Jurisdiction over International Crimes

Jurisdiction over international crimes refers to the legal authority of States and international courts to investigate, prosecute and adjudicate individuals accused of serious crimes recognised under International Law. These crimes include genocide, crimes against humanity, war crimes and, within the applicable legal framework, aggression.

Because international crimes frequently involve conduct crossing national borders, questions of territorial jurisdiction, nationality, universal jurisdiction, treaty obligations and international criminal tribunals become particularly important.

Meaning of International Crimes

International crimes are offences regarded as sufficiently serious to attract international legal regulation and individual criminal responsibility.

The principal crimes recognised in the Rome Statute framework are:

• genocide;
• crimes against humanity;
• war crimes;
• crime of aggression.

These crimes are committed by individuals, even though they may occur in the context of State policy, armed conflict or organised governmental action.

Individual Criminal Responsibility

A fundamental principle of modern International Law is that individuals can bear international criminal responsibility.

A person may therefore be prosecuted for an international crime even if:

• the conduct was carried out as part of State policy;
• the person acted in an official capacity;
• the person was following orders, subject to applicable rules;
• the offence was committed outside the person’s home State.

International criminal responsibility is therefore distinct from the international responsibility of the State itself.

Main Bases of Jurisdiction

Jurisdiction over international crimes may arise from several bases.

The principal bases include:

1. Territorial jurisdiction
2. Nationality jurisdiction
3. Passive personality jurisdiction
4. Protective jurisdiction
5. Universal jurisdiction
6. Treaty-based jurisdiction
7. Jurisdiction of international criminal tribunals

Territorial Jurisdiction

The territorial State generally has the strongest jurisdictional connection where an international crime was committed within its territory.

For example:

Genocide committed in State A → State A may exercise territorial jurisdiction

Territorial jurisdiction may apply regardless of the nationality of:

• the offender;
• the victim.

Nationality Jurisdiction

A State may exercise jurisdiction over its nationals for international crimes committed abroad where its domestic law and applicable International Law permit it.

For example:

National of State A → commits war crime in State B → State A may have nationality jurisdiction

This is also known as the active personality principle.

Passive Personality Jurisdiction

A State may, where recognised by applicable law, exercise jurisdiction where its national is the victim of an international crime committed abroad.

This is based on the passive personality principle.

It is particularly relevant where international or domestic law provides a specific jurisdictional basis.

Protective Jurisdiction

The Protective Principle may apply where conduct constituting an international crime or related offence threatens the vital interests of a State.

However, international crimes are more commonly discussed in connection with territorial, nationality, treaty-based and universal jurisdiction.

Universal Jurisdiction

Universal jurisdiction is particularly significant in relation to international crimes.

It allows a State, where recognised by applicable International Law and domestic legislation, to prosecute certain serious international crimes without requiring the ordinary territorial or nationality connection.

It is traditionally associated with:

• piracy;
• war crimes;
• genocide in some national legal systems;
• crimes against humanity in some national legal systems;
• torture under applicable treaty frameworks.

The precise scope differs between offences and legal systems.

Universal Jurisdiction and Presence

Many national legal systems require the accused to be present within the prosecuting State before universal jurisdiction can be exercised.

For example:

International crime committed abroad

↓

Suspect enters State A

↓

State A’s law permits universal jurisdiction

↓

State A may investigate and prosecute

This is often called presence-based universal jurisdiction.

Treaty-Based Jurisdiction

International treaties can establish specific jurisdictional obligations.

For example, the Geneva Conventions of 1949 contain important provisions concerning grave breaches.

The Convention Against Torture, 1984 also establishes jurisdictional obligations concerning torture and incorporates the principle of aut dedere aut judicare in its framework.

Treaty-based jurisdiction should therefore be distinguished from a general claim of unrestricted customary universal jurisdiction.

Aut Dedere Aut Judicare

Aut dedere aut judicare means:

“Extradite or prosecute.”

