This article analyzes the validity of the U.S. argument against the ICC's jurisdiction over the nationals of non-party states in the context of historic precedent and the principles underlying international criminal jurisdiction, and demonstrates that it is not the jurisdiction of the ICC over the nationals of non- party states, but the U.S. government's legal argument, which rests on shaky foundations. The article also highlights the potential unintended repercussions of the current U.S. legal position. This analysis could have a substantial bearing on the approach the United States takes to the Rome Statute, for it indicates that the United States actually preserves very little by remaining outside the ICC treaty regime, while the arguments the United States has marshalled against the ICC have the potential of undermining important U.S. law enforcement interests. If this is the case, the best way to protect the United States from the specter of indictment of U.S. personnel by a potentially politicized tribunal" is not to assume the role of hostile outsider, but rather to sign the Rome Treaty, to play an influential role in the selection of the Court's judges and prosecutor, and then provide U.S. personnel to work in the Office of the Prosecutor, as the United States has so successfully done with respect to the Yugoslavia War Crimes Tribunal."
Place of Original Publication
Law and Contemporary Problems
64 Law & Contemporary Problems 67 (2001)
Scharf, Michael P., "The ICC's Jurisdiction Over the Nationals of Non-Party States: A Critique of the U.S. Position" (2001). Faculty Publications. 257.