A Response to the American View as Presented by Ruth Wedgwood

Posted: 29 Feb 2008

See all articles by Gerhard Hafner

Gerhard Hafner

University of Vienna - Faculty of Law

Jonathan Huston

New York University School of Law

Anne Rübesame

New York University School of Law

Kristen Boon

Seton Hall University - School of Law

Abstract

In her article in this issue Ruth Wedgwood identifies several features of the Statute of the International Criminal Court that raise American concerns. Although these concerns may have political bearing, the Statute provisions are widely within the scope of existing international law. Explicitly allowing amnesties as a ground for denying surrender of a person to the Court would run counter to the need to avoid impunity for the crimes in question, given their nature, the international concern they merit and their existing legal status. The Statute includes clauses that allow the Court to discontinue prosecution in the general interest of justice. Amnesties may be a relevant factor in such a decision. The Security Council has a significant right to refer cases to the Court, as well as the power to suspend a prosecution. The Statute allows for indefinite renewal of the suspension period. The ICC does not exercise universal jurisdiction. Its jurisdiction is based squarely on traditional modes of jurisdiction exercised by states. There is no principle in international law that prohibits states from conferring their sovereign jurisdiction to an international entity. Problems of pacta tertiis do not arise, since the Statute does not impose legal obligations on non-state parties. The language in the Statute regarding direct and indirect transfer is a valid interpretation of the Geneva Conventions. Additionally, the Statute must be interpreted according to governing provisions of international law, including the Geneva Conventions themselves. There are several provisions in the Statute which deal with non-compliance with requests of the ICC for cooperation. Further provisions will be elaborated by the Assembly of States Parties.

Suggested Citation

Hafner, Gerhard and Huston, Jonathan and Rübesame, Anne and Boon, Kristen E., A Response to the American View as Presented by Ruth Wedgwood. European Journal of International Law, Vol. 10, pp. 108-123, 1999, Available at SSRN: https://ssrn.com/abstract=803710

Gerhard Hafner (Contact Author)

University of Vienna - Faculty of Law ( email )

Schottenbastei 10-16
Vienna, A-1010
Austria

Jonathan Huston (Contact Author)

New York University School of Law

40 Washington Square South
New York, NY 10012-1099
United States

Anne Rübesame (Contact Author)

New York University School of Law

40 Washington Square South
New York, NY 10012-1099
United States

Kristen E. Boon (Contact Author)

Seton Hall University - School of Law ( email )

One Newark Center
Newark, NJ 07102
United States

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