Anushree Jagnania | May 7, 2026

The International Criminal Court (ICC) is tasked with investigating and prosecuting individuals accused of the most serious crimes of concern to the international community, including genocide, war crimes, crimes against humanity, and the crime of aggression. These offences, which constitute violations of jus cogens norms, are deemed so reprehensible that they not only harm direct victims but also shock the conscience of humanity at large. As such, they engage a broader international interest, giving rise to the principle that all states have both a legal and moral stake in preventing and punishing such acts. This principle underpins the doctrine of universal jurisdiction, enabling states to prosecute perpetrators of these crimes found on their territory, regardless of where the crimes were committed or the nationality of the accused or the victims.

It can be inferred from Article 12 of the Rome Statute that the ICC’s jurisdiction is based on the principle of consent. Even if the ICC acquires jurisdiction through the United Nations Security Council (UNSC), it is only because States have agreed to follow UNSC Resolutions and consider them binding. Moreover, the ICC operates on the concept of nemo dat quod non habet or ‘delegated jurisdiction’, which establishes that a State must have criminal jurisdiction itself to confer it. The Pre-Trial Chamber in of the Bangladesh/Myanmar asserted that jurisdiction pursuant to Article 12(2)(a) can be exercised in the same circumstances that States Parties would be allowed to assert jurisdiction over such crimes under their legal systems, within the confines imposed by international law (Para. 70).

Thus, it can also be inferred from this Article that States, if they have jurisdiction to try a certain crime, they may delegate such jurisdiction to the ICC. Since all states have universal jurisdiction to try the crimes that the ICC tries, this can be interpreted to meant that such jurisdiction could be delegated to the ICC. 

However, interestingly, the ICC does not exercise universal jurisdiction, despite the fact that the states which have delegated jurisdiction can exercise universal jurisdiction. 

Exploring ‘Universal Jurisdiction’ through the Lens of Travaux Preparatoires 

Travaux préparatoires refers to the documentary record of the negotiations, discussions, and drafting processes that lead to the final text of a treaty. According to Article 32 of the Vienna Convention on the Law of Treaties (VCLT), these documents can be used to supplement the interpretation of a treaty.

The German delegation proposed that in Article 9(1) the ICC should have the same capacity that contracting States have, and thus, be able to prosecute crimes based on universal jurisdiction. Central to this proposal was the view that limiting the potential of the ICC by requiring some form of State consent beyond ratification would detract from the effectiveness of the Court and even the rationale and philosophical underpinnings of it.  

This proposal was supported by some delegations like the Czech Republic, Ecuador, Albania and Belgium, among others, with the understanding that having such jurisdiction would eliminate legal loopholes that would entail irreparable violations of jus cogens norms if consent of States was absent. Importantly, the proposal emphasised that Article 17 of the Rome Statute on complementarity would have followed this reasoning. Thus, the ICC would exercise jurisdiction only when a state was unwilling or unable to prosecute and the primary responsibility of States to prosecute the listed crimes, nationally, would remain.

However, this idea quickly met stiff opposition from numerous states. States like the United States strongly objected to an ICC empowered with unrestricted global reach, as they insisted that the ICC would have no jurisdiction over the nationals of non-party States. It was argued that to do so would violate Article 34 of the 1969 VCLT which states that treaties cannot be binding on non-party third States. 

The compromise reached showcases that the drafters found universal jurisdiction too audacious, and preferred the consent-based framework, with the Statute combining State acceptance of jurisdiction with preconditions for the exercise of jurisdiction by the ICC. 

The Question of Delegation of Universal Jurisdiction

If Article 12 of the Rome Statute operates on the premise of nemo dat quod non habet, then why are States unable to delegate universal jurisdiction to the ICC? 

As observed through numerous cases and reading of Article 12 of the Rome Statute itself, the states delegate territorial and nationality jurisdiction to the ICC. However, the question of whether the states can or even should delegate universal jurisdiction raises several questions. First, whether delegated universal jurisdiction would entail better results for a body like ICC. Second, and more importantly, whether universal jurisdiction as exercised by States in their individual capacities would entail different consequences if the same is exercised by a body like ICC.

Delegated universal jurisdiction, at first glance, seems alluring because it promises fewer legal loopholes, with lesser dependence on state consent, thus fewer jurisdictional gaps. The primary line of thought comes from an aim to remove the political suppositions that exist even when the ICC is considered objective. Non-compliance proceedings against Request of Arrest or even indicting heads of state and government officials are generally more common against African and so-called ‘third-world’ countries than more developed and politically stronger nations. Therefore, exercising universal jurisdiction, rather than consent-based jurisdiction that may be revoked at any time, seems like significantly a more appropriate form of jurisdiction, particularly when the court is tasked with addressing grave violations of human rights. Moreover, delegated universal jurisdiction connects to the more general institutional logic of delegation: states create courts to solve commitment and enforcement problems that are hard to address unilaterally.

However, such delegated universal jurisdiction would not be without its flaws. The subject-matter jurisdiction of the ICC deals with a number of crimes which are not subject to universal jurisdiction. This includes certain violations of Protocol I to the Geneva Conventions of 1949, such as conscription of child soldiers, which is placed within the jurisdiction of the ICC but not subject to universal jurisdiction of states. Thus, a delegated universal jurisdiction over non-party nationals would not account for jurisdiction over some of the crimes within the jurisdiction of the court  While in a utopian world, universal jurisdiction would be the manner in which courts attend such grave violations of human rights, irrespective of the political influence, universal jurisdiction would lead to several issues would have to be addressed.

Moreover, when States exercise universal jurisdiction, the national courts adjudicate matters. Thus, the consequences of a verdict would have significantly less repercussions as it is only a verdict passed by a sovereign equal. This means that debates regarding political underpinnings constantly remain, and include arguments about constraints such as local prosecutorial discretion, evidentiary rules, immunity doctrine and diplomatic considerations. 

However, a guilty verdict by an international penal tribunal, especially the ICC, would be qualitatively different. The ICC is a body which has vertical relations to the international justice system, and thus, derives its authority to adjudicate from the collective will of the international community rather than the procedural rules of a single State. A disputed determination by the ICC would not be a disagreement among sovereign equals but rather an institutionalised statement that would be received by a much broader audience with a stronger claim to impartiality and validity.

Therefore, delegated universal jurisdiction to an international court would be significantly different, and thus, a state’s acquiescence to universal jurisdiction at the inter-state level should not be equated with consent to its exercise by an international judicial institution.

Conclusion

The decision to withhold universal jurisdiction from the ICC remains, a double-edged sword. It has preserved a measure of comfort for states worried about unchecked international power. Moreover, it must be remembered that if not for the selection of consent over universal jurisdiction by the Preparatory Committee in 1998, the ratifications to the treaty would have fallen drastically. If the Court were automatically bound through universal jurisdiction, little incentives remained for the States to ratify the treaty at all. However, consent-based jurisdiction has also left victims of atrocities in certain parts of the world without recourse to justice, solely due to jurisdictional technicalities. The moral imperative that “no atrocity should go unpunished” runs up against the reality that the ICC cannot act without a state’s consent or a politicised U.N. referral.

The ICC’s experience illustrates a core truth of international law, that is, progress often comes by degree and compromise. The absence of universal jurisdiction in the ICC is a compromise that reflects the world as it is, while the ICC’s very existence reflects the world we aspire to be.

The challenge going forward is finding ways to close accountability gaps without unravelling the delicate consensus that allows an international court to function. Until then, universal jurisdiction remains a principle that states may exercise individually or delegate in part, but not yet an authority they have fully entrusted to the ICC.