Under certain international conventions, a State that has an alleged offender in its territory must, subject to the applicable legal conditions, either:

• extradite the person to a State entitled to prosecute; or
• submit the matter to its competent authorities for prosecution.

The principle is particularly important for certain serious international crimes.

Jurisdiction of the International Criminal Court

The International Criminal Court (ICC) exercises jurisdiction under the Rome Statute.

Its jurisdiction covers:

• genocide;
• crimes against humanity;
• war crimes;
• aggression, subject to the conditions governing that crime.

The ICC prosecutes individuals, not States.

Territorial and Nationality Links to the ICC

Under the Rome Statute, the ICC may generally exercise jurisdiction where:

• the crime occurred in the territory of a State Party; or
• the accused is a national of a State Party.

Other jurisdictional routes may also arise through:

• acceptance of jurisdiction by a non-State Party;
• referral by the UN Security Council.

Security Council Referral

The UN Security Council may refer a situation to the ICC acting under Chapter VII of the UN Charter.

This can provide a jurisdictional route even where the territorial or nationality State is not a party to the Rome Statute, subject to the terms and legal framework of the referral.

State Referral

A State Party may refer a situation to the ICC Prosecutor where the statutory requirements are satisfied.

The referral concerns a situation rather than simply requesting prosecution of a particular individual.

Prosecutor’s Initiation

The ICC Prosecutor may also initiate an investigation proprio motu, subject to the requirements and authorisation mechanisms established by the Rome Statute.

Complementarity

The ICC does not simply replace national courts.

The principle of complementarity means that national jurisdictions have the primary responsibility to investigate and prosecute crimes falling within the ICC’s jurisdiction.

The ICC generally becomes relevant where the State with jurisdiction is:

• unwilling genuinely to investigate or prosecute, or
• unable genuinely to do so.

Thus:

National courts first → ICC as complementary jurisdiction

Admissibility

Even where the ICC technically has jurisdiction, a case must satisfy the applicable admissibility requirements.

Relevant considerations include:

• complementarity;
• gravity;
• ne bis in idem;
• other Rome Statute requirements.

Jurisdiction of Ad Hoc Tribunals

International criminal tribunals have also exercised jurisdiction over international crimes.

Important examples include:

• International Criminal Tribunal for the former Yugoslavia (ICTY);
• International Criminal Tribunal for Rwanda (ICTR).

These tribunals were created with specific mandates and jurisdictional frameworks.

International Criminal Tribunal for the Former Yugoslavia

The ICTY was established by the UN Security Council in 1993.

It exercised jurisdiction over serious violations of International Humanitarian Law committed in the territory of the former Yugoslavia.

Its work contributed significantly to the development of international criminal law concerning:

• war crimes;
• crimes against humanity;
• genocide;
• individual criminal responsibility.

International Criminal Tribunal for Rwanda

The ICTR was established by the UN Security Council in 1994.

It exercised jurisdiction over genocide and other serious violations of International Humanitarian Law committed during the 1994 Rwandan genocide.

It made important contributions to the jurisprudence on:

• genocide;
• crimes against humanity;
• individual responsibility;
• sexual violence as an international crime.

Hybrid Tribunals

Some international crimes have been prosecuted before hybrid or mixed tribunals combining international and domestic elements.

Examples include tribunals dealing with:

• Sierra Leone;
• Cambodia;
• Lebanon.

These institutions may combine:

• domestic law;
• international law;
• international judges;
• domestic judges.

Jurisdiction Over Genocide

Genocide is regulated principally by the Genocide Convention, 1948 and customary International Law.

Jurisdiction may arise through:

• territorial jurisdiction;
• nationality jurisdiction under applicable domestic law;
• treaty-based jurisdiction;
• universal jurisdiction where recognised by domestic law.

The Genocide Convention also provides a basis for disputes between States concerning the interpretation or application of the Convention to be submitted to the International Court of Justice.

The ICJ’s jurisdiction in such proceedings concerns State responsibility, which is distinct from the criminal jurisdiction of the ICC or national criminal courts over individuals.

