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Response: The ICC, Pre-Existing Jurisdictional Treaty Regimes, and the Limits of the Nemo Dat Quod Non Habet Doctrine—A Reply to Michael Newton

Posted by on Thursday, August 25, 2016 in Articles, Blog, Vol. 49 No. 2, Volume 49.

It is a pleasure and a privilege to provide a few reflections on Michael Newton’s thought-provoking essay on “How the ICC Threatens Treaty Norms.” His article marks an important piece of scholarship. It reflects significant concerns about the reach and function of the International Criminal Court (ICC) that merit further attention and explanation in ICC practice. Newton makes a provocative argument. He argues that the ICC might undermine sovereign law enforcement efforts and exceed its powers if it exercises jurisdiction over American forces in Afghanistan or Israeli offenses in the West Bank or the Gaza Strip. This argument is not entirely new. It is part of a broader strand of critique that has been voiced against the Court since the entry into force of the Rome Statute. I approach these critiques from a slightly different angle. I would argue that the type of “threats” that he formulates are a sign that the ICC becomes more effective, and that it functions, as it is supposed to work— namely as a system of accountability that induces pressures to investigate and prosecute core crimes.


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