Can the Int’l Criminal Court Try US Officials?–The Theory of “Delegated Jurisdiction” and Its Discontents (Part II)

Publication Type: 
Other Writing
Publication Date: 
April 9, 2018

Just Security is pleased to launch this online symposium–spearheaded by Professor Laura Dickinson–which is focused on the International Criminal Court’s (ICC) probe in Afghanistan and its implications for the United States.

As I discussed last week (in Part I), the United States may decide to argue that the International Criminal Court cannot exercise jurisdiction over U.S. personnel for alleged war crimes committed in Afghanistan due to a series of Status of Forces Agreements (SOFAs) executed by Afghanistan. I discussed those agreements in detail. Turning now to the potential impact of the various agreements on the ICC’s jurisdiction, let’s begin with some basics.

Jurisdictional Backgrounder

At the outset, it is useful to recall that international law recognizes several bases on which a state can exercise domestic jurisdiction.

As a general rule, a sovereign can exercise jurisdiction over persons found within its borders and over conduct committed within its borders—so-called territorial jurisdiction. As a matter of course, most states also assert active personality jurisdiction, which involves the exercise of jurisdiction over crimes committed by their nationals when abroad.  The passive personality principle—which used to be less prevalent in state practice but is now more widespread given the enactment of domestic terrorism and trafficking statutes—allows for states to exercise jurisdiction over crimes committed against their nationals, even when committed abroad. (The United States, for example, exercises passive personality jurisdiction over various terrorism crimeswar crimes, and even the simple murder or assault of a U.S. citizen abroad so long as the Attorney General or a designee certifies that the offence was intended to coerce or intimidate a government or civilian population).  The effects principle allows for assertions of jurisdiction over criminal conduct that occurs outside a state’s territory but causes an internal effect. The protective principle authorizes the exercise of penal jurisdiction over extraterritorial acts that threaten state security, endanger the political or territorial integrity of a nation, or undermine the operation of essential governmental functions (e.g., forgery). Finally, under the universal principle, all states can exercise jurisdiction over certain grave international crimes, such as those contained in the ICC Statute. Jurisdiction often runs concurrently, which is to say that a dispute with transnational elements may be dealt with by any number of states: the state on whose territory key conduct occurred, the state of nationality of the perpetrator(s), and the state of nationality of the victim(s).

Likewise, the concept of jurisdiction is not monolithic; it actually encompasses three distinct strands or constructs: prescriptive, adjudicative, and enforcement jurisdiction.  Each comes in an extraterritorial version.

  • Prescriptive jurisdiction relates to the power to prescribe rules regulating conduct, including conduct committed abroad.
  • Adjudicative jurisdiction embodies the power subject individuals and entities, including foreign parties, to a judicial process.
  • Enforcement jurisdiction encompasses the power to enforce the law, and punish non-compliance, at home or abroad by, for example, arresting a suspect. States are ordinarily deemed to have close to exclusive enforcement jurisdiction within their territories as well as the sovereign right to prevent other states from taking coercive legal measures on their territory without their consent.

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