From Nuremberg To Rome: Consent, Jus Cogens, And The Retreat Of Universal Criminal Jurisdiction
- IJLLR Journal
- 31 minutes ago
- 2 min read
Sahil Naeem, Department of Law, University of Peshawar.
Orcid Id: 0009-0006-2577-1030
Jamal Hussain, Department of Law, University of Peshawar.
Abdurehman. Department of Law, University of Peshawar.
ABSTRACT
This article interrogates the structural tension between the universal prohibition of jus cogens crimes and the consent-based jurisdictional framework of the International Criminal Court. Taking the Nuremberg Tribunal as a doctrinal baseline, it argues that the foundational premise of international criminal law lies in the inherent accountability of individuals for crimes that offend the conscience of humanity, independent of the consent of the offending state. By contrast, the Rome Statute conditions the exercise of jurisdiction primarily on territorial, nationality, or Security Council predicates, thereby reintroducing sovereignty as a procedural gatekeeper to the enforcement of peremptory norms.
Through a hierarchical analysis of jus cogens and obligations erga omnes, supported by the jurisprudence of the International Court of Justice and contemporary theories of constitutionalization, the article demonstrates how the ICC’s consent-centric design produces a disjunction between the universality of substantive prohibitions and the conditionality of their enforcement. This disjunction is shown to generate structural impunity gaps, particularly for powerful non-party states, and to expose the Court to political pressures that erode both deterrence and institutional legitimacy.
The article further engages counterarguments grounded in sovereignty, realism, and systemic stability, acknowledging the political constraints that shaped the Rome Statute while rejecting the view that procedural consent can coherently subordinate non-derogable norms. It concludes by advancing pragmatic doctrinal pathways for realigning enforcement with normative hierarchy, including strengthened domestic universal jurisdiction, an assertive reinterpretation of complementarity through a jus cogens lens, and targeted institutional reforms. In doing so, the article reclaims Nuremberg’s enduring premise that the authority of international criminal law rests not on the will of states, but on the legal supremacy of norms that bind power itself.
Keywords: International Criminal Court (ICC); jus cogens; universal jurisdiction; state consent; international legal hierarchy