Jurisdiction Over War Crimes

War crimes may be prosecuted under:

• domestic criminal law;
• Geneva Convention obligations;
• customary International Law;
• international criminal tribunals;
• the ICC framework.

The jurisdictional basis depends upon the relevant legal instrument and circumstances.

Jurisdiction Over Crimes Against Humanity

Crimes against humanity may be prosecuted through:

• domestic courts;
• international tribunals;
• the ICC;
• national courts exercising broader extraterritorial jurisdiction where permitted.

Unlike genocide and war crimes, there is no comprehensive standalone global treaty equivalent to the Genocide Convention establishing a single universal jurisdictional framework for crimes against humanity.

Jurisdiction Over Aggression

The crime of aggression has a specific jurisdictional framework under the Rome Statute.

The ICC’s jurisdiction over aggression is subject to additional conditions concerning:

• the States involved;
• jurisdictional acceptance;
• Security Council action;
• amendments to the Rome Statute.

Therefore, aggression should not simply be treated as having the same jurisdictional rules as genocide or war crimes.

Immunity and International Crimes

A major issue is whether official status protects an individual from prosecution for international crimes.

Before international criminal tribunals, official capacity generally does not prevent individual criminal responsibility.

Article 27 of the Rome Statute provides that official capacity does not exempt a person from criminal responsibility before the ICC.

However, the relationship between State immunity, personal immunity before foreign national courts and international criminal jurisdiction is complex.

Arrest Warrant Case

In Arrest Warrant of 11 April 2000 (DRC v. Belgium), 2002, the ICJ considered the immunity of an incumbent Foreign Minister before foreign national courts.

The case demonstrates that the rules concerning immunity before foreign domestic courts must be distinguished from the rules governing international criminal tribunals.

Pinochet Proceedings

The Pinochet proceedings in the United Kingdom concerned questions relating to torture, extradition and immunity.

The proceedings became an important development in the international discussion concerning accountability for serious international crimes and the limits of immunity for former heads of State.

Jurisdiction and Extradition

Extradition is particularly important where an alleged international criminal is located in a State different from the State seeking prosecution.

A State may:

• prosecute domestically;
• extradite the person;
• cooperate with an international tribunal;
• provide mutual legal assistance.

The applicable treaty and domestic law determine the precise procedure.

Jurisdiction and Evidence

International crime investigations frequently involve evidence located in several countries.

Effective prosecution may require:

• witness testimony;
• documentary evidence;
• forensic evidence;
• digital evidence;
• financial records;
• satellite or photographic evidence.

Mutual legal assistance therefore plays an important role.

Concurrent Jurisdiction

International crimes can generate several competing jurisdictional claims.

For example:

Crime committed in State A

Offender is national of State B

Victims are nationals of State C

Offender later found in State D

Possible jurisdictional bases include:

• State A → territorial;
• State B → nationality;
• State C → passive personality;
• State D → universal jurisdiction, where applicable.

Forum Selection

When several States have jurisdiction, practical questions arise concerning the most appropriate forum.

Relevant considerations may include:

• location of evidence;
• location of victims;
• presence of accused;
• ability of the State to conduct a fair trial;
• seriousness of the offence;
• existing proceedings;
• international obligations.

Ne Bis in Idem

The principle of ne bis in idem protects against being tried or punished twice for the same conduct where the applicable legal framework recognises the principle.

The Rome Statute contains specific provisions addressing this issue.

It is particularly important where:

• national proceedings;
• ICC proceedings;
• other international tribunal proceedings

may overlap.

State Responsibility vs Individual Criminal Responsibility

This distinction is essential.

State Responsibility

Concerns whether a State has committed an internationally wrongful act.

Individual Criminal Responsibility

Concerns whether an individual is criminally responsible for an international crime.

For example:

State responsibility → ICJ

Individual criminal responsibility → National criminal courts / ICC / international criminal tribunals

The two forms of responsibility can arise from the same factual situation.

