Establishment of jurisdiction

Without prejudice to the jurisdiction of an international criminal court, each State Party shall take such measures as may be necessary to establish its jurisdiction over the crimes set out in articles 17, 18, 19 and 20, irrespective of where or by whom those crimes were committed. Jurisdiction over the crime set out in article 16 shall rest with an international criminal court. However, a State referred to in article 16 is not precluded from trying its nationals for the crime set out in that article.

Commentary

(1) Article 8 is the first in a series of articles contained in part one which address procedural and jurisdictional issues relating to the implementation of the Code. In this regard, article 8 addresses as a preliminary matter the establishment of the jurisdiction of a court to determine the question of the responsibility and, where appropriate, the punishment of an individual for a crime covered by the Code by applying the principles of individual criminal responsibility and punishment contained in articles 2 to 7 of part one in relation to the definitions of the crimes set out in articles 16 to 20 of part two.

(2) Article 8 establishes two separate jurisdictional regimes: one for the crimes set out in articles 17 to 20 and another for the crime set out in article 16. The first regime provides for the concurrent jurisdiction of national courts and an international criminal court for the crimes set out in articles 17 to 20, namely, the crime of genocide, crimes against humanity, crimes against United Nations and associated personnel and war crimes. The second regime provides for the exclusive jurisdiction of an international criminal court with respect to the crime of aggression set out in article 16 subject to a limited exception.