Article 12 of the Statute, which originates from Article 8 of the Korean Proposal, can be interpreted to provide for the obligation of accepting states to acquiesce in the ICC’s exercise of proper jurisdiction which is not characterised as the exercise of a kind of state jurisdiction through the ICC. However, states barely addressed the related issue of whose rights could be violated by the proposed ICC’s exercise of jurisdiction. It can be noted in this regard that, because Article 12 does not require the consent of particular states as an essential precondition to the ICC’s exercise of jurisdiction, unless there is no state whose right could be violated thereby it seems impossible for the ICC to avoid the violation of a right altogether.Thirdly, with regard to the legal basis for the ICC’s exercise of jurisdiction in the cases of the Security Council’s referral, the Statute’s relevant provision, which originates from Article 23, paragraph 1, of the ILC’s final Draft Statute, is based on the idea that a decision of the Council under Chapter VII of the UN Charter can serve as a substitute for or replace the acceptance by states in accordance with Article 12 of the Statute. Accordingly, it can be argued that, unless there is evidence to the contrary, the resolutions adopted by the Council when it refers situations to the Prosecutor are interpreted to provide for the obligation of (at least) UN member states to acquiesce in the ICC’s exercise of proper jurisdiction. However, it should be added that neither states nor the members of the ILC reached agreement on the other three issues relating to the legality of the ICC’s exercise of jurisdiction: 1) whose rights could be violated thereby; 2) whether referrals by the Council conform with Chapter VII of the UN Charter; 3) whether or not it is possible to create obligations for non-members of the UN.Lastly, it seems impossible for the US to become a persistent objector to a potential rule of customary international law which would oblige states to acquiesce in the ICC’s exercise of jurisdiction, because the US admitted, towards the end of the Rome Conference, the possibility of the proposed ICC exercising its jurisdiction over some nationals of non-party states without their acceptance or a UN Security Council resolution with binding force.In contrast to the above-mentioned results of the author’s examination, many of the scholars who have written on the topic of the legal basis for the ICC’s exercise of jurisdiction regard (part of) it as the exercise, through the ICC, of jurisdiction which accepting states originally possess. Therefore, it can be said that what theoretical framework the ICC itself would provide on this topic is a very interesting question, which will be dealt with in the author’s next paper.