Jordan J. Paust (University of Houston Law Center) has posted The International Criminal Court Does Not Have Complete Jurisdiction Over Customary Crimes Against Humanity and War Crimes (John Marshall Law Review, Vol. 43, 2010) on SSRN. Here is the abstract:
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The International Criminal Court does not have jurisdiction over all international crimes and it is understood that definitions or lists of crimes that are within the jurisdiction of the ICC are not meant to be exclusive or to limit in any way the customary definitions of crimes against humanity and war crimes or the reach more generally of customary international law. Parts II and III of this article provide significant detail with respect to differences between crimes against humanity and war crimes covered under the Statute of the ICC and those covered under the broader reach of customary international law. These differences are important for several reasons. For example, if future efforts are made to create a general or regional multilateral treaty proscribing crimes against humanity, the significant limits with respect to crimes against humanity set forth in Article 7 of the Statute of the ICC should not simply be copied. The same point pertains with respect to national legislation that attempts to cover all crimes against humanity and/or all war crimes under dynamic customary international law.
