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49 Vand. J. Transnat'l L. 371 (2016)
How the International Criminal Court Threatens Treaty Norms

handle is hein.journals/vantl49 and id is 387 raw text is: 

How the International Criminal

Court Threatens Treaty Norms

                        Michael A. Newton*


        This Article demonstrates the disadvantages of permitting
   a supranational institution like the International Criminal
   Court   (ICC)  to  aggrandize   its  authority  by  overriding
   agreements between sovereign states. The Court's constitutive
   power derives from a multilateral treaty designed to augment
   sovereign enforcement efforts rather than annul them. Treaty
   negotiators expressly rejected efforts to confer jurisdiction to the
   ICC based on its aspiration to advance universal values or a
   self-justifying teleological impulse to bring perpetrators to
   justice. Rather, its jurisdiction derives solely from the delegation
   by States Parties of their own sovereign prerogatives. In
   accordance with the ancient maxim nemo plus iuris transferre
   potest quam ipse habet, states cannot transfer jurisdictional
   authority to the supranational court that they themselves do not
   possess at the time of the alleged offenses. Upon ratification of
   the Rome Statute, both Afghanistan and Palestine conveyed
   jurisdiction to the Court, but the scope of that delegation is
   limited by their preexisting treaty-based constraints. American
   forces and Israelis remain subject to the exclusive criminal
   jurisdiction of their own states for criminal offenses committed
   on the territory covered by those binding bilateral agreements so
   long as those treaties remain applicable. Hence, the Rome
   Statute by its own terms does not automatically extend
   territorial jurisdiction over American forces in Afghanistan or
   over Israeli citizens suspected of offenses in the Occupied
   Territory of the West Bank or in the Gaza Strip. Yet, the Office
   of  the  Prosecutor  uncritically accepts   the premise   that
   ratification of the multilateral treaty   conveyed  indivisible
   territorial jurisdiction. The ICC is not empowered to sweep
   aside binding bilateral agreements between sovereign states. By

   * Professor of the Practice of Law, Vanderbilt University Law School,
http://law.vanderbilt.edu/bio/michael-newton. The author is deeply appreciative to
Ingrid Wuerth, Dapo Akande, Kevin Stack, Ziv Bohrer, Fabrizio Marrella, Larry
Johnson, Catherine Deane, Jim Finkel, Peter Robinson, Melinda Taylor, Bill Lietzau,
and the participants in the ASIL International Criminal Law Interest Group Workshop
sponsored by the NYU School of Law for helpful comments and suggestions. Any errors
or oversights remain solely attributable to the author.

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