Jurisdiction of the International Criminal Court in Facing the Challenge of the Accused's Dual Nationality; With an Emphasis on the North Korean Leader

According to the statute of the International Criminal Court (ICC), one of the cases of jurisdiction of the ICC as a judicial court that tries international criminals is when the accused is a national of one of the member states of the Court. This is while the statute of the Court does not provide a solution to establish the nationality of the accused. This issue does not pose a problem for those of single nationality, but, considering the increased number of people with dual nationality in the world, this issue reveals the shortcoming of the statute when an accused has dual nationality with one of the member states and a non-member state of the Court. Due to the fact that non-member states of the Court are against the trial of their nationals in this court, the manner of determining the jurisdiction of the Court to try people of two or more nationalities has legal importance. The importance of this discussion was augmented by the proposal to prosecute the leader of North Korea in the ICC (despite the non-membership of this state) by some non-governmental organizations relying on his South Korean nationality (a member state of the Court) in 2016. This article seeks to answer the question that what is the basis of the Court's performance in order to establish its jurisdiction in facing people of dual nationality, one of whose governments is a member of the Court and the other is not? In this article, by using library sources and an analytical method, the author proves that despite the silence of the ICC statute, the Court can, according to the approaches that exist in international law to establish nationality, acts in a manner that prevents being unpunished, as well as with respecting the sovereignty of non-member states, prevents the prosecution of their nationals without providing strong legal evidence.