ABSTRACT
As it is currently legally constituted, the International Criminal Court has no jurisdiction over the world’s most important military powers - United States, China and Russia-for the most serious crimes that can be committed in the international system (unless their members commit the crimes on the territory of a state that has ratified the ICC). It is hard to see the restricted jurisdiction of the International Criminal Court as anything other than the bald placing of the most powerful members of the international political community above the law while the rest of the community remains subject to it. At the same time, one essential element of the legitimacy of the International Criminal Court is that it is founded on state consent. But this does not get the International Criminal Court entirely off the hook. I will argue that the circumscription of the jurisdiction of the court is arbitrary and in violation of fundamental norms of justice and that this threatens the legitimacy of the Court. We are facing a legitimacy dilemma between the need for state participation in the creation of international law and the requirements of the rule of law.
