If the ICC can prosecute nationals of non-party states, then the principles of the Rome Statute violate a fundamental principle of general international law.
What principle of general international law is violated and to what extent does the Rome Statute violate this?
[...] According to her, consequences of universal jurisdiction would be fundamentally transformed by the delegation itself, consent to the universal jurisdiction of states should not be considered equivalent to consent to the delegation of universal jurisdiction to an international court” and consequences of universal jurisdiction exercised by a state are significantly different from the consequences of delegated universal jurisdiction exercised by an international court. For that reason, consent to states' exercise of universal jurisdiction is not equivalent to consent to the delegation of universal jurisdiction to an international court.” To her, customary international law does not give the right to states to delegate their universal jurisdiction. But she does not clearly states on what grounds it should be believed so. [...]
[...] According to Madeline Morris, allowing the International Criminal Court's jurisdiction over nationals of non-party states is contrary to the law of treaties. Moreover, prosecuting nationals from these non-party states would eventually impose obligations on these states. Here lies the violation of Article 34 of the Vienna Convention on the Law of Treaties. What she highlights is that there “will be cases in which those individuals are indicted for official acts taken pursuant to state policy and under state authority.” Therefore the state could be held liable for those acts while this state is not a party to the Rome Statute and has not accepted the International Criminal Court's jurisdiction over the specific matter. [...]
[...] The whole problem for the opponents to the International Criminal Court is that this tribunal may be able to prosecute nationals of non-party states. According to these authors, this would violate Article 34 of the Vienna Convention on the Law of Treaties since prosecuting these individuals without the consent of their state of nationality would in the end impose obligations on these states, eventually forcing them to abide by the principles set forth in the Rome Statue, which they have not ratified. [...]
[...] According to them, this would breach the principle that an international tribunal cannot exercise its jurisdiction in cases in which the rights or responsibilities of a non-consenting third party form the very subject matter of the dispute. [ . ] The ICC does not have the power to formally indict states or to make rulings on state responsibility but can only exercise its jurisdiction over individuals.” Clearly, the role of the International Criminal Court is to prosecute individuals, not “third states themselves.” But this does not amount to a violation of Article 34 or of the Monetary Gold principle since states don't have exclusive jurisdiction over their own nationals, and it only affects their interests, not their obligations. [...]
[...] Still, those non-members cannot pretend their interests are not affected by the treaty founding the European Union. These non-members states have to face and respect the European Union's derivative laws such as in the case of customs, or immigration rules. The creation of the European Union has changed the way non-member states deal with their diplomatic, political and economic relations with member-states. But none of these non-member states has complained about the European Union Treaty creating obligations for them too whereas they are not parties to the treaty and that it violates Article 34 of the Vienna Convention on the Law of Treaties according to which a treaty creates obligations only for the signatories. [...]
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