Document Type

Article

Disciplines

International Law

Abstract

This article proposes significant, yet realistic, enhancements to the proposed court's jurisdictional scheme that could vastly increase its usefulness without undermining valid national interests. The proposed court could exercise jurisdiction over certain serious international crimes provided that the affected states have filed declarations accepting the court's jurisdiction over the crime. The proposal assumes that states would file declarations prospectively accepting the court's jurisdiction. In theory, this would set up an international criminal justice system that would operate without requiring any further state consent. However, states also wish to reserve the right to try international criminals in their own courts. The proposal, therefore, contains numerous provisions intended to permit states to retain primary jurisdiction. This article concludes that the concerns over protecting state interests in prosecuting international crimes have seriously distorted the drafting of the Statute. To reduce the demand for unnecessary limitations on the court's jurisdiction, this article recommends that the court should be designed with the assumption that states will consent to jurisdiction on a case-bycase basis. This would permit elimination of many of the arbitrary jurisdictional restrictions that have been proposed. This article also urges that the Statute establish a court that is flexible enough to deal with the diverse situations that may arise. It recommends expanding the court's jurisdiction to encompass virtually any international crime that states refer to the court. In addition, it refutes the notion that national judicial systems are capable of dealing adequately with crimes arising from armed conflict-war crimes, genocide, and crimes against humanity-and recommends that the international court have primary jurisdiction over such crimes. Finally, this article recommends that the Statute allow for growth in the size of the court as the need arises.

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