ICJ vs ICC

The International Court of Justice and International Criminal Court have different functions. ICJ ICC Decides disputes between States Prosecutes individuals Advisory opinions Criminal trials State responsibility Individual criminal responsibility Based on consent/jurisdictional rules applicable to States Rome Statute jurisdiction Not a criminal court International criminal court

Common Confusions

Does every State automatically have universal jurisdiction over every international crime?

No. The precise jurisdictional basis depends upon customary International Law, treaties and domestic legislation.

Can the ICC prosecute States?

No. The ICC prosecutes individuals.

Can the ICJ prosecute individuals?

No. The ICJ deals primarily with disputes between States and advisory opinions.

Does official position automatically protect someone from prosecution?

No. Before international criminal tribunals, official capacity generally does not eliminate individual criminal responsibility.

Is universal jurisdiction the only basis for international crimes?

No. Territorial, nationality, treaty-based and other jurisdictional bases may apply.

Can several States prosecute the same international crime?

Yes. International crimes can create concurrent jurisdiction.

Does ICC jurisdiction automatically apply to every State?

No. ICC jurisdiction is governed by the Rome Statute and its specific jurisdictional mechanisms.

What is complementarity?

The principle that the ICC is complementary to national criminal jurisdictions rather than a replacement for them.

Topic at a Glance

Basis Connection Territorial Crime committed within State Nationality Offender is national Passive personality Victim is national Protective Vital State interests threatened Universal Certain serious crimes Treaty-based Jurisdiction created/required by treaty ICC Rome Statute jurisdiction Security Council referral Chapter VII referral to ICC State referral State Party refers situation Complementarity ICC acts subject to national proceedings framework

Quick Revision

• Jurisdiction over international crimes concerns the authority to investigate, prosecute and adjudicate serious international offences.
• Major international crimes include:
  • genocide;
  • crimes against humanity;
  • war crimes;
  • aggression under the applicable Rome Statute framework.
• Jurisdiction may arise through:
  • territory;
  • nationality;
  • passive personality;
  • protection of vital interests;
  • universal jurisdiction;
  • treaty obligations;
  • international criminal tribunals.
• Universal jurisdiction is particularly important but is not automatically available for every international crime in every State.
• The ICC exercises jurisdiction over individuals under the Rome Statute.
• ICC jurisdiction may arise through:
  • territorial connection;
  • nationality;
  • State Party referral;
  • Security Council referral;
  • other Rome Statute mechanisms.
• Complementarity means national courts have the primary role, subject to the ICC’s admissibility framework.
• International criminal tribunals such as the ICTY and ICTR have made major contributions to international criminal law.
• Official capacity does not generally eliminate individual criminal responsibility before international criminal tribunals.
• Arrest Warrant demonstrates the importance of distinguishing jurisdiction from immunity.
• ICJ = State responsibility/disputes between States
• ICC = Individual criminal responsibility
• The essential principle is:

International crimes may be prosecuted on the basis of territorial, nationality, treaty-based, universal or international institutional jurisdiction, subject to the specific rules governing the relevant crime and forum.

Conclusion

Jurisdiction over international crimes is a complex area in which national and international jurisdiction overlap. Serious crimes such as genocide, crimes against humanity, war crimes and aggression may give rise to jurisdiction under several different legal bases. The territorial State ordinarily has the strongest connection, while nationality, passive personality, protective and universal jurisdiction can provide additional bases where recognised by International Law. Treaties such as the Genocide Convention, Geneva Conventions and Convention Against Torture establish important jurisdictional obligations in specific areas. At the international level, the ICC exercises jurisdiction over individuals under the Rome Statute, while tribunals such as the ICTY and ICTR have historically prosecuted international crimes under specific mandates. The principle of complementarity ensures that the ICC does not simply replace national criminal justice systems. At the same time, questions of immunity, extradition, concurrent jurisdiction and ne bis in idem can significantly affect the exercise of jurisdiction. Ultimately, the law seeks to ensure that perpetrators of the gravest international crimes cannot easily escape accountability merely by crossing international borders, while preserving the principles of State sovereignty, due process and the distinct jurisdictional roles of national and international courts.