Mr. Prosecutor, the matters before us today are interesting, important and difficult. But may I submit to you that they are really more interesting today as academic debates in a journal or forum. They are difficult primarily for a political body such as the UN Security Council, or a policy-making body, such as the Assembly of States Parties. They are less difficult for a prosecutor of a criminal court whose discretion is limited in such matters to the law as it is, as it was when the alleged crimes took place.
Very briefly I will list three reasons why the OTP’s decision here is actually relatively clear.
I. The Treaty of Rome and the ICC are State-Based, with their Jurisdictional Provisions Carefully Negotiated and Precisely Stated
I know there are those who believe the state-based underpinnings of international law or too limiting, even anachronistic, and need to be changed. They argue, as one paper asserts here, that the court should not be limited by the literal meaning of a word like “state,” that the Court is free to make up its own meaning based on practical realities. Another urges a so-called teleological approach where everything is defined by the ultimate purposes of the treaty.
But first, every account of the negotiation of the Rome Treaty—whether by the founding president of the Court, or one of its distinguished judges, or by scholars and observers—agrees that the jurisdictional aspects of this Court were the most hotly debated topics in Rome. Some wanted a court of very limited jurisdiction while others sought an expansive court of universal jurisdiction. In the end, Article 12, with its clear limitation to states, was part of that elaborate negotiation and compromise, one not subject to redefinition by the OTP or even the Court itself.